                                                                                            10/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   May 1, 2018 Session

                MCARTHUR BOBO v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                  No. 08-02588      John Wheeler Campbell, Judge
                       ___________________________________

                            No. W2017-00681-CCA-R3-PC
                        ___________________________________


The Petitioner, McArthur Bobo, appeals the post-conviction court’s denial of his petition
for post-conviction relief, arguing that he was deprived of his right to a full and complete
hearing on his motion for new trial because the trial court confused his case with another
case, that he received ineffective assistance of trial and appellate counsel, and that his due
process rights were violated by the fact that he never received the statement of a key
witness. Following our review, we affirm the judgment of the post-conviction court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and TIMOTHY L. EASTER, J., joined.

Terrell L. Tooten, Cordova, Tennessee, for the appellant, McArthur Bobo.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Danielle McCollum
and Neal Oldham, Assistants District Attorneys General, for the appellee, State of
Tennessee.


                                         OPINION

                        FACTS and PROCEDURAL HISTORY

       In 2011, the Petitioner was convicted by a Shelby County Criminal Court jury of
second degree murder, a Class A felony, and sentenced by the trial court as a career
offender to sixty years at 100% in the Department of Correction. His conviction was
affirmed by this court on direct appeal, and our supreme court dismissed his application
for permission to appeal as untimely. State v. McArthur Bobo, No. W2009-02565-CCA-
R3-CD, 2011 WL 2464207, at *1 (Tenn. Crim. App. June 21, 2011), perm. app.
dismissed (Tenn. Sept. 12, 2011), perm. app. dismissed (Tenn. July 14, 2014).

       Our direct appeal opinion provides the following synopsis of the facts in the case:

       This case arises out of the [Petitioner’s] December 23, 2007 shooting of
       Michael Gibbs, which resulted in the victim’s death. According to the
       State’s proof at trial, the [Petitioner] had been in a fight with another man at
       the victim’s apartment complex approximately two days before the
       shooting. Therefore, when the [Petitioner] came to the apartment complex
       on the evening of December 23, 2007 and stood outside an apartment
       where a birthday party was about to take place, the victim approached him
       and told him that he was a troublemaker and that the residents of the
       complex did not want him there. As the victim turned to walk away, the
       [Petitioner] mumbled a response. When the victim turned back around to
       ask the [Petitioner] what he had said, the [Petitioner] pulled a gun out of his
       jacket and fired at the victim’s feet. The victim ran in an attempt to escape,
       but the [Petitioner] pursued and fired either two or three additional shots at
       the victim before fleeing, leaving the victim to die at the scene.

Id.

        The Petitioner raised three evidentiary issues on direct appeal: whether his Fifth
Amendment and due process rights were violated by the State’s use of a recorded jail
conversation to impeach the Petitioner’s sister’s claim that she had not recently discussed
her proposed trial testimony with the Petitioner; whether the trial court erred by denying
the Petitioner’s motion to suppress photographic identifications of him as the shooter; and
whether the trial court erred by allowing a witness to testify that the victim’s children
were visiting him on the night of the shooting. Id. at *1-2. We concluded that the
photographic identification evidence was waived by the Petitioner’s failure to include in
the appellate record either the order of the trial court denying the motion or the transcript
of the suppression hearing. Additionally, we concluded that the other two issues were
waived due to the Petitioner’s failure to include them in the motion for new trial. Id. at
*2-3. With respect to the impeachment issue, we further concluded that plain error
review was not warranted because no substantial rights of the Petitioner were affected by
the introduction of the evidence. Id. at *2.

      The Petitioner subsequently filed a pro se petition for post-conviction relief in
which he, apparently, raised an ineffective assistance of counsel claim based on appellate
counsel’s failure to file a timely Rule 11 application for permission to appeal. On June 7,
                                            -2-
2013, the post-conviction court entered an order staying the post-conviction proceedings
and granting the Petitioner permission to file a delayed Rule 11 application. The
Petitioner filed his Rule 11 application on March 21, 2014, after the expiration of the
ninety-day time limit. On April 22, 2014, our supreme court entered a show cause order
for the Petitioner to show why the court should not dismiss the application as untimely.
The Petitioner filed a “Petition for Acceptance of Late Filed Rule 11 Application for
Permission to Appeal” on May 12, 2014, and on July 14, 2014, our supreme court entered
an order dismissing the application for permission to appeal as untimely.

