         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs May 15, 2007

                CALVIN LEWIS HILL V. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Marshall County
                           No. 16837 Robert G. Crigler, Judge



                   No. M2006-00666-CCA-R3-PC - Filed on June 21, 2007



The Petitioner, Calvin Lewis Hill, was convicted of car jacking, theft of property valued over
$1000.00, and forgery, and his convictions were affirmed on direct appeal. He petitioned for post-
conviction relief claiming that he had received the ineffective assistance of counsel at trial. The
post-conviction court dismissed the post-conviction petition, and we affirm that judgment.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT ,
JR., and D. KELLY THOMAS, JR., JJ., joined.

Richard L. Tennent (on appeal), Nashville, Tennessee, and Jheri Beth Rich (at post-conviction relief
hearing), Lewisburg, Tennessee, for the Appellant, Calvin Lewis Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Charles Crawford, District Attorney General; Weakley E. Barnard, Assistant District Attorney
General, for the Appellee, State of Tennessee.



                                            OPINION

                                             I. Facts

       The facts of the case were stated on direct appeal as follows:

               Maysene Henson testified that, on May 29, 2003, she had a checking account
       at First Farmers & Merchants Bank. She said that she had a checkbook for that
       account that she kept in a purse in her car. Henson testified that, on May 29, 2003,
       she was driving her 1992 Chrysler New Yorker, worth between $1200.00 and
       $1500.00, attempting to find cardboard boxes in order to help her son move some
items. She said that she went to Tietgens Super Rama Market (“Market”) around 1
p.m. to look for boxes, and she pulled off the side of the road behind the store.
Henson said that she left her car running when she got out of her car and gathered
some boxes, and, as she was getting into her car, she was “shoved” aside by someone
behind her. She said that, after she was pushed out of the way, someone got into her
car, slammed the door, and drove away “real, real fast.” Henson said that she
suffered bruises as a result of being pushed away from her car. She identified the
person who took her car as a “black slender male with short hair,” and she said he
was “about 5'5" tall.” Henson said that her purse and billfold, which contained her
checkbook and $1.60 in cash, were in her car when it was taken.

         Henson testified that, shortly after the car was taken, a man she knew named
Tommy Allen stopped his car at a nearby stop sign and asked her what had happened.
She told him that her car had been taken, and he followed her car through the
Market’s parking lot and out of her sight. Henson testified that the Market’s manager
called the police. Henson testified that, shortly after the car was taken, she received
a call from an employee of her bank named Shannon Barker inquiring about some
checks, and she told Barker what had happened and not to cash any checks on her
account. She said that the police located her car, and, when they returned it to her the
following day, the front seat was “a little messy.” Henson said that when her billfold
was returned to her there was $1.60 in cash and six checks, numbers 1434 to 1439,
missing. One of the checks, number 1434, was “wadded up,” laying on the floor of
her car. She said that check number 1439 was filled out, dated May 29, 2003, and
made payable to “Calvin Hill” in the amount of $230.00. The check stated that it was
“for car work.” Henson said that she did not fill out or sign this check, and she did
not know anyone named Calvin Hill prior to this incident. Further, she did not owe
anyone named Calvin Hill any money for car work. Henson testified that, on the
back of the check was Calvin L. Hill’s signature, and she said that the Defendant’s
name was Calvin L. Hill. On cross-examination, Henson testified that she never saw
the man who took her car.

        Tommy Allen testified that on May 29, 2003, he was near the Market around
1:00 p.m., and he saw Henson, whom he had known for approximately thirty years.
He said that he was in his car, stopped at a stop sign, when he noticed Henson and
“a black guy” near the dumpster where the Market kept their discarded cardboard
boxes. As Henson looked like she was getting into her car, he noticed the man
“shove” her “back a little bit” and jump into her car and drive away. He said that
Henson called to him and said “Tommy, follow that car and bring my car back.”
Allen testified that he followed the car for some distance, but then he lost sight of the
car. He said that he then went back to the Market where the police were waiting for
him. On cross-examination, Allen testified that he was approximately twelve to
fifteen feet away from Henson when the man pushed her, and he was unable to
identify the man because he never saw his face.


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         Barry Hargrove, a sergeant with the City of Lewisburg Police Department,
testified that he located a car belonging to Henson on May 29, 2003, at around 2:50
p.m., after looking for it for approximately one hour. He said that, when he located
the car, which was approximately one mile from the Market, the front passenger seat
was in “disarray,” and the keys were on the floorboard.

