IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 23, 2003

DAVID WILLIAM SMITH v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Sullivan County

No. C44,768 R. Jerry Beck, Judge

No. E2003-00655-CCA-R3-PC 

January 9, 2004

The petitioner, David William Smith, appeals the Sullivan County Criminal Court’s denial of his

petition for post-conviction relief from his five convictions for attempted second degree murder and

resulting effective thirty-two-year sentence as a Range II, multiple offender. He contends that he

received the ineffective assistance of counsel because his trial attorney failed to (1) cross-examine

state witnesses on testimony conflicting with their prior testimony, (2) advise him that he could

receive consecutive sentences, and (3) call the necessary witnesses. We affirm the trial court’s denial

of the petition.

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

JOSEPH M. TIPTON,J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN

E. GLENN, J., joined.

John D. Parker, Jr., Kingsport, Tennessee, for the appellant, David William Smith.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;

H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

This case relates to the petitioner’s attempted killing of five police officers on November 28,

1995. The record reflects that after two hung juries, the petitioner was convicted of five counts of

attempted second degree murder in his third trial. This court affirmed his convictions. See State v.

David William Smith, No. 03C01-9809-CR-00344, Sullivan County (Tenn. Crim. App. Feb. 24,

2000). He timely sought post-conviction relief, alleging ineffective assistance of trial counsel. The

post-conviction court denied his petition and this appeal followed. 

We summarize the pertinent facts from our opinion in the direct appeal. Dennis Marvin

Banks, a police officer in the Bristol Police Department, testified that while on duty November 28,
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1995, he received a call to go to 2207 Anderson Street in Bristol, Tennessee, to look for Kelley

Phillips, a teenage female runaway. Phillips was found at that address and taken by Banks to his

patrol car to be taken to the police station. After receiving permission from the police, Phillips’

boyfriend, the petitioner, kissed her inside the police car. After the kiss became “very prolonged,”

Banks tried to restrain the petitioner. The petitioner began pushing Banks to try to get into the car

with Phillips. As he was forced to the rear of the police car, the petitioner said he was a third degree

black belt in karate and that he could “take out” the police officers any time he wanted. Officer

Banks testified that he smelled a faint odor of alcohol on the petitioner but that there was nothing

in the petitioner’s actions as he walked or spoke that caused Banks to believe the petitioner was

intoxicated.

As Banks transported Phillips to the police station, he smelled smoke. Phillips told him that

she had lit a cigarette. Banks then stopped his car so that he could put the cigarette out. After

stopping, Banks saw the petitioner walking toward them, although he was not coming from the

direction where he had last seen the petitioner. The petitioner approached Banks and again said that

he could “take them out” at any time he wanted. Banks believed the petitioner was serious and his

supervisor called for assistance at that point. Officer Keith Feathers, Lieutenant Steve Terry, and

Lieutenant Fred Overbey, police officers in the Bristol Police Department, arrived in separate cars.

The petitioner was told to leave the area, and he walked away into the dark. Officer Lloyd Heaton

arrived in his police car just after the petitioner left. Heaton parked his car last in the line of police

cars and left his emergency lights on. David Metzger, the transportation planning engineer for the

cities of Bristol, Tennessee, and Bristol, Virginia, testified that there would have been approximately

three feet of clearance on each side of a car that passed by where the five police cars were parked.

Officer Banks saw a light blue car driving toward them from a nearby alley. He testified that

the car’s headlights were on but suddenly were turned off. The car’s engine raced, and the car began

to accelerate. Rather than continue straight down the road, the car swerved directly toward the

officers. No officers were injured because they all jumped out of the way in time to avoid the

oncoming car. Feathers jumped into his patrol car and pursued the light blue car. The car’s

headlights came on as Feathers began his pursuit. As he chased the car, he activated his siren and

emergency lights. The chase ended when the blue car hit two telephone poles. Feathers testified that

the car he chased was registered to the petitioner. When Feathers reached the car, he temporarily

detained Jon McGuire, who was standing by the passenger door of the petitioner’s car. Officer

David Kirkpatrick, a police officer in the Bristol Police Department, testified that after the accident,

he saw the petitioner walking toward 2207 Anderson Street and that the petitioner ran when he

ordered the petitioner to stop. Kirkpatrick testified that once he and other officers caught the

petitioner, he resisted their attempts to handcuff him. After taking the petitioner into custody,

Feathers transported him to the police station. The petitioner told Feathers that he drank one shot

of vodka at about 3:00 p.m. and that he wanted to take a breathalyzer test. The petitioner did not

appear to be intoxicated and did not have an odor of an intoxicant, but he registered a .12 percent

blood alcohol level on the breathalyzer test. 
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Officer Greg Leek, a police officer in the Bristol Police Department, testified that he took the

petitioner to the Bristol Regional Medical Center and then returned him to the jail. The petitioner

asked what were the charges, and Leek said he would probably be charged with attempted murder.