        On November 26, 2014, the Petitioner filed a pro se petition for post-conviction
relief in which he raised a claim of ineffective assistance of trial and appellate counsel.
Following the appointment of post-conviction counsel, on April 30, 2015, he filed a
“Second Amended Petition”1 for post-conviction relief in which he alleged that trial
counsel was ineffective for, among other things: not requesting a mistrial when the State
failed to produce the witness statement of Kenya Samuels, or, at a minimum, not
requesting that her testimony be stricken from the record; not raising as issues in the
motion for new trial the State’s failure to produce Ms. Samuels’ witness statement, the
introduction of the prejudicial recorded jail telephone conversation between the Petitioner
and his sister, or the admission of the prejudicial testimony about the presence of the
victim’s children in the victim’s home at the time of the shooting; and not objecting when
the trial court confused the Petitioner’s case with the facts of another case at the motion
for new trial hearing. The Petitioner alleged that appellate counsel was ineffective for
failing to include the transcript of the suppression hearing in the record on appeal.
Finally, the Petitioner alleged that his due process rights were violated by the fact that his
motion for new trial was not heard and determined on the facts of his case, as evidenced
by the trial court’s erroneous recitation of the facts at the hearing.

       On November 20, 2015, the post-conviction court, after a hearing, entered a
written order denying the portion of the petition based on the Petitioner’s allegation that
he was deprived of his right to a motion for new trial. In its oral ruling, the court found
that the trial judge “got confused on some facts,” but that it was not “tantamount to [the]
denial of [a] motion for new trial.” The court observed that the purpose of a motion for

       1
          In the “Second Amended Petition,” the Petitioner incorporates by reference the
claims contained in his first amended petition, which he states was filed by prior post-
conviction counsel on May 22, 2012. The first amended petition for post-conviction
relief is not included in the record on appeal. One of the claims raised in that petition
was, apparently, that appellate counsel was ineffective for not asking for a motion to
rehear after this court found that two of the issues were waived for failure to be included
in the motion for new trial when the issues were in fact raised and argued in the motion
for new trial.
                                            -3-
new trial is to allow the trial court the opportunity to correct any errors before the case is
appealed. The court also observed that the issues had been raised and reviewed before
the Court of Criminal Appeals. The court’s ruling states in pertinent part:

              In this particular case even though there was apparently and I think
       the judge just got confused, I don’t think he forgot about the case, I just
       think he got confused on some facts, I do not see this as being tantamount
       to denial of motion for new trial. All the other issues were heard by the
       judge and denied. And then every issue went up before the Court of
       Criminal Appeals and had a full hearing on that.

       ....

              In this particular case the Court of Criminal Appeals reviewed
       everything and found no errors. So the way I’m looking at this is that if
       there was any problem with the motion for new trial, then this is something
       that can be raised in the petition for post-conviction relief in regards to
       representation by counsel . . . .

       On July 7, 2016, the Petitioner filed a motion to compel in which he sought the
production by the State of certain evidence including the written statement of Kenya
Samuels to the Memphis Police Department. At a July 15, 2016 hearing, the prosecutor
announced that the State had done its best to comply with the motion but that there was
no indication in the State’s files that Ms. Samuels ever gave a statement. The prosecutor
conceded that the witness mentioned during her trial testimony that she had given a
statement and that no announcement was made on the record that there was, in fact, no
statement. However, he said that he had double checked the record and been unable to
find any statement by the witness. Post-conviction counsel acknowledged that the State
could not be compelled to produce something that it did not have but maintained his
position that there had been a statement that the Petitioner never received.

       On January 27, 2017, the post-conviction court held an evidentiary hearing on the
remaining claims raised in the petition for post-conviction relief. We will summarize
only those portions of the evidentiary hearing testimony that are pertinent to the issues
the Petitioner raises on appeal.

