        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 5, 2010

                 CALVIN FLEMING v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Tipton County
                       No. 5045    Joseph H. Walker, III, Judge


                No. W2010-00173-CCA-R3-PC - Filed January 18, 2011


The Petitioner, Calvin Fleming, appeals from the Tipton County Circuit Court’s denial of
post-conviction relief from his conviction for attempted first degree murder. On appeal, the
Petitioner argues that trial counsel was ineffective in failing to obtain a mental evaluation
and in failing to inform the trial court of the absence of the mental evaluation at trial. He also
argues that trial counsel was ineffective in failing to object to the State’s introduction of the
victim’s medical records on the basis that they violated his Sixth Amendment right to
confront witnesses against him and that appellate counsel was ineffective in failing to raise
the confrontation issue on appeal. Upon review, we affirm the judgment of the post-
conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.

James E. Thomas, Memphis, Tennessee, for the Petitioner-Appellant, Calvin Fleming.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Tyler R. Burchyett, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                           OPINION

       Factual Background. The underlying facts in this case were summarized by this
court on direct appeal:

             Shannon Beasley, a sergeant with the Tipton County Sheriff’s
       Department, testified that he was dispatched to the intersection of Simmons
Road and Adams Street, near the entrance to Wilkinsville Trailer Park, where
a man was allegedly beating a woman. When he arrived at the crime scene, he
observed an unattended vehicle in the road. Sergeant Beasley was then
dispatched to a home inside Wilkinsville Trailer Park, and, once inside, he saw
the victim whose chest was bleeding.

        Chad Harber, who lives near the intersection of Simmons Road and
Adams Street, testified that around 6:00 p.m. he saw a man in a Lincoln Town
Car ram the rear of a Ford Contour twice. The man inside the Town Car went
to the Contour and beat the woman inside. Harber saw the woman get out of
the car as the man beat her and then enter a different nearby vehicle. The man
returned to the Town Car and drove toward the highway.                      On
cross-examination, Harber testified that he did not see the man kick or stomp
the woman.

        Vickey Cook testified that while driving on Simmons Road during the
evening hours she saw a damaged car and a couple fighting. The woman was
in the passenger seat of a car, and a man stood outside the car moving his arm
up and down. The man struck the woman about three times, and the woman
then ran toward Cook’s car screaming for help. The man pushed the woman
down in front of Cook’s car and continued to beat the woman, hitting her
about four times. Cook sounded her car horn, the man stopped hitting the
woman, and then the man drove away. The woman, who was covered with
blood, finally stood up and came to Cook’s car. Cook let her in the car, took
the woman to the woman’s father’s house, and then helped the woman call
911. Cook explained that the woman tried to telephone 911 but lost
consciousness before making the telephone call. An ambulance and police
officers arrived, and the ambulance took the woman away.                    On
cross-examination, Cook acknowledged that it was dark outside when she
witnessed these events.

       Christy Fleming, the victim, testified that she has been married to the
Defendant for seven years, and they separated on January 3, 2005. After the
separation, Fleming and her children moved to her mother’s house. Fleming
knew that the Defendant wanted her to return, but she did not speak with him.

       Fleming described how, nine days after their separation, the Defendant
attacked her on her way from work to her father’s house. She saw the
Defendant standing next to his car with its hood and trunk lids raised. She
explained that she thought the Defendant had followed her because he knew

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when she left her place of employment, he knew where she was heading, and
he had stopped his car at an intersection that was fifteen minutes away from
her father’s home. She pulled over to the Defendant and told him not to follow
her. The Defendant replied that he was not bothering her, and Fleming
returned to her vehicle and headed toward her father’s house. She again
noticed the Defendant following her. While stopped at an intersection, her
vehicle was struck from the rear, and then the Defendant came to her car,
opened her door, and began stabbing her. Fleming thought that the Defendant
stabbed her five times in the chest. He also stabbed her in the stomach, arm,
leg, and neck. She recalled kicking, screaming, and asking God to help her.
Suddenly, she found herself on the pavement, and the Defendant stomped on
her chest area where he had previously stabbed her. Fleming heard a car horn,
then rose from the pavement, went to a nearby car, and asked the driver to take
her to her father’s house. Fleming could not recall all the events that occurred
at her father’s house. Since being treated at a hospital, Fleming received a
Percocet prescription, and she still experiences pain.

