            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                              Assigned on Briefs November 6, 2007

                FREDDIE T. INMAN, JR. v. STATE OF TENNESSEE

                         Appeal from the Circuit Court for McNairy County
                              No. 1656     J. Weber McCraw, Judge



                     No. W2007-00687-CCA-R3-PC - Filed February 19, 2008


The petitioner, Freddie T. Inman, Jr., sought post-conviction relief from his conviction of theft of
property having a value of more than $1,000 but less than $10,000. The McNairy County Circuit
Court denied relief after an evidentiary hearing. On appeal, the petitioner argues that he received
ineffective assistance of counsel because trial counsel failed to subpoena and call three witnesses at
trial. We affirm the denial of post-conviction relief.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and J.C. MCLIN , JJ. joined.

James N. Adams, Corinth, Mississippi, for the appellant, Freddie T. Inman, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and
Bob G. Gray, Assistant District Attorney General; for the appellee, State of Tennessee.

                                                  OPINION

               The defendant was indicted for theft of property having a value of more than $1,000
but less than $10,000, see T.C.A. § 39-14-105(3) (2006), specifically truck mirrors and taillight
assemblies that he stole from his employer, Reitter & Schefenacker USA (“Schefenacker”), in
Selmer, Tennessee, between December, 2001 and April, 2002.1 He was convicted by a jury of the
offense, and on March 12, 2004, the trial court imposed a twelve-year sentence.

                 The following facts come from this court’s opinion on direct appeal:




        1
          W e cite to the 2006 volume of the Tennessee Code Annotated because there has been no change to § 39-14-
105(3) since the time of the offense.
                The State’s first witness, James Dunn, testified that he
operated Dunn’s Used Cars and Parts, a salvage yard, in Corinth,
Mississippi, between December 2001 and April 2002 but was
currently serving a sentence in the Corinth City Jail on a state
conviction for operating a “chop shop.” . . . . Dunn stated that he
bought truck mirrors and taillight assemblies “from a fellow telling
[him] that he was Freddie Inman.” The person who sold him the
automotive parts went by the name of “T.J. Inman” and was
accompanied by a “black guy.” The defendant first came to his shop
offering to sell the parts in December 2001, and Dunn bought
approximately twenty-five sets of mirrors and four or five taillights
for $500. A few weeks later, the defendant returned in a pickup
truck, and Dunn bought thirty to thirty-five pairs of mirrors for $300.
The defendant returned a third time with more mirrors and offered to
sell them for fifty cents each, but Dunn told the defendant he had all
he needed. . . . . Eventually, two men and a woman came to his
business and asked to buy mirrors. After looking at some mirrors, the
lady identified herself as “a Butler” and said she was from
Schefenacker and that the mirrors were stolen. Dunn told her she
could not take all of the mirrors that he had in stock but gave her one
pair for identification purposes. Later, Dunn called the sheriff's
department in Corinth who told him “to hold onto them until some
kind of law official did [sic] come and get them.” A few days later,
a city policeman came to the salvage yard and recovered sixty-four
pairs of mirrors and five taillight assemblies purportedly belonging to
Schefenacker. Dunn stated he believed he had bought sixty-five pairs
of mirrors and four or five taillight assemblies from the defendant,
and he had sold “two or three pair of mirrors.” On cross-
examination, Dunn stated that he could not “swear that this man here
[the defendant] and the one that come to the shop are the same
person,” as it had been almost three years since he bought the parts
from the defendant.

                Russell Haney, the owner of Highway 64 Motor
Company in Selmer, Tennessee, testified that he sells automobiles
and various truck accessories. He stated that between December
2001 and April 2002, he bought Chevrolet Silverado and Dodge truck
mirrors from the defendant. The defendant came to Haney’s business
“two to six times” selling mirrors, and Haney bought a total of fifty
sets of mirrors, for which he paid the defendant $15 to $20 per set.
Later, a man and a woman came to his shop, identifying themselves
as Schefenacker employees and the mirrors as company property.
Law enforcement officers subsequently advised Haney that the


                                  -2-
mirrors were stolen. The police recovered at least twenty-five sets of
mirrors from Haney’s business. On cross-examination, Haney
testified that the defendant told him the mirrors were scrap parts
which had been discarded by Schefenacker, and some of the mirrors
actually had scratches on them. He also had bought scrap parts in the
past from other Schefenacker employees. Haney identified the
defendant in court as the seller of the parts.

