        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs April 9, 2014

                  MITCHELL FORD v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Marshall County
                     No. 12CR178      Robert G. Crigler, Judge


                  No. M2013-01471-CCA-R3-PC - Filed June 10, 2014


The petitioner, Mitchell Ford, appeals the denial of his petition for post-conviction relief.
At trial, the petitioner was convicted of arson and aggravated burglary, Class C felonies, and
was sentenced to two fifteen-year terms to be served concurrently. On appeal, he argues that
he was denied his right to effective assistance of counsel because trial counsel failed to
challenge the identification of the petitioner by the State’s witnesses and failed to challenge
a juror who knew the victim and the petitioner and his family. Following a review of the
record, we conclude that the petition was properly denied and affirm the judgment of the
post-conviction court.

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

J OHN E VERETT W ILLIAMS, delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J. and R OBERT W. W EDEMEYER, J., joined.

James Randall Frazier, Lawrenceburg, Tennessee, for the appellant, Mitchell Ford.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Robert Carter, District Attorney General; and Weakley E. Bernard, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                        FACTS AND PROCEDURAL HISTORY

       At the petitioner’s trial, the victim testified that she owned a home at 603 Old Lane
Road in Marshall County that she received as part of her late husband’s estate. The home
was unoccupied. She received a telephone call at about 1:00 p.m. on the afternoon of April
23, 2010, informing her that the home was on fire. She testified that most of the fire damage
occurred over the garage and the kitchen. The victim had asked Mr. James Gaylor to watch
her home during the week and keep the yard maintained.

        Mr. Gaylor testified that on the day of the fire, the house was not on fire when he left
between 11:00 a.m. and 12:00 p.m. to go to a gas station. His wife, Clellene Banks, and his
son accompanied Mr. Gaylor to the gas station. He said that he was gone for about ten
minutes and that on his way home, he saw a gold Saturn parked in front of the house’s
garage. He said that the car was backed into the driveway and that he witnessed a black male
exit through the front door of the house. After witnessing the man exit the house, Mr. Gaylor
shouted “What are you doing over there?,” at which point the man got into the gold Saturn
and left. Mr. Gaylor was able to observe the man for the length of time it took the man to
close the front door and walk from the front door to his car. As Mr. Gaylor attempted to get
the car’s license plate number, he heard his children screaming and noticed smoke coming
from the house. Ms. Banks also observed the gold Saturn in the driveway and testified that
the man drove away without answering Mr. Gaylor’s question, and she said that the man was
not in a hurry until smoke started coming from the garage. Mr. Gaylor testified that he called
9-1-1 once he heard his children screaming that the house was on fire and that he took his son
to a doctor’s appointment after the fire department had left. He believed that about one to
one and a half hours passed from the time that he called 9-1-1 to the time that he took his son
to the doctor.

        Mr. Gaylor saw the gold Saturn about two hours later on Highway 64 and began
following the car, flashing his lights and honking his horn in an attempt to get the car to pull
over. He stopped his pursuit when he saw the gold Saturn approaching a police roadblock.
Mr. Gaylor testified that the black male he witnessed leaving the victim’s home wore a white
t-shirt with the sleeves cut off and stone-washed jeans. He identified the petitioner as the
man he witnessed leaving the home and as the man he followed on Highway 64. He stated
that the petitioner was wearing a long-sleeve shirt when police arrested the petitioner at the
roadblock but that the t-shirt he saw earlier was underneath the long-sleeved shirt.

        Tennessee Highway Patrol Trooper James Crump testified that during a driver’s
license checkpoint on Highway 64 on April 23, 2010, he witnessed a grey minivan following
a gold, two-door Saturn. He identified Mr. Gaylor as the driver of the minivan and the
petitioner as the driver of the Saturn, and he stated that Mr. Gaylor told him that the
petitioner started a house fire. Trooper Crump testified that Mr. Gaylor was about fifty feet
away from the petitioner when Mr. Gaylor told him the petitioner started a house fire.
Trooper Crump contacted the Lewisburg Police Department, a detective arrived at the
checkpoint, and they arrested the petitioner. Trooper Crump observed that the petitioner was
wearing a dark, long-sleeve shirt, a white tank top underneath the shirt, and khaki pants. He
testified that Mr. Gaylor told him that the petitioner was wearing the tank top underneath the

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long-sleeve shirt.

        Lewisburg Police Officer Kevin Clark took the petitioner into custody. He drove the
petitioner to the parking lot of Wright’s Paving where Ms. Banks and her daughter, Ms.
Watts, identified the petitioner as the individual who left the scene of the fire in a gold
Saturn. He testified that the petitioner was the only individual in his car when Ms. Banks and
Ms. Watts identified the petitioner and that the women identified the petitioner without
hesitation from about 100 feet away.

