        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs July 14, 2009

              CURTIS DANIEL HART v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Tipton County
                       No. 5207    Joseph H. Walker, III, Judge




                 No. W2008-02715-CCA-R3-PC - Filed March 18, 2010


The petitioner, Curtis Daniel Hart, appeals the denial of his petition for post-conviction relief
and contends that he received ineffective assistance of counsel. He was initially convicted
of second degree murder, simple possession of marijuana, and simple possession of
Alprazolam, a Schedule IV controlled substance, and sentenced to thirty-five years in
confinement as a Range II offender. On appeal, the petitioner argues that counsel was
ineffective in a variety of areas but failed to prove any of the allegations. Therefore, we
affirm the judgment from 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, J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Jeffrey L. Stimpson, Munford, Tennessee, for the appellant, Curtis Daniel Hart.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Tyler Burchyett, Assistant
District Attorney General, for the appellee, State of Tennessee
.
                                        OPINION

        This court set out the facts underlying the petitioner’s conviction in an opinion on
direct appeal as follows:

              On the morning of August 8, 2005, the forty-nine-year-old victim, Barry
       Crane, was found murdered at his residence in Tipton County. Although the
       victim shared his home with his son, Scottie Crane, his daughter, Miranda, and
       her small child, none of the victim’s family were at home on the night of the
homicide. Instead, the victim was discovered by his next door neighbor,
Marvin Fletcher. Fletcher found the victim, who had sustained two gunshot
wounds to the back of his head, laying on the floor with his legs crossed. The
victim held a muzzle loader rifle, and a pool of blood was beside his head. The
investigation was initially treated as a possible suicide, but TBI Special Agent
Donna Turner investigated the crime scene and determined that the body had
been moved and “positioned” after being shot. An inventory of the house by
Scottie Crane revealed that a .9mm Taurus semi-automatic pistol and a “SKS”
Chinese assault rifle were missing.

       Tipton County Sheriff’s deputies began routinely interviewing all of the
neighbors in the immediate area. One of the first interviews conducted was of
the Appellant, who lived across the street from the victim with Adam and
Rachael Thomas. The Appellant told the deputies that he had visited with the
victim the night before the victim’s death, but he stated he had left around 7:00
p.m. He also advised the deputies that he had seen a small car drive by the
victim’s house, return, drive up the victim’s driveway, pull out, and drive off
around 9:30 p.m.

        Later that day, while officers were still at the scene, the Appellant
summoned a deputy into his yard and showed the deputy an “SKS” assault
rifle, which the Appellant stated he had found near Thomas’ mailbox. The
Appellant gave a written statement to an investigator and stated, “I want to
make sure that everyone knows that I did not kill [the victim]. I had nothing
to do with him dying.” The Appellant did, however, admit that he had sold the
victim twenty Xanax pills for $90.00 on the afternoon of August 7th.

        On the night of August 8th, however, the Appellant confided in the
Thomases that he shot the victim. He explained to them that the victim had
been drinking and began going through the house gathering guns. The
Appellant said “he felt trapped . . . it happened so fast that he just shot him,
because he got cut and he felt threatened.” Mr. Thomas recalled, at the time he
related this information, the Appellant had only a “small scratch above his
eyebrow.” At trial, Thomas examined a photograph of the Appellant taken by
investigators and commented that the cut in the photograph looked deeper than
it had on August 8.

      On August 9, 2005, the Appellant contacted his former employer and
showed him an abrasion on his forehead. The Appellant stated, “[t]hat’s where
a guy held a knife to me, and I popped him twice in the chest.” The

                                       -2-
Appellant’s former employer then called the Sheriff’s Department and reported
the conversation. As a result, Agent Turner returned to the Appellant’s
residence to re-interview the Appellant later that day. Prior to the interview,
the Appellant was searched, and a small amount of marijuana and a number of
Xanax pills were recovered from his person. During this interview, the
Appellant admitted to shooting the victim with the .9mm pistol and to
disposing of the handgun by dumping it in a garbage can at a nearby Circle K
store.

       The Appellant provided Agent Turner with the following statement:

               I want to do the right thing and get this straight. I shot
       and killed [the victim]. I want to take responsibility for my
       actions. It is the right thing to do. I was led by the Lord to tell
       the truth on what happened.

              ....

               On Saturday night [August 6, 2005] I was playing poker
       at [the victim’s] house. . . .

               During the game I pulled out a bottle which contained
       Xanax. I used to have a prescription, but I get these off the
       street. I broke one bar off and [the victim] asked what it was. I
       told [him] that it was Xanax. [He] said he needed some for a
       sick friend.

