        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  April 24, 2012 Session

           QUINCY LONDALE SCOTT v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Hamilton County
                          No. 274685   Don W. Poole, Judge


              No. E2011-01534-CCA-MR3-PC - Filed September 24, 2012


The Petitioner, Quincy Londale Scott, appeals as of right from the Hamilton County Criminal
Court’s denial of his petition for post-conviction relief. On appeal, the Petitioner contends
that his trial counsel was ineffective for failing to investigate the circumstances surrounding
his confession to the police and failing to hire a “handwriting expert” to testify about the
waiver of rights form signed by the Petitioner. Following our review, we affirm the
judgment of the post-conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and R OBERT W. W EDEMEYER, J., joined.

David Christopher Veazey, Chattanooga, Tennessee (on appeal); and Justin G. Woodward,
Chattanooga, Tennessee (at hearing and on appeal), for the appellant, Quincy Londale Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William H. Cox, III, District Attorney General; Neal Pinkston and Lance
Pope, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

       In 2003, the Petitioner was charged in two separate indictments with one count of first
degree felony murder, one count of especially aggravated robbery, two counts of aggravated
robbery, and one count of carjacking. Following a jury trial, the Petitioner was convicted of
one count of facilitation of first degree murder, one count of attempted especially aggravated
robbery, two counts of aggravated robbery, and one count of carjacking. The Petitioner
received an effective sentence of thirty-seven years. This court affirmed the Petitioner’s
convictions on direct appeal. State v. Quincy Londale Scott, No. E2007-00393-CCA-R3-
CD, 2009 WL 276778 (Tenn. Crim. App. Feb. 4, 2009), perm. app. denied, (Tenn. June 15,
2009).

       The Petitioner’s convictions arose from a late night crime spree by the Petitioner and
two co-defendants on July 30 and 31, 2002. During the crime spree, the Petitioner was
armed with a shotgun and one of his co-defendants was armed with an assault rifle. The men
committed three separate robberies and stole a car. During one of the robberies, the co-
defendant armed with the assault rifle shot and killed a victim. All three defendants were
eventually questioned by the police. The Petitioner was questioned twice: on August 7,
2002 and August 14, 2002. Before the questioning on August 7, 2002, the Petitioner signed
a waiver of his Miranda rights. The Petitioner did not admit any involvement in the crimes
or make any incriminating statements during his first interview with the police. The
Petitioner was interviewed again on August 14, 2002, and during this interview, the
Petitioner admitted his involvement in the crimes but denied shooting the victim. The
Petitioner’s statements were presented as evidence at his trial along with testimony from the
victims, eyewitnesses who saw the Petitioner with weapons matching the description of those
used both before and after the crime spree, and other evidence. See Scott, 2009 WL 276778,
at *1-5.

        Prior to trial, the Petitioner filed a motion to suppress his August 14, 2002 statement
to the police. The Petitioner claimed that he had not signed a waiver of his Miranda rights
before the interview. Instead, the Petitioner argued that both waiver forms reflected the date
of the first interview on August 7, 2002, and that he had signed the second waiver form on
August 7, 2002, “after he was told that the first waiver form had been lost.” The Petitioner
also claimed that he had taken “pills” that were given to him by his cellmate prior to the
August 14, 2002 interview. The Petitioner claimed that he was only “halfway there” during
the interview and “barely” remembered what had happened during the interview. The
Petitioner further claimed that he asked for an attorney prior to the August 14, 2002
interview. The trial court denied the Petitioner’s motion to suppress his statement, and this
court affirmed that decision on direct appeal. Scott, 2009 WL 276778, at *4-6.