The petitioner replied that that was “bullshit” and that he could have run them all down if he had

wanted to.

Donald Carl Smith, Jr., the older brother of the petitioner, testified that he drove past the

location where the officers had stopped with the petitioner’s girlfriend and had a short conversation

with the petitioner. He said the petitioner was exhibiting “classic symptoms” of intoxication. He

testified that the petitioner wears eyeglasses but was not wearing any that night. Lieutenant George

Eden of the Bristol Police Department, however, testified that he saw the petitioner driving without

glasses on another occasion. 

At the post-conviction evidentiary hearing, the petitioner testified that his trial attorney told

him that if he was convicted at trial, he would receive a maximum sentence of between twelve and

twenty years. He said he was pleased with his attorney’s representation in his first two trials, but he

thought the attorney rushed through the third trial. He said the attorney should have called Jon

McGuire and his father, Donald Smith, Sr., as witnesses in the third trial as he did in the second trial.

The petitioner testified that his attorney should have cross-examined witnesses more

thoroughly on their inconsistent testimony. He said Officer Overbey testified that the petitioner’s

headlights were off in the first and second trials but said they were on and then went off in the third

trial. He said Officer Overbey testified in the first trial that he could identify the petitioner as the

person who tried to hit them with the light blue car but testified in the third trial that he could not

identify the driver of the car. The petitioner said Officer Kirkpatrick testified that in the first two

trials he saw the petitioner after the accident but that in the third trial, he testified that he saw

“them.” He said that his attorney questioned the officers about these discrepancies but that he was

not satisfied with the cross-examination. He said that the attorney also should have questioned

Officer Kirkpatrick as to why he did not arrest him when he told the officers that he could “take them

out” any time he wanted. He said that the attorney should have emphasized that the petitioner was

not wearing glasses that night and that he needed glasses to see when he drove. The petitioner said

he believed his attorney should have called an expert to testify as to the impact of a .12 blood alcohol

level on a person’s driving ability. 

 

On cross-examination, the petitioner testified that he had four convictions for aggravated

burglary and three convictions for theft of property valued more than one thousand dollars. He said

that he was not driving his car when it almost hit the police officers and that Jon McGuire and a

friend of McGuire’s were in the car at that time. He denied telling McGuire to lie to the police by

telling them that his friend was driving the car, not the petitioner. He acknowledged that he did not

remember if his attorney called McGuire to testify in the first two trials. He stated he knew McGuire

made the following statement to the police: 
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[The petitioner] hit the gas and sped on driving right for the

policemen. He yelled to me to hold on and I was screaming at him to

stop and that he was crazy. I saw the Officers jump out of the way of

David’s speeding vehicle. I would estimate David to be going about

forty (40) miles per hour when he tried to hit the cops. I fully believe

that had the Police Officers not reacted so quickly and jumped back

to safety that David would have struck them with his car.

He said, however, that he still believed his attorney should have called McGuire to testify. 

The petitioner acknowledged that his father was not at the scene of the crime, but he believed

that his father should have testified because he might have heard something on his scanner or while

he was waiting at the jail. He denied that his attorney ever told him that he could be ordered to serve

his sentences consecutively. He acknowledged that he rejected the state’s offer to plead to a lesser

charge and said he wanted to go to trial to prove his innocence. He said he did not want to plead

guilty because he did not commit the crime. He said, however, that if he had known he was going

to be sentenced to more than twenty years, he would have pled guilty. He said that his attorney met

with him many times, that he was a thorough lawyer, but that he did not spend enough time on the

third trial. 

