        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  May 6, 2014 Session

                    GUY GRAVES v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                       No. C11229     Donald H. Allen, Judge


                 No. W2013–01288-CCA-R3-PC - Filed June 12, 2014


The Petitioner, Guy Graves, appeals from the denial of post-conviction relief by the Madison
County Circuit Court. He was convicted of two counts of burglary and received an effective
sentence of twenty-four years in the Tennessee Department of Correction. On appeal, the
Petitioner argues that he received ineffective assistance of counsel. 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 J OSEPH M. T IPTON,
P.J., and A LAN E. G LENN, J., joined.

J. Colin Morris, Jackson, Tennessee, for the Petitioner-Appellant, Guy Graves.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney
General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       This court summarized the facts underlying the Petitioner’s convictions in its opinion
on direct appeal:

              On April 18, 2009, Express Mail Depot and Green Frog Café in
       Jackson, Tennessee, were burglarized. Brandy Stewart, the owner of Express
       Mail Depot, explained that someone used a brick to break the glass door and
       take a pair of donation jars off the front counter. The donation jars were for
       Jackson Downtown Development and a friend who had lost a child. The jars
       contained about $150 and were visible from the front window of the business.
       Video surveillance of the storefront showed a man breaking into the building
       and running out.

              Adam Kuykendall was employed by the Green Frog Café in April of
       2009. The Green Frog Café is located next door to the Express Mail Depot.
       On April 18, 2009, at around 2:45 a.m., the glass in the front door of the Green
       Frog Café was broken with a brick. Missing from the business was a donation
       jar containing about thirty to forty dollars. Mr. Kuykendall saw the
       surveillance video of the burglary at Green Frog Café and Express Mail Depot
       on Monday morning. In each video, the perpetrator is seen approaching the
       building, throwing a brick through a window, entering the building, and
       leaving with a jar in his hands.

              After the burglaries, [the Petitioner] was identified as a suspect from a
       tip on a crime stoppers telephone call. Eddie McClain, a Jackson Police
       Department Investigator, noted that the same subject was visible in each video,
       wearing a distinctive cap. The perpetrator also had a goatee. Investigator
       McClain photographed [the Petitioner] after taking him into custody. When
       Investigator McClain first met [the Petitioner], he was wearing “the same hat
       that was in the [surveillance] video.” In addition, [the Petitioner] was also
       wearing a gray and black jacket.

              At the conclusion of the proof, counsel for [the Petitioner] moved for
       a judgment of acquittal. The trial court granted the motion with respect to
       Count Three1 of the indictment. After deliberation, the jury found [the
       Petitioner] guilty of two counts of burglary.

State v. Guy T. Graves, No. W2010-00984-CCA-R3-CD, 2011 WL 856384, at *1 (Tenn.
Crim. App. Mar. 8, 2011), perm. app. denied (Tenn. July 15, 2011).

       The trial court sentenced the Petitioner as a Range III, persistent offender to an
effective term of twenty-four years’ imprisonment for his convictions. This court affirmed
his convictions and sentence on direct appeal. Id. On September 1, 2011, the Petitioner filed
a timely pro se petition for post-conviction relief, alleging, inter alia, sixteen grounds of
ineffective assistance of counsel. The Petitioner was subsequently appointed counsel. The




       1
         Count Three dealt with the burglary of The Discovery Museum. There was no surveillance video
showing this burglary.

                                                 -2-
post-conviction hearings took place on November 19, 2012, December19, 2012, and January
28, 2013.2

       Post-Conviction Hearings. Trial counsel testified that he was appointed to represent
the Petitioner upon his indictment. He recalled that three businesses in downtown Jackson
were burglarized and that the Petitioner was charged with three counts of burglary. Trial
counsel stated that the Petitioner consistently maintained his innocence and therefore, the
Petitioner rejected the State’s plea offers. He said that the Petitioner was always cooperative
and that they got along throughout the course of the trial. Trial counsel also represented the
Petitioner on direct appeal. He said he attempted to fight the case to the fullest.