        On cross-examination, Fleming acknowledged that when she first saw
the Defendant on the day of the attack the Defendant was already at an
intersection between her place of employment and her father’s house. She did
not recall the Defendant telling her that he was putting oil in his car when she
initially stopped to speak with him. She denied that the Defendant asked her
if she was allright after he rear-ended her vehicle and that she then pulled out
a knife that the Defendant later used.

       Billy Daugherty, an investigator with the Tipton County Sheriff’s
Department, described how he investigated the crime scene at the intersection
of Simmons Road and Adams Street, how he located the Defendant’s vehicle,
and how he diagramed the crime scene. Scottie Delashmit, an investigator
with the Tipton County Sheriff’s Department, described his involvement with
the investigation of this crime. He went to Fleming’s father’s house after
Fleming had been taken to the hospital and saw some wrappers that the EMTs
had used and a large amount of blood on the kitchen floor. He explained that
the Defendant became a suspect, and the authorities located the Defendant’s
vehicle. A photograph of the damaged vehicle was entered into evidence.

      Based upon this evidence, the jury convicted the Defendant of
attempted first degree murder and of aggravated assault.




                                      -3-
State v. Calvin Fleming, No. W2006-00098-CCA-R3-CD, 2007 WL 609889, at *1-3 (Tenn.
Crim. App., at Jackson, Feb. 27, 2007). The trial court sentenced the Petitioner as a Range
III, career offender to concurrent sentences of sixty years for the attempted first degree
murder conviction and fifteen years for the aggravated assault conviction, for an effective
sentence of sixty years. Id. at *1. On direct appeal, this court merged the aggravated assault
conviction into the attempted first degree murder conviction because the two convictions
violated the principles of double jeopardy. Id. at *7.

       The Petitioner filed a pro se petition for post-conviction relief on February 26, 2008.
Following the appointment of a public defender, the Petitioner chose to retain counsel.
Because retained counsel had a conflict of interest, new counsel was retained, who filed an
amended post-conviction petition. Following an evidentiary hearing, the trial court entered
an order denying post-conviction relief on January 6, 2010, and the Petitioner filed a timely
notice of appeal.

       Post-Conviction Hearing. At the January 6, 2010 post-conviction hearing, the
Petitioner presented testimony from trial counsel, entered an affidavit signed by appellate
counsel, and testified in his own behalf. The State entered a mental evaluation of the
Petitioner conducted by appellate counsel in July 2009.

       Trial counsel testified that he had practiced law for thirty-four years and had tried
approximately fifty cases. He stated that the Petitioner retained him prior to the preliminary
hearing.

        Trial counsel stated that he was able to view the State’s entire file pursuant to an open
file policy. Although the victim refused to speak with trial counsel, the Petitioner’s sister
was in constant contact with the victim and had learned that the victim was “was considering
asking the State to be lenient [with the Petitioner]” Trial counsel stated that he discussed the
case with the Petitioner several times, and they prepared the case together.

       Because the Petitioner had no memory of the incident in this case, trial counsel
requested that the Petitioner have a mental evaluation more than once. However, after
speaking to one of the Petitioner’s treating physicians, trial counsel realized that the
Petitioner most likely would not be entitled to any mental defenses:

       [S]oon after [the Petitioner] was released from the jail he went to Lakeside and
       stayed there for a period of time, and I don’t recall, I think a week or so.

              After he was released from Lakeside, we got a copy of those records,
       and then we later talked to the doctor. We had some difficulty contacting him,

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       but I remember this very well. I was on my way with my family out of town,
       and the doctor called my office and my office called me. And I pulled off the
       side of the road and talked to the doctor about [the Petitioner’s] case, because
       we were – we knew that we didn’t have a lot of options in [the Petitioner’s]
       case based on the way it had developed, or the facts had been.