       Trial counsel testified that he and the Petitioner discussed the facts of the case
many times and that their defense theory consisted of relying on the Petitioner’s sister,
and perhaps his mother, to establish an alibi. He recalled that Kenya Samuels, an
eyewitness to the shooting, was a witness for the State at trial but could not recall her
testimony. He did, however, remember that there was “a question about whether [he] had
                                            -4-
been given [her] prior statement to police.” To the best of his recollection, he had
received one written statement of hers. He recalled that he vigorously cross-examined
her, causing her to become confused, and that she indicated that she had given a prior
statement to police. Trial counsel explained that he later learned from the prosecutor that
Ms. Samuels had talked to the police on the night of the shooting but had been so
hysterical that they made no attempt to take a statement from her:

              Q. So had you received a written statement regarding Kenya
              Samuels?

              A. This is what happened to the best of my memory, and the record
              should show this. When I cross-examined her, she had been a
              hostile witness for us and my cross-examination was vigorous of her.
              And frankly, I think I got her confused. What happened was that she
              was on the scene that night and she was a witness, an eyewitness.
              So when she went initially to the police station that night, she was so
              hysterical that they couldn’t get a statement from her. And so she
              went back the next day and gave a formal statement.

              Well on cross-examination I asked her did you talk to the police that
              night and she said yes. So at that point I stopped the proceeding and
              I said where is the other statement. Then my memory of this is the
              prosecutors went back and talked with the police and that’s when
              they found out that they didn’t take a statement. She may have
              spoken to them like hello and yes, I was there and she was
              hysterical but she didn’t give a written statement, an additional
              written statement.

              Q. Okay. So when you say not an additional written statement, it’s
              your understanding she gave one written statement but not a second
              written statement?

              A. Correct. That’s my memory of that event.

        To the best of trial counsel’s recollection, it was at a later date that he learned from
the prosecutors that Ms. Samuels had been too hysterical to give a statement on the night
she first spoke with the police. He said he had reviewed his file of the case
approximately six months earlier, but only to verify that he had raised in the motion for
new trial the issues that the appellate court found in the direct appeal to be waived for
failure to be included in the motion for new trial.

                                             -5-
        The Petitioner testified that he believed he did not receive a fair trial because he
never received any witness statement of Kenya Samuels. He said they “received nothing
on her, no type of statement, no type of existence of Kenya Samuels, period.” According
to his testimony, the only thing he ever received with respect to Kenya Samuels was the
transcript of her preliminary hearing testimony. The Petitioner stated that in the
preliminary hearing, Ms. Samuels answered “no” to the question of whether she ever
gave any kind of written statement. However, when she was cross-examined at his trial,
she said that she gave a statement to the police two days after the shooting. The
Petitioner recalled that when trial counsel raised an objection at trial, the prosecutor
informed him and the trial judge that the witness had never given a written statement to
police:

       So when the witness came up here and got on the stand, Ms. Kenya
       Samuels, [trial counsel] did ask for Jencks material when she got up there
       because he was shocked like who is her? We don’t even - - we ain’t got
       nothing on her. She just showing up out of the blue, you see what I’m
       saying. And when she got up here, the State - - the prosecutor for the State
       . . . had a confrontation. [The prosecutor’s] answer was the only statement
       that we got on Ms. Kenya Samuels is her preliminary hearing statement.
       She did not make a statement to the police, period. This before the witness
       was even swore in and sat down, you see what I’m saying, right here in the
       trial. As the trial went on she was asked did you give any kind of
       statement. She said yes, two days later prior [sic]. Where the statement at?
       I didn’t never get a chance to cross-examine her properly. I never got a
       chance to ask her anything that could have helped me as far as
       impeachment purposes, period.

        The Petitioner testified that trial counsel’s testimony at the post-conviction hearing
indicated to him that the witness had given a written statement. He said that trial counsel
did not request a mistrial or that Ms. Samuels’ testimony be stricken due to the State’s
failure to provide him with her statement, as he could have pursuant to Tennessee Rule of
Criminal Procedure 26.2. The Petitioner also complained that trial counsel never raised
in the motion for new trial the State’s failure to provide Kenya Samuels’ statement.

       The Petitioner testified that his appellate counsel failed to timely file his Rule 11
application for permission to appeal to our supreme court, which resulted in the dismissal
of the application as time-barred. He said that appellate counsel acknowledged his
responsibility for that failure as well as for his failure to file the transcript of the
suppression hearing, which resulted in the waiver of that issue on direct appeal.



                                            -6-
       The Petitioner also complained that his Fifth Amendment right not to incriminate
himself was violated by the State’s playing of his voice on the recorded jail conversation
with this sister. In addition, neither he nor his counsel had any knowledge that the tape
existed until the time of trial. He acknowledged that trial counsel objected to the tape
recording at trial and included it as an issue in the motion for new trial, but the appellate
court found it waived for failure to be included in the motion for new trial.