         Daryl Birdsong, an officer with the City of Lewisburg Police Department,
testified that on May 29, 2003, he responded to a call about a carjacking behind the
Market at around 1:02 p.m. He said that he interviewed both Henson and Allen and
alerted police to watch for Henson’s car. He said that later that same day, at around
2:30 p.m., he responded to a call at the First Farmers & Merchants Bank, where he
arrested the Defendant. Mike Nance, an officer with the City of Lewisburg Police
Department, testified that, on May 29, 2003, he responded to a call at the First
Farmers & Merchants Bank, and he assisted in the Defendant’s arrest.

         Shannon Barker testified that she was an employee of First Farmers &
Merchants National Bank on May 29, 2003, where she was working as a teller at
around 1:30 p.m., when the Defendant came to cash a check on Maysene Henson’s
account. Barker testified that the legal line of the check contained misspellings and
was not written out correctly, so she told the Defendant that she could not cash this
check. She said that, a couple of minutes later, the Defendant came to her teller
station again with a different check attempting to cash it on Henson’s account. She
said that the check was still not written out properly. Barker testified that, at this
time, she began thinking that something was wrong, so she attempted unsuccessfully
to call Henson while the Defendant was standing there. She told the Defendant that
she could not cash his check, and he left. Barker said that, because she still suspected
that something was“amiss,” she again called Henson, and, after reaching her, she
learned about the circumstances leading up to the Defendant’s arrival at the bank.
She said that she then called and emailed the other branches of her bank to tell them
not to cash any checks on Henson’s account, and she told them to watch for a black
male attempting to cash a check on this account. Barker identified the bank
surveillance videotape recording, which showed the Defendant entering the bank,
standing at her teller station, leaving, and then returning a short time later. Barker
testified that check number 1439, which was admitted into evidence, was not the
same as either of the checks that the Defendant presented to her. On cross-
examination, Barker testified that she never saw who filled out these checks, and she
could not be sure that the Defendant filled out the checks.

       Shirley Bledsoe, an employee with First Farmers & Merchants Bank who
works at a different branch from Barker, testified that she was working as a teller on
May 29, 2003, when, at around 2:30 p.m., she received information from Barker to
watch for a black male attempting to cash a check on Henson’s account. She said


                                           3
that, a short time later, the Defendant came in and attempted to cash check number
1439, which was written out correctly in the amount of $230.00, on Henson’s
account. Bledsoe said that, at that time, she did not assume that the Defendant was
the man who took Henson’s checks, and she handed the check to her supervisor and
told the Defendant that her supervisor would have to call Henson. Bledsoe testified
that, during this time, another employee was calling the police, and the Defendant
stood at her teller station until the police arrived and placed him under arrest.
Bledsoe identified the bank’s surveillance videotape recording that showed the
Defendant entering the bank and coming to her teller station. On cross-examination,
Bledsoe testified that she did not see who filled out the check that the Defendant
attempted to cash.

        Danny Kirbo, a corrections officer at the Marshall County Jail, testified that
he took the Defendant’s palm prints on May 30, 2003, at Detective Whitsett’s
request, and those prints were admitted into evidence. Don Lombardy, a corrections
officer with the Marshall County Sheriff’s Office, testified that he took the
Defendant’s fingerprints. On cross-examination, both officers testified that it was
standard procedure for them to take the prints, but they did not know why the prints
were requested.

         James Whitsett, a detective with the Lewisburg City Police Department,
testified that, as part of his investigations, he has been trained to, and does “lift”
fingerprints from items. The detective testified that he was advised where Henson’s
car was located, and, after the car was taken to the police station, he photographed
the car, “lifted” fingerprints, and looked for other evidence in the car. The detective
said that he attempted, but was unable, to obtain fingerprints from Henson’s car.
Detective Whisett testified that he found Henson’s billfold in her car, and he
processed it for fingerprints. He said that he found fingerprints on the checkbook
register, the checkbook cover, and check number 1434, which was on the floor of the
car, and on the car itself. Detective Whitsett said that he found some prints that were
too large to be fingerprints on some of these items, so he asked Officer Kirbo to take
the Defendant’s palm prints. The detective sent the fingerprints found in the car,
along with the Defendant’s fingerprints, to the Tennessee Bureau of Investigation
(“TBI”) crime lab for analysis. On cross-examination, the detective testified that he
did not send Henson’s fingerprints to the TBI crime lab to be compared to those
fingerprints he found on the items in her car.

