         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 11, 2005

             ROBERT SHAWN CLARK v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. P-28044    Bernie Weinman, Judge



                     No. W2004-01582-CCA-R3-PC - Filed March 9, 2005


The petitioner, Robert Shawn Clark, appeals the trial court’s denial of his petition for post-conviction
relief. The single issue presented for review is whether the petitioner was denied the effective
assistance of counsel at trial. After a review of the record, we affirm the judgment of the trial court.

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

J.C. MC LIN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward, Assistant Shelby County
Public Defender (on appeal) and Karen Massey, Assistant Shelby County Public Defender (at trial),
for the appellant, Robert Shawn Clark.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jim Lammey, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                 I. Facts and Procedural History

        A Shelby County jury convicted the petitioner on two counts of robbery. The trial court
imposed concurrent four-year sentences. In August 2002, this Court affirmed the decision of the trial
court. State v. Robert S. Clark, No. W2001-00921-CCA-R3-CD, 2002 WL 1841721 (Tenn. Crim.
App., at Jackson, Aug. 5, 2002), perm. app. denied (Tenn. Dec. 16, 2002). The underlying facts of
the petitioner’s case on direct appeal were summarized as follows:

              On November 20, 1998, a robber carrying a police scanner entered a Union
       Planters Bank branch located in the Jitney Premier grocery store in Cordova,
       Tennessee. At the teller counter, he announced that he had a gun in his pocket and
        demanded that a bag he was carrying be filled with money. The tellers complied.
        The police were alerted by a silent alarm just as the robber left. After a photograph
        of the robber made from the bank’s security videotape appeared in the local
        newspaper, police received an anonymous tip identifying the defendant as the robber.
        Later, bank tellers . . . identified the defendant from a photographic lineup.

Id. at *1.

        On January 9, 2004, the petitioner filed a pro se petition for post-conviction relief, alleging
various grounds for relief: (1) illegal search and seizure, (2) denial of due process because of
evidentiary withholding, (3) failure to call witnesses, (4) cruel and unusual punishment, and (5)
denial of equal protection. Recognizing that many of the arguments in the petition were adjudicated
on direct appeal, the State requested that the trial court appoint counsel to amend the pro se petition.
Following the appointment of counsel, the petitioner now pursues the single issue of whether he was
denied the effective assistance of counsel at his original trial.

        On May 13, 2004, the trial court held an evidentiary hearing on the petitioner’s post-
conviction petition. On direct examination, the petitioner first complained that his trial should have
been transferred to another trial court division because he “had problems in that courtroom with the
prosecutors and the judge” in a previous case. The petitioner’s next complaint was that, although
he had an expert waiting to review a videotape of the crime, his original trial counsel did not receive
the video until “the day of trial.” Finally, the petitioner stated that trial counsel failed to call two
witnesses at trial.

        On cross-examination, the State referred to this Court’s direct appeal opinion which states:
                 [I]t is our view that the proffered testimony would not have been of
        substantial assistance to the jury. During its case in chief, the state introduced the
        original videotape and 18 still frames. While the still frames are not high quality,
        they are relatively clear and provide some detail. By comparison, the edited still
        frames produced by [the petitioner’s expert] are actually blurrier and provide fewer
        details.

Id. at *4. The State then asked, “[w]hat exactly is it you say that [trial counsel] did not do for you?”
The petitioner responded, “I walked in an innocent man and left out guilty. That’s what I’m saying.”

        Trial counsel testified that the late production of the original videotape “just didn’t change
anything.” The videotape was recorded on high speed tape that required modification by special
equipment before it could be viewed. Rather than receiving the entire videotape, trial counsel
received still photos for review. He “remember[ed] talking with [the petitioner] and his wife . . .
who was very involved in the defense in this case whether or not we should request a continuance
due to getting it late or to go ahead with it.” Trial counsel testified that it was the “consensus of [the
petitioner] and myself” to “go ahead with the trial” despite the late production of the tape. The



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defense was able to have an expert “look at the video as the trial was going on” and call that expert
on the third day of the trial.

          In response to the petitioner’s complaint that his counsel did not call certain witnesses, trial
counsel testified that “it was a joint decision, when I say joint between [the petitioner] and myself,
as to what . . . proof to put on and what proof not to put on.” Trial counsel further testified that he
“certainly give[s] an opinion and advice” to his clients as to what proof to put on, “but the ultimate
decision is the client’s.” When asked on cross-examination why he did not call the petitioner’s wife
at trial, trial counsel stated that he “found [her] to be the type of witness that I would not want to put
on being fearful of what would come out of her mouth.”.