        Appellate counsel testified that he represented the Petitioner on direct appeal. He
identified a letter to the Petitioner, which was admitted as an exhibit, in which he
accepted responsibility for not properly certifying the transcript of the hearing on the
motion to suppress the photographic identifications. In response to questions by the post-
conviction court, appellate counsel testified that the Petitioner’s appeal was the first one
he had ever handled and that he filed the trial transcripts but neglected to include the
transcript of the suppression hearing.

       On March 3, 2017, the post-conviction court entered a written order dismissing the
petition. Among other things, the court found that that the Petitioner had not met his
burden of demonstrating that his trial counsel was deficient in representation or that any
alleged deficiency resulted in prejudice to his case. The court found that appellate
counsel was deficient for failing to properly prepare the record, resulting in the waiver of
the suppression issue on appeal. The court further found, however, that the Petitioner
failed to meet the prejudice prong by failing to show a reasonable probability that he
would have been successful on that issue. Finally, the court found that this court was
mistaken in concluding that the two remaining issues on direct appeal were waived for
failure to be included in the motion for new trial, noting that both issues were clearly
included in the motion for new trial and ruled on by the trial court at the hearing on the
motion for new trial. The post-conviction court concluded, however, that based on the
record and the ruling of the trial court, “it [did] not appear that either issue would create a
reasonable probability that the appeal would have been successful.”

                                        ANALYSIS

       The Petitioner raises three issues on appeal: (1) whether the post-conviction court
erred in concluding that the Petitioner was not deprived of his right to have a motion for
new trial heard in his case; (2) whether the post-conviction court erred in concluding that
he received effective assistance of trial and appellate counsel; and (3) whether his due
process rights to a fair trial were violated by the State’s failure to produce the witness
statement of Kenya Samuels.

      The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. Tenn. Code Ann. § 40-30-110(f). When an evidentiary
                                             -7-
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a post-
conviction court’s application of the law to the facts of the case is de novo, with no
presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The
issue of ineffective assistance of counsel, which presents mixed questions of fact and law,
is reviewed de novo, with a presumption of correctness given only to the post-conviction
court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999).


                                 I. Motion for New Trial

       The Petitioner first contends that the post-conviction court erred in concluding that
he was not deprived of his right to a motion for new trial. He argues that that the post-
conviction court was wrong in concluding that all his issues were addressed by the trial
court, asserting that the trial court may have analyzed the issues raised in the motion for
new trial, but that it analyzed them under the facts of a completely different case. He
further argues that the record does not support the post-conviction court’s finding that all
the issues went up to the court of criminal appeals and that a “full hearing” occurred on
the issues because the court of criminal appeals concluded that the issues were waived.

        The State responds by arguing that the Petitioner has no standalone claim for post-
conviction relief based on the incompleteness of the appellate record and should instead
have raised the issue during his direct appeal. The State similarly argues that the
Petitioner’s claim that the trial court relied on facts from another case in overruling his
motion for new trial should have been raised as an issue in either the trial court or on
direct appeal, and is not cognizable in a post-conviction proceeding. The State
additionally argues that the transcript of the motion for new trial hearing shows that the
trial court considered and appropriately ruled on each of the Petitioner’s thirteen issues in
the motion for new trial hearing, even if it misremembered some of the facts of the case.

       The transcript of the motion for new trial reveals that the trial court confused the
facts of the Petitioner’s case, in which the victim’s children had been present in the
victim’s home, with another case in which a defendant shot into a van that had children in
it. Trial counsel did not, however, correct the trial court’s mistake at the hearing, no
doubt due to the fact that it most certainly would not have altered the ruling of the court.
We agree with the State that any objection the Petitioner had to the trial court’s mistake
should have been raised before the trial court itself, or on direct appeal.
                                            -8-
        We further agree with the State and the post-conviction court that the trial court’s
“misremembering” of some of the facts does not equate to the Petitioner’s not having had
his motion for new trial heard by the trial court. It is clear from the record that the trial
court held a hearing on the Petitioner’s motion for new trial, at which it addressed each of
the issues raised. The Petitioner is not entitled to post-conviction relief on the basis of
this claim.

