         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 14, 2009

                  CLEMMIE RHYAN v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 99-08934    Lee V. Coffee, Judge



                  No. W2008-00975-CCA-MR3-PC - Filed October 9, 2009


The petitioner, Clemmie Rhyan, appeals the Shelby County Criminal Court’s denial of his petition
for post-conviction relief. The petitioner, convicted of second degree murder, a Class A felony, is
currently serving a twenty-two-year sentence in the Department of Correction. On appeal, he
contends that he was denied the effective assistance of counsel at trial. Specifically, he contends that
trial counsel was ineffective by failing to: (1) investigate the case and locate witnesses for the
defense; and (2) present evidence, including thorough cross-examination of State witnesses
supporting the theory of self-defense. Following review of the record, we find no error in the denial
of the petition and affirm the judgment of the post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.

Autumn B. Chastain, Memphis, Tennessee, for the appellant, Clemmie Rhyan.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; William
L. Gibbons, District Attorney General; and Tiffani Taylor, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

       The relevant underlying facts of this case, as established on direct appeal, are as follows:

               This case relates to the [petitioner’s] shooting and killing the victim, Kenneth
       Suiter. Sergeant Larry Colburn of the Memphis Police Department testified that at
       6:44 p.m. on December 13, 1998, he was dispatched to the Metro Market Grocery
       Store at 1378 North Hollywood Street. He saw the victim lying on his back in a
       grassy area that was just south of the store’s parking lot. The area was littered with
empty bottles and was separated from the parking lot by a concrete retaining wall that
was about thirty inches tall. The victim had been shot once in the chest and was
dead. Sergeant Colburn saw an empty pack of cigarettes on the ground next to the
victim’s left hand, empty wine and beer bottles next to the victim’s right arm, and an
empty whisky bottle under the victim’s right knee. Sergeant Colburn also saw a
kitchen knife, partially covered by trash, on the ground near the victim. He
photographed the scene, took measurements, and collected the knife, bottles, and
cigarette pack. On cross-examination, he said that he did not know if fingerprints
were recovered from the items he collected or if someone moved the body before he
arrived.

        Lawrence Yancy testified that in December 1998, he worked nights at a
Target store. He said that on December 3, he got out of bed about 4:30 p.m. and
walked to the Metro Market in order to get a beer before he went to work. He said
that before he went into the store, he sat on the retaining wall outside the store for a
few minutes. He said that he saw the [petitioner] and the victim walking and talking
together and that the men did not appear to be arguing. He said that he could tell the
[petitioner] and the victim had been drinking because they were staggering. He said
he went into the store, bought a beer, and went outside and sat on the retaining wall.
He said that the victim also was sitting on the wall and that the [petitioner] was
standing in front of the victim. He said that he was about an arm’s length from the
[petitioner] and the victim and that they were arguing. He said that the argument
escalated and that the victim cursed the [petitioner]. He said the victim told the
[petitioner], “[You] can go on and pull out that rusty ass knife. I’ll take it from you.”
He said the [petitioner] replied, “[You] ain’t going to take shit from me.” He said
that the [petitioner] shot the victim with a handgun and that the victim fell backward
into the grassy area. He said that he was afraid and ran away. He said that as he was
running, he heard the victim say, “[Please] don’t shoot me again.”

       Mr. Yancy testified that he ran to his stepdaughter’s house and told her what
had happened. . . .

        Mr. Yancy testified that he had not been drinking when he saw the
[petitioner] shoot the victim. He acknowledged that the retaining wall was a popular
place for people to gather and drink. He said that although the victim was cursing at
the [petitioner], he did not see anything in the victim’s hands and the victim never got
off the retaining wall or made any gestures toward the [petitioner] before the
[petitioner] shot the victim. . . .

       On cross-examination, Mr. Yancy testified that when he first arrived at the
Metro Market and sat on the wall, someone named Big Daddy also was at the wall.
He said that when the [petitioner] shot the victim, he and Big Daddy ran away. He
acknowledged that in his statement to police, he said that the [petitioner] “just


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        clicked due to being cursed.” He denied telling the police that the [petitioner] said
        to the victim, “You ain’t got nothing, you ain’t going to take shit from me, trick. You
        ain’t got nothing but a rusty ass knife. I’ll take the knife from you and kick your ass
        with it.” Instead, he said the victim made those statements to the [petitioner].