       Trial counsel stated that there had been fingerprints found at one of the businesses but
that they did not belong to the Petitioner. He said he discussed the lack of fingerprint
evidence with the Petitioner but he did not remember if they discussed calling William Roane
of the Jackson Police Department as a fingerprint expert. Trial counsel did not consider
calling Roane as a defense witness. He agreed that if Roane had testified, he would have
stated that the fingerprints found at the scene did not match those of the Petitioner. He
recalled that the jury heard about the lack of fingerprint evidence linking the Petitioner to the
crime scene. Trial counsel said it was his strategy to get the fingerprint evidence in through
cross-examination of Investigator Eddie McClain. He recalled asking Investigator McClain
whether there were any fingerprints found that connected the Petitioner to the burglary.

        Trial counsel testified that he was aware that someone named “Cochease” had been
identified as a suspect in one of the burglaries, though he could not recall the name of the
woman who had identified this individual. Other than Cochease, trial counsel did not know
of anyone else who could have been involved in the offenses. He said the name “Vicki
Berkshire”3 sounded “vaguely familiar.” He thought that it was the Petitioner who had told
him about Vicki Berkshire identifying Cochease as a suspect, though he conceded that the



        2
          We only address the testimony from the hearings relevant to the disposition of the issues that the
Petitioner raised in his appellate brief. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported
by argument, citation to authorities, or appropriate references to the record will be treated as waived in this
court.”).
        3
          Upon direct examination, post-conviction counsel directed trial counsel’s attention to a police
report supplement and read for the record, “Vicki Berkshire, manager of the New Southern Apartments stated
that she has a video of the suspect and would contact me when it is ready. She did provide me with three
pages with twelve photos of the suspect. Ms. Berkshire stated that she believes the suspect to be a man called
Cochease as a suspect.” We note that this document was not entered into evidence at the post-conviction
hearing and was not included in the appellate record.

                                                     -3-
information may have been included in the discovery.4 Trial counsel was certain that he had
reviewed these documents because he read the entire file. When asked why he had not called
Vicki Berkshire to testify, counsel stated, “Well, all I know is that she said she thought that
was who it looked like and maybe I should have done that.” He said that the Petitioner may
have asked him about this issue even after the trial.

        On cross-examination, trial counsel agreed that the State did not allege at trial that the
Petitioner’s fingerprints were found at the crime scene. He testified that he and the Petitioner
discussed Cochease as a suspect but that he never found a man named Cochease. He said
that the Petitioner did not provide any information about anyone by the name of Cochease.
He agreed that there had been video surveillance from both Express Mail Depot and Green
Frog Café that had been played for the jury. Trial counsel recalled that the videos were in
color and that the perpetrator’s clothing could be identified. He agreed that the Petitioner
was arrested shortly after the burglaries while dressed in similar clothing.

       The Petitioner testified that he was convicted for burglarizing the Green Frog Café
and Express Mail. He denied any involvement in these offenses. He stated that the
surveillance video from the Green Frog Café depicted a man throwing a brick, entering, and
then running from the scene “like a track star.” He said he could not have been the
perpetrator because he has not been able to run since 1988 due to a physical disability. The
Petitioner said he did not take the State’s plea offer because he did not commit the crimes.
He opined that the testimony of both William Roane and Vicki Berkshire would have been
essential to his defense.

        The Petitioner said he became aware of the lack of incriminating fingerprint evidence
when Investigator McClain brought him to the police station to take his fingerprints. The
Petitioner stated that this was the first and last time he ever saw William Roane. According
to the Petitioner, Roane told him, “‘Well, we found a partial print at one of the crimes scenes.
. . . Considering it being a high traffic area, it would prove who the person that actually
touched the counter [was] because the counters were clean except for that one print.’” After
taking his prints, the Petitioner said that Roane told Investigator McClain that the Petitioner
was not the perpetrator. The Petitioner stated that he contacted Roane while he was in prison
after obtaining Roane’s name as the fingerprint expert from trial counsel. He said that if
Roane had testified, the jury would have heard evidence that the Petitioner’s fingerprints
were not found at the business.




        4
           We note that “Vicki Berkshire” is also spelled “Vickie Beshires” elsewhere in the record. We use
the spelling that is reflected in the transcripts.

