                                                                                          01/16/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 17, 2017

       JOSEPH CORDELL BREWER, III v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Obion County
                       No. CC-16-CR-49 Jeff Parham, Judge
                      ___________________________________

                           No. W2016-02106-CCA-R3-PC
                       ___________________________________


Petitioner, Joseph Cordell Brewer, III, appeals from the denial of relief following a
hearing on his petition for post-conviction relief. Only Petitioner and his trial counsel
testified at the post-conviction hearing. Since Petitioner failed to present evidence of any
prejudice to him as a result of trial counsel’s alleged deficient representation, we affirm
the judgment of the post-conviction court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Megan B. Allen, Martin, Tennessee, for the appellant, Joseph Cordell Brewer, III.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Thomas A. Thomas, District Attorney General; and Jim Cannon, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

Background

        Following a jury trial, Petitioner was convicted of the Class C felony theft of a
2009 Honda Odyssey minivan, one count of Class D felony evading arrest, and one count
of Class A misdemeanor evading arrest. On direct appeal to this Court, the conviction for
Class D felony evading arrest was reduced to a conviction for Class E felony evading
arrest, the other two convictions were affirmed, the Class E felony evading arrest
conviction was remanded for resentencing, and the other sentences were affirmed. State
v. Joseph Cordell Brewer, III, No. W2014-01347-CCA-R3-CD, 2015 WL 4060103
(Tenn. Crim. App. June 1, 2015).

        Relevant to the issues raised in this post-conviction appeal, Petitioner was
identified as the driver of the stolen vehicle by a police officer. The officer observed
Petitioner driving the vehicle just prior to a high speed chase that began after the same
officer turned on his blue lights to initiate a stop of the vehicle. When the vehicle drove
through a red light at approximately 100 miles per hour, the officer backed off the chase
until he could safely cross the same intersection. After the officer saw the vehicle make a
turn, the officer also turned, and he found the vehicle crashed into a chain link fence with
the engine running and the car in the drive gear. However, the vehicle was unoccupied,
and nobody was at the scene. State v. Joseph Cordell Brewer, III, 2015 WL 4060103 at
*1-3.

Post-Conviction Proceedings

       Petitioner argues on appeal that trial counsel rendered ineffective assistance of
counsel by: (1) failing to present an expert witness to testify about the problems with
eyewitness testimony, and (2) failing to raise a challenge to the constitutionality of the
racial makeup of the jury venire, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).

       Called by Petitioner at the post-conviction hearing, trial counsel testified that he
had been an attorney for twenty-nine years and had been a criminal defense attorney for
all but three years. Trial counsel stated that he cross-examined Officer Buchanan, the
policeman who testified that he had identified Petitioner as the driver of the stolen
vehicle.

       From the testimony at the post-conviction hearing, it is apparent Officer Buchanan
is Caucasian and Petitioner is African-American. Trial counsel acknowledged that he did
not call an expert witness to testify concerning eyewitness testimony when it relates to a
cross-racial identification issue. When trial counsel was asked if he ever discussed with
Petitioner the possibility of obtaining an eyewitness expert to testify he responded, “I
absolutely do not recall any discussions like that.” Trial counsel stated that he had
“briefly” looked at his file, and he did not see any notes reflecting such discussion with
Petitioner. Trial counsel also testified that he did not normally consult with an expert
witness whenever one of his cases had a cross-racial identification issue. He added that
he was not aware of whether it was the “standard” practice to seek such a consultation.

      Trial counsel could not recall whether any African-American jurors were selected
“during the jury selection process.” Trial counsel stated that he always has discussions
with his clients, including Petitioner, about matters pertaining to the selection of jurors
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during the jury selection process. Again, trial counsel could not recall if Petitioner
brought up his concerns about discrimination during the jury selection process.

        During cross-examination by the State, trial counsel testified that after the post-
conviction petition had been filed, he contacted the Tennessee Administrative Office of
the Courts (“AOC”) for information about any available expert witnesses on eyewitness
testimony. Without identifying who he spoke with at the AOC, other than referring to the
person(s) as “they,” trial counsel testified that he was informed it was easier to obtain
approval for paying an eyewitness expert to testify in a murder case than it was in a much
less serious case.

       Petitioner testified that he and trial counsel met while Petitioner was in jail
awaiting disposition of his charges. They discussed the State’s negotiated plea offer for
an effective sentence of six years. Petitioner testified that trial counsel stated that the
settlement offer “was a pretty good plea bargain.” Petitioner added in his testimony that
the offer from the State was a good plea bargain, “but at the time I thought it wasn’t
because I was the one that was sitting behind bars, sitting in jail.”