        Ms. Banks identified the petitioner as the man standing at the trunk of the gold Saturn
in the driveway of the victim’s residence. She stated that the petitioner wore dark pants and
a white t-shirt but did not recall anything about the shirt’s sleeves. Ms. Banks testified that
she and her daughter, Ms. Watts, informed police that they were able to identify the
petitioner. She stated that she met Officer Clark at a business on Old Lane Road, that Officer
Clark brought the petitioner out of the police car, and that she informed police that the
petitioner was the man “who set the house on fire.” She recalled that she was about 100 feet
away from the petitioner and stated that he had put a dark shirt over his t-shirt. Ms. Banks
did not recall if the petitioner’s t-shirt had sleeves but stated that it was not a tank top. She
testified that as the petitioner drove away from the victim’s residence, she viewed a dark shirt
in the vehicle and that the shirt was similar to the shirt the petitioner wore when she
identified him.

        Lewisburg Police Detective James Johnson testified that he was present for Ms.
Banks’s identification of the petitioner, that she was about 100 feet away from the petitioner,
and that Ms. Banks and Ms. Watts identified the petitioner without hesitation. Detective
Johnson stated that the petitioner was wearing a blue shirt, a white t-shirt underneath the blue
shirt, and khaki pants at the time of Ms. Banks’s identification. He thought that the blue shirt
had three buttons and did not recall if the shirt had long sleeves. He also testified that if Ms.
Banks or Ms. Watts had hesitated or been unsure of the identity of the man they saw leaving
the scene, the petitioner would not have been arrested. State v. Mitchell Jarod Ford, No.
M2011-01504-CCA-R3-CD, 2012 WL 3679573, at *1-8 (Tenn. Crim. App. Aug. 24, 2012).

      At the post-conviction hearing, the court heard testimony from the petitioner and trial
counsel, along with several other witnesses.1 The petitioner testified that he requested to


        1
          We have only included testimony from the petitioner and trial counsel relevant to the issues raised
on appeal. Novella Ford, Michele Beesley, Crystal Gray, and Fred Holloway also testified during the post-
conviction hearing. However, they testified only in regards to the petitioner’s potential alibi, an issue he did
not raise with this court on appeal. Therefore, we omit the testimony that is not relevant to the specific issues
                                                                                                   (continued...)

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have a Tennessee Highway Patrol video introduced into evidence that illustrated the clothing
he was wearing when he was identified. He stated that witnesses identified the suspect as
wearing a T-shirt and blue jeans and operating a four-door vehicle. The petitioner said that
Ms. Banks testified at trial that when she identified the petitioner at the scene he was wearing
a long-sleeved pullover and dark pants. The petitioner believed that if the jury were to have
viewed the video “they are going to see that I am not the person [the witness] is identifying.
I am not even wearing the clothes that she is saying she is certain that the person had on.”
The petitioner testified that when he was arrested, he was wearing khaki pants and a “cutoff
shirt . . . with a collar on it that buttons down with an A-shirt up under it.”

        The petitioner stated that, at trial, witnesses “kept saying it was a pullover, I had on
a pullover” that was supposed to have been the same pullover in the car that Ms. Banks stated
she saw and the same pullover the petitioner was wearing when he was brought to the police
station for identification. The petitioner said that he took issue with the identification
because, when he was returned to the scene, Ms. Banks stated that the petitioner “was
wearing an article of clothing that was in the vehicle that she saw as [the petitioner] was
leaving the scene, but never existed.” He testified that his car was taken and impounded and
that a pullover was never discovered and that when he was arrested he was wearing a short-
sleeved, button-down shirt.

        The petitioner also testified that he had a very distinctive bald hair cut and extensive
tattoos which would be very visible to anyone in close proximity to the petitioner. Ms. Banks
stated at trial that the suspect had a regular haircut, and the petitioner wanted trial counsel
to address the fact that the petitioner had a different haircut than the one suggested by Ms.
Banks. He testified that trial counsel refused to introduce the videotape or raise the issue of
his distinctive haircut and tattoos at trial. The petitioner stated that he believed that the
witnesses’ identifications of him were incorrect and that the issue was not pursued by trial
counsel. He requested that trial counsel file a motion to suppress the witnesses’
identification and admitted that, although the witnesses’ statements regarding the clothing
were not included in discovery, the basis for suppressing the identification was “[b]ecause
[the petitioner] knew that [he] wasn’t the individual [identified.]”

        The petitioner testified that a member of the jury, Ms. Hargrove, stated that she knew
both the victim and the petitioner. Ms. Hargrove worked at the credit union and knew the
petitioner and his family because they maintained accounts at the credit union. Ms. Hargrove
also knew the victim because the bank had a lien on the victim’s house, and the petitioner
testified that Ms. Hargrove responded to the scene when the house was on fire. He testified


        1
          (...continued)
raised in this appeal.

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that he brought this to trial counsel’s attention but that trial counsel informed him that having
Ms. Hargrove on the jury would not present a conflict because she stated that she would not
be “partial.” The petitioner could not remember trial counsel challenging Ms. Hargrove for
cause. The petitioner testified that even if trial counsel had objected, the petitioner would
still have a valid post-conviction complaint because he did not understand “how anyone that
involved is able to sit on the jury.”

        Trial counsel testified that he had been licensed as an attorney since 2006 and working
in the public defender’s office since 2007. He viewed the video taken from the trooper’s car
with the petitioner and testified that he and the petitioner had differing recollections as to the
article of clothing shown in the video. Trial counsel believed that the only difference in the
article of clothing was that “at the scene -- the person that [the witnesses] testified that they
saw was wearing a tank-top style undershirt, whereas, when [the petitioner] was stopped at
the roadblock, he was wearing a sleeveless t-shirt under his clothes.” Trial counsel testified
that he pointed out the discrepancy in undershirts at trial but primarily tried to use the fact
that Mr. Gaylor had telephoned Ms. Banks during his pursuit of the petitioner to weaken Ms.
Banks’s identification of the petitioner.

         Trial counsel testified that he made a tactical decision not to introduce the videotape
at trial. He stated that Trooper Crump had already testified that the petitioner was operating
a two-door vehicle, and trial counsel felt that with the trooper’s testimony it was not
necessary to show the video to the jury. He said that the video also could have negatively
impacted the petitioner’s defense, as it showed how long Mr. Gaylor had to see the petitioner
at the scene and how close he was to the petitioner. Trial counsel was concerned that “the
jury would be able to decide [Mr. Gaylor] was able to make a better identification than what
we were able to argue without the video being show.” He testified that he explained to the
petitioner the potential consequences of showing the video and that, although the petitioner
disagreed with the decision, he appeared to understand the reasoning behind the decision to
exclude the videotape. Trial counsel believed that he made the correct tactical decision in
not introducing the video.

        Trial counsel stated that he was not surprised by anything about Ms. Banks’s
identification of the petitioner at trial and that he expected the identification and was familiar
with it. He was able to cross-examine Ms. Banks about her identification at trial. He
testified that the petitioner asked him to file a pretrial motion to suppress the identification.
Trial counsel did not file this motion because case law supported the manner in which the
petitioner’s “showup identification” was handled, which left him no basis to file the motion
to suppress. He explained to the petitioner why he could not file the motion, and the
petitioner seemed to understand.



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        Trial counsel testified that the issue with Ms. Hargrove arose after the conclusion of
trial. After the trial, the petitioner brought up the fact that Ms. Hargrove had stated during
voir dire that she knew the victim, along with the petitioner and the petitioner’s mother. Ms.
Hargrove knew the petitioner and his mother based on their dealings with the bank where she
was employeed. Ms. Hargrove “had kind of fallen out of contact with [the victim]” but still
saw the petitioner and his mother fairly frequently at the bank. Trial counsel felt that the fact
that Ms. Hargrove knew the petitioner and his mother better than she knew the victim “could
be a reason to leave her on the jury.” He testified that the petitioner did not raise any
objections to Ms. Hargrove being a member of the jury until after the trial had concluded and
trial counsel was preparing a motion for a new trial.

        At the conclusion of the testimony, the post-conviction court made several
observations. The court stated that although a motion to suppress Ms. Banks’s identification
of the petitioner could have been filed, the petitioner had not presented proof by clear and
convincing evidence to show that the motion would have been successful. Because the
petitioner did not meet his burden, the claim did not present a basis for post-conviction relief.
The court found that trial counsel made a tactical decision not to play the videotape at trial
and that trial counsel had articulated several reasons to support his decision. The court noted
that the tape could have been “counterproductive” to efforts to cast doubt on the
identification of the petitioner and observed that tactical decisions did not provide a basis for
post-conviction relief unless it was a “totally unreasonable” decision. The court found that
trial counsel made a sound decision in excluding the videotape. The court also stated that
there was no proof in the hearing that Ms. Hargrove was tainted by her knowledge of the
victim and observed that trial counsel made a tactical decision to keep Ms. Hargrove on the
jury because the fact that she knew the petitioner and his family “could enure to the
[petitioner’s] benefit.” The court found that the petitioner had not proved by clear and
convincing evidence that Ms. Hargrove’s relationships with the victim and the petitioner
affected the verdict. The court then denied the petition for post-conviction relief by written
order.

                                         ANALYSIS

        The petitioner argues that he was denied his right to effective assistance of counsel.
Specifically, he contends that counsel was ineffective for failing to challenge the
identification of the petitioner by the State’s witnesses by admitting a video that depicted the
petitioner’s apparel when he was identified and for failing to challenge a juror who knew the
victim and the petitioner and his family.

