Assigned on Briefs November 04, 2014
Appeal from the Criminal Court for Shelby County No. 0407755 Chris Craft, Judge.
Randal G. Rhea, Memphis, Tennessee, for the appellant, Jeremy Garrett.
Herbert H. Slatery, III, Attorney General and Reporter; Meredith Devault, Senior Counsel; Amy P. Weirich, District Attorney General; and Chris Lareau, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
Petitioner argues that he is entitled to post-conviction relief because his trial counsel rendered ineffective assistance of counsel. Although Petitioner presented multiple allegations of examples of deficient performance by his trial counsel at the hearing, he relies on appeal on only one of these factual grounds. Specifically, Petitioner asserts in his brief that trial counsel rendered ineffective assistance of counsel because
[Trial counsel], failed to preserve evidence, photographs of [Petitioner] taken by [trial counsel], after [Petitioner's] arrest. [Petitioner] asserts these photographs were evidence of abuse at the hands of the Shelby County Sheriff's Department subsequent to his arrest in this matter.
Petitioner argues on appeal that he was prejudiced by this alleged deficient performance by trial counsel because the photographs would have supported an argument that Petitioner's statement to investigators was the result of coercion.
Petitioner did not testify at the post-conviction hearing, and he presented the testimony of only one witness, his trial counsel.
Trial counsel testified that at Petitioner's request during a meeting at the courthouse, trial counsel took pictures of Petitioner using a new palm held device even though trial counsel did not observe any marks on Petitioner's skin. That same day, the palm held device was stolen after trial counsel placed it on a bench in the courtroom.
Petitioner told trial counsel that the marks on his body (which trial counsel did not see) were the result of physical abuse Petitioner sustained at the hands of personnel of the Shelby County Sheriff's Department. Petitioner did not say anything to trial counsel about the physical abuse being related to the statement Petitioner gave to police. Petitioner's counsel in the post-conviction hearing asked trial counsel why trial counsel would have taken pictures of Petitioner if the photographs were not relevant to Petitioner's statement to police. Trial counsel responded as follows:
A. There's something that is not written in any of the rules or anything like that but when you want to build a rapport with your client sometimes you do things that they ask you to do because it's easier to do those things than it is to explain why it shouldn't be done.
So when he asked me to take a picture of a spot on his body that I didn't see any discoloration from but he said that it was there, it was easier for me to snap the picture than it was to explain why I'm not going to snap the picture. And like I said I told him at the time I ...