                ....

                Tarlisha Carey, Lawrence Yancy’s stepdaughter, testified for the defense that
        she lived one block from the Metro market and that on December 3, 1998, Mr. Yancy
        came to her house and told her that someone had been shot. She said that earlier that
        day, she and Mr. Yancy had been smoking crack and drinking beer in her home. On
        cross-examination, she acknowledged telling a prosecutor that she had been taking
        drugs on December 3 and did not remember what had happened that day. . . .

State v. Clemmie Rhyan, No. W2001-03019-CCA-R3-CD (Tenn. Crim. App. at Jackson, Jan. 27,
2003). The petitioner was indicted by a Shelby County grand jury for second degree murder and was
convicted as charged. He was subsequently sentenced to a term of twenty-two years, as a violent
offender, in the Department of Correction. The petitioner then filed a direct appeal to this court
challenging: (1) the sufficiency of the evidence; (2) that the court refused to instruct the jury on self-
defense; and (3) that his sentence was excessive. Id. The conviction and sentence were affirmed.
Id.

        Afterward, the petitioner filed a timely pro se post-conviction petition asserting, among other
grounds, that he was denied his Sixth Amendment right to the effective assistance of counsel.
Following the appointment of counsel, an amended petition was also filed. A hearing was held on
the matter at which trial counsel and appellate counsel were called to testify. While the petitioner
did not take the stand, he did introduce affidavits from three individuals, which were entered without
objection from the State. The first was from Jerry Boyd, who indicated that he was not in the area
when the incident occurred and that he had no information about the crime. The second was an
affidavit from Tarlisha Carey, who also was a defense witness at trial, in which she stated that she
was not present during the incident. The final affidavit was from Lawrence Yancy, who was also
a witness at trial. In the affidavit, Yancy indicated the following: he had never previously seen the
victim; he heard the victim tell the petitioner that he could take a rusty knife from him and kill him;
the petitioner was known for carrying a knife; and both men were drunk.

         Trial counsel testified that she was involved in the petitioner’s case for almost two years prior
to trial. She testified that she received and shared all discovery materials with the petitioner. She
further stated that the only possible theories of defense were self-defense or to try for the reduced
charge of voluntary manslaughter. She explained that the petitioner had no alibi and had admitted
that he was present and that he committed the crime. He also stated that the victim was coming at
him with a bottle. Trial counsel went on to note that either she or her investigator had interviewed
and filed subpoenas for all possible defense witnesses of whom the petitioner had made them aware.
Trial counsel described an intense and ongoing investigation to locate and interview witnesses,


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which included multiple trips to the scene of the crime. She testified that even though more than
fifteen attempts to locate or interview witnesses which would support the defendant’s theory of self-
defense were made, they were unable to locate any witnesses who would give testimony in support.
Trial counsel went on to state that when she was at the crime scene, she observed that it was littered
with debris and broken bottles. She was aware that certain pieces of evidence, including broken
bottles and a knife, had been collected from the scene. However, she was unable to determine
whether these items had been tested for fingerprints. She testified that she was unsuccessful in her
attempt to elicit this information on cross-examination. She also indicated that she asked multiple
questions to Yancy on cross-examination as to whether he had seen anything in the victim’s hand,
but thatYancy persisted that he had not.

       After hearing the evidence presented, the post-conviction court determined that relief was
not appropriate and denied the petition. This appeal followed.

                                                Analysis

        As an initial matter, the State asserts this appeal should be dismissed because the petitioner
failed to file a timely notice of appeal. The State is correct that this petitioner failed to timely file
his notice of appeal document within thirty days after the date of entry of the judgment appealed
from, as the post-conviction court’s order dismissing the petition was filed on April 1, 2008, and
notice of appeal was filed on May 30, 2008, some fifty-nine days later. See Tenn. R. App. P. 4(a).
However, we note that “[i]n all criminal cases, the ‘notice of appeal’ document is not jurisdictional
and the filing of such document may be waived in the interest of justice.” Id. The State, however,
asserts in this case that the “interest of justice” does not weigh in favor of waiving the timeliness
requirement because the petitioner offers no explanation for the late-filed notice of appeal. However,
this matter has previously been determined in this court, as an order was entered on May 29, 2008,
which states that “it is in the interest of justice to waive the timely filing of the [petitioner’s] notice
of appeal.” As such, we address the merits of the petitioner’s argument.