        The trial court summarily denied the petition, stating:
                 The defendant filed a Petition for Post-Conviction Relief alleging numerous
        reasons he should receive a new trial. Most of the allegations in the petition pertain
        to issues that were considered or waived on direct appeal.
                 The defendant testified at the hearing on this petition that his case should
        have been transferred to a different division of criminal court for trial due to
        problems he had had with the trial judge and the prosecutors in the division where
        his trial was held. . . . There is absolutely nothing in this record that would indicate
        bias by the trial judge against the defendant. To the contrary, the record reflects the
        trial judge did everything in his power to assure that the defendant received a fair
        trial. This Court finds no merit to this allegation.
                 The issue of prosecutorial misconduct was discussed by the Court of Criminal
        Appeals on direct appeal.
                 Much of the petitioner’s testimony in this hearing dealt with the prosecution
        turning over the videotape . . . . This issue was thoroughly discussed in the opinion
        delivered by the Court of Criminal Appeals.
                 ....
                 This Court finds that the trial counsel thoroughly discussed trial strategy with
        the defendant and by mutual agreement it was determined what proof would be
        presented at trial. The Court finds that it was mutually agreed upon not to ask for a
        continuance. This Court finds no merit to any of the issues presented by the
        petitioner at this hearing.
                 The Court finds that the advice given and services rendered by the
        defendant’s counsel was within the range of competency demanded by an attorney
        in a criminal case . . . [and] complied with the requirements set out by the Supreme
        Court of Tennessee in Baxter v. Rose, 523 S.W.2d 930.

The petitioner then filed this timely appeal.

                                              II. Analysis




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          The single issue presented in this appeal is whether the petitioner was denied the effective
assistance of counsel. Once a trial court has ruled upon a post-conviction petition, its findings of fact
are conclusive on appeal unless the evidence in the record preponderates against them. See Wallace
v. State, 121 S.W.3d 652, 656 (Tenn. 2003) (citation omitted). The petitioner bears the burden on
appeal to show that the evidence preponderated against the findings of the trial court. See Clenny
v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978) (citation omitted). When reviewing factual
findings, this Court may not reweigh or reevaluate the evidence or substitute its inferences for those
drawn by the post-conviction court. See Nichols v. State, 90 S.W.3d 576, 586 (Tenn. 2002) (citation
omitted). When reviewing the application of law to those factual findings, our review is de novo.
Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001). Claims of ineffective assistance of counsel
are regarded as mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)
(citation omitted). As such, our review is de novo with a presumption of correctness given only to
the post-conviction court’s findings of fact. See Fields, 40 S.W.3d at 458.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must establish both (1) deficient performance of counsel and (2) prejudice resulting from
the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984). The petitioner must
demonstrate the deficiency and the resulting prejudice by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f) (2003). To establish deficient performance, the petitioner must show that
the representation fell below the range of competence demanded of attorneys in criminal cases.
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. However, “[a]n error by
counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.” Id. at 691. The petitioner may not
second guess a reasonably-based trial strategy and cannot criticize unsuccessful tactical decisions
if they were made with adequate preparation. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim.
App. 1994) (citation omitted), perm. app. denied, (Tenn. 1995); Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992) (recognizing that deference to a tactical decision is dependent upon
a showing of adequate preparation).

        In the instant case, the petitioner’s first argument, that his trial should have been moved to
another division, was addressed by the trial court as follows: “There is absolutely nothing in this
record that would indicate bias by the trial judge against the defendant. To the contrary, the record
reflects the trial judge did everything in his power to assure that the defendant received a fair trial.”
There is no evidence in the record, nor has the petitioner presented any evidence to show that his
previous appearance in the trial court prejudiced his right to a fair trial.

         The petitioner next complains that he received ineffective assistance of counsel because his
trial counsel did not receive a copy of the video until immediately prior to trial. Even if the untimely
production of this evidence did constitute a deficiency on part of counsel or the State, the petitioner
must prove that the deficiency prejudiced the case in some way. Trial counsel stated that the late

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receipt of the evidence “just didn’t change anything.” The defense expert had time to review the
videotape during the first two days of trial, and he testified on the third day. Trial counsel and the
petitioner also had multiple video stills from the original tape. On direct appeal, this Court stated
that the still frames were relatively clear and were less blurry than the edited still frames of the
petitioner’s expert. Furthermore, trial counsel testified that he came to an agreement with his client
not to continue the case. There is no evidence in the record to indicate that this factor prejudiced the
petitioner’s case.

         The petitioner’s additional argument, that trial counsel was ineffective for failing to call two
witnesses at trial, is also without merit. “When a petitioner contends that trial counsel failed to
discover, interview, or present witnesses in support of his defense, these witnesses should be
presented at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
Generally, this presentation is the only way a petitioner can prove (1) a material witness existed who
could have been discovered but for counsel's negligent investigation of the case; (2) a known witness
was not interviewed; (3) the failure to discover or interview the witness caused him prejudice; or (4)
the failure to present a known witness resulted in the denial of critical evidence which caused the
petitioner prejudice. Id. Neither the trial court nor this Court can speculate on what a witness's
testimony might have been if introduced by counsel. Id. Furthermore, the trial court accredited trial
counsel’s testimony that he allowed the petitioner to decide what proof to introduce. The trial court
found that “the trial counsel thoroughly discussed trial strategy with the petitioner and by mutual
agreement it was determined what proof would be presented at trial.” Although the petitioner may
have “asked [trial counsel] weren’t we going to call them,” there is no evidence in the record that
trial counsel ignored any specific instruction by the petitioner. Consequently, the evidence does not
preponderate against this factual finding of the trial court.

                                           III. Conclusion

        For the foregoing reasons, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        J.C. McLIN, JUDGE




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