         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      May 5, 2009 Session

                 DERRICK MCCLURE v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-26083    John P. Colton, Jr., Judge



                    No. W2008-00444-CCA-R3-PC - Filed October 19, 2009


The petitioner, Derrick McClure, was convicted of first degree murder, attempted first degree
murder, and two counts of especially aggravated robbery. Following a jury trial, the petitioner
received an effective sentence of life plus twenty-five years in the Tennessee Department of
Correction. On appeal, the petitioner asserts that the post-conviction court erred in failing to find
that due process considerations tolled the statute of limitations to allow him reasonable time to file
his petition asserting the ineffective assistance of counsel. Following a review of the parties’ briefs,
the record, and applicable law, we affirm the denial of post-conviction relief.

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

J.C. MCLIN , J., delivered the opinion of the court, in which THOMAS T. WOODALL and CAMILLE R.
MCMULLEN , JJ., joined.

Paul J. Springer, Memphis, Tennessee, for the appellant, Derrick McClure.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Damon Griffin and Tiffany Taylor, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                            Background

        Following a jury trial, the petitioner was convicted of first degree murder, attempted first
degree murder and two counts of especially aggravated robbery. On appeal, this court affirmed the
petitioner’s convictions and sentence. See State v. Derrick McClure, No. 02C01-9705-CR-00192,
1998 WL 148322, at *1 (Tenn. Crim. App., at Jackson, March 31, 1998), perm. app. denied (Tenn.
Dec. 7, 1998). The following is a recitation of the convicting evidence set forth in this court’s
opinion on direct appeal:
        On April 16, 1994, the [petitioner], Charles Speed, and Harry Robinson, all
juveniles, made plans to rob a convenience store.FN1 Their strategy included
locating a store without a video camera and shooting the clerks in order to prevent
their identification. They further discussed “who was going to shoot them, who was
going to get the money, . . . who was going to be the lookout, and where [they] were
going to go once [they] did it.” The three then proceeded to “some girl’s house” in
East Memphis and then to “Hyde Park to get the gun.” Once the group had obtained
the gun, they rode around until they located the Liberty Grocery Store.

       FN1. The [petitioner] was sixteen years old when the offenses were
       committed.

        The [petitioner], Speed, and Robinson entered the store and attempted to
purchase some beer. Sung Su Kim, the proprietor of the family owned business,
refused to sell the beer to the juveniles because they appeared to be underage and
they did not have proper identification. The three teenagers returned the beer to the
cooler and left the store. Soon thereafter, one of the juveniles reentered the store and
explained to Mr. Kim that he had identification. Mr. Kim responded that, although
he may have proper identification, state law requires a person to be twenty-one years
of age to purchase beer. The juvenile then left the store.

         Chae Kim, Mr. Kim’s aunt, who was also working in the store that day, went
outside to get some fresh air. When she returned, she informed Mr. Kim that the
trash needed to be taken to the dumpster. “A minute or two” after Mr. Kim had
returned from the dumpster, he heard a voice from behind him. Mr. Kim turned and
saw the three juveniles who had earlier attempted to purchase the beer. The
[petitioner], armed with a pistol, shot Mr. Kim in the face and then in the chest. Kim
fell to the floor, whereupon the [petitioner] again shot Mr. Kim; this time in the leg.
Then, reaching over the counter, the [petitioner] fatally shot Chae Kim, who was
crouched in fear behind the store counter. Ms. Kim was shot once in the head. After
the shooting had ceased, one of the juveniles attempted to open the cash register, but
was unsuccessful. The teenagers gathered fourteen or fifteen dollars, some coins and
some food stamps which were laying on the floor, and fled the store. Mr. Kim,
unable to stand, crawled toward the telephone in an effort to dial “911.”

