        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 2, 2012

                  CHARLES HALL v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 04-00119     John T. Fowlkes, Jr., Judge




                No. W2011-02683-CCA-R3-PC - Filed October 22, 2012


The petitioner, Charles Hall, appeals the denial of his petition for post-conviction relief from
his 2007 Shelby County Criminal Court jury convictions of aggravated robbery, claiming that
he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J EFFREY S.
B IVINS and R OGER A. P AGE, JJ., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Charles Hall.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               The petitioner was originally convicted of two counts of aggravated robbery
in case number 04-119 and two counts of aggravated robbery in case number 04-120, but this
court reversed the convictions and remanded for separate new trials based upon the trial
court’s improper consolidation of the indictments. See State v. Charles Hall, No. W2005-
01338-CCA-R3-CD (Tenn. Crim. App., Jackson, Aug. 11, 2006). In 2007, a Shelby County
Criminal Court jury convicted the petitioner of alternative counts of aggravated robbery in
04-119, and the trial court sentenced the petitioner to life imprisonment without the
possibility of parole as a repeat violent offender. This court affirmed the conviction and
sentence. See State v. Charles Hall, W2008-01883-CCA-R3-CD, slip op. at 1 (Tenn. Crim.
App., Jackson, Dec. 9, 2009). Our supreme court denied permission to appeal on May 12,
2010.

                At trial, the victim, Janice Gordon, testified that the petitioner approached her
as she sat in her car outside the bank where she worked as a teller, pointed a gun at her, and
demanded that she get out of the car. See id., slip op. at 2. She complied, and the petitioner
forced her into the passenger’s seat while he got into the driver’s seat and demanded the keys
to her car, her jewelry, and her money. Ms. Gordon testified that she gave the petitioner the
keys to her car, “her engagement and wedding rings, a diamond cluster ring, a watch, a charm
bracelet, and a $20 bill.” Id. Ms. Gordon escaped by jumping from the car when the
petitioner put the car into reverse. She later identified the petitioner as the perpetrator from
a photographic lineup, during the preliminary hearing, and during the trial. Id. Police later
found the victim’s car, see id., slip op. at 3, and some pieces of her jewelry were located in
a pawn shop in DeSoto County, Mississippi, see id., slip op. at 5.

               The petitioner filed a timely petition for post-conviction relief, alleging that he
was denied the effective assistance of counsel at trial and on appeal. The pro se petitioner
filed an amended petition for post-conviction relief, adding additional grounds to his claim
of ineffective assistance of counsel.

               At the July 15, 2011 evidentiary hearing, the petitioner testified that his counsel
performed deficiently by failing to file a motion to suppress the victim’s identification of him
from the photographic lineup. He claimed that the photographic array was unduly suggestive
and intimated that the State may have engaged in some sort of trickery in the creation of two,
slightly-different photographic arrays. He also argued that the different background color
in the photographs indirectly led the victim to choose his photograph. The petitioner also
complained about the admission of the victim’s preliminary hearing identification, arguing
that his attorney should have objected to that identification as suggestive.

                The petitioner testified that his counsel performed deficiently by promising the
jury that they would hear an explanation of how the rings arrived at the pawnshop and then
did not fulfill that promise. He also claimed that counsel performed deficiently in his cross-
examination of the victim about her reacquiring the rings after the robbery. He said that his
counsel should have moved to suppress the envelopes from the pawn shop.

               The petitioner claimed that his counsel should have raised on appeal the issue
of prosecutorial misconduct relative to the prosecutor’s remarks during voir dire when she
referred to the jury’s not having heard “the rest of the story” and then made a reference to
Paul Harvey. He also claimed that his counsel mishandled the cross-examination of two
police officers on the development of the petitioner as a suspect.



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              During cross-examination, the petitioner maintained that his counsel did not
explain to him why he was not entitled to a second hearing on his motion to suppress when
his case was remanded for retrial.

                Counsel testified that he did not request a new motion hearing or a new
preliminary hearing following the remand because he did not believe that the petitioner was
entitled to either. He added that he did not want the photographic arrays suppressed because
he wanted to highlight the discrepancies in the arrays to the jury to call into question the
victim’s identification of the perpetrator. He said that he wanted the victim’s preliminary
hearing identification testimony admitted at trial for the same reason.

               Counsel admitted that he told the jury during his opening statement that he
would present proof that the petitioner purchased the rings at a casino and then pawned them
and that he then failed to place that proof into evidence. Counsel said that he did not ask the
questions that the petitioner wanted asked of the two police investigators because those
questions would have opened the door to admitting evidence that he had convinced the trial
court to suppress.

               At the conclusion of the hearing, the post-conviction court took the petition
under advisement. The court denied relief in a written order, finding that the petitioner had
failed to establish his claims by clear and convincing evidence. In this appeal, the petitioner
reiterates his claim of ineffective assistance of counsel, claiming that counsel performed
deficiently by failing to challenge the victim’s pretrial identifications of the petitioner.

              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 factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). 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).

              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,

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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).

              In our view, the petitioner failed to establish entitlement to post-conviction
relief. Counsel testified that he did not challenge the identifications because it was his belief
that the methods of identification called the victim’s credibility into question rather than
bolstered it. The post-conviction court accredited counsel’s testimony, and counsel’s
decision was reasonable trial strategy. Moreover, the petitioner presented no proof at the
evidentiary hearing to support his assertion that either the photographic array or the
preliminary hearing was unduly suggestive or resulted in an unreliable identification.
Counsel thoroughly cross-examined the victim on this issue. The petitioner is not entitled
to relief.

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


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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