        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 17, 2013

              TROY ALLEN PRUITT v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                    No. 40600541      John H. Gasaway, Judge


                  No. M2012-00897-CCA-R3-PC - Filed May 2, 2013


The petitioner, Troy Allen Pruitt, appeals the Montgomery County Circuit Court’s denial of
post-conviction relief from his 2007 convictions in that court of aggravated robbery and
fraudulent use of a credit card. Because the petitioner failed to establish his claim of
ineffective assistance of counsel and because binding law-of-the-case determinations from
his direct appeal defeat his claim of prejudice, we affirm the order of the post-conviction
court.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

B. Nathan Hunt, Clarksville, Tennessee, for the appellant, Troy Allen Pruitt.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and John E. Finklea, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

             A Montgomery County jury convicted the petitioner of two counts of
aggravated robbery and two counts of fraudulent use of a credit card, and the trial court
sentenced him to an effective sentence of 15 years in the Tennessee Department of
Correction. Upon his appeal from those convictions, this court affirmed the trial court’s
judgments. See State v. Troy Allen Pruitt, No. M2008-02858-CCA-R3-CD (Tenn. Crim.
App., Nashville, Apr. 28, 2010).

              In Troy Allen Pruitt, this court explained the background of the convictions.
At the petitioner’s trial, employees of the Tennessee Cash Cow in Clarksville described a
March 20, 2006 robbery perpetrated by an armed man. Sabine Hutzel, the manager of the
Tennessee Cash Cow, testified that, although the robber wore a bandana over his face so that
only his eyes and the bridge of his nose were visible, she had identified the petitioner as the
man who robbed her company in a photographic line-up. “Hutzel said she is very good with
faces and eyes, and she said she would never forget the [petitioner’s] eyes,” which, she said,
were brown. Id., slip op. at 3.

             Tammy Clinard, the area manager for Tennessee Cash Cow, testified that the
robber had “‘extremely red rosy cheeks,’ which made him look like he had a wind burn or
a sunburn.” Id.

                Clinard testified that the police provided her with several
                photographs of suspects and asked her whether she recognized
                any suspect as the man who robbed the Cash Cow. She recalled
                that she identified someone initially but immediately knew that
                she had identified the wrong person, and she told the police
                officer that she had identified the wrong person. She never
                identified anyone else as the robbery suspect. Clinard then
                identified in court the [petitioner] as the man who had robbed
                the Cash Cow.

Id., slip op. at 3.

                 Valerie Catignani, an employee of Tennessee Cash Cow on the day of the
robbery, testified that she saw only the man’s cheeks, which were “really pink,” and his eyes.
Id., slip op. at 3-4. She testified that the man took her purse and that later that day the debit
card from her purse was used to take $200 from her bank account. Ms. Catignani “identified
in court the [petitioner] as the robber in this case.” Id., slip op. at 4.

                On cross-examination, Catignani testified that police officers
                never showed her any photographs or asked her to identify a
                suspect. She said the first time she saw the [petitioner] after the
                robbery was during the preliminary hearing, where the
                [petitioner] wore an orange jumpsuit and sat at a table
                designated for defendants. Catignani agreed that, at the
                preliminary hearing, she testified the [petitioner’s] eyes were
                brown.

Id.

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             The women generally agreed that the robber placed the stolen cash in a
backpack that he carried.

                A man walking his dog on March 20, 2006, saw a man with a backpack
running through the woods near the Tennessee Cash Cow. The man with the backpack got
into a vehicle that was being driven very slowly on the dead-end street where the witness was
walking. The witness testified that the vehicle’s license number was “LMV 729.” Id. The
witness later identified a picture of the petitioner’s car as the vehicle he saw that day. The
county clerk testified that the petitioner was the registered owner of a gold 1988 Chevrolet
with license plate “LMV 729.” Id.

              Police officers who investigated the robbery testified that they found “two dark
blue bandanas” in the petitioner’s residence and recovered more than $200 from the
petitioner’s wallet. Id., slip op. at 5. A detective testified that a man named Micky Martin
was photographed using Ms. Catignani’s debit card at a bank automatic teller machine. Id.

              Claudia Killebrew, a deputy with the Montgomery County
              Sheriff's Office, testified she is a K-9 officer. She and her K-9
              partner responded to a call about a robbery on March 20, 2006,
              at Tennessee Cash Cow. The two attempted to find the suspect,
              who was last seen running to a wooded area behind the building.
              The deputy said she and her K-9 partner started searching near
              the back of the building by a chain link fence. Her K-9 picked
              up a scent, which he followed through the woods, across a ditch,
              and then to Meadowbrook Drive. The K-9 lost the scent on that
              road.