               Jason Rodotz, an employee of Schefenacker since
December 2000, testified that he was the warehouse supervisor from
October 2001 until October 2002. During that time, Schefenacker
operated two “off-site” warehouses, the “old Henco Furniture
warehouse” and the TRM building in Selmer. Rodotz supervised the
defendant at both warehouses, and the defendant worked “odd” and
“unusual” hours early in the mornings. Often, the defendant, who had
his own key, worked alone in the warehouses. Finished products,
including mirrors for Chevrolet and Dodge trucks, were stored at the
TRM warehouse, and the defendant was a material handler whose job
entailed, among other things, unloading trucks coming from the
manufacturing plant to the warehouse. Products damaged during
manufacture were placed in a scrap area in the plant to be torn down
and reclaimed or destroyed. Defective parts were not sent to the
warehouse, nor were they intentionally shipped to customers. In
addition, defective or damaged parts were not given to employees,
nor were they thrown away where others could access them.

               Between December 2001 and April 2002, the company
received numerous complaints from customers concerning orders
which were short of parts. Someone placed a “tip” in the employees
suggestion box as to where the missing products could be found, and
Rodotz later helped recover them. Rodotz stated that he never gave
the defendant permission to take parts from the warehouse or the
manufacturing plant.

               On cross-examination, Rodotz could not remember the
exact date he began supervising the defendant but recalled that the
defendant began helping transfer parts from the Henco building to the
new TRM building in January 2002. He did not recall the defendant
and a person named Glenn Jernigan assisting him in removing parts
left in the Henco warehouse during the transition. Rodotz
acknowledged that he testified at the preliminary hearing that there
may have been occasions when he told employees to throw things in
the dumpster but may not have followed up to make sure his orders


                                 -3-
were followed. He denied that the defendant ever said, “We’re
throwing these in the dumpster, can I just have them?” or that he
responded, “I don’t care; get rid of them.” Later, he testified that he
followed up on his orders to destroy damaged and scrap parts “ninety-
nine percent of the time.” On redirect, he said that the parts
recovered from Dunn’s and Haney’s businesses were new parts
manufactured “around April and May of 2002,” and new production
would not have been thrown into the dumpster.

                Donna Butler, former Director of Human Resources
at Schefenacker, testified that the company began receiving
complaints of shorted orders from customers in early 2002, and she
described the steps taken in the manufacturing plant to solve the
problem. She said that the company would “absolutely not” have
given away parts to employees or thrown them into the dumpsters,
especially in light of the demand from customers at the time.
Someone placed an anonymous tip in the employees’ suggestion box
indicating that missing parts could be found at Dunn’s in Corinth,
Mississippi. Butler telephoned Dunn and inquired about a certain
mirror, which Dunn said he had in stock. Butler said that was
“fishy,” as the mirror about which she inquired had just been placed
in production. They then went to Dunn’s business, where he
explained how he came into possession of the mirrors and told them
about Highway 64 Motor Company. In addition, Dunn gave a
description of the defendant and the vehicle he drove. Butler
contacted Investigator Roger Rickman of the Selmer Police
Department, and he accompanied them to Highway 64 Motor
Company, where they recovered more mirrors and Haney advised
them that the defendant had sold him the mirrors. Butler stated
neither she nor anyone else gave the defendant permission to take
parts from the company. On cross-examination, she stated that
damaged or scratched parts were never thrown in the dumpster but
were torn apart for refurbishing or recycling.