                          II. Ineffective Assistance of Counsel

                                     A. Trial Counsel

       The Petitioner contends that trial counsel was deficient in his performance, thereby
prejudicing the outcome of his case, for not objecting to the trial court’s mistake of facts
during the hearing on the motion for new trial, for not either moving for a mistrial or
requesting that the testimony of Ms. Samuels be stricken based on the State’s failure to
provide the Petitioner with her written statement, and for not raising the State’s failure to
provide the written statement as an issue in the motion for new trial.

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that the same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

       First, the defendant 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 defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
                                            -9-
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The same principles apply in determining the effectiveness
of trial and appellate counsel. See Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995).

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.”).

       With respect to these allegations, the post-conviction court found that the
Petitioner failed to show any deficiency on trial counsel’s part or any resulting prejudice
to his case. The record supports the findings and conclusions of the post-conviction
court. First, as previously mentioned, we think that trial counsel’s not interrupting to
correct the trial judge at the motion for new trial hearing was no doubt due to counsel’s
experience with such hearings and his realization that it would not have changed the
ruling of the trial court. The Petitioner has not met his burden of showing that trial
counsel was ineffective for not objecting to the trial court’s misstatement of the facts at
the motion for new trial hearing or for not including it as an issue in the motion for new
trial.

       The Petitioner’s second and third allegations of ineffective assistance of trial
counsel revolve around trial counsel’s lack of action after the State failed to provide the
Petitioner with a written statement of Ms. Samuels, which the Petitioner maintains must
have existed based on trial counsel’s and the Petitioner’s evidentiary hearing testimony.
However, from our review of the record in the direct appeal, it appears doubtful that any
kind of written statement existed. Moreover, the record reveals that trial counsel took
reasonable action to secure any written statement of the witness.

       At the beginning of Ms. Samuels’ trial testimony, trial counsel requested
continuing Jencks material on her, stating that all he had ever received was her
preliminary hearing testimony. The prosecutor responded that Ms. Samuels did not make
a statement to police and that the only thing the State had was her “prelim.”

       During direct examination, Ms. Samuels testified that she gave a “partial
statement” to police at 201 Poplar on the day of the shooting but was so nervous and
upset that she “went into shock[,]” so the police “came out” the next day to talk to her
again. On cross-examination, she testified that she “tried [her] best” to give a statement
on the night of the shooting, but she was “crying” and “hyperventilating” and “just
couldn’t talk right then[.]” She believed that the second time she spoke with the police
                                          - 10 -
was approximately two days after the shooting occurred. She was not certain, but
thought it also took place on the eleventh floor of 201 Poplar. When asked if anyone
typed her statement and if she initialed and signed it, she replied that she thought
someone was typing as she spoke. She also said she had a memory of “signing
something” but no memory of initialing anything.

       At the conclusion of her testimony, trial counsel requested a bench conference,
during which he expressed, “for the record,” his confidence that the prosecutors had
given him everything they had on the witness. He also said, however, that he thought
there was “a possibility that there [was] another written statement out there somewhere.”
Trial counsel, therefore, requested that the trial court instruct the witness that she was still
under subpoena and that she leave a contact number so that counsel could recall her if
“another statement somewhere” turned up after their inquiries in the matter.

       A subsequent state witness, Cartrevion Chapman, mentioned during his cross-
examination testimony that when he and Ms. Samuels were downtown waiting to be
interviewed on the night of the shooting, Ms. Samuels had a “real bad” “asthma attack”
that was brought on by the fact that “she was so upset and riled up.” Mr. Chapman
claimed, in fact, that Ms. Samuels was in such dire straits that he “had to give her mouth
to mouth CPR to help her breathe.”

       We have been unable to find any further mention of any statement of Ms. Samuels
in the trial transcript. We think it likely, therefore, that trial counsel was correct in his
memory that he confused the witness during his vigorous cross-examination. Given her
equivocal testimony about her second interview with the police a day or two after the
shooting, and trial counsel’s reference during the bench conference to inquiries into
whether there was “another statement” in existence, it seems fairly clear that the only
“statement” in the possession of the State, which it provided to trial counsel, was the
witness’s preliminary hearing testimony. In any event, trial counsel took appropriate
steps to obtain the statement, if any existed. The Petitioner has not met his burden of
showing that trial counsel was ineffective with respect to his handling of this matter.

