        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 2, 2016

                 KEARN WESTON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                   No. 11-02875    James C. Beasley, Jr., Judge




               No. W2015-00460-CCA-R3-PC - Filed March 29, 2016
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Petitioner, Kearn Weston, appeals the denial of his petition for post-conviction relief.
Petitioner argues that he received ineffective assistance of counsel when trial counsel
failed to file a pre-trial motion to dismiss the charge based on the loss of a surveillance
video. Upon our review, we affirm the decision of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Andrew R. E. Plunk, Memphis, Tennessee, for the appellant, Kearn Weston.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Amy P. Weirich, District Attorney General; and Ann Schiller, Assistant District Attorney
General, for the appellee, State of Tennessee.



                                       OPINION

                          Factual and Procedural Background

       On October 6, 2011, Petitioner was convicted by a Shelby County jury of one
count of robbery. See State v. Kearn Weston, No. W2012-00255-CCA-R3-CD, 2012 WL
5986542, at *1 (Tenn. Crim. App. Nov. 30, 2012), perm. app. denied (Tenn. Apr. 10,
2013). Petitioner was sentenced to fourteen years of incarceration. The only issue raised
on appeal was the sufficiency of the evidence. This Court affirmed Petitioner‟s
conviction. Id.
        According to the evidence presented at trial, on September 15, 2010, the victim,
James Black, was at a gas station about to pump gas into his vehicle. Petitioner hit Mr.
Black from behind, causing Mr. Black to fall “onto a steel bolt-like cap covering the pipe
to the underground gas tank, breaking a rib.” Id. Petitioner stood over the victim saying,
“Give me that money.” Id. Mr. Black told Petitioner that he did not have any money,
and Petitioner began to leave. Petitioner then saw Mr. Black‟s wallet on the ground,
“snatched” it, and “took off running.” Id. This encounter was witnessed by two
bystanders and an employee of the gas station. Id. at *1-2. The victim and the three
witnesses all identified Petitioner in a photographic line-up. The gas station manager
testified that he viewed a surveillance video of the robbery, that he recognized Petitioner
as a regular customer, and that he called the police when he saw Petitioner waiting at a
bus stop near the gas station a few months later. Id. at *2-3. In his defense, Petitioner
called Sergeant Timothy Foster, the case officer for this incident, who testified that the
surveillance video was obtained by the police but had since been misplaced. Id. at *3.

       On July 30, 2013, Petitioner filed a petition for post-conviction relief. Petitioner
alleged that he had received ineffective assistance of counsel because trial counsel failed
to challenge the loss of the surveillance video pursuant to State v. Ferguson, 2 S.W.3d
912 (Tenn. 1999).1 Petitioner asserted that the video would have shown that someone
other than Petitioner attacked Mr. Black. Petitioner also asserted that because a motion
with regard to the video was never filed by trial counsel, the Ferguson issue was waived
on appeal.

       At the beginning of the January 30, 2015 evidentiary hearing, post-conviction
counsel noted that Petitioner‟s trial counsel was deceased and that the original prosecutor
was also unavailable to testify. However, Petitioner‟s appellate counsel, who worked for
the Public Defender‟s Office with trial counsel, was available to testify. A transcript of
the original trial was admitted into evidence.

       Petitioner testified that he was informed there was surveillance video of the
robbery when he was interviewed by Sergeant Foster. Petitioner claimed that he was told
that he would be shown the video if he confessed first. Petitioner testified that he denied
any knowledge of the crime and that Sergeant Foster got mad at him. Petitioner testified
that he informed trial counsel of the video and that trial counsel responded that he already
knew the video was lost. Trial counsel did not file any motion with regard to the loss of
the video, despite Petitioner‟s wishes. Petitioner testified that the video would have
played a significant role in his defense as “it would have shown somebody else

       1
         Other issues raised in the pro se petition were not raised on appeal and are, therefore, deemed
abandoned. See Ronnie Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6
n.2 (Tenn. Crim. App. 2009), perm. app. denied (Tenn. Apr. 16, 2010).
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committing that crime.” Petitioner insisted that he could not have committed the crime
because he is legally blind and would not have been able to flee across a busy street.
Petitioner testified that he suspected that the officers intentionally lost the video after they
viewed it and saw that Petitioner was not the person robbing the victim.

       On cross-examination, Petitioner admitted that he told the trial court that the
charge should be dismissed because there was no video and no confession but claimed
that he did so after the trial rather than before as reflected in the prosecutor‟s notes.
Petitioner admitted that he was present when police officers testified at trial that the video
was lost. Petitioner remembered that trial counsel approached the bench prior to the
testimony of one of the witnesses, but he could not hear what was being discussed.
Petitioner initially denied that either the gas station employee or manager testified that
they knew who Petitioner was based on having seen the video but later admitted that they
recognized him as a regular customer. Petitioner admitted that the victim and the
witnesses identified him in court but asserted that the victim had misidentified him and
that one of the witnesses “told fabricating [sic] testimony.”

        Appellate counsel testified that he had a chance to review trial counsel‟s file
before the hearing. Appellate counsel did not see in trial counsel‟s file any indication that
a pre-trial motion had been filed regarding the loss of the video. Appellate counsel
testified that because the issue was not listed in the motion for new trial, he could not
raise it on appeal. The sole issue raised on appeal was the sufficiency of the evidence.
On cross-examination, appellate counsel testified that he did not believe that the video
would have been exculpatory based on the testimonies of the witnesses and that he did
not believe that it was a “viable issue,” even under plain error.