Donald Carl Smith, Sr., the petitioner’s father, testified that his son’s attorney discussed with

him the possible sentences the petitioner could receive if he was convicted, and he believed the

attorney told him that sixteen to twenty years was the maximum. He said he did not testify in any

of the petitioner’s three trials. He acknowledged that after the petitioner was convicted, he sent the

attorney a card that stated “‘thanks for the great job in my son’s case. I know you gave a hundred

and ten percent (110%) because . . . you really cared.’” On redirect examination, Smith stated that

he did not remember if he sent the card after the first or third trial.

Donald Carl Smith, Jr., the petitioner’s brother, testified that the petitioner’s attorney told

him that the maximum sentence that the petitioner could receive would be twenty years. He said that

he testified in all three trials and that in the third trial, he was “let loose [by the attorney] to make my

mistakes[.]” On cross-examination, he said that the attorney never told him that the sentences could

be ordered to be served consecutively if the defendant was convicted, but he acknowledged that he

did not remember the exact words when told that the petitioner’s maximum sentence would be

twenty years. 

Laural Dean Smith, the petitioner’s mother, testified that she was present at the first two trials

but did not testify and that she was asked by the attorney to wait outside the courtroom during the

third trial. She said she never asked McGuire to lie to the police on her son’s behalf. She said the

attorney did not cross-examine witnesses sufficiently during the third trial. On cross-examination,

she acknowledged that she took McGuire to visit the petitioner at the county jail, but she denied that

the petitioner asked McGuire to say a third person was driving his car on the night of the incident.
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The petitioner’s trial attorney testified that his strategy in the petitioner’s three trials was to

show that the petitioner would not have intended to hit the police officers because the petitioner

knew his girlfriend, Kelley Phillips, was among them when the incident occurred. He said that he

also tried to show that the petitioner was intoxicated and had not worn his glasses when the incident

occurred in order to show there was no intent to hit the police officers with his car. He said that

using this strategy, the petitioner was acquitted of five counts of attempted first degree murder in the

first trial. 

The attorney said that he did not use an expert on blood alcohol concentrations because when

he talked to Officer Feathers, he determined that Feathers had not followed the correct procedure

when he gave the petitioner the test. He said he believed an expert might have pointed this out,

raising questions as to whether the petitioner’s blood alcohol content was as high as .12 percent. The

attorney said the petitioner had never told him that someone else was driving the car. He said that

it was his usual practice to explain to his clients the charges they were facing and the amount of time

they would spend in jail, including whether consecutive sentencing was a possibility. He said that

although he could not remember specifically, he believed he would have informed the petitioner on

consecutive sentencing. He said the petitioner was adamant that they should go to trial and not

accept any plea offers from the state. 

The attorney acknowledged he did not call McGuire to testify. He said, however, after

reading the statement that McGuire made to the police, he was not surprised when the state called

McGuire to testify in the first trial. He said that he was able to effectively cross-examine McGuire

and that the state did not call him to testify in the second or third trials. He said that he did not need

to spend as much time in preparation for the third trial because of the information he retained from

the first two. He said that the only witness he considered calling to testify but did not was Phillips.

He said he ultimately decided against calling her because she would have testified that the

petitioner’s car came close to the officers’ cars which was not helpful to the petitioner.

On cross-examination, the attorney acknowledged Phillips could have testified as to the

petitioner’s intoxication, but he believed the .12 percent blood alcohol concentration established the

petitioner’s intoxication sufficiently. He said he did not remember bringing the transcripts from the

first two trials to the third trial. He acknowledged that if he had brought them, it might have helped

him be more effective in cross-examining the witnesses about their discrepancies from the first two

trials. He agreed that Officer Overbey’s testimony in the first two trials that he saw the petitioner

driving the light blue car while stating in the third trial that he did not see the petitioner driving the

car was a material and relevant discrepancy. He said that his cross-examination could have been

more thorough if he had questioned the other officers on their discrepancies as well. He said that

in the third trial, he had the petitioner’s family wait outside the courtroom in case anything

unexpected happened at trial that required their testimony. 

The trial court denied the petition for post-conviction relief. The trial court concluded that

the petitioner did not receive the ineffective assistance of counsel, finding that the discrepancies in

the witnesses’ testimony from the first two trials and the third were slight and immaterial. The trial
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court determined that counsel’s failure to cross-examine witnesses about these differences would not

have changed the outcome in the case and that the petitioner was not prejudiced.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the

burden is on the petitioner to show that (1) counsel’s performance was deficient and (2) the

deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial

was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied to the right to counsel under article I,

section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were within the

range of competence demanded of attorneys in criminal cases. Further, the court stated that the range

of competence was to be measured by the duties and criteria set forth in Beasley v. United States,

491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.