              I asked him how many he wanted, and he asked how
       much are they. I told him four dollars apiece or four fifty
       delivered. [The victim] handed me a hundred dollar bill and
       told me to take care of it. . . .

              ....

              On Sunday morning . . . I took [the victim] 20 Xanax and
       a $10 bill. They were in a cigarette cellophane package. . . .

              ....




                                       -3-
      I was there about . . . an hour and a half. . . . I left and
went back down to my house.

       I went to bed between 9:45 and ten o’clock p.m. I
couldn’t go to sleep. . . . I remembered I had left my glasses up
there at the house.

       I walked to the house, and [the victim] was sitting at the
table on the carport. [The victim] was drinking. [He] took a
couple shots of Seagram Seven . . . .

       We walked in the kitchen, and [the victim] poured him a
shot. [The victim] drank it, and he said, ‘Let me show you what
I have.’

       ....

        . . . When I walked in the living room, [the victim] had at
least four rifles leaned against the cushions on the couch nearest
the front door. . . .

       [The victim] said . . . ‘Come on and let’s go get us a shot.’

       We walked back into the kitchen. [The victim] pulled a
pistol out of his front pocket. [The victim] was wearing bib
overalls. [The victim] laid the pistol on the kitchen table. . . .

       [The victim] poured two shots. I told him I didn’t want
a shot. [The victim] was getting a little mouthy and talking
smack. He drank both shots. [The victim’s] whole demeanor
changed. [The victim] looked at me and said ‘You think you are
the baddest thing walking.’

       I asked him what that was - where that was coming from.
I was ready to leave the house. I took a step to the left. [The
victim] kind of hemmed me up against the table and pulled a
knife out of his back pocket. It looked like it was a butterfly
knife. [The victim] stuck it to my forehead and told me he could
cut my face off.



                                -4-
      [The victim’s] belly had me pinned against the table. I
took my arms and swept [the victim’s] arms to get the knife
away from my head. The knife came out of his hands. I don’t
know where it landed.

       I reached and got the pistol off the kitchen table. I picked
it up with my right hand, and I shot him. [The victim] staggered
a few feet, and I shot him again.

          The first time I shot, I don’t know if I hit him or not. I
was standing between the kitchen and living room area. [The
victim] started staggering where the guns were and looked to me
a little incoherent. He looked like he was going down on his knees.

       I stepped into the living room. That’s when I shot the
second time. The second shot was at a downward angle. I shot
him the second time because I wasn’t sure I had hit him the first
time.

        [The victim] fell down right in front of the couch. He
was like lying on his side. I didn’t see any blood on [the
victim]. I didn’t walk up on him. I did not touch [the victim] at
all. I did not roll him over. I never got within three or four feet
of [the victim] after I shot him.

       ....

       I did not check [the victim] to see if he was dead. He
never said anything after I shot him. I was not arguing with [the
victim] when I shot him. It was like an ego thing with him. It
made [the victim] mad when I wouldn’t take the shot of whiskey.

. . . [The victim] was just a nice guy, but that night he had totally
changed. When [the victim] stuck that knife to my head, he
scared me. I reacted the only way I knew to survive.

. . . When I got to my house, I went in and had the pistol in my
shorts pocket. I sat down in the chair. I ate three Xanax and
went to sleep. . . .



                                 -5-
              The postmortem examination revealed two gunshot wounds to the head,
       each of which would have proved fatal. One gunshot entered the middle of the
       back of the victim’s head and exited in front of the left ear. The other gunshot
       wound entered the left side of the victim’s back, a little below the nape of his
       neck and exited in front of the left ear. The victim’s blood alcohol content was
       0.16 percent.

               On November 7, 2005, a Tipton County grand jury returned a three-
       count indictment against the Appellant, charging him with: (1) second-degree
       murder; (2) possession of Alprazolam, a Schedule IV controlled substance,
       with intent to deliver; and (3) simple possession of marijuana. The Appellant
       filed a motion to suppress the statement he gave to Special Agent Turner on
       August 9, 2005, but, after a hearing, the motion was denied. At trial, the
       Appellant did not testify but relied on his statement as evidence that he had
       shot the victim in self-defense. The jury rejected the Appellant’s argument and
       found him guilty of second-degree murder. The jury also found the Appellant
       guilty of simple possession of Alprazolam and simple possession of marijuana,
       but the Appellant does not challenge those misdemeanor convictions on
       appeal. The Appellant was sentenced to thirty-five years, as a multiple
       offender, for second-degree murder, and his misdemeanor sentences were
       ordered to run concurrently, resulting in an effective sentence of thirty-five
       years. Following the denial of his motion for new trial, the Appellant filed the
       instant timely appeal.