                Kenneth McDonald, a technical engineer and manager
at Schefenacker, testified [that the] . . . company was able to recover
between $5,500 and $5,600 worth of products from the two
businesses, and complaints from customers concerning shortages had
not been a problem since the defendant’s termination. At the time of
the thefts, the defendant, who had his own key to the warehouse,
loaded most of the trucks and pulled products in the warehouse for
shipping to customers. The recovered mirrors were newly produced
and contained “date, code and time stamps,” as well as “end-of-the-


                                 -4-
line signatures” indicating that the mirrors had passed final
inspection. McDonald did not give anyone permission to take
products from the warehouse, and no one had permission to toss the
“good currently produced mirrors into the dumpster.” On cross-
examination, he stated that he had no knowledge of customer
complaints concerning missing parts before December 2001. Any
parts damaged at the warehouse would have been returned to the
manufacturing plant for reclamation of usable parts and destruction
of unusable parts. He recalled that Rodotz, Quinn Jernigan, and a
[Mr. Inman] assisted in organizing the TRM warehouse when it
opened in mid-2001. However, he also stated that when products
were moved from the Henco warehouse to the TRM warehouse, none
of the products would have been thrown into dumpsters.

                Roger Rickman, a Selmer Police Department Criminal
Investigator, testified that Butler advised him of the “tip” in the
suggestion box as well as the results of their trip to Corinth,
Mississippi. Rickman went with the Schefenacker employees to
Highway 64 Motor Company and recovered the mirrors from Haney.
Two days later, he went to Dunn’s and recovered the remainder of the
mirrors. Based on his interviews with Dunn and Haney, he arrested
the defendant. After advising the defendant of his rights, Rickman
took a written and signed statement from the defendant, which he
read to the jury, with the defendant admitting to selling mirrors
belonging to Schefenacker . . . .

                Greg Galloway, testifying for the defense, stated that
he was a quality manager at Schefenacker. He recalled that the
defendant and his supervisor at the time, Darrell Ingel, had
approached him and asked if they could have a set of Chrysler doors
that had been used for testing, and he gave them the doors. Also,
there were times when employees asked for “a mirror or something”
for their cars and were given a scratched or damaged product.
Between December 2001 and April 2002, his “general thought” was
that some rejected materials were discarded in a dumpster at the
warehouse. However, on cross-examination, he stated that complete,
assembled mirror sets which were damaged were not thrown into the
dumpster but were disassembled and reused. At no time would a
complete assembly be thrown into the dumpster. He also stated that
the set of doors he gave the defendant was manufactured by Chrysler
and sent to Schefenacker for use with mirror tests, and he gave them
to the defendant only after the tests were completed . . . .



                                 -5-
State v. Freddie T. Inman, No. W2004-02371-CCA-R3-CD, silp op. at 2-12 (Tenn. Crim. App.,
Jackson, Mar. 30, 2005) (footnotes omitted). We affirmed the judgment of the trial court on March
30, 2005. Id at 34.

               The defendant filed a petition for post-conviction relief on April 10, 2006.2 An
evidentiary hearing was held on January 12, 2007, and the post-conviction court denied the petition
on January 29, 2007.

                The defendant’s original lead counsel was called to testify. Lead counsel testified that
before the trial, attempts to contact the defendant personally failed because “he would not make
himself available.” Lead counsel was aware that the defendant had witnesses he wanted to call at
trial, but she never received addresses to contact them. She communicated with the defendant
primarily through conversations with the defendant’s wife.

                 A “few days” before the original trial, lead counsel “finally obtained some addresses”
from the defendant for subpoenas, which were then issued “out of an abundance of caution.” Lead
counsel testified that she served a subpoena on Glenn Jernigan on February 18, 2004, the day before
the original trial date. A subpoena issued for Darrel Ingle on February 18, 2004, was not returned.
When the trial was reset for February 25, 2004, lead counsel issued new subpoenas for Mr. Jernigan
and Mr. Ingle on February 24, 2004, but did not serve them. When lead counsel asked for a
continuance due to the absence of Mr. Jernigan, the court refused because of the “lateness of the
subpoenas.”

                 Lead counsel testified that she contacted the potential witnesses for whom she had
phone numbers, but that “[a] lot of the problem was that a lot of the people that would have been
witnesses for [the defendant] were still employed at Schefenacker and feared for their employment.”
Additionally, lead counsel did not think the defendant could testify because of his twenty-one prior
felony convictions involving burglary and theft. Lead counsel believed Mr. Jernigan would have
been a good witness but did not think that he would have been able to convince the jury that the
defendant did not commit theft.

                 Lead counsel testified that she had no recollection of meeting with or subpoenaing
Kevin King but admitted it was possible given that the events took place three years before. Lead
counsel testified that at the end of the trial, Mr. King “came forward after the trial of the defendant
to state that [he], too, had been given parts while employed at Schefenacker.”

                Kevin King testified at the post-conviction hearing that he was at the trial and
informed lead counsel prior to the trial that Jason Rodotz told the defendant “if it’s in the dumpster
or out here, take it, it’s yours.” He testified that lead counsel replied, “Well, if we need you, I’ll call
you.” On cross examination, Mr. King admitted that he had never worked with the defendant and


        2
         Although not filed until April 10, 2006, the petition for post-conviction relief was notarized on March 30,
2006. If mailed on that date, it would have been timely filed under the “mailbox rule”. See Tenn. R. Crim. P. 49(d).

                                                        -6-
was only there to pick up some spare boxes for himself. Mr. King admitted to a prior conviction of
accessory to robbery in 1991.

               The defendant testified that he told lead counsel about Mr. King before the original
trial. However, he thought that another employee, Wade Van Hoos, would have been an even better
witness. He testified that Mr. Van Hoos was “unfindable” at the time. He testified that most of the
communication with lead counsel was through his wife because he was working sixty hours a week.
On cross-examination, he acknowledged that Mr. Van Hoos was in jail at the time of the original
trial. When asked how lead counsel was supposed to find potential witnesses without contact
information, he testified that he made an effort to supply sufficient information but he did not know
the witnesses personally.

                The State then recalled lead counsel to testify. Lead counsel testified that she had
been in private practice for 20 years, primarily in criminal and family law, with an estimate of over
1000 trials. Lead counsel testified that this case followed the normal process of pre-trial motions,
investigation, and discovery and that the defense received no plea offers. Lead counsel testified that
the defendant maintained his innocence and claimed that Jason Rodotz told him he could take certain
items. However, at trial, the evidence indicated that the defendant had taken “a lot more numbers
than he admitted to taking.” In particular, an engineer who testified for the State “was very
convincing,”

                                His testimony was that this was an ongoing problem
               at the factory, that they had – that they were getting calls that they
               were being – orders were being shorted, people were getting orders
               that were coming back that were short, and that they had started an
               investigation but a lot of items were missing.

                               The engineer, the thing that really was most
               disturbing to me was his testimony that they wouldn’t have thrown
               out perfectly good sets of things. They would have taken it and done
               the reclamation where they would have gotten anything that could
               have possibly been used out of the item that they were
               manufacturing so that they could use it in the manufacture of other
               items. They wouldn’t have tossed out perfectly good sets of things.

                Lead counsel testified that she made a point to explain to the defendant’s wife that
they needed contact information for potential witnesses. “I can’t subpoena people that I don’t have
addresses for that I don’t know and then he says he knows names . . . . I can’t prove a case if
someone can’t give me . . . information that is important to their defense.” On request, lead counsel
prepared a subpoena that had “Wade Van Hoos at large. His probation officer will serve him.” After
the trial, lead counsel received a list from the defendant’s wife containing names of people to
subpoena for the next trial and the topics about which they could testify. This document says, “DOC



                                                 -7-
plate/skids of cardboard” when referring to Mr. King and contains no mention of his being able to
directly contradict testimony of Mr. Rodotz.

               The trial court denied the petition for post-conviction relief, citing the fact that Mr.
Jernigan and Mr. Ingle did not appear at the post-conviction hearing and that the testimony of Mr.
King, a convicted felon, was not credible. Furthermore, the court specifically accredited the
testimony of lead counsel.

                  On appeal, the only argument the petitioner raises is that trial counsel was ineffective
for failing to utilize potential witnesses Kevin King, Darrel Ingle, and Glen Jernigan at trial. Because
the post-conviction court’s denial of relief is supported in the record, we affirm that court’s
judgment.

