### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs F

ebruary 20, 200 1
ROBERT M. SNEED v. STATE OF TENNESSEE
Appeal from the Criminal Court for Sullivan County No. C41, 834 R. Jerry Beck, Judge

No. E2000- 02213-CCA- R3-PC March 28, 2001

The De fendant was convicted of DUI, second offense, and driving on a revoked licens e , secondoffense. His convictions were affirmed on direct appeal, and he subsequently

filed for postconviction relief, which was denied. In this appeal, the Defendant contends that the post-conviction court erred in denying his request for post-conviction relief, arguing that he was denied the effective assistance of counsel at trial; that he was denied a fair trial because the trial judge refused to recuse himself; and that the post-conviction court erred in refusing to admit certain evidence. We affirm the denial of the Defendant’s request for post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and J OHN E VERETT W ILLI AMS , JJ., joined.
Murray C. Groseclose, II

I, Kingsport, Tennessee, for the appellant, Robert M. Sneed.

Paul G. Summers, Attorney Ge neral and Repor

ter; Patricia C. Ku

smann, Assistant Att

orney Gene

ral; Greeley Wells, District Attorney General; and James F. Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant,

Robert M. Sneed, was convicted by a jury of driving under

the influence of
an intoxicant (DUI

), second offen

se, and driving o

n a revoked lice

nse (DORL), second offense. The Defendant’s convictions were affirmed on direct appeal. See State v. Robert M. Sneed , No. 03C01- 9610-CR-00371, 1997 WL 600062, at *1 (Tenn. Crim. App., Knoxville, Sept. 30, 1997)

. The Defendant

subsequently filed for p ost-conviction rel ief, alleging that he had been denied the effective assistance of counsel at trial and that he was denied a fair trial as a result of the trial judge’s refusal to recuse himself and remove the prosecuting attorney. A fter a hearing, the post-conviction court deniedrelief. This

appeal followed

, in which the Defendant reiterates his post-conviction claims and also contends that the p

ost-conviction co

urt erred in ref

using to admit certain evidence. Upon our-2-

review of the record and relevant legal author ity, we affirm the judgment of the post-conviction court.

To sustain

a petition for post-conviction relief, a defendant must prove his or her factual allegations by clear and convincing evidence at an e videntiary

hearing. Tenn. Code Ann. § 40-30- 210 (f); Momon v. State , 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court wi ll no t reweigh or reevaluate 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 resolvedby

the trial judge, not the appellate courts. Momon , 18 S.W.3d at 156; Henley v. Sta te , 960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-conviction relief are afforded t

he weight of a ju

ry verdict and are conclusive on appeal unless the evidence preponderates against those findings. Id.

A brief review of the facts underlying the D efenda nt’s c onvic tion s will be hel pful. In October 1995, the Defendant was assisting his brother, Larry Sneed, in painting their mother’s house. The men were using oil-based paint and paint-thinner, and h ad been painting together all day. At approximately

8:30 that evening, the Defendant left to help a friend try to g et hi s car started. At approximately

11:15 that evening, Officer Brian Taylor pulled the De fendant over

after he saw the Defendant

speeding and operating his car in “a jerky fashion.” When Officer Taylor approached the Defendant,

he “could smell the alcohol coming from the car.” When the Defendant stepped out of the car, he used the door for balance, and Officer Tay lor testified that he “noticed the odor of alcohol about his person after he was out of the car.” The Defendant

told Officer Taylor that he had not been drinking; Officer Taylor described the Defe ndant’s speech as “somewhat slurred.”

Officer Taylor req

uested the Defe

ndant to perform t

wo field sobriety

tests: the thumb-tofinger and the heel-to-toe. The Defendant performed both of these tests poorly and Officer

Taylor formedthe conclusion tha t the Defendant’ s “driving abiliti es were impaire

d.” Offic erTaylor arrested the Defendant, and the Defendant subsequently refused to take a test to determine h

is blood alcohol concentration. Captain Wade Williams of the Tennessee Highway Patrol testified that the Defendant’s driver’s license was on revoked status on the date of the Defendant’s ar rest.