State v. Curtis Daniel Hart, No. W2006-01332-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS
625, **8-9 (Tenn. Crim. App. Aug. 9, 2007), perm. to appeal denied (Tenn. Jan. 28, 2008).

       During the hearing on the petition for post-conviction relief, the petitioner’s trial
counsel testified that he was employed as the Public Defender for the Twenty-Fifth Judicial
District of Tennessee and was appointed to represent the petitioner. He testified that he took
over the case prior to trial even though a different attorney from their office had initially been
appointed to represent the petitioner. Counsel testified that the primary theory of defense
was to demonstrate that the petitioner acted in self-defense.

       Counsel recalled that a motion to suppress had been filed to exclude statements the
petitioner made to law enforcement at the time he was arrested, as well as a statement
recorded and transcribed while the petitioner was incarcerated. Counsel said that he
contested the statement on the basis that the petitioner was not Mirandized, but the trial judge
ruled against their motion on the basis that the statements were made voluntarily and were
made prior to being in custody. Counsel testified that the petitioner’s previous attorney left

                                               -6-
the public defender’s office after handling the initial points of the petitioner’s case, including
the motion to suppress. He did not file a motion to challenge the time between the
petitioner’s arrest and the time he was taken before a magistrate because there was not an
unreasonable lapse of time between the two events. Trial counsel did not file a motion to
suppress evidence found at the crime scene based on possible contamination by a dog that
ran around after the body was found, but prior to the arrival of the police. He had no specific
reason on which to base a motion to suppress.

       Counsel testified that he felt prepared for trial after interviewing witnesses and
reviewing photographs of the crime scene, written statements, and preliminary hearing
transcripts. He also said that the assistant district attorney threatened to re-indict the
petitioner on first degree murder charges if he asked for a continuance. The transcripts from
the jury trial, the motion to suppress, and the preliminary hearing were entered as exhibits
during his testimony.

        The petitioner testified that he was concerned that counsel would not be prepared to
proceed to trial. He wanted counsel to be familiar with him as a person so he asked for a
continuance. Counsel did not file a motion for a continuance. Counsel told him that he
spoke to the District Attorney General about a continuance and that he was told the State
would seek an indictment for first degree murder if the case was continued. The petitioner
testified that he told counsel to get the continuance because he was not concerned about a
first degree murder charge any more than the second degree murder charge. Counsel told the
petitioner that he did not want the first degree murder indictment, and that was the last time
they discussed the issue.

       The petitioner testified that he was not Mirandized when he gave his initial statement
to police, which he thought was wrong. He testified that his first attorney did not raise the
Miranda issue during the preliminary hearing but argued only that the petitioner was on
Xanax when he gave the statement. At the beginning of trial, the petitioner stated that he
planned to testify in his defense. He said that he made the decision not to testify because he
was afraid of “slipping” and mentioning his previous murder conviction. He acknowledged
that counsel had filed a Motion in Limine to keep the prior conviction out. He said he took
the safe route by not testifying.

        The petitioner testified that his case was prejudiced by allowing the State to introduce
a pill bottle with someone else’s name on it. Counsel did not object to the introduction of
the evidence. He was under the impression that the State would not be able to introduce any
evidence from the crime scene because a dog had been allowed to roam the scene and cause
contamination.



                                               -7-
       The petitioner said he was concerned that some firearms missing from the victim’s
home had not been fingerprinted. He was also concerned that the record on appeal was
incomplete. He testified that he was not brought before a magistrate in a timely fashion but
that he did not think his counsel was deficient in that regard.

      The petitioner clarified that he was willing to have his case continued and felt he had
as good a chance to defend a first degree murder charge as he did a second degree murder
charge. He maintained he was not guilty of the killing.

       The post-conviction court found that the defendant failed to establish that a basis for
suppression existed beyond what was argued at the suppression hearing and, therefore, failed
to show deficiency by counsel.

                                          Analysis

       On appeal, the petitioner argues that counsel was ineffective in several areas
including: failure to include alleged arrest and Miranda violations in the motion to suppress;
failure to request a continuance; failure to request documents from the prosecution;
permitting an empty pill bottle to be admitted into evidence; failure to object to testimony
regarding missing guns from the victim’s residence; failure to file a motion to suppress based
on alleged crime scene contamination; and failure to contest sentencing.