       David Hoover, a fingerprint examination expert with the TBI, testified that
he was only able to find one identifiable fingerprint from all of the items sent by
Detective Whitsett. He said that he identified the Defendant’s fingerprint on check
number 1434, and he identified the Defendant’s left palm print on the checkbook
cover. On cross-examination, Agent Hoover testified that he did not find any other
fingerprints on the checkbook cover, other than the palm print.


                                          4
                 The Defendant testified that on May 29, 2003, at around 1:00 p.m. he was at
         his apartment. He said that he was sitting in front of his apartment, waiting for his
         mailman to deliver his unemployment check, when a friend came down the street.
         He said that his friend presented a check to him for $230.00 and told him that, if he
         could get it cashed, he would get $200.00 and his friend would keep $30.00. The
         Defendant admitted, “I am guilty of trying to pass a forged instrument,” but denied
         that he “carjacked a woman.” The Defendant reiterated that he was not at the Market
         on the day of this incident.

                  On cross-examination, the Defendant said that his apartment was a thirty-five
         to forty minute walk from the Market, and he said that he did not own or have access
         to a car. The Defendant conceded that the videotape recording from the bank showed
         him entering the bank at 1:27 p.m. He said that he and the man who presented him
         with the check walked to the bank together, but the other man did not enter the bank
         with him, and, therefore, the other man was not on the bank’s videotape recording.
         The Defendant testified that the check for $230.00 was the only check that he had
         ever seen, so Barker must have been mistaken when she testified that he attempted
         to cash two other checks. The Defendant testified that he had never seen the man
         who presented him with the check prior to this incident, but he was a “black man.”
         He said that he attempted to give a description of this man to the detective, but the
         detective was angry and would not allow him to provide a description. The
         Defendant said that he was 5' 5" tall, which matched Henson’s description of him.
         The Defendant said that, when the man approached him with the check, all he saw
         was the check, he never saw the checkbook or the checkbook register, and he said
         that he never touched either of them. The Defendant asserted that the police planted
         his palm print on the checkbook register. The Defendant conceded that, when he was
         arrested he had a folded one dollar bill and eighty-four cents in his pockets. He said
         that he remembered Henson testifying that she had a folded one dollar bill and two
         quarters in her billfold when her car was taken.

         State v. Calvin Louis Hill,1 No. M2004-00597-CCA-R3-CD, 2005 WL 544710, at
         * 1-4 (Tenn. Crim. App., at Nashville, Mar. 8, 2003), perm. app. denied (June 27,
         2005).

        The Petitioner filed a pro se petition for post-conviction relief after his conviction, which was
amended by appointed counsel. The Petitioner alleged that he was denied effective assistance of
counsel because his trial counsel failed to adequately investigate whether the police had “planted”
the Petitioner’s fingerprints in the evidence relating to the crime. At the post-conviction hearing,
Petitioner’s counsel at trial, Mike Collins (“Counsel”), testified that he did not recall whether he


         1
          W e note that the spelling of the Petitioner’s middle name in his first appeal was “Louis,” but it appears as
“Lewis” in the record currently before us.

                                                           5
spoke with the detective about the Petitioner’s fingerprints at the Petitioner’s preliminary hearing.
The Petitioner told Counsel that the Detective Whitsett planted the Petitioner’s palm print in the
evidence relating to the crime. Counsel provided the following explanation as to why he did not
investigate whether someone had planted the Petitioner’s fingerprints in the evidence relating to the
crime:

       There would be no way to actually investigate whether someone actually had planted
       that. However, I think it is highly unlikely because the TBI agent matched that with
       some 20 something points of similarity which the FBI said, I believe, 12 is a very
       positive match. That was double what was needed. It was a good print. To my
       knowledge transferring a print is not something that is very easy to do. It is basically
       body oil from the hand or the finger.

Counsel instructed investigators to speak with witnesses in the case. At trial, the Petitioner told
Counsel about two witnesses, Bobby James Mosley and Dwayne T. Simmons, inmates at the
Marshall County Jail who could testify about Detective Whitesett’s tendency to plant fingerprints.
Counsel asked the trial court to call these men as witnesses and provided the trial court with a
summary of their expected testimony. The trial court refused to call these men as witnesses after
determining that their testimony was irrelevant and that the rules of evidence prohibited such
testimony. Counsel could not recall the specific rule of evidence upon which the trial court relied
when it decided to prohibit these men from testifying. Counsel did not recall speaking with the
Petitioner about these witnesses before the trial and did not recall the Petitioner ever requesting that
subpoenas be issued for the two jail inmates prior to the day trial began.