              And so I asked the doctor about [the Petitioner] and the likelihood of
       us being able to proceed with some kind of insanity or diminished capacity or
       something, and he said no, based on the fact that [the Petitioner] had a serious
       drug issue, and he said he didn’t see anything like that. So that pretty much
       closed that door as a reality. But we still, I think attempted to get him
       evaluated.

Trial counsel stated that orders requiring an evaluation were entered following his discussion
with the Petitioner’s doctor at Lakeside, although an evaluation was never obtained. When
asked if he notified the trial court on the day of trial that an evaluation was never performed
on the Petitioner, trial counsel stated, “I don’t remember specifically saying it on the day of
trial. We entered several Orders trying to get him evaluated.”

        Trial counsel said that he received the victim’s medical records “very late[,]” and he
objected to their introduction. He said that he did not have a doctor evaluate the victim’s
medical records. When asked why he objected on the ground of relevance when the victim’s
medical records were admitted at the end of trial, trial counsel responded, “I don’t know that
the [victim’s medical] records would be [relevant]. I don’t know what the probative value
of the actual records would be. Now, the testimony about the records, yes. But I never could
see where there was a need for that.” He added, “My position was that the testimony of the
victim, the pictures that were introduced – as I remember there were pictures introduced –
that was sufficient to establish serious bodily injury in this case.” Trial counsel
acknowledged that the legal basis for the objection sounded more like an argument regarding
the cumulativeness of the evidence rather than the relevancy of the evidence. Trial counsel
said that he might have read the case of Crawford v. Washington but that he did not
“remember it right off [sic].” However, he stated that he was familiar with the confrontation
clause of the United States Constitution. He admitted that he did not raise an objection to the
victim’s medical records on the basis that they violated the Petitioner’s right to confront the
witnesses against him.

       On cross-examination, trial counsel stated, “There were several Orders [regarding the
mental evaluation] entered, and they were sent out to particular facilities, and they’d send
them back saying this is not the right place. And then we’d get another Order entered, and
that would be sent out. And that’s what was happening.” In addition, he reiterated that the

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Petitioner’s physician from Lakeside informed him that he “wasn’t getting anywhere with
any kind of mental defense and suggested that [the Petitioner] had a serious drug problem[.]”
Trial counsel said that although he continued to seek a mental evaluation, he did not believe
an evaluation was going to change the outcome of the Petitioner’s trial. Finally, he stated
that he did not believe that there was any case law that prevented the admission of the
victim’s medical records based on the confrontation clause.

        An affidavit signed by appellate counsel was admitted into evidence at the post-
conviction hearing. In the affidavit, appellate counsel stated that on August 2, 2006, the date
he filed the Petitioner’s appellate brief, he understood that the victim’s medical records “were
admissible under the Tennessee Rules of Evidence, and [he] did not believe this issue should
be included in the brief.” Appellate counsel also stated it was not until June 12, 2009, when
the United States Supreme Court issued its opinion in Melendez-Diaz v. Massachusetts, 129
S. Ct. 2527 (2009), that the “admission of medical records could be found by the Courts to
be subject to cross-examination under the confrontation clause of the United States and
Tennessee Constitution[s].”

       The Petitioner testified that he spoke with trial counsel “about three times” regarding
his case. He stated that trial counsel did not explain the trial process to him.

         Following the Petitioner’s testimony, the State entered the mental evaluation of the
Petitioner that was conducted by appellate counsel in July 2009. The evaluation stated that
it was the physician’s opinion that the Petitioner had “sufficient present ability to consult
with his attorney with a reasonable degree of rational understanding and a rational as well
as factual understanding of the proceedings against him.” In addition, the evaluation stated
that it was the physician’s opinion that “at the time of the commission of the acts constituting
the offense, [the Petitioner] was able to appreciate the nature or wrongfulness of such acts.”

                                       ANALYSIS

        On appeal, the Petitioner argues that trial counsel was ineffective in failing to obtain
a mental evaluation and in failing to inform the trial court that an evaluation had not been
performed. He also argues that trial counsel was ineffective in failing to object to the State’s
introduction of the victim’s medical records on the basis that they violated his Sixth
Amendment right to confront witnesses against him and that appellate counsel was
ineffective in failing to raise the confrontation issue on appeal. In response, the State argues
that this court should affirm the denial of post-conviction relief because the Petitioner failed
to prove his allegations of ineffective assistance of counsel by clear and convincing evidence.