       This court reviews a claim of ineffective assistance of counsel under the standards of
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668
(1984). The petitioner has the burden to prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice to the petitioner so as to
deprive him of a fair trial. Strickland, 466 U.S. at 687; Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The failure to prove either
deficiency or prejudice justifies denial of relief; therefore, the court need not address the
components in any particular order or even address both if one is insufficient. Goad, 938
S.W.2d at 370. In order to establish prejudice, the petitioner must establish 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.” Strickland, 466 U.S. at 694.

       The test in Tennessee to determine whether counsel provided effective assistance is
whether his or her performance was within the range of competence demanded of attorneys
in criminal cases. Baxter, 523 S.W.2d at 936. The petitioner must overcome the
presumption that counsel’s conduct falls within the wide range of acceptable professional
assistance. Strickland, 466 U.S. at 689; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn.

                                             -8-
2001). Therefore, in order to prove a deficiency, a petitioner must show “that counsel’s acts
or omissions were so serious as to fall below an objective standard of reasonableness under
prevailing professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at
688).

        In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort 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.” Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002) (citing 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. However, deference to matters of strategy and
tactical choices applies only if the choices are informed ones based upon adequate
preparation. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997); Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982).

        In his first issue, the petitioner contends that counsel was deficient for failing to raise
the additional grounds of illegal arrest and Miranda violations in the motion to suppress. The
petitioner seems to dispute that he was not taken before a magistrate in a timely manner and
that he was not advised of his Miranda rights before he was taken into custody. Trial counsel
testified that there “was no lapse of reasonable time” before the petitioner was taken before
a magistrate. Even if the petitioner was not taken within 48 hours, his statement would not
have been suppressed because the petitioner’s statement was not as a result of an alleged
violation of the petitioner’s right. See County of Riverside v. McLaughlin, 500 U.S. 44, 56-
57 (1991).

        Courts apply the “fruit of the poisonous tree” analysis to determine if a statement
should be suppressed as a result of a McLaughlin violation. State v. Huddleston, 924 S.W.2d
666, 676 (Tenn.1996). The focus of the analysis is on whether the evidence was obtained
by exploitation of the Fourth Amendment illegality. Wong Sun v. United States, 371 U.S.
471, 488 (1963). As the United States Supreme Court has recognized, when considering
whether a statement obtained in violation of the Fourth Amendment must be suppressed, the
question is “whether [the statement] ‘was sufficiently an act of free will to purge the primary
taint of the unlawful invasion.’” Brown v. Illinois, 422 U.S. 590, 598 (1975) (quoting Wong
Sun, 371 U.S. at 486). To assist in the analysis, the Tennessee Supreme Court has identified
four factors: (1) the presence or absence of Miranda warnings; (2) the temporal proximity
of the arrest and the confession; (3) the presence of intervening circumstances; and, finally,
of particular significance; (4) the purpose and flagrancy of the official misconduct.
Huddleston, 924 S.W.2d at 674-675. If this challenge had been raised at trial, the burden of
proving the admissibility of the challenged evidence would have rested on the prosecution.



                                                -9-
        The record contains a transcript of the preliminary hearing in which the officer who
initially spoke with the petitioner testified that he advised the petitioner of his Miranda rights
prior to any questioning. The officer also testified that the petitioner appeared to understand
and waive his rights prior to questioning. The waiver of rights form was made an exhibit
during that hearing. The record is devoid of any evidence that the State purposely detained
the defendant longer than 48 hours to gather additional evidence or otherwise continue the
investigation.

        The petitioner bears the burden of establishing that the motion would have been
granted if presented. Here, the petitioner has failed to meet this burden. The defendant also
failed to prove deficient performance or prejudice resulted from counsel’s decision against
filing a motion to suppress based on his alleged violation of his Fifth Amendment right
against self-incrimination. The record reflects that the petitioner was advised of his Miranda
rights before he was questioned. Testimony revealed that the petitioner was taken into
custody and transported to the police station but was not questioned until he had been advised
of his rights. The petitioner has not established that counsel was deficient or that he was
prejudiced by the absence of a motion to suppress the statement. Counsel testified that such
a motion would have been without merit. The petitioner is not entitled to relief on this issue.

       Next, the petitioner argues that trial counsel was ineffective for failing to secure a
continuance. The petitioner has failed to demonstrate how he was prejudiced by counsel
proceeding to trial. Counsel testified that he was adequately prepared for trial. He had
interviewed every witness who would speak with him, met with the petitioner multiple times,
reviewed photos of the scene, examined prior written statements, and studied the preliminary
hearing transcripts. Counsel further testified that when he approached the district attorney
general’s office regarding a continuance, he was informed that a continuance might result
in an indictment for first degree murder. Counsel testified that he did not need the
continuance and proceeded to trial. The petitioner has not demonstrated how a continuance
would have changed the result of the trial or that counsel was ineffective for failing to have
the case continued. This issue is without merit.