        Carolyn Gunn, a neighborhood resident, and her teenage son, Kevin Parker,
were outside the store when Kevin warned her “Mama, don’t go in the store. There’s
shooting in there.” A minute later, Mrs. Gunn observed a “guy run out the store” and
get into a white car containing two other people. Although Mrs. Gunn did not
recognize the person leaving the store, her son exclaimed, “Mama, that’s Derrick!”
Kevin explained that he recognized the [petitioner] because “Derrick” had dated his
cousin and attended Humes High School. Upon entering the store, Mrs. Gunn found
Mr. Kim “standing up on the outside of the counter with the phone.” She also


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        observed “[Chae Kim] lying over behind the counter.” Mrs. Gunn told Mr. Kim to
        lie on the floor, took the telephone from him, and dialed “911.”

                Later that evening, Memphis Police Officers Donald Dickerson and Jerry
        Collard proceeded to the [petitioner’s] residence and placed him under arrest for the
        robbery of the grocery store. Subsequent to his arrest, the [petitioner] made two
        statements admitting his involvement in the crimes. The first statement was made
        after the [petitioner] was arrested and placed in the squad car for transporting to the
        police station. No Miranda warnings were provided on this occasion. The second
        statement involved a written statement on the following day given in the presence of
        his adult sister and after being provided Miranda warnings. In the written statement,
        the [petitioner] admits that the three planned the robbery of the Liberty Grocery.
        Additionally, he admits that he was present and participated in the robberies by the
        taking of money and food stamps. In his statement, he denies, however, that he was
        the person who shot either of the victims. Both statements were admitted into
        evidence.FN2 At trial, Mr. Kim identified the [petitioner] as the person who shot
        him in the face, chest and leg. Additionally, Kevin Parker identified the [petitioner]
        as one of the two individuals who he saw running out of the grocery store, after
        hearing gunshots.

                FN2. No incriminating statement was made by the [petitioner] in his
                oral statement to the police that was not included in his more
                comprehensive written statement.

Derrick McClure, 1998 WL 148322, at *1-2.

        On January 15, 2002, the petitioner filed his pro se petition for post-conviction relief
claiming that he received ineffective assistance of counsel. The petitioner asserted that trial counsel
failed to respond to inquiries regarding his Rule 11 appeal. The petitioner argued that because trial
counsel’s assistance was ineffective, the petitioner did not file his petition for post-conviction relief
until after the expiration of the statute of limitations. The post-conviction court found that the
one-year statute of limitations barred the petition for post-conviction relief and that no statutory
exceptions or due process considerations existed to toll the statute of limitations. The petitioner
appealed the dismissal of his post-conviction petition to this court. In a previous opinion, this court
reversed the decision of the post-conviction court and remanded the case for an evidentiary hearing
with instructions as follows:

                In order to ascertain whether the misconduct of the petitioner’s attorney
        constitutes a due process violation that would toll the statute of limitations, certain
        facts must be determined. In Williams [v. State, 44 S.W.3d 464 (Tenn. 2001)], our
        supreme court surmised that “[i]f [the petitioner] was under the impression that a
        Rule 11 application was pending during this time, then he was precluded from acting
        pro se to pursue post conviction relief while presumably being represented by
        counsel.” Id. Our supreme court then stated that the question to consider “is whether

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       the [petitioner] in this case was, in fact, misled to believe that counsel was continuing
       the appeals process.” Id. In this case, it is necessary to determine whether counsel’s
       failure to inform the petitioner of the denial of the Rule 11 application caused the
       petitioner to erroneously believe that his counsel was continuing representation. In
       addition, it is necessary to determine why counsel did not file for post-conviction
       relief, or, in the alternative, inform the petitioner of his intent to withdraw from
       representation. Finally, the questions of how and when the petitioner received notice
       of the denial of his Rule 11 application need to be determined. Therefore, we remand
       to the post-conviction court for an evidentiary hearing to determine (1) whether due
       process tolled the statute of limitations so as to afford the petitioner a reasonable
       opportunity after the expiration of the limitations period to present his claim in a
       meaningful time and manner; and if so, (2) whether the petitioner’s filing of his
       post-conviction petition on January 15, 2002, was within the reasonable opportunity
       afforded by the due process tolling. See Williams, 44 S.W.3d at 471. If the
       post-conviction court determines that due process considerations tolled the statute of
       limitations and the petitioner filed his petition within a reasonable time after the
       expiration of the statute of limitations, then the court shall grant the petitioner the
       opportunity to seek a post-conviction hearing on the merits. If the post-conviction
       court determines otherwise, the court shall dismiss the petition as untimely.