        On appeal, the petitioner raises the single issue of ineffective assistance of counsel. To
succeed on a challenge of ineffective assistance of counsel, the petitioner bears the burden of
establishing the allegations set forth in his petition by clear and convincing evidence. T.C.A. § 40-
30-110(f) (2006). The 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 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),
the petitioner must establish (1) deficient performance and (2) prejudice resulting from the
deficiency. The petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy, and cannot criticize 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). 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).



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        It is unnecessary for a court to address deficiency and prejudice in any particular order or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a
“‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland,
466 U.S. at 694, 104 S. Ct. at 2068).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying a claim of
ineffective assistance of counsel are reviewed on appeal 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 v. State, 960
S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law, are reviewed under a purely de novo
standard with no presumption that the post-conviction court’s findings are correct. Id.

         The petitioner’s argument for ineffective assistance of counsel centers around his allegation
that trial counsel failed to locate and interview witnesses to the crime who could have supported the
petitioner’s theory of self-defense. He argues further that counsel’s failure to investigate these
potential witnesses led her to be unprepared to cross-examine State witnesses and resulted in his
being deprived of his theory of defense, as evidenced by the trial court’s failure to charge self-
defense to the jury. He also asserts that trial counsel was deficient in her failure to procure
fingerprint evidence from the beer bottles collected, which he asserts would have also been
beneficial to the theory of the case. In denying relief on this issue, the post-conviction court made
extensive findings of fact in its written order. The following was stated:

       Trial counsel interviewed and filed subpoenas for defense witnesses that the
       defendant had requested. Trial counsel conducted an intense and on-going
       investigation to locate and interview witnesses. [Trial counsel] testified that her
       investigators made over 15 attempts to locate and interview witnesses. [Trial
       counsel], visiting the crime scene three (3) or more times, could not find any
       witnesses who would admit to having witnessed this killing. [Trial counsel] testified
       at the hearing that “alibi was never a defense[.”] After an exhaustive search, [trial
       counsel] was unable to locate any witnesses who would support the [petitioner’s]
       theory of self-defense.

               ....

       . . .The petitioner failed to produce any witnesses at the evidentiary hearing that
       would have supported his unfounded allegations. . . . The petitioner was unable to
       demonstrate how further preparations by his trial counsel might have been helpful.
       The petitioner failed to provide this Court with any explanation as to how he was


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prejudiced by the alleged deficiencies to call or locate witnesses at trial. [Trial
counsel] reiterated at the evidentiary hearing that there were no other witnesses who
could have been called for the [petitioner]. . . . This Court cannot speculate on what
benefit the witnesses might have offered to the petitioner’s case, nor may this Court
guess as to what evidence further investigation might have uncovered. . . .

         The trial record and the testimony at the evidentiary hearing clearly show that
[trial counsel] located, interviewed and vigorously cross-examined all witnesses. The
jury accredited the [S]tate’s witnesses. . . . The petitioner failed to call any witnesses
at the evidentiary hearing so that the post-conviction court could determine the
credibility of the witnesses or the value of their testimony. The only proof presented
at the evidentiary hearing by the petitioner consisted of affidavits of Lawrence
[Yancy], Tarlisha Carey and Jerry Boyd. The affidavits were of no value to support
the [petitioner’s] claim of self-defense. This allegation is also without any merit.

        ....

        Even had those witnesses been presented during the post-conviction
proceeding, this Court finds that the result would not have been different. This Court
finds that trial counsel properly investigated the petitioner’s case and was adequately
prepared for the trial of the petitioner’s case. The proof, as accredited by the Court
of Criminal Appeals and by the Jury, is overwhelming against the petitioner. . . .

        The court accredits the testimony of trial counsel. . . .

        ....