1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney 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, 104 S. Ct. at 2065; see Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the

defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy

or tactical choices if they are informed ones based upon adequate preparation. See DeCoster, 487

F.2d at 1201; Hellard, 629 S.W.2d at 9.

In a post-conviction case, the burden is on the petitioner to prove by clear and convincing

evidence his grounds for relief. T.C.A. § 40-30-110(f) (2003). On appeal, we are bound by the trial

court’s findings of fact unless we conclude that the evidence in the record preponderates against

those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed

questions of law and fact, we review the trial court’s conclusions as to whether counsel’s

performance was deficient and whether that deficiency was prejudicial under a de novo standard with

no presumption of correctness. Id. at 457.

The petitioner contends that counsel was ineffective by failing to cross-examine witnesses

on discrepancies in their testimony from the first two trials and the third trial. As noted, the trial

court found that the discrepancies in the witnesses’ testimony from the first two trials and the third

trial were immaterial and would not have affected the jury’s verdict. It found that some small

discrepancies would be inevitable over the course of three trials and that the petitioner’s attorney was

not ineffective for failing to cross-examine witnesses about the minuscule variances in witnesses’

testimony. The record does not preponderate against this finding.

The petitioner contends that counsel was ineffective because he failed to call significant

witnesses to testify, including Donald Carl Smith, Sr., Jon McGuire, and an expert on blood alcohol
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concentrations. The petitioner claims that his father should have testified because he might have

heard information on a scanner or while he was at jail. When his father testified at the evidentiary

hearing, however, he did not state anything to which he could testify that would have been helpful

to the petitioner. As to the petitioner’s claim that counsel was deficient for failing to call Jon

McGuire, the statement that McGuire gave to police directly inculpates the petitioner. In light of

this, we will not question counsel’s strategic decision not to call McGuire to testify. As to the

petitioner’s claim that counsel was deficient for failing to call an expert on blood alcohol

concentrations to testify, the petitioner failed to present the testimony of a witness that would have

testified on blood alcohol concentrations. Without any proof at the post-conviction hearing as to the

testimony that a witness would have offered, the petitioner cannot demonstrate that he was

prejudiced by the failure of the witness to be interviewed or called on his behalf. SeeBlack v. State,

794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The petitioner has failed to provide any evidence

that his attorney was deficient for failing to call material witnesses. 

The petitioner contends that counsel was ineffective because he misadvised the petitioner on

the length of sentence the trial court could impose. Implicit in the post-conviction court’s rejection

of the petition is that it did not believe the petitioner was entitled to relief based on his claim that

counsel was ineffective by not explaining the possibility of consecutive sentencing to the petitioner.

We believe that the petitioner’s claim that counsel did not tell him he could be ordered to serve

consecutive sentences was not proven at the evidentiary hearing. Although the petitioner and his

family testified that they were never informed about consecutive sentencing, counsel said he was

aware that the petitioner could receive consecutive sentences and that it was his practice to explain

sentencing possibilities fully with his clients. He said he did not believe he would have misadvised

the petitioner in this case. The evidence does not show that counsel did not tell the petitioner about

the possibility of being sentenced consecutively. 

In any event, the petitioner has failed to show that but for his attorney’s alleged failure to tell

him that he could receive consecutive sentences, he would have pled guilty, thereby establishing

prejudice. The petitioner’s testimony at the post-conviction hearing reflects that he wanted to prove

his innocence and that he believed that he had a chance to be acquitted on all the charges. In

addition, his attorney testified that the petitioner was adamant throughout the three trials about going

to trial rather than accepting a plea agreement from the state. Nothing in the record before us dispels

the reliability of the attorney’s testimony. His testimony and the petitioner’s testimony that he went

to trial because he did not want to plead guilty to a crime that he did not commit show that the

petitioner wanted to go to trial irrespective of the possible sentencing consequences. We hold that

the petitioner has failed to show that he received the ineffective assistance of counsel.

Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.

___________________________________ 

JOSEPH M. TIPTON, JUDGE