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

Briefs O ctober 23, 2003
DAVID WILLIAM SM ITH v. STATE OF TEN NESSEE
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, Da v id William Smith , appea ls the Sulliv an County

Criminal Court’s de

nial of his petition for post-conviction relief from his five convictions for attempted second degree murder and resulting ef

fe ct iv e t hi rt y- two-y ear sentence as a Rang e II , multiple offender. He contends that he received the ineffective assistance of counsel because his trial attorney fa

iled to (1) cross-examine state witnesse s on testimo ny c onflicti ng with the ir prior t estimony , (2) adv

ise him tha

t 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

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and A LAN E. G LENN , J., joined.
John D. Parker, Jr., Kingsport, Tennessee, for the appellant, David William Smith.

Paul G. Summers, Attorney Gene ral and Reporter; Braden H. Boucek, Assistant Attorney Genera l; H. Greeley

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

ral, 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 d

egree murder in

his third tr

ial. This court affirmed

his convictions. See State v. Da vidWilliam Smith , No. 03C01-9809-CR-00344, Sullivan County (Tenn. Crim. App. Feb. 24 , 2000). He timely sought

post-conviction relief, alleging ineff ective assistance of trial counsel. The post-conviction court denied his petition and this appeal followed.

W e summarize

the pert inent fa cts from o

ur opinion

in the direct appea

l. Dennis M arvin Banks, a police officer in the Bristol Police Department, testified that while on duty November 28,-2-

1995, he rece

ived a ca ll to go to

2207 Ande

rso n S treet in Bristol, Tennessee, to look for Kelley Phillips, a teenage female r unaway. Phillips was foun d at that addressand take n by Banks to his patrol car to be taken to the police station . After r eceiving permi ssion fro m the polic e, Phillips’ boyfriend, the petitioner, kissed her inside the police car. After the kiss bec ame “very pr olonged,” Banks tr ied to restrain the petitioner. The petitioner began pushing Banks to try to g et

into the car withPhillips. As he was forced to the rear of the police ca r, the petitioner

said he was a third

degree black belt in ka

rate an d that he c ould “ta ke out” th e poli ce 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 petit ioner’s actions as he walked or spoke that cause d 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 stoppin g, Banks s aw the petitioner walking toward them, although he was not coming from the direction where he had last seen the petitioner. The petitioner approached B anks and again said that he could “ta

ke them ou

t” at any time he wa

nted. Ba nks believed the pe

titioner w as serio us and his supervisor

called for assistance at that point. Officer Ke ith Feathers, Lieutena

n t Steve T erry, a

nd Lieutenant

Fred Overbey , police officers in theBristol Po lice Dep artment, arrive d in separa te cars

. The petitioner

was told to leave the area, and he walke d away into the da rk. Officer

Lloy d Heaton arrived in his police

car just a fter the petitione r left. H eaton pa

rked his c ar last in

the line of police
cars and left his emergency lights on. David Metzger, the transportation planning engineer for the cities of Brist

ol, Tennessee, and Bristol, Virginia, testified that ther e would have been ap

proximatel

y three feet of clearanc e 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 nea rby alley. He te stified that the car’s headlights were on but suddenly were turned

off. The car’s engine r

aced, and the car began to accelerate. Rather than continue stra i gh t down the road, the car swerved directly toward the office rs. No o fficer s were in

ju red because they

all jumped out of the way in time to avoid the oncoming car. F

eather s jumped in

to his p atrol car and pursued the light blue car. The car’ s headlights came on as Feather s 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 reg istered to the petitioner. When Fea th ers rea ched the car, he tempora rily detainedJon McGuire, who was standing by the passenger door of the petitioner’s c ar. O ffice r David Kirkpatrick, a police officer in the Br istol Police Departm

ent, testi fied tha

t after t he acci dent, he sa w the peti t ioner walking toward 2207 Anderson Street and that the pe titioner ran when he order ed the petitioner to stop. Kirkpatrick testified that once he and other office rs caught th e petitioner, he resis ted their attempts t

o handcu ff him

. Af

te r t ak in g t he pe ti ti on er in to cu st od y, 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 tak e a breathaly zer test. The petitioner did not appear to be intoxicated and did not have an odor of an intox icant, but he registered a .12 perc ent blood alcohol level on the breathaly zer test.-3-

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 askedwhat were the charge s, and Leek said he would proba bly be char

ged with attempted murder. The petitione

r replie d that tha

t was “bu llshit” an d that he c ould have run them all down if he had wanted to.

Donald Carl Smith, Jr., the older brother of the petitio ner, testified that he drove past the location where the officers had stopped withthe petitioner’s girlfriend and had a short conve rsation with the petitioner. He said th e petitioner was e

xhibiting “ classic s ymp toms” of intoxication. He testified that

the petitioner wears ey

eglasses but was not wearing a ny that night . Lieute nant G eorge Eden of the Bristol Police Department, however, testified that he saw the petitioner driving without glasses on another occasion.

