        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 3, 2015

                  ALVERTIS BOYD v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                         No. 08-01138    Chris Craft, Judge




                 No. W2014-00404-CCA-R3-PC - Filed April 21, 2015


The Petitioner, Alvertis Boyd, was convicted of aggravated robbery, and the trial court
sentenced him as a repeat violent offender to life imprisonment. This Court affirmed his
conviction and sentence on appeal. State v. Alvertis Boyd, No. W2010-01513-CCA-R3-CD,
2011 WL 2586811, at *1 (Tenn. Crim. App., at Jackson, July 1, 2011), perm. app. denied
(Tenn. Nov. 16, 2011). The Petitioner filed a petition seeking post-conviction relief, and,
after a hearing, the post-conviction court denied the Petitioner relief. After review, we affirm
the post-conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which R OBERT H.
M ONTGOMERY, J R., and T IMOTHY L. E ASTER, JJ., joined.

Constance Wooden Alexander, Memphis, Tennessee, for the appellant, Alvertis Boyd.

Herbert H. Slatery III, Attorney General and Reporter; Michael M. Stahl, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Lora Fowler, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION
                                           I. Facts
                                           A. Trial

       A Shelby County jury convicted the Petitioner of aggravated robbery. On direct
appeal, this Court summarized the facts presented at trial as follows:

              On July 30, 2007, the [Petitioner] entered a Circle K gas station in
Memphis, Tennessee sometime after 10:00 p.m. The [Petitioner] walked
behind the counter where the victim, a Circle K employee, was standing and
took a sandwich out of the “freezer box” and a Pepsi out of the “cooler box”
before walking to the counter. Once at the counter, the [Petitioner] “just stood
there” and was “fidgety.” The [Petitioner] said, “don’t be scared” and told the
victim to “pay it out.” The victim understood the [Petitioner]’s statement to
mean that he wanted her to open the cash register. The victim, believing that
the [Petitioner] was joking, hesitated, and the [Petitioner] “raised his shirt up”
and showed the victim a “small .380” handgun in his waistband. The victim
opened the cash register and stepped back as the [Petitioner] reached toward
the register. The [Petitioner] told the victim to lift the pan in the register, but
the victim did not comply. The [Petitioner] lifted the pan, took $60 or $70
from the register, and started to leave. As he was leaving, the [Petitioner]
knocked the sandwich and Pepsi off the counter. Realizing that he had left his
cellular telephone and keys on the counter, the [Petitioner] returned and
retrieved his belongings. As he was leaving the second time, he bumped into
a customer, Justin Scarbrough, who was entering the store. The victim told
Mr. Scarbrough that she had been robbed, and Mr. Scarbrough ran outside and
saw the [Petitioner] jogging north down the “Highland Strip.”

       During the investigation of the robbery, the victim and Mr. Scarbrough
were able to identify the [Petitioner] from a photographic display. At trial, the
victim admitted that she was only four feet and nine inches tall but explained
that she could see the weapon in the [Petitioner]’s waistband over the counter
because the floor behind the counter was higher than the floor in the store.
The victim also testified that she opened the cash register because she saw that
the [Petitioner] had a weapon. She said that she was “intimidated” when she
saw the [Petitioner]’s weapon.

        The [Petitioner] testified that he went to the store with the intention of
robbing the victim. He said he went inside, grabbed a drink and a sandwich,
and walked to the counter. Once at the counter, the victim told the [Petitioner]
the price of the items he had selected. The [Petitioner] showed the victim how
much money he had, approximately three dollars, and the victim told him that
he only had enough money for the sandwich. The victim opened the register,
and the [Petitioner] reached over the counter and grabbed the money from the
register. The [Petitioner] testified that he never showed the victim a weapon
and that he did not have a weapon. The [Petitioner] admitted that he had been
previously convicted of aggravated robbery and misdemeanor theft of
property.