                                   B. Appellate Counsel

       The Petitioner contends that appellate counsel was deficient in his performance,
thereby prejudicing his case, by not raising on direct appeal the issue of the trial court’s
having confused the facts in the motion for new trial hearing, for not including the
transcript of the motion for new trial or the complete motion for new trial in the appellate
record, for not including the transcript of the suppression hearing in the appellate record,
and for failing to properly preserve for appeal the issues related to the admission of the
Petitioner’s recorded jail conversation with his sister and the State’s witness’s testimony
                                             - 11 -
about the presence of the victim’s children at the time of the shooting. The State
responds by arguing that the Petitioner has not established that any prejudice resulted
from any of appellate counsel’s alleged deficiencies.

        As an initial matter, we note from our review of the record in the direct appeal that
one or more of the pages of the Petitioner’s motion for new trial was inadvertently left
out of the technical record when it was assembled by the court clerk. Page 48 of the
technical record, entitled “Motion for Judgment of Acquittal, or in the Alternative,
Motion for New Trial,” lists issues one through three and is followed by page 49, which
lists issues twelve through thirteen. The issues that this court found to be waived for
failure to be included in the motion for new trial were apparently on the missing page or
pages. The transcript of the motion for new trial was also not included in the record in
the direct appeal. Appellate counsel cannot be found at fault for the copying error that
resulted in pages missing from the technical record. Appellate counsel could, however,
have requested either that the record be supplemented with the missing pages or filed a
petition to rehear with supplementation of the record.

        Regardless, we agree with the State that the Petitioner cannot show that any of
appellate counsel’s alleged deficiencies prejudiced the outcome of his appeal. At the
suppression hearing, two eyewitnesses to the shooting, April Bowman and Willie Bobo,
testified regarding what they witnessed at the scene and their subsequent identifications
of the Petitioner as the perpetrator during photographic lineup procedures that took place
on the same night as the shooting. Each testified that he or she was familiar with the
Petitioner and immediately identified him during the photographic lineup procedure. Ms.
Bowman testified that she had previously had sexual intercourse with the Petitioner, and
Mr. Bobo testified that the Petitioner was a distant cousin. At the conclusion of the
hearing, the trial court found that the photographic lineup was “a little suggestive”
because the lighting in the Petitioner’s photograph was “a little different” but that all of
the Biggers factors weighed in favor of the reliability of the identifications. We can
discern no error in the trial court’s ruling. The Petitioner cannot show that he would have
been successful on this issue had it been considered by this court on direct appeal.

        The Petitioner also cannot show any likelihood of success on the impeachment
issue or the issue regarding testimony about the presence of the victim’s children. With
respect to the impeachment issue, the trial court had the tape redacted to eliminate
portions that were not relevant to the credibility of the witness. The court also issued a
curative instruction to the jury that it was to consider the telephone call only as it related
to the issue of whether or not the witness was being truthful in her trial testimony and not
as substantive evidence. With respect to the allegedly prejudicial testimony about the
presence of the victim’s children, the trial court specifically found that the evidence was
not prejudicial. We also note that it occupied only a very small portion of a fairly lengthy
                                            - 12 -
trial in which several eyewitnesses identified the Petitioner as the man who shot the
victim. The Petitioner is not entitled to post-conviction relief on the basis of these
claims.

                                III. Denial of Due Process

       Lastly, the Petitioner contends that he has not received due process of law because
the State has still not provided him with the written statement of Ms. Samuels. The
Petitioner cites trial counsel’s evidentiary hearing testimony in support for his assertion
that “[t]he statement clearly existed, and was in the State’s custody.” The Petitioner
argues that “[i]t is fundamentally unfair to have important evidence, such as a written
statement from a key eye witness [sic], disappear, without having any information as to
what specifically was included in that statement.”

         As we have previously set out in detail, we disagree that trial counsel’s testimony
made it clear that a formal written statement ever existed. Trial counsel testified that he
reviewed his file only to ascertain what issues he raised in the motion for new trial. Thus,
his evidentiary hearing testimony that he received a written statement of Ms. Samuels
was based solely on his memory of a long-ago trial. Trial counsel’s statements during the
trial itself reveal that he was confident that he received everything on the witness that was
in the State’s possession, which was her preliminary hearing testimony. Although trial
counsel thought it possible, based on Ms. Samuels’ testimony, that another written
statement existed somewhere, none ever turned up. The Petitioner is not, therefore,
entitled to post-conviction relief on the basis of this claim.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court denying the petition.



                                              ____________________________________
                                              ALAN E. GLENN, JUDGE




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