       Next, the petitioner argues that counsel was ineffective for failing to ask for
exculpatory materials. During the post-conviction hearing, the petitioner failed to introduce
any evidence that counsel did not request these materials. Trial counsel testified that he did
not specifically request a knife that was shown on a videotape of the crime scene because he
did not believe the State had possession of it. Further, the petitioner failed to demonstrate
that the State actually had possession of the knife. The petitioner has not demonstrated
ineffective assistance on the part of trial counsel for failing to request a piece of evidence that
counsel did not believe was in the State’s possession. The petitioner also failed to
demonstrate that counsel did not request all potential exculpatory materials.

                                               -10-
        The petitioner also contends that counsel should have moved to suppress the pill bottle
found at the crime scene. However, counsel testified that the pill bottle had Marvin
Fletcher’s name on it and that it raised doubt about whether or not the petitioner was the
victim’s killer. However, the petitioner failed to demonstrate that the pill bottle would have
been suppressed. The State introduced the pill bottle to demonstrate that, prior to the murder,
the petitioner sold Xanax to the victim and then took back the pills. The presence of the
bottle was demonstrative of motive and, therefore, was relevant. The State suggests, and we
agree, that any danger of unfair prejudice did not substantially outweigh the probative value.
The petitioner has failed to demonstrate that he was prejudiced by the decision against trying
to suppress the evidence.

       Next, the petitioner argues that counsel was deficient for failing to object to testimony
regarding guns missing from the victim’s home. In addition to a theory of self-defense,
counsel pursued a theory that the crime scene had been tampered with prior to the arrival of
the police. The testimony regarding the missing guns supported that theory because, if
someone else had entered the home, they might have taken the guns. It is not our function
to “second guess” the tactical decisions of counsel or to measure the representation by “20-20
hindsight.” Henley, 960 S.W.2d at 579; Hellard, 629 S.W.2d at 9. It was a reasonable tactic
by counsel to allow the testimony about the missing guns to be introduced into evidence.
This petitioner is not entitled to relief on this issue.

       Next, the petitioner argues that counsel was deficient for failing to file a motion to
suppress based on contamination of the crime scene. Marvin Fletcher, who discovered the
body of the victim, allowed his dog to run around the crime scene before the police arrived.
However, the petitioner has not produced evidence to demonstrate that the crime scene was
contaminated as a result. Counsel did not file a motion to suppress all the evidence at the
crime scene as a result of the contamination because he did not have any specifics on which
to base a motion. He testified that he did not hire an expert to determine what had been
contaminated because he did not have access to the crime scene on the day of the crime and
any analysis would have been based on photographs, which he did not deem to be helpful.
When counsel declines to file a motion to suppress because he has no basis to support the
motion, it does not rise to the level of deficient performance. The petitioner has not asserted
a theory upon which the motion would have been successful.

      Next, the petitioner argues that counsel was ineffective for failing to object that he
was sentenced in violation of State v. Gomez, 239 S.W.3d 733 (Tenn. 2007). The petitioner
was sentenced on May 12, 2006, prior to the decision in Gomez II. At the time the petitioner
was sentenced, the controlling authority stated that the Tennessee Sentencing Reform Act of



                                              -11-
1989 did not violate Blakely v. Washington, 542 U.S. 296 (2004). Therefore, it cannot be
deficient performance for counsel to fail to argue law that did not yet exist.

       Next, the petitioner argues that trial counsel failed to challenge the trial court’s ruling
on the motion to suppress on direct appeal. However, that issue was raised on direct appeal,
and this court determined that the trial court correctly denied the motion to suppress. See
Curtis Daniel Hart, No. W2006-01332-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 625,
at **9-17.

        Next, the petitioner argues that counsel rendered deficient performance for submitting
the motion for new trial to the judge without a hearing. The petitioner asserts that his Sixth
Amendment rights were violated because there was not a hearing on the motion and because
he could not be present. However, the defendant does not have a constitutional right to be
present at the motion for new trial. See Cisco v. State, 28 S.W.2d 338, 684 (Tenn. 1930).
The court in Cisco held that a motion for new trial was not a part of the trial and that the
constitutional right to be present ends with the verdict at trial. The petitioner is not entitled
to relief on this issue.

                                          Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgment from the
post-conviction court.




                                                 ___________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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