                                        -2-
Based upon this evidence, the jury convicted the Petitioner, and the trial court sentenced him
to life in prison. The conviction and sentence were affirmed on appeal. See Boyd, 2011 WL
2586811, at *1.

                                B. Post-Conviction Hearing

       At the post-conviction hearing, the parties presented the following evidence: the
Petitioner testified that he was currently serving a life sentence for his 2010 aggravated
robbery conviction. He stated that there was a surveillance video tape recording of the Circle
K robbery for which he was convicted. The Petitioner told his trial attorney (“Counsel”)
about the surveillance video, alleging that the video contained exculpatory evidence and that
the State had “intentionally unlawfully withheld, [or] destroyed” the video recording. He
asked Counsel to notify the trial court in an attempt to obtain the video recording. He
recalled that, thereafter, Counsel came to see him with two video tapes, but neither were the
surveillance footage of the robbery.

         The Petitioner testified that the video surveillance footage would have confirmed his
trial testimony that he reached over the counter and grabbed money from the register but did
not use a gun. The Petitioner stated that he wanted Counsel to obtain the video in order to
show at trial that he did not commit an aggravated robbery. He admitted that he committed
a “theft” by “snatch[ing]” money out of the convenience store cash register but maintained
that he did not use a weapon to do so. He said that he had watched the video surveillance
footage when he turned himself in at the police station on August 2, 2007. Detective Beasley
and Detective Goodes showed the video to him during questioning, and then the video was
never produced during discovery or at trial. The Petitioner stated that one of the detectives
testified at trial that the surveillance video was “lost.” The Petitioner said that he discussed
the surveillance video with Counsel “on several occasions” but that she never produced the
video. The Petitioner stated that Counsel “bl[e]w [him] off” when he asked about the video.
He said that Counsel failed to file any pretrial motions relevant to the surveillance video.

       On cross-examination, the Petitioner testified that the two videos that Counsel brought
to him were related to other cases against him. The Petitioner stated that, in addition to the
absence of a weapon, the surveillance video footage would have also shown that the counter
blocked the store clerk’s view of his waistband where he allegedly had the gun. He agreed
that Counsel cross-examined the store clerk about her height and the height of the counter
and the store clerk maintained that she saw the gun. The Petitioner further agreed that
Counsel cross-examined the detective about the lost video and argued to the jury that there
was no evidence to show the Petitioner had a gun.



                                              -3-
       The Petitioner testified that, during police questioning when he viewed the video, he
pointed out to the detectives that the surveillance footage did not show a gun. He agreed that
this observation was not included in his statement to the detectives. The Petitioner said that
he also told the detectives that he was on medication at the time of the interview and
confirmed that this information was also not included in his statement.

        Counsel testified that she was appointed to represent the Petitioner on March 20,
2008. She explained that the Petitioner was indicted on three different cases with two
aggravated robbery charges and one robbery charge. Counsel acknowledged that the police
had retrieved the Circle K surveillance video but stated that the video “was not around by the
time we got into court.” Counsel noted that, in this case, the Petitioner had given a statement,
and there were also identifications of the Petitioner. Her research of case law on the issue
of the lost video recording addressed circumstances where a video was lost but the defendant
denied involvement or identification, unlike in the present case. Thus, she did not file a
pretrial motion addressing the lost surveillance video.

        Counsel testified that, at trial during direct examination of the Petitioner, he testified
that he never had a gun. Counsel agreed that she did not question the detective extensively
about the surveillance video because she did not want to give the detective the opportunity
to confirm the store clerk’s account of the robbery. Counsel confirmed that during closing
argument she raised the issue of the lost surveillance video.

        On cross-examination, Counsel testified that she did not file a motion regarding the
lost video because she did not see any bad faith on the part of the State. Further, she believed
the motion would be denied based upon the other evidence against the Petitioner.

         After hearing the evidence, the post-conviction court issued an order denying relief.
It is from this judgment that the Petitioner now appeals.

                                          II. Analysis

        On appeal, the Petitioner contends that the trial court improperly denied his petition
seeking post conviction relief. He maintains on appeal that Counsel was ineffective because
she failed to file a motion to dismiss when she learned the surveillance video was missing.
The State responds that the Petitioner has not adequately demonstrated that he is entitled to
relief. We agree with the State.

      In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual allegations

                                               -4-
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate the evidence below;
all questions concerning the credibility of witnesses, the weight and value to be given their
testimony, and the factual issues raised by the evidence are to be resolved by the trial judge,
not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999) (citing Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-conviction court’s factual findings
are subject to a de novo review by this Court; however, we must accord these factual findings
a presumption of correctness, which can be overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40
S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:

               First, the [petitioner] must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the [petitioner] by the
       Sixth Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

 Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into

                                               -5-
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the 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.” Burns, 6 S.W.3d at 462.
Finally, we note that a defendant in a criminal case is not entitled to perfect representation,
only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,
466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective
merely because a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “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.” House, 44
S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

       If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).

       In its order denying relief, the post-conviction court found:

              As to the missing video, at trial Sergeant James Taylor testified to the
       jury that

          on July 3lst I went to the Circle K in an attempt to get a video of the
          robbery. They were unable to download the video on the 30th when
          the robbery occurred, so on August lst we had an MPD squad car go
          to the business and get the video. The video was subsequently
          picked up by myself. We have an off-site that we work - - we don’t
          work here at 201 Poplar [the Criminal Justice Center], we work at
          another office. And between here and the past couple of months we
          have misplaced the original robbery video.

                                              -6-
(Trial Record, p. 74). The petitioner testified at the hearing on this petition
that he watched the video on August 2nd with Detectives Beasley and Goodes
while giving his written statement, and the video showed that he did not use
a gun when he robbed the victim. He never mentioned ever viewing the video
during his testimony at trial, however, or that it would have proved his
innocence, and did not call either of the officers with whom he supposedly
watched the video at the hearing on this petition. The written confession that
he gave never mentioned the viewing of a video, and he testified at the hearing
that when he gave his statement he told them that the video shows he didn’t
have a gun, but the police left that out of the statement. The victim testified
at trial that the petitioner “raised his shirt up” and showed the victim a “small
.380” handgun in his waistband. The victim then opened the cash register and
the petitioner reached in and took possession of the money. This court finds
that the petitioner has not shown by clear and convincing evidence that this
missing video would have been able to show that the petitioner was not armed
with a gun, since the victim stated that he only pulled up his shirt.

       ....

      Our Tennessee Supreme Court in State v. Merriman, 410 S.W.3d 779,
785-86 (Tenn. 2013), held as follows:

   If the trial court finds that the State failed in its duty to preserve the
   evidence, the trial court must consider the following factors to
   determine the consequences of that failure:

       (1) [t]he degree of negligence involved; (2) [t]he significance of
       the destroyed evidence, considered in light of the probative
       value and reliability of secondary or substitute evidence that
       remains available; and (3) [t]he sufficiency of the other evidence
       used at trial to support the conviction. Ferguson, 2 S.W.3d at
       917 (footnote omitted). The trial court must balance these
       factors to determine whether a trial conducted without the
       missing or destroyed evidence would be fundamentally fair. Id.
       If the trial court concludes that a trial would be fundamentally
       unfair without the missing evidence, the trial court may then
       impose an appropriate remedy to protect the defendant’s right to
       a fair trial, including, but not limited to, dismissing the charges
       or providing a jury instruction. Id.

                                       -7-
In considering these three factors, this court finds as to factor one that no proof
of how the video was lost was put on at the hearing on this petition, so this
court cannot determine the degree of negligence involved. As to factors two
and three, there was a very credible victim who testified at trial that when the
petitioner approached her, she at first thought he was joking.

   A. And so I kind of hesitated and then he raised his shirt up to show me
   his gun.

   Q. Where was the gun?

   A. It’s like in the front of his pants, you know.

   Q. Once you saw the gun what did you think was going on?

   A. I was actually getting robbed. And so I pushed the button and [the
   drawer of the register] popped open.

   Q. So you pushed the button after you saw the gun?

   A. Uh-huh.

(Trial Record, p. 17). She also testified that she told the first officer on the
scene about the gun, she told the detective who took her statement about the
gun and when she identified the petitioner in a photo lineup (Exhibit 2 at trial),
she wrote on it “Came to the register and demanded money; lifted up his shirt
and showed me a small handgun.” She also testified that her brother had three
guns, and that for this reason she recognized the grip the petitioner showed her
as that of a .380 caliber. She also testified that the reason she cooperated was
because she was intimidated when he pulled up his shirt. This court finds that
if I had been asked to give T.P.I. - Crim. 42.23 at our charging conference at
the end of the trial (Trial Record, pp. 97-103), after analyzing the Ferguson
factors this court would not have given that pattern instruction, as no proof was
put on at trial that the video would have been exculpatory. The petitioner
testified at trial that he had no gun, but he did not testify to the jury that he ever
watched a video with anyone, or mention that it showed he had no gun. He
admitted at the hearing on this petition that his trial attorney did argue to the
jury in closing that because the video was missing the State had failed to show
he had a gun, but there was no proof at trial indicating the video was


                                         -8-
       exculpatory. (Transcript of the Hearing, p. 49.) This was only asserted on the
       day of the hearing by the petitioner after filing a pro se amendment at the last
       minute.

               This court also finds that the petitioner’s trial, conducted without the
       missing video, was not fundamentally unfair. The petitioner’s testimony at the
       hearing that he watched the video with the detectives and that it clearly showed
       that he had no gun was simply not credible. He put on no proof other than his
       own unsupported testimony, which was not bolstered by any previous
       testimony at trial or indication in his confession that he had ever watched the
       video, or that it was exculpatory. As this court finds the allegations regarding
       the missing video . . . without merit, this court also finds that the allegation
       regarding the failure to preserve these issues for appeal also is without merit.

        We conclude that the post-conviction court’s decision was supported by the evidence
presented at the hearing. With regard to the surveillance video, the detective testified at the
trial that he retrieved the surveillance video from the Circle K and it was thereafter lost. The
Petitioner contends that the video was exculpatory because it would have shown that he did
not have a weapon when he robbed the victim. As the post-conviction court noted, the
Petitioner’s testimony that the surveillance video showed that he was unarmed is
“unsupported.” Counsel testified that she did not believe she had a basis to support a motion
to dismiss based upon the lost video. Counsel testified that two eyewitnesses identified the
Petitioner as the robber and the Petitioner admitted that he robbed the victim. The Petitioner
testified at trial that he was unarmed when he robbed the victim. Further, Counsel cross-
examined the detective about the lost surveillance video and raised this issue before the jury
in closing argument. Therefore, the evidence at the hearing did not support the Petitioner’s
theory that Counsel was ineffective and that, but for Counsel’s error, the fact finder would
have had reasonable doubt regarding the Petitioner’s guilt. See Strickland, 466 U.S. at 694-5.

        This Court has previously held that the evidence was sufficient to support the
Petitioner’s convictions, and there is no indication that the trial was fundamentally unfair.
See Boyd, 2011 WL 2586811, at *1. Thus, we conclude that the Petitioner failed to show
that Counsel’s services fell outside the range of competence normally required of attorneys
in criminal trials. See Baxter, 523 S.W.2d at 936. Having failed to show the first prong of
the Strickland standard, the Petitioner has not met his burden of showing that he is entitled
to post-conviction relief based upon Counsel’s performance. Id. He is not entitled to relief
on this issue.

                                       II. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the

                                              -9-
post-conviction court properly denied post-conviction relief. Accordingly, we affirm the
judgment of the post-conviction court.


                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




                                          -10-