Derrick McClure v. State, No. W2004-00519-CCA-R3-PC, 2005 WL 357896, at *3 (Tenn. Crim.
App., at Jackson, Feb 15, 2005).

        On remand, the post-conviction court held a hearing on December 1, 2005 to determine
whether due process considerations tolled the statute of limitations to afford the petitioner a
reasonable time to file his petition for post-conviction relief. The prosecutor advised the post-
conviction court that trial counsel for the petitioner informed the state that he no longer had the
petitioner’s file, and therefore, the state could not present evidence to prove that the petitioner was
informed of the status of his Rule 11 application. The state submitted that due process
considerations tolled the statute of limitations and that the petitioner was entitled to an evidentiary
hearing.

         In compliance with this court’s instructions, an evidentiary hearing was held June 7, 2007
on petitioner’s assertion that he received the ineffective assistance of counsel at trial. After
announcing to the court that he was ready to move forward with the hearing on the petition for post-
conviction relief, post-conviction counsel presented the testimony of the petitioner. We summarize
the petitioner’s testimony at the hearing as follows. The petitioner testified that trial counsel failed
to investigate his case. According to the petitioner, he did not discuss the facts and circumstances
of the case with trial counsel and they “did talk but [they] wouldn’t just talk too much about the case
or nothing.” The petitioner only talked to trial counsel on the days that he had to come to court.
Trial counsel visited the petitioner only one time in jail before his trial. During the visit, they met
for thirty or forty minutes and discussed whether the petitioner would testify at trial and reviewed
the statements that petitioner made to law enforcement. The petitioner said that counsel did not ask
whether petitioner’s statements were voluntary and petitioner “tried to . . . tell him to talk to [his]
sister and [witnesses] that [were] there, but he kept on talking [and] shaking his head saying like it

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don’t . . . really matter.” The petitioner said that his sister would be able to tell counsel that his
statement was “probably coerced a little bit.”

        The petitioner stated that at the time of his arrest, he was supposed to be involved in therapy
and his doctor was going to prescribe him medication for depression and “something like” psychosis.
The petitioner said that during the guilt phase of petitioner’s trial, he did not discuss his mental
health problems with trial counsel. He could not recall whether trial counsel requested a mental
health evaluation. The petitioner said he did not tell trial counsel about his mental health problems
until his sentencing hearing. He asserted that his mental illness may have affected his conduct at the
time he committed the crimes and further asserted that his mental illness should have been
considered during sentencing.

        The petitioner testified that counsel failed to collect certain evidence for trial. Specifically,
he stated that he told counsel about a recording of a juvenile court hearing and ballistic reports, but
trial counsel did not obtain the evidence. The petitioner also stated that he believed counsel should
have questioned the officers who testified at trial regarding their investigation of another suspect
who was taken into custody. The petitioner said that counsel failed to call witnesses that would have
been helpful to his case, did not share with him how the state’s witnesses would testify, or tell him
that one of the victims identified him as the shooter.

        The petitioner said that he and trial counsel “had a conflict because [trial counsel] was trying
to get [him] to plead guilty to a life sentence,” and he did not want to plead guilty. He stated that
there were no other offers tendered to him other than the life sentence. The petitioner stated that he
did not feel that trial counsel was prepared to go to trial and stated that counsel discussed with him
the possibility of a continuance. The petitioner said that he wanted a continuance, but it was never
requested by counsel because counsel “didn’t want no [sic] continuance.” The petitioner stated that
he addressed the court and asked for a continuance. The petitioner stated that counsel did not advise
him about the phases and content of his trial. As a consequence, the petitioner did not understand
what was going on during the trial and “[e]verything was just blank.”

        According to the petitioner, after discussing with counsel his right to testify at trial, he did
not testify. Upon further inquiry by the post-conviction court, the petitioner indicated that he did
not want to testify because he had already given a statement. The petitioner said that he did not
discuss any strategies related to testifying with counsel. He claimed that counsel was aware that he
had already testified at the suppression hearing that he was not the shooter, and that he had also
given a statement denying that he was the shooter.

        The petitioner stated that trial counsel also represented him on his direct appeal. The
petitioner acknowledged that he received a copy of the appellate brief filed on his behalf and the
appellate court’s opinion affirming his convictions and sentencing. The petitioner stated that he
objected to the brief because counsel failed to challenge his indictment and omitted several issues
that petitioner wanted raised including an argument asserting possible evidence tampering.

        On cross-examination, the petitioner testified that he filed his petition for post-conviction
relief because he felt that trial counsel did not adequately represent him. He admitted that while his

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petition asserted that trial counsel failed to investigate his case or interview witnesses, he had not
provided counsel with the names of any witnesses. The petitioner also acknowledged that in
statements to the police, he admitted his involvement in the crimes. The petitioner said that his
statements were not voluntary because at the time that they were given, he did not know the legal
system and he “was nervous and didn’t understand what was going on[.]”

        On redirect examination, the petitioner testified that he felt like he had to give a statement
to police because of pressure from the officer and his sister. On recross-examination, the petitioner
admitted that he was not forced to give a statement.

                                                Analysis

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). On appeal, this court is bound
to the post-conviction court’s findings of fact unless the evidence preponderates against those
findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s
factual findings is de novo with a presumption that the findings are correct. Fields v. State, 40
S.W.3d 450, 457-58 (Tenn. 2001). Our review of the post-conviction court’s legal conclusions and
application of law to facts is de novo without a presumption of correctness. Id.

                                       A. Statute of Limitations

        On remand from this court, the post-conviction court held a hearing on December 1, 2005
to address again the issue of whether the statute of limitations was tolled. Trial counsel attended the
December 1st hearing. He stated that although he remembered some aspects of the case, he had no
memory of notifying the petitioner of the status of his Rule 11 appeal. The state announced that it
could not produce evidence to rebut the petitioner’s claim. The post-conviction court granted the
petitioner the opportunity to seek post conviction relief. A hearing on the merits of the petition was
held on June 7, 2007. Because the issue of whether the petition was time barred is moot, this court
will not address the issue.

                                B. Ineffective Assistance of Counsel

        Initially we note that on appeal the petitioner raises only one issue, “whether due process
considerations tolled the statute of limitations for filing a petition for post-conviction relief.” (Brief,
5) Because the petitioner did not challenge the post-conviction court’s finding that he failed to meet
his burden of proof that trial counsel was ineffective, the petitioner has waived the issue on appeal.
See Tenn. R. App. P. 13. Notwithstanding the petitioner’s waiver of the issue, this court instructed
that on remand, if the petition was not time barred, the post-conviction court should hold an
evidentiary hearing for a determination of the merits of the petitioner’s claim. See id. Therefore,
we review the record before us for consistency with our previous opinion.

        The petitioner seeks post-conviction relief alleging the ineffective assistance of counsel. At
the June 7th hearing the petitioner testified in support of his claims. We summarize the petitioner’s
assertions as follows: 1) that trial counsel should have conducted a more thorough investigation and

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failed to contact or interview witnesses; 2) that trial counsel fell below a reasonable standard of
representation in failing to request a mental evaluation; and 3) that trial counsel met with him only
one time and was not adequately prepared for trial. On appeal, the state asserts that “the post-
conviction court correctly found that the petitioner failed to carry his burden of proof to show
deficient performance.”

         To establish the ineffective assistance of counsel, the petitioner bears the burden of proving
that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington, 466
U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient
performance is shown if counsel’s conduct fell below an objective standard of reasonableness under
prevailing professional standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975) (establishing that representation should be within the range of competence
demanded of attorneys in criminal cases). A fair assessment of counsel’s performance “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.”
Strickland, 466 U.S. at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). Deference
is made to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a particular strategy or
tactical decision failed does not by itself establish ineffective assistance of counsel. Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves that counsel’s representation fell
below a reasonable standard, the petitioner must also prove prejudice. Strickland, 466 U.S. at 694.
Prejudice to the petitioner is satisfied by the petitioner demonstrating “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694; Nichols, 90 S.W. 3d at 587.

        The record before us contains the petition for post-conviction relief, the order of the trial
court, and a transcript of the evidentiary hearing on the merits of petitioner’s claim. The record does
not contain a request by the petitioner to present additional proof, to make an offer of proof pursuant
to Tenn. R. Evid. 103, nor a petition to rehear in accordance with Tenn. R. App. P. 39 since the June
7, 2007 hearing. The defendant has a duty to prepare a record which conveys a fair, accurate, and
complete account of the lower court proceedings for appeal. See State v. Oody, 823 S.W.2d 554, 559
(Tenn. Crim. App. 1991); see also Tenn. R. App. P. 24(b). Our review is limited to the record before
us. Tenn. R. App. P. 3.

        The petitioner asserts that trial counsel should have conducted a more thorough investigation
and complains that trial counsel did not contact or interview witnesses. At the June 7th hearing, the
petitioner testified that trial counsel failed to present evidence at trial including recordings of a
juvenile court hearing, ballistic reports, and the testimony of officers regarding their investigation
of another suspect. As to his claim that trial counsel failed to interview potential witnesses, the
petitioner admitted that counsel asked for potential witnesses and he did not provide the names of
any witnesses. The presentation of these witnesses at the post-conviction hearing is generally
necessary to prove that counsel’s failure to present evidence resulted in prejudice to the petitioner.
See Black v. State, 794 S.W.2d 752, 757 (Tenn.Crim.App.1990). Therefore, the petitioner has failed
to meet his burden to show that trial counsel’s investigation of the case was ineffective or

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presentation of evidence and witnesses at trial fell below a reasonable standard. Moreover, the
petitioner has failed to show that he was prejudiced by trial counsel’s investigation of his case or his
failure to interview or present witnesses.

         The petitioner asserts that trial counsel’s failure to request a mental evaluation fell below a
reasonable standard. He claims that an evaluation would have allowed a jury to evaluate his mental
state at the time he committed the offenses charged. However, at the post-conviction hearing, the
petitioner did not present the necessary expert testimony regarding his mental state and has presented
no evidence to support that an evaluation was necessary. Neither the post-conviction court nor this
court may speculate on what a witness’ testimony might have been if introduced by counsel. Black
v. State, 794 S.W.2d at 757. Moreover, the petitioner admitted that he did not make trial counsel
aware of any mental issues until after the jury had returned it’s verdict. We conclude that the
evidence does not establish that trial counsel was deficient for not ordering a mental evaluation of
the petitioner. See Michael Williams v. State, No. W2005-01810-CCA-R3-PC, 2006 WL 3371404,
at *5 (Tenn. Crim. App., at Jackson, Nov. 20, 2006), perm. app. denied (Tenn. Mar. 19, 2007)
(concluding that trial counsel was not deficient in failing to investigate the petitioner's mental
capacity where counsel had no indication that the petitioner suffered from mental illness.).

        The petitioner also argued that trial counsel met with him only one time and was not
adequately prepared for trial. The post-conviction court found that petitioner met with trial counsel
to discuss the statement petitioner made to the police and whether petitioner wanted to testify and
“that the petitioner did not show that counsel’s failure to schedule more frequent meetings with him
fell below an objective standard of reasonableness.” We agree and conclude that the petitioner has
not demonstrated that trial counsel’s failure to meet with him more frequently fell below the
objective standard of reasonableness or that trial counsel’s failure to meet more frequently with the
petitioner would have changed to outcome of his trial. See Strickland, 466 U.S. at 688, 694.

        The record does not preponderate against the findings of the post-conviction court that the
petitioner failed to meet his burden of proof. Therefore, we conclude that the petitioner failed to
demonstrate that he was denied the effective assistance of counsel and the trial court did not err in
denying the petitioner’s petition for post-conviction relief.

                                             Conclusion

       The denial of post-conviction relief is affirmed.


                                                        ___________________________________
                                                        J.C. McLIN, JUDGE




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