Id.

             Micky Lee Martin, a long-time, close friend of the petitioner, testified that he
had been charged along with the petitioner with aggravated robbery, aggravated kidnapping,
and fraudulent use of a credit or debit card.

              Martin recalled that on the morning of March 20, 2006, he was
              working on his wife’s car at his home when the [petitioner], who
              drove a gold or champagne-colored Corsica, arrived. The
              [petitioner] visited for a short time and then left, saying that he
              would return later. The [petitioner] returned around 2:00 p.m.
              as Martin was finishing work on his wife’s car. He said he
              needed brake fluid, so he and the [petitioner] went to Wal-mart.

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        On the way, the [petitioner] told him he had been in a
fight and was scared the police were looking for him. He asked
Martin to go to an ATM machine where the [petitioner] would
not be seen. Martin drove to an ATM near his home. Martin
said the [petitioner] showed him a small yellow piece of paper
upon which were written two PIN numbers. Beside one of the
PIN numbers was the word “old” and beside the other was the
word “new.” When Martin exited the car at the ATM, the
[petitioner] read the two numbers to him from the yellow sheet,
which the Defendant was holding. The number the Defendant
read did not work, so Martin told the [petitioner] to read him the
other number. That PIN number worked, and Martin retrieved
$200 from the account. The two men split the money between
them.

        Martin testified that he knew the card did not belong to
him or anyone he knew. He recognized the name as female, but
he did not recall any more information about the name. He
recalled the card was “greenish” and bore the number “50.” [At
trial,] Martin . . . . examined Valerie Catignani’s stolen credit
card. He said it was “greenish” with the number 50 in the top
corner. He said the card looked like the card he used with the
Defendant that day. Martin then identified a photograph of him
withdrawing money from the ATM that day.

        Martin testified he pled guilty to fraudulently using the
credit card and had served over three hundred days in jail. He
said, as a result of his guilty plea, the State agreed to drop the
aggravated robbery and aggravated kidnapping charges against
him. Martin said he had previously been convicted of
aggravated robbery and four counts of aggravated burglary.

       On cross-examination, Martin agreed he was on
probation when he was charged for the offenses in this case. He
conceded that he had seven previous felony convictions and that
he was, therefore, a Range III offender. As such, he was facing
long prison terms if convicted of aggravated robbery or
aggravated kidnapping.



                               -4-
Id., slip op. at 5-6.

                The [petitioner] called Detective Chad Koyama, who testified
                that a little more than $400 was taken during the robbery and
                that $200 was taken from Catignani’s account using her debit
                card. He said he showed Clinard a photographic line-up that
                included the [petitioner’s] picture, and she did not identify the
                [petitioner] as the suspect in this case. He agreed both Hutzel
                and Clinard said the suspect had dark eyes, and the [petitioner]
                had blue eyes. On cross-examination, the detective testified that
                the [petitioner’s] eyes were, in fact, a dark blue. The detective
                recalled that no witnesses identified Martin at the preliminary
                hearing as being the man who robbed the Cash Cow.

Id., slip op. at 6.

             On March 25, 2011, the petitioner filed in the Montgomery County Circuit
Court a timely petition for post-conviction relief in which he alleged that his convictions
were the result of, inter alia, the ineffective assistance of trial counsel. The circuit court
appointed counsel, who filed two amended petitions, and conducted an evidentiary hearing.

                 In the hearing, and pertinent to the issues raised now on appeal, the petitioner
testified that trial counsel was inexperienced and failed to spend an adequate amount of time
meeting with the petitioner prior to trial. He also testified that his trial counsel failed to move
to obtain an expert in the field of eyewitness testimony and failed to utilize a witness to
impugn the eyewitness testimony presented by the State. He further testified generally that
counsel failed to properly voir dire the jury, to rebut the State’s case, to present adequate
evidence, to object to statements made by the trial judge, to advise the petitioner about his
rights to testify and to not testify, to obtain statements of prospective State witnesses, and to
object to inadmissible documents.

                On cross-examination, the petitioner admitted that his “main” ground for post-
conviction relief was counsel’s failure to obtain and utilize an expert in the field of
eyewitness identification. He testified that, in his motion for new trial, he presented an
eyewitness expert, Dr. John Brigham, who testified that the photographic lineup could have
been better and that, in the case of a gun being pointed at a witness, the witness would have
difficulty seeing any detail other than the gun. The petitioner agreed, however, that this court
said in his direct appeal that the use of Dr. Brigham would not have affected the outcome of
the trial.