                The post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court
accords to the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).
By contrast, the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                 The Sixth Amendment of the United States Constitution and article I, section 9 of the
Tennessee Constitution both require that a defendant in a criminal case receive effective assistance
of counsel. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9; see also Baxter v. Rose, 523 S.W.2d
930 (Tenn. 1975). “Claims of ineffective assistance of counsel are considered mixed questions of
law and fact and are subject to de novo review.” Serrano v. State, 133 S.W.3d 599, 603 (Tenn.
2004); see State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999) When a defendant claims ineffective
assistance of counsel, the court must determine (1) whether counsel’s performance was within the
range of competence demanded of attorneys in criminal cases, Baxter, 523 S.W.2d at 936, and (2)
whether any deficient performance prejudiced the petitioner, Strickland v. Washington, 466 U.S. 668,
694, 104 S. Ct. 2052, 2068 (1984); see also Powers v. State, 942 S.W.2d 551, 557 (Tenn. Crim. App.
1996). Courts need not address these components in any particular order or even address both if the
petitioner fails to meet his burden with respect to one. Henley, 960 S.W.2d at 580.

                A reviewing court must indulge a strong presumption that counsel’s conduct falls
within the range of reasonable professional assistance. Strickland, 466 U.S. at 695, 104 S. Ct. at
2070. This court should not second-guess informed tactical and strategic decisions by defense
counsel. Henley, 960 S.W.2d at 579. It must evaluate counsel’s performance from counsel’s
perspective at the time of the alleged error and in light of the totality of the evidence. Strickland,
466 U.S. at 695, 104 S. Ct. at 2070.

              However, this court’s deference to counsel’s tactical decisions will depend upon
counsel’s adequate investigation of defense options. Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct.


                                                   -8-
3114, 3126 (1987). Assuming adequate investigation, the fact that a strategy or tactic failed or hurt
the defense does not alone support the claim of ineffective assistance of counsel. Thompson v. State,
958 S.W.2d 156, 165 (Tenn. Crim. App. 1997); Jerry Whiteside Dickerson v. State, No. 03C01-
9710-CR-00472, slip op. at 3 (Tenn. Crim. App., Knoxville, Sept. 16, 1998).

                In sum, a defendant is not entitled to perfect representation, only constitutionally
adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). To show
prejudice, the petitioner must demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694,
104 S. Ct. at 2068. A reasonable probability is “a probability sufficient to undermine confidence in
the outcome.” Id.

                 Furthermore, “[w]hen a [post-conviction] petitioner contends that trial counsel failed
to discover, interview, or present witnesses in support of his defense, these witnesses should be
presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). Generally, presenting such witnesses in the post-conviction hearing is the only
way a petitioner can establish that “the failure to discover or interview a witness inured to his
prejudice . . . or . . . the failure to have a known witness present or call the witness to the stand
resulted in the denial of critical evidence which inured to the prejudice of the petitioner.” Id.
Accordingly, a petitioner who establishes that trial counsel deficiently performed by failing to
investigate or call witnesses is entitled to no relief “unless he can produce a material witness who
(a) could have been found by a reasonable investigation and (b) would have testified favorably in
support of his defense if called.” Id. at 757-58.

                Our analysis of the issues on appeal need not be protracted. The record supports the
post-conviction court’s determination that the petitioner failed to establish his claims of ineffective
assistance of counsel by clear and convincing evidence, and we agree that the petitioner’s evidence
in the evidentiary hearing was neither clear nor convincing. The claims that trial counsel failed to
utilize witnesses Darrel Ingle and Glen Jernigan were not supported by any post-conviction
testimony of such witnesses, and the claim that counsel failed to utilize potential witness Kevin King
was dissipated by not only counsel’s testimony that the testimony would not have been beneficial,
but also the finding by the post-conviction court that “the testimony of Mr. King, a convicted felon,
[was not] persuasive or credible.” Thus, the petitioner failed to establish prejudice with respect to
trial counsel’s failure to use any or all of the three prospective witnesses at trial.

               Having reviewed the petitioner’s claims for post-conviction relief and holding that
the record supports the post-conviction court’s denial of his claims, we affirm the judgment of the
post-conviction court.



                                                       JAMES CURWOOD WITT, JR., JUDGE




                                                 -9-