        On January 19, 2010, the Petitioner filed a timely, pro se petition for post-conviction
relief. The petitioner alleged that trial counsel “was deficient in regard to the investigation
of the Miranda waiver forms.” The Petitioner argued that it could “clearly [be] seen that the
date of one of the forms had been altered to reflect the date of the alleged signing.” The
Petitioner noted that on the top of the form the date was stated as August 14, 2002, and
appeared to have “been altered,” but on the bottom of the form the date was stated as August
7, 2002. The Petitioner argued that his statement to the police was the only evidence

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connecting him to the crimes. The Petitioner acknowledged that his trial counsel had filed
a motion to suppress his statement, but he argued that trial counsel had not “properly argued
this issue at the trial court level.” The post-conviction court appointed counsel and an
amended petition was filed on April 15, 2010. The amended petition essentially restated the
arguments made by the Petitioner in his pro se petition. The post-conviction court held a
hearing on this matter on March 7, 2011.

        At the hearing, trial counsel testified he had been licensed to practice law since 1992
and had tried between fifty and seventy-five criminal cases. Trial counsel recalled filing a
motion to suppress the Petitioner’s statement “because it was taken when he was under the
influence of . . . prescription medication.” Trial counsel testified that he was “not sure” if
the Petitioner had ever provided him with the name of the person who gave the Petitioner the
pills. Trial counsel stated that he did not go through the jail records in an effort to find out
who this person was. Trial counsel testified that he had “quite a few” discussions with the
Petitioner about the Miranda waivers. Trial counsel recalled that “there were significant
issues concerning the timing of the Miranda waiver.” Trial counsel then testified that the
issue of whether the date had been altered on the August 14, 2002 waiver had been included
in his motion to suppress the statement, “addressed actually within the context of the
suppression hearing,” and litigated prior to trial.

       Trial counsel testified that he “discussed a number of things about [the Miranda
waiver] in detail” with the Petitioner. Trial counsel could not remember if he had
“specifically discussed hiring a handwriting expert” with the Petitioner. Trial counsel
believed that the Petitioner “explained” to him why the date on the waiver appeared to be
altered and “that explanation precluded the need” for a handwriting expert. However, trial
counsel could not recall for certain whether or not this was actually the case. Trial counsel
then testified that the August 14, 2002 statement was “crucial” to both the State and the
defense. Trial counsel explained that the statement went “right along with the theory of
defense in the case” that the Petitioner “was not actually involved in the shootings.” Trial
counsel believed that the statement was “how [they] got the jury to the point of facilitation”
and to acquit of the charged offense of first degree felony murder. Trial counsel concluded
that he was “very pleased with the result” at trial.

        The Petitioner testified that he did not recall signing a Miranda waiver on August 14,
2002. The Petitioner testified that he recalled meeting with trial counsel to discuss the issue
of the waiver but that trial counsel had never discussed with him “the need or the ability to
hire a handwriting expert or any type of forensic expert.” According to the Petitioner, the
only thing trial counsel did with respect to the alleged alteration of the date on the waiver
form was that trial counsel “brought in the original copy and he was, like, well, that’s it right
there or something and just let it go.” The Petitioner testified that trial counsel discussed

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with him the reasons why trial counsel had filed a motion to suppress. The Petitioner stated
that trial counsel wanted his statement suppressed because it was “something that was real
valuable” and that the State could use it to convict him. The Petitioner did not present any
expert witnesses or other evidence regarding the Miranda waiver at the hearing.

       On cross-examination, the Petitioner testified that he had taken “some random pills”
that he got from another inmate just before he gave his August 14, 2002 statement. The
Petitioner admitted that it was “possible” that he signed a second Miranda waiver form on
that day and just did not “remember it” because of the medication he had taken. Also on
cross-examination, the Petitioner admitted that he was “satisfied with the decision” of the
jury but he felt his trial counsel only “put some effort in” to his trial. The Petitioner also
admitted that before the suppression hearing trial counsel discussed with him the particular
arguments and tactics he would use at the hearing. However, the Petitioner testified that trial
counsel did not discuss with him calling any witnesses at the suppression hearing or
consulting any experts for the hearing.