         [With regard to the allegations that trial counsel failed to adequately present
the petitioner’s theory of self-defense,] [t]here was absolutely no proof presented at
the evidentiary hearing to substantiate these allegations; therefore, this issue is
without merit. The [petitioner] gave a statement of admission in which [the
petitioner] admitted shooting the victim from a distance. Trial counsel received
discovery from the State of Tennessee. There is no evidence presented that any prints
were ever attempted to be processed from bottles located at the crime scene. Proof
at the evidentiary hearing revealed that no “useable prints” were ever processed from
a knife located near the victim’s body. The petitioner complains that no prints were
ever lifted and/or compared from bottles that were located near the victim’s body.

        This court finds that the petitioner has failed to demonstrate that a reasonable
probability exists the [petitioner] would not have been prosecuted or convicted if
potentially favorable DNA analysis of any evidence would produce results that would
undermine confidence in the outcome of the prosecution. . . . Notwithstanding



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        consideration of “potentially” favorable DNA testing results, the reviewing court
        cannot ignore the existing evidence.

                ....

        The evidence is uncontroverted that the deceased had been drinking bottles of beer
        and was extremely intoxicated. Trial counsel testified at the evidentiary hearing that
        “fingerprints on the bottle would not have made a difference in this case” . . . as this
        is a known area for lounging and drinking beer in the neighborhood. The victim’s
        prints would be expected to be on beer bottles located near the victim’s body. The
        [petitioner] raised self-defense in a self-serving statement in which the [petitioner]
        attempted to minimize his killing of an unarmed victim. The only eyewitness at trial
        testified that the victim was unarmed and was shot while sitting on a retaining wall.
        Trial counsel testified at the evidentiary hearing that the victim’s fingerprints on a
        beer bottle would not indicate self-defense as the [petitioner] left the scene and
        returned with a gun. Furthermore, trial counsel could not locate any witnesses to
        support the [petitioner’s] claim of self-defense.

        Review of the record reveals nothing which preponderates against these extensive findings.
The petitioner contends that the post-conviction court’s ruling is based solely upon its finding that
he failed to establish prejudice based upon his failure to present witnesses at the evidentiary hearing.
He contends that the affidavits he entered into evidence should have been considered in lieu of
requiring that the witness actually be present to testify at the hearing. However, his argument is
clearly misplaced, because it ignores that the post-conviction court’s ruling specifically stated that
the affidavits were considered and contained no beneficial information. We agree. Moreover, the
argument further ignores that the post-conviction court specifically found that trial counsel was also
not deficient. Thus, the petition failed to establish both prongs required under Strickland.

        Trial counsel specifically testified at the post-conviction hearing that she actively investigated
this case and attempted to find any possible witnesses who could support the petitioner’s theory. As
noted by the post-conviction court, more than fifteen attempts were made to locate witnesses, and
no witnesses were found. Trial counsel further testified that she investigated all the names indicated
by the petitioner as possible witnesses. The record indicates that trial counsel invested a
considerable amount of time and skill in her representation of this petitioner and in her investigation
and preparation for trial. She specifically testified that she received and reviewed discovery,
discussed possible trial strategies with the petitioner, and met with the petitioner numerous times.
Moreover, his contention that trial counsel failed to place the theory of self-defense properly before
the jury is without merit. While trial counsel acknowledged that self-defense or pursuing the lesser
included offense of voluntary manslaughter were the only viable trial strategies, she also noted that
no specific evidence supporting the theory of self-defense was presented. Nonetheless, through her
cross-examination of State witnesses, she attempted to put the defense before the jury. However,
trial counsel was limited by the witnesses who were available and the testimony that they gave. As



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did the post-conviction court, we conclude that the petitioner has not established that this was
deficient performance.

         Likewise, we cannot conclude that the petitioner established the prejudice prong, as he failed
to produce witnesses who could have been discovered through a more thorough investigation and
given favorable testimony at trial. As courts are not free to speculate as to what “possible” witnesses
might have testified to, it is the petitioner’s burden to put forth these witnesses at the evidentiary
hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). As previously noted, the
petitioner’s argument with regard to the introduction of the affidavits is without merit, as they
contained no information which would have benefitted his case. Moreover, his argument with regard
to the testing of the beer bottles is also one of speculation. The post-conviction court found, and we
agree, that even if the petitioner had established that the victim’s prints were on the bottles, it would
not have resulted in a different verdict as it was acknowledged that the victim was drinking beer in
the area. Thus, the record fails to establish that the post-conviction court erred in denying relief.

                                           CONCLUSION

        Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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