        The Petitioner testified that someone used a machine to take his fingerprints on the night he
was arrested. Three days after his arrest, someone claimed that the Petitioner’s arrest warrants and
fingerprints had been lost and that additional prints were needed. The Petitioner asserted that prints
taken from the victim’s car did not match his fingerprints, and then someone claimed to have lost
his fingerprints. The Petitioner testified that when someone took the next set his of fingerprints, that
individual claimed that the machine was broken and took the prints manually. The Petitioner
claimed that this individual took his fingerprints manually at Detective Whitsett’s request. After
someone took these additional prints from the Petitioner, someone found the Petitioner’s palm print
on the victim’s checkbook. The Petitioner asserted: “That was awfully strange to me after the fact
they requested that this manual print and my left hand palm print pops up inside a women’s purse.
I am right handed. It is just impossible.” The Petitioner testified that he told Counsel to subpoena
Bobby James Mosley and Dwayne T. Simmons before the trial began. The Petitioner denied
testifying about his fingerprints at trial.

        On cross-examination, the Petitioner acknowledged that, at trial, he asserted that the police
had planted his palm print on a checkbook. He acknowledged that the trial court denied Counsel’s
request to have Mosley and Simmons testify on behalf of the Petitioner and that these men could
have arrived at the trial within ten minutes had the trial court granted Counsel’s request. The
Petitioner acknowledged that he had no evidence that his fingerprints or palm prints had been


                                                   6
planted.

       The trial court concluded that the Defendant was not denied the effective assistance of
counsel with the following statement: “All I can do is decide the case based on the evidence before
me. I find that [Counsel] met the requirements of counsel based on the evidence before me and
required by Strickland versus Washington and will respectfully deny your petition.”

                                             II. Analysis

        On appeal, the Defendant contends that he was denied the effective assistance of counsel, and
the trial court erred when it dismissed his petition for post-conviction relief. Specifically, he
contends that counsel failed to adequately question the prosecution’s presentation of fingerprint
evidence.

        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
(2003). 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) (2003). Upon review,
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 judge, not the appellate 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 post-
conviction court’s factual findings are subject to a de novo review by this Court; however, we must
accord these factual findings a presumption of correctness, which can be overcome only when a
preponderance of the evidence is contrary to the post-conviction court’s factual findings. Fields v.
State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are
subject to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

        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.



                                                   7
Strickland v. Washington, 466 U.S. 668, 687 (1984); accord 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 (1984)).

        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. Finally, we note that a petitioner 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. House, 44 S.W.3d at 515
(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). 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.

        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). To satisfy the requirement of prejudice, a petitioner must show a reasonable
probability that, but for counsel’s unreasonable error, the fact finder would have had reasonable
doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must
be “sufficient to undermine confidence in the outcome.” Id. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).

        When a claim of ineffective assistance of counsel is predicated upon a failure to investigate,
the petitioner is obligated to show what a reasonable investigation would have revealed. Owens v.


                                                  8
State, 13 S.W.3d 745, 756 (Tenn. Crim. App. 1999). Trial counsel is under no duty to conduct
further investigation which would be futile or to file motions which are non-meritorious. Michael
H. Hart v. State, No. W2006-00783-CCA-R3-PC, 2007 WL 778827, at *5 (Tenn. Crim. App., at
Jackson, Mar. 15, 2007). The mere allegation that the trial counsel failed to act in some manner or
failed to provide a specific legal service does not equate to a finding of deficient performance. Id.
To establish ineffective assistance of counsel, as alleged, requires “clear and convincing proof” that
if counsel had performed as suggested, counsel’s efforts would have yielded favorable results for the
Petitioner. Id.

        The evidence does not preponderate against the findings of the post-conviction court. The
Petitioner argues that his trial counsel should have investigated his claims that Detective Whitsett
planted the Petitioner’s fingerprints in the evidence relating to the crime. First, we note that the
Petitioner has failed to establish what an investigation into the alleged planting of fingerprints would
have revealed. Besides his own self-serving testimony, the Petitioner presented no evidence at the
post-conviction hearing to support his allegations about the planted fingerprints. The Petitioner has
failed to establish that further investigation regarding whether the Petitioner’s fingerprints were
“planted” into evidence would have yielded favorable results for the Petitioner. In our opinion, the
record before us, without more, is inadequate to support a determination that trial counsel’s
investigation was constitutionally deficient. The Petitioner is not entitled to relief on this issue.

                                           III. Conclusion

       Based on the foregoing reasoning and authority, we affirm the trial court’s judgment.

                                                       ________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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