                                                -5-
                Trial counsel testified that State v. Copeland 1 was filed by our supreme court
after the petitioner’s trial but before the proceedings on the motion for new trial. Counsel
acknowledged that he failed to raise the Copeland issue prior to trial as a precursor for
appeal. Counsel testified that at the pretrial stage he was unaware that Copeland was on
appeal. He opined that the use of Copeland at trial would have affected the result, stating,
“[I]f the expert had been allowed to testify about weapon focus, the lineups and other things
that the jury might have come to a different conclusion.”

             Counsel testified that, during the pendency of the motion for new trial, the trial
court granted funds to retain an expert in the field of eyewitness testimony and that he
obtained the services of the expert used in Copeland, Dr. John Brigham. Counsel
commented upon Dr. Brigham’s testimony in the motion for new trial proceeding:

                The main thing I can recollect is weapon focus; that the amount
                of time that the people had to observe . . . the only portion that
                the people could really see was the eyes; and he would talk
                about the time, duration, weapon focus, stress and other things,
                and the science behind witness identification to show why those
                identifications may have been unreliable.

Counsel recalled that the trial judge ruled that the issue was not justiciable in the motion for
new trial because it had not been raised before trial. Counsel opined that he erred in not
raising the issue prior to trial and that, but for the error, the result at trial would have been
different.

               On May 8, 2012, the court entered an order denying post-conviction relief. The
petitioner then filed a timely notice of appeal to this court.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A.§ 40-30-103 (2006). A post-conviction petitioner
bears the burden of proving his or her allegations by clear and convincing evidence. Id. §
40-30-110(f). On appeal, the post-conviction court’s findings of fact are conclusive unless
the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79


        1
         State v. Copeland, 226 S.W.3d 287, 300-301 (Tenn. 2007) (overruling “Coley’s conclusion that no
one, regardless of credentials or experience and no matter how questionable the evidence, can provide
testimony on the issue of eyewitness identification” and concluding that the trial court’s failure to admit
expert testimony on eyewitness identification entitled Copeland to a new trial).

                                                   -6-
(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).

                To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, 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.” Id. at 694.
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn.1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

               Claims of ineffective assistance of counsel are mixed questions of law and fact.
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762, 766-67
(Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). When reviewing the
application of law to the post-conviction court’s factual findings, our review is de novo, and
the post-conviction court’s conclusions of law are given no presumption of correctness.
Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               In the present case, we may handily narrow the appellate issues to that of trial
counsel’s asserted ineffective assistance in not presenting the Copeland issue prior to or
during trial. All other claims of ineffective assistance, though mentioned in the petitioner’s
brief on appeal, were raised only topically in the post-conviction evidentiary hearing. None
of these other claims came close to being established by clear and convincing evidence.
Consequently, we turn to the issue of trial counsel’s performance in handling the Copeland
issue.



                                              -7-
                In 2000, our supreme court had rejected the claim that expert testimony on the
reliability of eyewitness identification was admissible. See State v. Coley, 32 S.W.3d 831
(Tenn. 2000). Copeland overruled Coley’s per se ban on the admission of such evidence, and
it did so via the rules of evidence and not via the due process right to present a defense.
Indeed, the Copeland court focused entirely on Tennessee Rule of Evidence 702, concluding
that “the test in McDaniel [v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997),] is
sufficient to allow the trial court to properly evaluate the admissibility of expert testimony
on the reliability of eyewitness identification.” Copeland, 226 S.W.3d at 300. The high
court observed that “[t]he essential role of the judge, as the neutral arbiter in the trial, is to
govern the admission of the evidence within the rules, permitting only that expert testimony
which substantially assists the jury in its consideration of the issue.” Id. Because the
testimony Copeland sought to introduce during his trial met the prerequisites of McDaniel,
the supreme court concluded that the trial court had erroneously excluded the testimony. The
court then undertook a harmless error analysis, but, because the testimony of a single
eyewitness was the crux of the case against Copeland, the high court found that the exclusion
of the testimony could not be classified as harmless error. Id. at 302-03. Thus, Copeland
does not require the admission of the testimony of an eyewitness identification expert but
instead holds that such testimony is not per se inadmissible. Ronald Dotson v. State, No.
W2007-01654-CCA-R3-PC, slip op. at 7 (Tenn. Crim. App., Jackson, Aug. 26, 2008).

               In our opinion in the present petitioner’s direct appeal, this court cited
approvingly and relied in part upon its earlier opinion in Joseph Vermeal v. State,
M2007-01676-CCA-R3-PC, slip op. at 10 (Tenn. Crim. App., Nashville, July 3, 2008). In
Joseph Vermeal, this court said that the evidentiary rule announced in Copeland has
“limit[ed] retroactive application to the case in which it is announced.” Joseph Vermeal, slip
op. at 10 (quoting Blackwell v. Pennsylvania, 589 A.2d 1094, 1099 (1991)). The Troy Allen
Pruitt court then held,

               In accordance with our holdings in Thomas [v. State, 298
               S.W.3d 610, 615-16 (Tenn. Crim. App. 2009)] and Vermeal, we
               conclude that Copeland should not apply retroactively to
               [Pruitt’s] case and that the trial court did not err when it
               concluded that [Pruitt] was not entitled to a new trial on this
               basis.

Troy Allen Pruitt, slip op. at 13. This court also determined that any error arising from the
trial court’s failure to apply Copeland was harmless:

               In the case presently before us . . ., the evidence was more than
               sufficient to sustain the [petitioner’s] conviction. In fact,

                                               -8-
               significant evidence, other than the eyewitness testimony,
               inculpated the [petitioner]: a man was seen fleeing from the
               Tennessee Cash Cow and getting into the [petitioner’s] car,
               which was located on a street behind the woods behind the
               Tennessee Cash Cow; the [petitioner] gave Catignani’s stolen
               credit card and a yellow post-it note upon which two PIN
               numbers were written to Martin; Martin used this credit card to
               retrieve $200 that he then split with the [petitioner]; when [the
               petitioner] was arrested, he was carrying more than $200 in
               denominations similar to those used by the Tennessee Cash
               Cow; and two blue bandanas similar to the one worn by the
               robber were found at the [petitioner’s] home. In light of this
               evidence, we conclude that the [petitioner] cannot show that any
               error in the omission of expert testimony about eyewitness
               identification more probably than not affected the outcome of
               his trial[.] He is not, therefore, entitled to relief on this issue.

Id., slip op. at 14.

               Based upon Troy Allen Pruitt and Joseph Vermeal, Copeland applies
retrospectively to only defendant Copeland’s trial and not to any other trials conducted prior
to the release of Copeland on May 23, 2007. In this determination, this court eschewed a
“pipeline” approach. Thus, the general law as explicated in these two cases says that the
petitioner would not have been entitled to introduce expert testimony had a pre-trial or mid-
trial attempt to do so been made. Despite trial counsel’s mea culpa presented in the post-
conviction hearing, we doubt that he performed deficiently given the then applicable regime
of Coley and the subsequent legal determination that Copeland did not apply to the
petitioner’s case.

               Furthermore, apart from the persuasive but non-binding general law stated in
Troy Allen Pruitt, the adjudications made in that direct appeal of this petitioner’s case are the
law of the case. “Under the doctrine of the law of the case, when an initial appeal results in
a remand to the trial court, the decision of the appellate court establishes the law of the case,
which must be followed upon remand.” State v. Carter, 114 S.W.3d 895, 902 (Tenn. 2003)
(citing State v. Jefferson, 31 S.W.3d 558, 560-61 (Tenn. 2000)). An issue decided in a prior
appeal may only be reconsidered when:

               (1) the evidence offered at a trial or hearing after remand was
               substantially different from the evidence in the initial
               proceeding; (2) the prior ruling was clearly erroneous and would

                                               -9-
               result in a manifest injustice if allowed to stand; or (3) the prior
               decision is contrary to a change in the controlling law which has
               occurred between the first and second appeal.

Id.

               No exception applies in the present case, and the petitioner is bound by not
only the determination that the Copeland rule did not apply to his trial, but also the ruling that
any error arising from his not being afforded the opportunity to introduce expert testimony
was harmless. On this latter point, we remind the petitioner that “[t]his court’s ruling on
direct appeal that the [trial] error was harmless beyond a reasonable doubt equates to a lack
of prejudice for an ineffective assistance of counsel claim.” Larry Paul Koffman v. State,
No. M2009-00951-CCA-R3-PC, slip op. at 3 (Tenn. Crim. App., Nashville, Sept. 29, 2010),
perm. app. denied (Tenn. 2011); Gabriel Antonio Clark v. State, No. W2003-01017-
CCA-R3-PC, slip op. at 3 (Tenn. Crim. App., Jackson, Mar. 24, 2004) (“We conclude,
however, that any error was harmless beyond a reasonable doubt, and that the petitioner
failed to establish prejudice as an element of his ineffective assistance of counsel claim.”).
Although the harmless error ruling in Troy Allen Pruitt did not utilize the constitutional
standard, we conclude that the law-of-the-case determination of harmless error means that
the petitioner failed to establish Strickland prejudice by clear and convincing evidence.

               Accordingly, the order of the post-conviction court is affirmed.

                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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