       Petitioner testified that this meeting was “months before the trial,” and at the same
meeting he asked trial counsel if trial counsel could “hire someone to rebut [the] officer’s
statement” about positively identifying Petitioner after seeing him for only a few
moments. Petitioner testified that trial counsel’s response was “my office doesn’t make a
practice of doing that.” Petitioner acknowledged that he never brought the subject up
with trial counsel again.

       As to the issue regarding the racial makeup of the jury venire, Petitioner testified
that during jury selection, he asked trial counsel why the lone African-American member
of the panel had not been chosen. According to Petitioner, trial counsel responded that he
did not know the answer and said he “had nothing to do with that.” Petitioner testified
that he specifically asked trial counsel why there was only one African-American on the
panel.

       No other witnesses testified at the post-conviction hearing. The entire testimony
of both witnesses consisted of only seventeen pages. Absolutely no proof was presented
or submitted as an offer of proof as to what the testimony might be of an expert witness
on cross-racial eyewitness identification problems. No evidence was submitted as to how
potential jurors were selected, the racial makeup of Obion County, or the history of the
racial makeup of jury venires in Obion County. The only evidence submitted as to the
number of African-Americans in the jury venire was Petitioner’s testimony.



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       After all evidence was presented, the post-conviction court heard closing
arguments and took the matter under advisement.                  The post-conviction court
subsequently entered an order denying relief. In the order, the post-conviction court
stated that after reviewing the evidence adduced at the post-conviction hearing, the
transcript of the trial, and the exhibits at trial, “the evidence fails to establish by a clear
and convincing standard that the Petitioner received ineffective assistance of counsel.”

       The post-conviction court failed to make even an implicit credibility determination
of the witnesses. Nevertheless, Petitioner failed to present any evidence of prejudice to
him caused by trial counsel’s alleged deficient representation.

        Post-conviction counsel had filed, about one month prior to the post-conviction
hearing, a motion for the post-conviction court to order funds to pay for an eyewitness
identification expert to testify on behalf of the indigent Petitioner. The motion alleged
that the expert testimony was necessary to prove that trial counsel rendered ineffective
assistance of counsel by failing to present such testimony at trial. On the day before the
post-conviction hearing, post-conviction counsel filed a notice withdrawing that motion
because of language in Tenn. Sup. Ct. R. 13, § 5, “which states funding for an expert
[witness] in non-capital post-conviction proceedings shall not be authorized or
approved.”

       In a post-conviction proceeding, the burden is on the Petitioner to prove his factual
allegations for relief by clear and convincing evidence. T.C.A. § 40-30-110(f); see
Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal, we are bound by
the trial 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 trial 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.

       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. 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 [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
                                             -4-
petitioner successfully demonstrates deficient performance when the 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).

        As to the circumstances of this case, when a Petitioner alleges that trial counsel
rendered ineffective assistance of counsel by failing to present a witness, including an
expert witness, an expert witness must be presented at the post-conviction hearing in
order to prove the prejudice prong of Strickland. Pylant v. State, 263 S.W.3d 854, 869
(Tenn. 2008); see also Vernica Shabree Calloway v. State, No. M2016-02576-CCA-R3-
PC, 2017 WL 3836025 (Tenn. Crim. App. Sept. 1, 2017) (The petitioner failed to
establish the ineffective assistance of counsel because she presented no proof at the post-
conviction hearing that an expert witness was available to the defense, would have
testified favorably for the defense, or that expert testimony would have changed the
outcome of the petitioner’s trial.).

       We realize that a “Catch-22” dilemma exists because of Tenn. S. Ct. R. 13, § 5.
Before an indigent petitioner such as in this case can get relief, he or she must obtain the
services of an expert witness. However, funds for the expert witness to provide the
necessary services to the indigent petitioner are prohibited by Tenn. S. Ct. R. 13, §5. A
non-indigent petitioner can, however, meet the requirements mandated by case law in
order to obtain post-conviction relief.

       However, we do not have the ability to overrule supreme court case law or
supreme court rules. In addition, Petitioner did not make the specific argument in the
post-conviction court or in this Court that his due process rights were violated by case
law requiring him to present proof when a supreme court rule prohibits indigents like
himself from receiving funds except in capital cases.

       Despite the obvious impossibility of this indigent petitioner to prove prejudice, we
conclude that case law mandates that Petitioner is not entitled to post-conviction relief
due to ineffective assistance of counsel because an eyewitness expert witness was not
called to testify at the post-conviction hearing. Petitioner failed to prove prejudice.

        In addition, Petitioner failed to present any evidence at the post-conviction hearing
to show what trial counsel should have presented to substantiate that a Batson challenge
as to the racial makeup of the jury pool and/or the trial jury would have been successful.
                                            -5-
       Accordingly, Petitioner is not entitled to relief as to either claim of ineffective
assistance of counsel. Therefore, the judgment of the post-conviction court is affirmed.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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