The Defendant testif

ied at trial,reiterating that he had not had anything to drink that day or evening. He explained that h e had been painti

ng all day, a nd that he had been d

izzy from his hi gh blood-pressure. He testified that he had told Offi cer T ayl or about his dizziness, and he did not dispute his poor performance on the field sobriety tes ts. Indeed, the Defendant testified, “If I ’d a been the officer, I’ d a probably arrested me, too .” Larry

Sneed also testifie

d, stating that his

brother had had nothing to drink that day, although he admitted that he ha

d not been with his

brother after the Defendant left a

t 8:30. Sneed also te

stified that the Defe ndant had been complaining about dizzines s while the y were painting.

The jury convicted the Defendant of DUI and DORL. F ollowing this verdict, the jury was provided with certified copies of the Defendant’s prior conv ictions of DUI and DORL, and subsequently returned a verdict of DUI , second offense, and DORL, second offense.-3-

The Defendant now contends that his trial counsel was ineffective in th e following res

pects: 1. He failed to adequately inform himself about the Defen da nt’s physical limitations and how they affe cted his ability

to perform the field sobriety

tests;

2. He failed to move for a continuance in order to subpoe

na an outof-state witness ;
3. He failed to adequately inform himself about the shortcomings of field sobriety te

sts, thereby

limiting his ability

to effectively

crossexamine the arre

sting officers ;
4. He failed to object to the prosecuting attorney’s restatement of a witness’s testimony, and to the prosecutor’s que

stion about how fie

ld sobriety tests are used;

5. He failed to

interview the police officers who were going to testify on behalf of the state;

6. He failed to

interview the Defendant’s witnesses prior to trial; and

7. He failed to adequately argue for a continuance when a def

e nse wit nes s be cam e un abl e to tes tif y.
All of these contentions focus on the Defendant’s conclusion that he was convicted because his trial lawyer failed to convinc

e the jury th

at the Defendan

t’s arrest resul

ted from his phy

sical problems (ob esi ty, diabetes and hig h-blood pressure

) and his day

-long inhalatio

n o f paint and paint-thinner fumes, and not from alcohol consumption.

Both the Sixth Amendment to t he United States Con stitution and Article I, § 9 of the Tennessee Constitution guara ntee a defenda

nt the rig ht to representation by counsel. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). This right to counsel includes the right to effective counsel. See id. ; Strickland v. Washington , 466 U.S. 668, 686 (1984). To determine whether counsel provided effective assistance at trial, the court mu

st decide whether counsel ’s performance was within

the rang e of c omp ete nce d ema nde d of att orn eys in criminal cases. Baxter , 523 S.W.2d at 936; Hicks v. State , 983 S.W.2d 240, 245 (T enn. Crim. App. 1998). To succeed on a claim that his or her counsel was ineffective at trial, a

defendant bears the burden of showing

that counsel made

errors so seriou

s that he or she wa

s n ot functi oning as counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the defendant resulting in a failure to produce a reliable result. Strickland , 466 U.S. at 687 ; Burns , 6 S.W.3d at 461; Hicks , 983 S.W.2d at 245. To satisfy the second prong, the defendant must show
a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have had1 We remind the Defendant that the DUI st atute prohibi

ts drivin g while under

the influence o f “ any intoxicant

. . . or drug pro ducing stimu lating effects on the central nervo us system.” T enn. Cod e Ann. § 5 5-10-40 1(a)(1) (e mphasis added). See, e.g. , State v. James J r. Owen , 1988 WL 119375, at *1 (Tenn. Crim. App., Jackson, Nov. 9, 1988) (finding the defendant’s conviction of DUI support ed by sufficie nt evide nce where t

he defendan

t had been i

nhalin g a type of paint-thinner).

2 See Tenn. C ode Ann . § 40-35 -203(a). O nly defendants convi cted of capital crimes may be sentenced by the jury under the Act. See id. § 40-35-203(c).
-4- reason abl e doubt regarding the defendant’s guilt. See Strickland , 466 U.S. at 694-95. This reasonable

probability

must be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State , 875 S.W.2d 662, 665 (T enn. 1994); Owens v. State , 13 S.W.3d 742, 750 (Tenn. Crim. App. 1999).