                                                   -4-
        Regarding the issue of calling Vicki Berkshire to testify, the Petitioner opined that
trial counsel “completely failed in his duties” by not calling a potentially exonerating witness.
He said that trial counsel never even interviewed Berkshire. He stated that Berkshire would
have presented to the jury the fact that she viewed the video surveillance and identified
another suspect as the perpetrator.

        On cross-examination, the Petitioner testified that the jury heard evidence that there
were no prints found at the scene rather than evidence that the Petitioner’s prints did not
match a fingerprint from the crime scene. He acknowledged that he was acquitted on one
count of burglary and he did not know at which business the fingerprint had been found. He
stated that he had not seen the indictment in his case or received a copy of it.

       The State called the prosecutor as a witness. The prosecutor testified that he tried the
Petitioner’s case and that a third count for burglary of the Discovery Museum was dismissed.
He did not recall that a fingerprint was ever found in any of the businesses. He said that the
investigators told the Petitioner they found a fingerprint at the scene so that the Petitioner
would offer his prints as a comparison in case they recovered a print later. He said that the
State did not present any evidence at trial to link the Petitioner’s prints to the crime scenes.
The prosecutor recalled that Investigator McClain was asked about fingerprint evidence, and
the investigator responded that no fingerprints were found.

         The prosecutor testified that the State’s “main piece of evidence” was the video
surveillance from outside the businesses, both of which were located in the New Southern
Hotel in downtown Jackson. He said that the videos were not high definition, “but you could
tell it was a short white male with facial hair who had a NAPA hat on.” He stated that the
two burglaries occurred on the same night and that in both instances, the same individual
threw a brick “like a pitcher.” He recalled that the Petitioner was identified as the perpetrator
based on a Crime Stoppers tip and that when investigators made contact with the Petitioner,
he was wearing the same gray jacket and NAPA hat as the person in the videos. The
prosecutor said that the jury heard this evidence and viewed the surveillance videos before
finding the Petitioner guilty of the burglaries. When asked if he recalled a person named
Cochease, the prosecutor responded:

       I think [trial counsel] asked witnesses about that. . . , but nobody ever
       identified who that person was and it was never stated that it could be [the
       Petitioner] or it could not. That person was never definitively identified.

       On cross-examination, the prosecutor testified that he did not call William Roane as
a State’s witness because there was no fingerprint evidence and because Roane “would
basically be testifying to nothing.” On the issue of Vicki Berkshire, the prosecutor stated:

                                               -5-
       She was mentioned in the police report, but other than that it was just
       a passing reference to her. I think she had something to do with the
       New Southern building itself. She had nothing to do with neither [sic]
       business in particular, but with the building.

       At the conclusion of the hearings, the post-conviction court took the matter under
advisement. On June 19, 2013, the court entered a written order denying relief. The written
order incorporated the post-conviction court’s May 23, 2013 letter which outlined the court’s
ruling. The Petitioner now timely appeals the court’s denial of post-conviction relief.

                                         ANALYSIS

        On appeal, the Petitioner contends that trial counsel was ineffective for failing to call
William Roane and Vicki Berkshire as defense witnesses. Specifically, he asserts that Roane
would have provided expert testimony that the Petitioner’s fingerprints were not found at the
crime scenes. He further argues that Vicki Berkshire would have testified that she identified
the perpetrator in the surveillance video to be a man named Cochease. The Petitioner
maintains that both witnesses would have strongly benefitted his defense. The State responds
that the Petitioner failed to establish that counsel’s performance was deficient or that any
alleged errors prejudiced the defense. We agree with the State.

      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. 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 marks 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



                                               -6-
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.

Vaughn, 202 S.W.3d at 116 (internal quotation marks 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
if the defendant 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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting
Strickland, 466 U.S. at 694).

       We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. “In reviewing

                                              -7-
counsel’s conduct, we must make every effort to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from the
perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006)
(citing Strickland, 466 U.S. at 689). However, this “‘deference to matters of strategy and
tactical choices applies only if the choices are informed ones based upon adequate
preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d
at 369).

        In denying the Petitioner his requested relief, the post-conviction court found that the
Petitioner failed to establish either deficiency or prejudice based on counsel’s performance.
After carefully reviewing the petition, the testimony at the evidentiary hearings, the trial
transcript, and all the evidence in the case, the post-conviction court concluded that the
Petitioner did not prove his allegations by clear and convincing evidence. The court noted
that the identification of a defendant as the perpetrator is a question of fact for the jury to
determine. See State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). The court
once again reviewed the video evidence presented at trial and approved the jury’s guilty
verdict for a second time. On the specific issue of trial counsel’s failure to call William
Roane or Vicki Berkshire as defense witnesses, the post-conviction court found that neither
witness would have benefitted the defense. Accordingly, the court denied the petition
because the Petitioner failed to meet his burden of proof.

        After a thorough review of the record, we agree with the post-conviction court that
the Petitioner has failed to prove that he received ineffective assistance of counsel. The
Petitioner has made an insufficient showing that he suffered prejudice due to counsel’s
alleged deficiencies. See Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
Although he argues that the testimony of William Roane and Vicki Berkshire would have
aided his defense, the Petitioner did not call Roane or Berkshire to testify at the post-
conviction hearing. This court has previously concluded that “[w]hen a petitioner contends
that trial counsel failed to discover, interview, or present witnesses in support of his defense,
these witnesses should be presented by the petitioner at the evidentiary hearing.” Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). To establish prejudice, the petitioner
must also elicit favorable and material testimony from the witness. See Denton v. State, 945
S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Black, 794 S.W.2d at 757). “‘As a
general rule, this is the only way the petitioner can establish that . . . the failure to have a
known witness present or call the witness to the stand resulted in the denial of critical
evidence which inured to the prejudice of the petitioner.’” Pylant v. State, 263 S.W.3d 854,
869 (Tenn. 2008) (quoting Black, 794 S.W.2d at 757). Neither the post-conviction court nor
this court may speculate on “what a witness’s testimony might have been if introduced by
defense counsel.” Black, 794 S.W.2d at 757.



                                               -8-
         At the post-conviction hearing, the prosecutor testified that the State did not present
any fingerprint evidence at trial and that Roane “would basically be testifying to nothing.”
Trial counsel agreed that the State did not allege at trial that the Petitioner’s prints were
found at the crime scene. Trial counsel stated that it was his strategy to present the lack of
fingerprint evidence to the jury through cross-examination of Investigator McClain. While
the Petitioner asserts that Roane discovered a fingerprint at one of the businesses that did not
match the Petitioner’s print, we cannot speculate as to this claim because Roane did not
testify at the evidentiary hearing.

        Likewise, we also cannot speculate as to the testimony of Vicki Berkshire. Although
the Petitioner contends on appeal that trial counsel was ineffective in failing to call
Berkshire, the Petitioner has not shown how this witness would have been material or
favorable to his defense. In his brief, the Petitioner maintains that Berkshire would have
identified the perpetrator in the surveillance video to be a man named Cochease, thereby
calling into question the Petitioner’s involvement in the burglaries. At the post-conviction
hearing, trial counsel testified that he recalled discussing the matter of Cochease with the
Petitioner, but that a man named Cochease was never located. The prosecutor testified that
trial counsel cross-examined witnesses about Cochease but that the suspect “was never
definitively identified.” The prosecutor further stated that Vicki Berkshire was mentioned
as a passing reference in a police report but that she was not related to the burglarized
businesses apart from being the building manager. Although post-conviction counsel
questioned trial counsel about the police report that mentioned Berkshire, this document was
not entered into evidence at the hearing or included in the appellate record.

       We agree with the post-conviction court’s determination that the Petitioner has failed
to demonstrate either deficient performance or a reasonable probability that the outcome at
trial would have been different if trial counsel had called Roane and Berkshire as defense
witnesses. Based on the record, we cannot conclude that the verdict in the Petitioner’s trial
was undermined or that the proceedings were fundamentally unfair due to counsel’s alleged
error. See Strickland, 466 U.S. at 670 (“[T]he ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose result is being challenged.”). Accordingly,
the Petitioner has failed to meet his burden of proof in establishing his post-conviction claim,
and he is not entitled to relief.

                                          CONCLUSION

      Based on the foregoing authorities and analysis, we affirm the judgment of the post-
conviction court.
                                               _______________________________
                                               CAMILLE R. McMULLEN, JUDGE

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