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       The Petitioner contends that he received ineffective assistance of counsel. Post-
conviction relief is only warranted when a petitioner establishes that his or her conviction is
void or voidable because of an abridgement of a constitutional right. T.C.A. § 40-30-103
(2006). The Tennessee Supreme Court has held:

       A post-conviction court’s findings of fact are conclusive on appeal unless the
       evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover, factual
       questions involving the credibility of witnesses or the weight of their testimony
       are matters for the trial court to resolve. The appellate court’s review of a
       legal issue, or of a mixed question of law or fact such as a claim of ineffective
       assistance of counsel, is de novo with no presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901, n.3 (Tenn. 1992)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

202 S.W.3d at 116 (internal quotations and citations omitted).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address both



                                              -7-
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).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 370. “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” Id. (quoting
Strickland, 466 U.S. at 694).

        I. Mental Evaluation. The Petitioner argues that trial counsel was ineffective in
failing to obtain a mental evaluation and in failing to inform the trial court that an evaluation
had not been performed. He claims that trial counsel’s performance regarding the mental
evaluation was deficient and that he was prejudiced by this deficiency because “it is
impossible to now ascertain his mental state some 5 years ago.”

        In response, the State contends that there was no showing of deficiency. First, trial
counsel was informed by one of the Petitioner’s treating physicians that any mental defenses
would not be successful and that the Petitioner had a serious drug abuse problem. Second,
trial counsel attempted to obtain a mental evaluation of the Petitioner several times, despite
the fact that these attempts were unsuccessful. The State also argues that the Petitioner has
failed to prove any prejudice, given that a mental evaluation of the Petitioner prior to the
post-conviction hearing established that the Petitioner was competent at the time of the
offense and at the time that he filed his petition for post-conviction relief. We agree with the
State.

      In the order denying post-conviction relief, the trial court determined that trial
counsel’s performance was neither deficient nor prejudicial regarding the mental evaluation:

              Petitioner maintains counsel was deficient in the mental examination
       of petitioner. Counsel spoke with the doctor at Lakeside who examined
       petitioner, and there was no defense in this area. The later examination done
       in 2009 (exhibit 3) shows that counsel was not deficient in this area. The
       Court finds that petitioner failed to show how counsel was deficient in this
       regard, or how petitioner was prejudiced.

      The record does not preponderate against the findings of the trial court. Trial
counsel’s failure to obtain a mental evaluation or failure to notify the court of the absence of

                                               -8-
a mental evaluation was neither deficient nor prejudicial. Despite being informed by the
Petitioner’s treating physician that no mental defenses were available to the Petitioner, trial
counsel continued to seek orders directing mental evaluations from the trial court. Moreover,
the mental evaluation done prior to the post-conviction hearing establishes that the Petitioner
was competent to stand trial and appreciated the wrongfulness of his acts at the time of the
crime. Accordingly, the Petitioner has failed to prove that trial counsel’s performance
regarding the mental evaluation was either deficient or prejudicial.

        II. Victim’s Medical Records. The Petitioner argues that trial counsel was
ineffective in failing to properly object to the introduction of the victim’s medical records on
the ground that the records violated his Sixth Amendment right to confront witnesses against
him pursuant to Crawford v. Washington, 541 U.S. 36 (2004). Citing Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527 (2009), he contends that “he had a right to confrontation
because the records were testimonial in nature.” In addition, the Petitioner argues that
appellate counsel was ineffective in failing to raise the confrontation issue regarding the
introduction of the victim’s medical records. He asserts that although “trial counsel failed
to properly frame the objection, the issue of the admissibility of the records was raised by
trial counsel in petitioner’s motion for new trial” and should have been raised by appellate
counsel as plain error on direct appeal. Specifically, the Petitioner argues that appellate
counsel should have asserted that the medical records, which were admitted based on an
affidavit of the custodian of the records, were “testimonial in nature rather than simply
business records.” He further argues that the medical records were effectively “stand alone
evidence” because neither party presented expert testimony to “interpret or explain” the
records. In other words, he claims that the analysis in Melendez-Diaz regarding “lab reports
and affidavits by lab technicians” applies to the victim’s medical records in this case.

        In response, the State argues “it is pure speculation at this point in time whether
records generated in the process of rendering medical treatment fall under the Melendez-Diaz
exception.” Therefore, it contends that trial counsel was not ineffective in failing to raise an
objection based on the confrontation clause and that appellate counsel was not ineffective in
failing to raise this issue on appeal. Moreover, the State argues that even if the medical
records do fall within the exception established by Melendez-Diaz, trial counsel and appellate
counsel cannot be deemed deficient “for failing to anticipate a change in the law.” Finally,
the State contends that even if trial counsel and appellate counsel’s performance is assumed
to be deficient, the Petitioner has failed to establish prejudice because the medical records
“were cumulative to the victim’s testimony and photographs regarding her injuries” and were
therefore “not integral in the State’s case.” We agree with the State but note the Petitioner’s
waiver of this issue.




                                              -9-
       In the order denying post-conviction relief, the trial court stated the following
regarding the confrontation issue:

               Petitioner maintains counsel was deficient in failing to object properly
       to the introduction of medical records. Counsel did object. Before the trial
       began, counsel objected. See, page 2, exhibit 2, transcript of the evidence. “I
       would object to them being introduced into this record, before this jury, for any
       purpose[ .] . . .” And again at the time the records were introduced, counsel
       objected. See page 103. The court over-ruled the objection. Counsel was not
       deficient. In addition, the court finds counsel on appeal was not deficient by
       failing to assign as error the introduction of the records. The records were
       properly admitted, and there was ample other proof that the
       defendant/petitioner was the person responsible, and the injuries were
       extensive. The Court finds that petitioner failed to show how counsel was
       deficient in this regard, or how petitioner was prejudiced.

        We initially note that the Petitioner failed to include a copy of the victim’s medical
records in the record on appeal. Accordingly, any issues regarding trial counsel’s failure to
object to the introduction of the victim’s medical records or any issues regarding appellate
counsel’s failure to raise a confrontation issue on direct appeal are waived. The appellant
has a duty to prepare a record that conveys “a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b).
“In the absence of an adequate record on appeal, we must presume that the trial court’s ruling
was supported by the evidence.” State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App.
1991) (citing Smith v. State, 584 S.W.2d 811 (Tenn. Crim. App.1979); Vermilye v. State,
584 S.W.2d 226 (Tenn. Crim. App.1979)). Because we are unable to evaluate the medical
records admitted in this case, the Petitioner’s ineffective assistance of counsel claims
regarding the records are waived.

         Waiver notwithstanding, we agree with the State that neither trial counsel nor
appellate counsel was required to anticipate changes in the law regarding the confrontation
clause. See Jeffrey Owen Walters v. State, No. M2008-01806-CCA-R3-PC, 2009 WL
3400687, at *6 (Tenn. Crim. App., at Nashville, Oct. 20, 2009) (“Counsel’s performance was
not deficient for failing to anticipate a change in the law as it existed in Tennessee at the time
of Petitioner’s direct appeal.”), perm. to appeal denied (Tenn. Apr. 14, 2010). The
Melendez-Diaz case, which was decided years after the Petitioner’s trial and appeal, was the
first time that the analysis in Crawford had been applied to affidavits of expert witnesses who
failed to testify at trial. Melendez-Diaz, 129 S. Ct. at 2532. Accordingly, trial counsel and
appellate counsel are not deficient for failing to argue that the victim’s medical records in the
Petitioner’s case fall within the exception created by Melendez-Diaz. Therefore, waiver

                                               -10-
notwithstanding, the Petitioner has failed to establish that trial counsel or appellate counsel
were ineffective regarding the victim’s medical records.

                                      CONCLUSION

       Conclusion. Upon review, we affirm the judgment of the post-conviction court.


                                                    ______________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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