       To obtain post-conviction relief, the petitioner must demonstrate that “the conviction
or sentence is void or voidable because of the abridgment of any right guaranteed by the

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Constitution of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103
(2010). The petitioner bears the burden of proving the allegations of fact giving rise to the
claim by clear and convincing evidence. Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998)).

        On appeal, a post-conviction court’s findings of fact are conclusive unless the
evidence preponderates otherwise. State v. Vaughn, 202 S.W.3d 106, 115 (Tenn. 2006).
This court may not substitute its own inferences for those drawn by the post-conviction court,
as questions concerning the credibility of witnesses, the weight and value of the evidence,
and the factual issues raised by the evidence are to be resolved by the post-conviction court.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). A claim of ineffective assistance
of counsel raises a mixed question of law and fact which this court reviews de novo. Fields
v. State, 40 S.W.3d 450, 455 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
Therefore, this court reviews the trial court’s factual findings de novo with a presumption of
correctness unless the evidence preponderates against the trial court’s findings. Fields, 40
S.W.3d at 458. The trial court’s conclusions of law on the claim are reviewed under a purely
de novo standard with no presumption of correctness. Id.

        Both the Sixth Amendment to the United States Constitution and article I, section 9
of the Tennessee Constitution guarantee the right to counsel. This right affords an individual
representation that is “within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Counsel is ineffective when
“counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466
U.S. 668, 686 (1984).

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
prove by clear and convincing evidence that: (1) counsel’s performance was deficient; and
(2) the deficiency prejudiced the petitioner to the degree that the petitioner did not receive
a fair trial. Strickland, 466 U.S. at 687. A petitioner satisfies the deficiency prong of the
test by showing that “counsel’s representation fell below an objective standard of
reasonableness;” that is, “the services rendered or the advice given must have been below
‘the range of competency demanded of attorneys in criminal cases.’” Strickland, 466 U.S.
at 688; Grindstaff, 297 S.W.3d at 216 (quoting Baxter, 523 S.W.2d at 936). The petitioner
must demonstrate that “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at
687. Courts evaluating the performance of an attorney “should indulge a strong presumption

                                              -7-
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Burns, 6 S.W.3d at 462. In order to fairly assess counsel’s conduct every effort must be
made “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689. “The fact that a particular strategy or tactic failed or hurt
the defense, does not, standing alone, establish unreasonable representation.” Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996).

       Prejudice requires the petitioner to show “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. If the petitioner fails to establish either
deficiency or prejudice, post-conviction relief is not appropriate, and this court need not
address both components if the petitioner makes an insufficient showing as to one
component. Grindstaff, 297 S.W.3d at 216; Goad, 938 S.W.2d at 370.

        The petitioner contends that introducing the Tennessee Highway Patrol video would
have resolved the inconsistencies between the witnesses’ identification of the clothing the
suspect was wearing and the clothing that the petitioner was wearing and would have
illustrated that he was not the individual that the witnesses identified. However, trial counsel
was aware of the video footage and testified that he made a tactical decision not to admit it.
Courts should defer to matters of tactical choices only if the choice is an informed one based
upon adequate preparation. Goad, 938 S.W.2d at 369. Here, the evidence does not
preponderate against the finding that trial counsel made a reasonable tactical decision. Trial
counsel testified that he believed the video ultimately could prove harmful to the petitioner’s
defense, as it might undermine the defense’s argument that Mr. Gaylor could not make an
accurate identification of the petitioner. He further testified that he recalled the only
discrepancy regarding the articles of clothing to be the style of undershirt worn; the witnesses
testified the suspect had on a tank-top style undershirt while the petitioner was wearing a
sleeveless undershirt. Trial counsel also noted that the differences between the style of
undershirts offered little support to bolster the petitioner’s theory of misidentification. We
conclude that the petitioner has failed to carry his burden of proving that trial counsel
performed deficiently and that the petitioner suffered prejudice. Trial counsel made a tactical
decision not to play the video, and the petitioner has not shown how playing the video may
have resulted in a different outcome at trial. Therefore, the petitioner is not entitled to relief
as to this claim.

       The petitioner’s claim that counsel was ineffective for failing to challenge the
inclusion of Ms. Hargrove on the jury also must fail. Trial counsel made a tactical decision
to keep Ms. Hargrove on the jury, as he felt that it could prove beneficial that Ms. Hargrove

                                               -8-
knew the petitioner and his family better than she knew the victim. The petitioner has not
offered any proof that challenging Ms. Hargrove as a juror would have resulted in a different
outcome at trial. We conclude that the evidence does not preponderate against a finding that
trial counsel made a reasonably informed tactical decision; therefore the petitioner is entitled
to no relief on this issue.

                                       CONCLUSION


       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                                    _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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