        On April 5, 2011, the post-conviction court issued an order denying the Petitioner
post-conviction relief.1 The post-conviction court stated that the Petitioner did not present
any “expert evidence that his second waiver is a forgery or additional evidence that, because
of his use of medication, the waiver or the subsequent statement was involuntary or
unintelligent” at the hearing. The post-conviction court concluded that “any deficiency in
[trial] counsel’s performance in this respect was not prejudicial.” The Petitioner
subsequently filed a request for an untimely appeal which this court granted.

                                               ANALYSIS

       The Petitioner contends that the post-conviction court erred in denying his petition for
post-conviction relief. The Petitioner argues that trial counsel failed to properly investigate
the circumstances surrounding the August 14, 2002 Miranda waiver. The Petitioner also
argues that trial counsel was ineffective for failing to consult with or have a handwriting
expert testify at the suppression hearing. The Petitioner further argues that a handwriting
expert should have been consulted because his statement was “instrumental” to the State’s
case against him. The State responds that it is clear from the record that trial counsel fully
investigated the circumstances surrounding the Petitioner’s Miranda waiver. The State also
responds that the Petitioner, by failing to call a handwriting expert at the post-conviction
hearing, cannot establish that trial counsel was ineffective.


1
 Both the pro se petition and the amended petition raised several other issues. The post-conviction court
ultimately denied post-conviction relief on these issues as well. However, the Petitioner has not raised these
issues in this appeal.

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       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
On appeal, we are bound by the post-conviction court’s findings of fact unless we conclude
that the evidence in the record preponderates against those findings. Fields v. State, 40
S.W.3d 450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of the
witnesses, the weight and value to be given their testimony, and the factual issues raised by
the evidence are to be resolved” by the post-conviction court. Id. Because they relate to
mixed questions of law and fact, we review the post-conviction court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457.

       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, “the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989).

        The record in this case simply belies the Petitioner’s contention that trial counsel
failed to properly investigate the circumstances surrounding the August 14, 2002 Miranda
waiver. Trial counsel discussed the issue of the alleged discrepancy in the form’s date with
the Petitioner and included the issue in his motion to suppress the statement. The Petitioner
testified about the issue at the suppression hearing and both the trial court and this court
addressed the issue. The Petitioner admitted at the post-conviction hearing that trial counsel
had discussed the issue with him prior to the suppression hearing. The Petitioner also
admitted that it was possible he signed a Miranda waiver on August 14, 2002, and could not
recall it due to the fact that he had taken “pills” before the interview. Further, the Petitioner
presented no proof at the post-conviction hearing to establish what, if anything, further
investigation by trial counsel would have revealed. Therefore, the Petitioner failed to
establish that trial counsel was deficient in his investigation regarding the Miranda waiver.

       With respect to the Petitioner’s claim that trial counsel was ineffective because he did
not consult with or call a handwriting expert at the suppression hearing, this court has long
held that when a petitioner contends that trial counsel failed to call a known witness in
support of the defense, the witness “should be presented by the petitioner at the evidentiary

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hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). This is the only
way the petitioner can establish that failure “to call the witness to the stand resulted in the
denial of critical evidence which inured to the prejudice of the petitioner.” Id. The Petitioner
failed to present a handwriting expert at the post-conviction hearing; therefore, the Petitioner
has failed to establish by clear and convincing evidence that trial counsel was ineffective
regarding this issue.

        At oral argument in this case, the Petitioner argued that he should not be faulted for
failing to present a handwriting expert because there is no funding provided for an indigent
petitioner to secure such an expert for post-conviction proceedings. However, after “careful
consideration of the cases and constitutional provisions” our supreme court has held that “the
state is not required to provide expert assistance to indigent non-capital post-conviction
petitioners.” Davis v. State, 912 S.W.2d 689, 696-97 (Tenn. 1995). Accordingly, we affirm
the judgment of the post-conviction court.

                                       CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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