When reviewing tria

l counsel’s actio

ns, this Court should not use the benefit of hindsight to second-guess

trial str ateg y and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Owens , 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they
were made in light of all facts and circumstances. S ee Strickland , 466 U.S. at 690; Hicks , 983 S.W.2d at 246.
Initially, we agree

with the post-conviction court that the Defendant has failed to prove by clear and convincing evidence that his trial lawyer’s representation fell below the required standa rd. A review of the tri

al transc ri pt makes clear that the Defendant’s trial attorney did an adequa te job of presenting the Defendant’s theory to the jury. Furthermore, even if the Defendant’s la

wyer did notdo an adequate job in this respect, the Defendant has f

ailed to demonstra

te how additional proof
or more extensive cross-examination would have resulted in a different outcome. The Defendant offered no medical testimony at the post-conviction hearing, and his allegations that his medical conditions and/or paint inhalation were responsible for hi s arrest t herefore remain no more than allegations.Additionally, we note that even if defense counsel had more thorou ghly pursued the ? paint fumes” issue, this w

as n ot likely to have helped the Defendant’s case. L arry Sneed, a professional painter with

twenty years of experience, testified at the post-conviction hearing that the fumes of oil-based paint “will cause you to be int oxicat ed” and will interfere with thinking and coordination. 1 The Defendant’s contentions that his trial l awyer wa

s ineffective in p

resenting his defense are wi

thout merit.

The Defendant also contends that his trial lawyer should have required the trial court to allow the jury to sente

nce him, claiming that the Criminal Sentencing Reform Act of 1989, which requires that the trial court rather

than the jury senten

ce most convicted

defendants, 2 did not repeal the earlier sentencing laws which a llowed for j ury sentencing. The Defendant does not support this claim w

ith any legal authority, and it is therefore waived. See Tenn. Ct. Crim. App. R. 10(b). Moreover, this claim is without merit. See State v. Palmer , 902 S.W.2d 391, 392 (Tenn. 1995) (holding that the Criminal Sentencing Refo rm Act of 1989 implie

dly repealed prior

sentencing stat

utes with respect to offenses committed on or after November 1, 1989).-5-

The Defendant next co

ntends that he was

denied a fair tr

ial because the t

ria l judg e and prosecuting attorney refused to recuse themselves. Prior to his arrest, the Defendant had sued both of these i n dividuals on an unrelated matter. The lawsuit had been summarily dismissed, but the Defendant

had filed a motion to

reconsider. The

Defendant’s la

wyer filed a motion to

recuse, which
was denied. The Defendant has failed utterly to demonstrate how he wa s un fai rly or improperly prejudiced

by either the trial judge or the prosecuting attorney

. Acc ordingly, this issue is without merit.

The Defendant also contends that the post-conviction court erred in r efusing to admit c

ertain evidence at

his hearin g. The Defendant a ttempted to introduc

e height and we

ight charts and c

ertain pages from a “DWI De

tection Manual” i

n an attempt to

further his claim

that his lawyer could have done more to convi nce the jury that his p erformance on t

he field sobriety

tests was attributa

ble to factors other than alcohol consumption. The Stateobjected, and the post-conviction court sustained the objection on the ground that the charts were inadmissible hearsay. Cf. Tenn. R. Evid. 803(17). Whether these documents should have been admitted was a matter within the sound discretion of the post-conviction court, and we will not distub its ruling absent a clear showing of an abuse of that discretion. See State v. Edison , 9 S.W.3d 75, 77 (Tenn. 1999). We find no such abuse here , and this issue is therefor

e without merit.

The Defendant also complains that the post-conviction court improperly limited the scope of his cr oss-examination of t he arresting of

ficers. Howeve

r, “the scope of

cross-examination

is largely within the trial court’s di scr etion, and . . . such discretion will not b

e disturbed absen

t a finding of abuse.” State v. Bragan , 920 S.W.2d 227, 244 (Tenn. Crim. App. 1995). We find no abuse of discretion here, and this issue is therefore without merit.

Fin all y, the Defendant contends that he pled guilty to DUI , second offense, and

DO RL, secondoffens e, and that his pleas were made in violation of his constitutional rights. Our review of the t ranscr ipt of the original trial in this matter reveals that, after the jury returned its initial verdict, the Defendant

pled guilty to second offense status on each conviction. Nevertheless, the trial court sent the charges of

second offense status to the jury. The jury subsequently returned a verdict of guilty on each

charge. The Defendant’s convictions for DUI, second offense, and DO RL, second offense, were therefore not the result of a guilty plea, and this issue is accordingly without merit.
The judgment of the post-conviction court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE