         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 12, 2001

                  MELVIN PEACOCK v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                       No. 95-B-1348    J. Randall Wyatt, Jr., Judge



                    No. M2001-00831-CCA-R3-PC - Filed January 31, 2002


Through his 2000 post-conviction petition, Melvin Peacock seeks to avoid his 1996 Davidson
County jury convictions of possession of cocaine for resale and felony possession of a weapon, for
which he received an effective sentence of 20 years. After appointing post-conviction counsel and
holding an evidentiary hearing on the petitioner’s single issue of whether he received ineffective
assistance of trial counsel, the lower court denied post-conviction relief. Because the record supports
the court’s decision, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

Daniel L. McMurtry, Nashville, Tennessee, for the Appellant, Melvin Peacock.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

                A complete recitation of the facts underlying the cocaine- and weapon-possession
convictions is set forth in this court’s opinion affirming the convictions, see State v. Melvin Lewis
Peacock, No. 01C01-9704-CR-00118 (Tenn. Crim. App., Nashville, July 9, 1998), perm. app.
denied (Tenn.1999), but here we need only recite a few facts. The convictions were supported by
physical evidence, including a safe and its contents, that was seized via the execution of a search
warrant. The officers discovered cocaine and the weapon inside the safe, but it was several months
later before the officers discovered automobile title documents inside the safe. Whereas the
petitioner’s defense had rested upon his denial of ownership of the contraband and disavowal of
knowledge of the safe, the title documents linked the safe to the petitioner.
                The petitioner moved to suppress the safe and its contents, and the trial court
conducted a suppression hearing and denied the motion, all before the discovery of the documents.
After the discovery of the title documents, counsel moved in limine for an order to exclude the title
documents from evidence on the grounds that the evidence was an unfair eve-of-trial surprise to the
defense and that the chain of custody of the documents was flawed. The trial court continued the
trial of the case but denied the motion in limine. At trial, the title documents were submitted as
evidence, and the jury convicted the petitioner of possession of cocaine with intent to sell and of
felony possession of a weapon.

                 In his post-conviction petition, the petitioner claims that his trial counsel
ineffectively assisted him when he responded to the discovery of the title documents by filing a
motion in limine, rather than moving to suppress and obtaining an evidentiary suppression hearing.
In denying post-conviction relief, the trial court ruled that trial counsel performed his duties in a
“diligent and competent manner.”

              The burden rests upon a post-conviction petitioner to prove his claims by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997).

                 When a convicted defendant claims that he received ineffective assistance of counsel
during his or her criminal proceeding, the court must determine whether the representation fell
within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). To establish the ineffectiveness claim, the defendant – in this case,
a petitioner in a post-conviction proceeding – must show that counsel’s representation fell below a
standard of reasonableness and that the deficient performance prejudiced the defense. State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999). The failure to prove either deficient performance or consequent
prejudice results in a denial of relief. Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

                In the present case, the petitioner failed to show by clear and convincing evidence that
his trial counsel deficiently performed. Prior to the discovery of the title documents inside the safe,
counsel had already filed a motion to suppress the safe and its contents and had been heard on his
motion. The trial court denied the motion. Later, the title documents were discovered to be
additional contents of the safe, but it is clear that the trial court had ruled that the safe and its
contents were admissible. In fact, the denial of the motion to suppress was later upheld on direct
appeal. See Melvin Lewis Peacock, slip op. at 3-5 (“The suppression issue turns on whether Officer
Donegan did in fact leave a copy of the search warrant with the defendant [, and] . . . the evidence
does not preponderate against the court’s finding that Officer Donegan gave the defendant a copy
of the warrant.”). The revelation of the title documents implicated no new “search and seizure
grounds” for seeking suppression, and counsel thus turned to issues of exclusion – newly discovered
inculpatory evidence and a broken chain of custody – which he raised through a motion in limine.
These issues were fully aired before the trial court, which denied relief. The post-conviction judge
opined that trial counsel did all that he could to repel the prejudicial evidence of the title documents.

                Because the record supports the post-conviction court’s findings, we affirm its
judgment.

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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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