        At the conclusion of the hearing, the post-conviction court made oral findings of
fact and conclusions of law. The court found that Petitioner did not receive ineffective
assistance of counsel. The court found that trial counsel successfully objected to
testimony regarding the contents of the video and vigorously cross-examined the
witnesses about the lost video. The court found that trial counsel had put before the jury
the fact that there was “poor sloppy police work in losing the video” and that “the issue
of the video was very much litigated.” However, the court was “not sure that there would
be a valid basis to dismiss the charges because the video was lost.” The court noted that
the proof against Petitioner was overwhelming, including multiple eyewitness
identifications independent of the video. The court could not remember if trial counsel
requested a jury instruction on lost evidence but held that such a request, if made, would
have been denied because the testimony indicated that the video was not exculpatory. On
February 2, 2015, the post-conviction court entered an order denying the petition for
post-conviction relief. Petitioner filed a timely notice of appeal.


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                                          Analysis

       Post-conviction relief is available for any conviction or sentence that 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. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel‟s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel‟s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a
claim of ineffective assistance of counsel, “failure to prove either deficient performance
or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v.
State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed, a court need not address the
components in any particular order or even address both if the [petitioner] makes an
insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996) (citing Strickland, 466 U.S. at 697).

       The test for deficient performance is whether counsel‟s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney‟s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel‟s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). A defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, „we address not what is prudent or appropriate, but only
what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). This Court will not use
hindsight to second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334,
347 (Tenn. Crim. App. 1994), even if a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
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App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation.” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). However, this deference to
the tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        Even if a petitioner shows that counsel‟s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. Prejudice is shown where “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.” Burns, 6
S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). This reasonable probability must be
“sufficient to undermine confidence in the outcome.” Id.

        Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the
post-conviction court‟s findings of fact “under a de novo standard, accompanied with a
presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d); Henley, 960 S.W.2d at 578). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court.
Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the weight and
value to be given to testimony, and the factual issues raised by the evidence are to be
resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley, 960
S.W.2d at 578). However, the post-conviction court‟s conclusions of law and application
of the law to the facts are reviewed under a purely de novo standard, with no presumption
of correctness. Fields, 40 S.W.3d at 458.

        Petitioner argues that the trial court erred in determining that he did not receive
ineffective assistance of counsel. Petitioner argues that trial counsel‟s performance was
deficient when he failed to file a motion, pursuant to Ferguson, to dismiss the charge
based on the loss of evidence. The State responds that trial counsel was not deficient for
failing to file such a motion and that Petitioner failed to show that he suffered prejudice
thereby.

       In the case of State v. Ferguson, 2 S.W.3d 912, 916 (Tenn. 1999), our supreme
court adopted a test for courts to use in determining whether the loss or destruction of
evidence in the State‟s possession deprived the defendant of a fair trial. The initial
inquiry is whether the State had a duty to preserve the evidence:

       Whatever duty the Constitution imposes on the States to preserve evidence,
       that duty must be limited to evidence that might be expected to play a
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        significant role in the suspect‟s defense. To meet this standard of
        constitutional materiality, evidence must both possess an exculpatory value
        that was apparent before the evidence was destroyed, and be of such a
        nature that the defendant would be unable to obtain comparable evidence
        by other reasonably available means.

Id. at 917 (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)). If the proof
demonstrates that the State failed in its duty to preserve evidence, “the analysis moves to
a consideration of several factors which guide the decision regarding the consequence of
the breach.” Id. Those factors include “(1) the degree of negligence involved; (2) the
significance of the destroyed evidence, considered in light of the probative value and
reliability of secondary or substitute evidence that remains available; and (3) the
sufficiency of the other evidence used at trial to support the conviction.” Id. If a trial
without the missing evidence would be fundamentally unfair, the trial court may dismiss
the charges, give a jury instruction, or “craft such orders as may be appropriate to protect
the defendant‟s fair trial rights.” Id.

       Petitioner has failed to show that he suffered prejudice by trial counsel‟s failure to
file a motion to dismiss pursuant to Ferguson. In order for the Ferguson rule to apply,
the evidence must “possess an exculpatory value that was apparent before the evidence
was destroyed.” Id. In this case, two witnesses—one of whom also witnessed the
robbery itself—testified that they viewed the video and that they recognized Petitioner as
a regular customer at the gas station. Additionally, both the victim and the two
bystanders positively identified Petitioner in photographic lineups and in court,
independent of the video. There was no indication, other than from Petitioner‟s own
testimony at the post-conviction hearing, that the video depicted anyone other than
Petitioner robbing the victim. Therefore, it is unlikely that the trial court would have
determined that a trial without the video would be fundamentally unfair. Because a
motion to dismiss, even if filed, would not have been successful, Petitioner has failed to
show that he was prejudiced by trial counsel‟s failure.

       Furthermore, we cannot say that trial counsel‟s failure to file a motion to dismiss
based on the loss of the video was deficient performance. Given the fact that trial
counsel called Sergeant Foster to testify about the loss of the video and the fact that he
strenuously objected to the witnesses testifying about the contents of the video, it would
appear that the failure to file a motion to dismiss was a tactical decision.2 As the post-

        2
           We acknowledge that because trial counsel is deceased, it is difficult to determine whether the
failure to file a motion to dismiss based on the loss of the video was in fact a tactical decision and whether
it was based upon adequate preparation. See Cooper, 847 S.W.2d at 528. However, because we have
previously determined that Petitioner failed to show that he was prejudiced, he would not be entitled to
relief even if this failure to file a motion to dismiss was deficient performance. See Henley, 960 S.W.2d
at 580; Goad, 938 S.W.2d at 370.
                                                      -6-
conviction court found, the issue of the lost video “was very much litigated.” Petitioner
has failed to show that trial counsel‟s performance was in any way deficient. Petitioner is
not entitled to relief.

                                       Conclusion

       Based on the foregoing, we affirm the judgment of the post-conviction court.




                                                 _________________________________
                                                 TIMOTHY L. EASTER, JUDGE




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