At the post- convicti on eviden tiary hearing , the petitioner te stified th at his tria l attorne y to ld him that if he was convicted

at trial, he would receive a maximum sentence of between twelve a nd twenty ye ars. He

said he was pleased with his attorney ’s representation in his first two trials, but he thought the attorney r

ushed through the third trial. He said the attorney sho uld have called Jon McGuire and his father, Donald Smith, Sr., as witnesses in the third trial as he did in the sec ond trial.

The peti tioner te stified that his attorney should have c ross-examined witnesses more thoroughly on

their inconsistent testimony. He said Offic er Overbey testified that the petitioner’s headlig hts were off in the first and second trials but said they were on and then went off in the third trial

. He said Off

icer 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 Off icer Kirkpatri ck testifi ed that in the first two tr ials he saw the petitioner after the accident but that in the third trial, he testified that he sa w “them.” He said that his attorney que stioned the officers about these discrepancies but that he was notsatisfie d with the c

ross-exa mination. He said tha

t the attorney also s hould 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 wa

nted. He said

that the attorney should have emphasized that the petitioner was notwearing glasses that nig ht and that he needed glasses to see whe n he drov e. The pe

titioner s aid he believe d his attor

ney should hav e calle d an exper t to testify as to the impact of a .12 bloodalcohol level on a person’s driving ability

. On cr oss-examination, the petitioner testified that he had four convictions for agg rav ate d burglary and thre e convic tions for t heft of p roperty valued mo

re than o ne thousa

nd dollar s. He said that he was n ot driving his car when it almost hit the police officers and that Jon McGuire and a friendof McGuire’s were in the car a t thattime. He denied telling McGuire to lie to the police by telling them that his friend was driving the car, not the petitioner. He a cknowledged that he

did not remember

if his atto rney called M cGuire t

o testify in the fir st

two trials. He stated he knew McGuire made the following

statemen t to the poli ce:-4- [The petitioner] hit the gas and s ped on dri ving right for the policemen. He yelled to me t o hold on a

nd I w as scre aming a

t him to stop and that

he wa s c ra zy. I saw the Office rs jump out of the way of David’s speeding vehicle. I would estimate Dav

id to be going about forty (40) miles per hour when he tried to hit the c ops. I fully

believe that had the Police Officers not reacted so quickly and jumped back to safety that Da

vid 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 wa s not at the scene of the crime, but he believed that his father should have testified because he might have he ard some

thing on h is scanne r or while he was waiting at

the jail. He denied that his attorney ever told him that he could be ordered to serve his sentenc es conse cutively . He ack nowledg ed that he

rejecte d the state ’s offe

r to plead to a lesser charge and said he wanted to go to trial to prove his innocence. H e said he did not want to plead guilty because hedid not com

mit the crime. He said, however, that if he had known he was going to be sente

nced to mo

re than t wenty ye ars, he w ould

have pled guilty . He said that his attorney me t withhim many

times, tha

t he was a thoroug h lawy er, but th at he did

notspend enough time on the third trial.

Donald Carl Smith, Sr., the petitioner’s father, testified that his son’s attorney discusse d with him the possib le sente

nces t he petitione r could receive if he was convicted, a nd he believed the attorney told him that sixteen to twenty years w as the maximum. He said he didnot testify in any of the petitioner’s three trials. He acknowledg ed that after the petitioner was convicted, he sent the attorney a c ard that stated “‘thanks for the great job in my

son’s case. I know y

ou gave a hundred and ten percent (110%) because . . . y ou really ca

red.’” On redirect

examination, Smith stated that he did not r

emember if he sen t the car d after the first or third tr

ial.

Donald Carl Smith, Jr., the petitioner ’s brother , testifie d that the petitione r’s attor ney told him that the maximum sentence that the petitioner could re ceive w ould

be twenty y

ears. 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 mista kes[. ]” On cross-examination, he said that t he attor ney never to ld him

that the se

ntencescould be ordere d to be ser

ved cons ecutively if

the defendant was convicted, but he acknowle dged that he didnot reme

mber the exact wor

ds when to ld that the

petiti oner’s m aximum sentence would be twenty y ears.
Laural Dean Smith, the petitioner’s mother, testified that she was p resent a t the firs t two trial s but did not testify and that she was aske d 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 sufficie ntly during t he third tr ial. On cross-examination, she acknowl edged

that she to ok McGuir

e to visit the petitioner at the county jail, butshe denied that the petitioner asked McGuireto say a third person w as driving his car on the nig

ht of the in

cident.-5-

The petitione

r’s tria l attorne y te stified th at his strategy in the petitioner’s three trials wa s 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 of ficers w ith his car. He said that using this strat

egy , the petitioner wa s acquitte d of five counts of attempte d 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 Feather s, h e determined that Feathers had not followed the c orrect procedure when he gav e the pet

itioner th e test. He

said he be

lieved a n expert mig

ht have po inted this o

ut, raising questions as to whether the petitioner’s blood alcoholcontent was as high as .12 percent. The attorney said the p etitioner

had neve r told him that someo ne 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 consecu tive sente ncing w as a

possibility. He said that altho ugh he could not remember specifically , he believed he would have informed the petitioner on consecutive se ntencing. He said the petitioner was adamant that they should go to trial and not accept any

plea offers from the state.

The attorney ac

knowledged 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 fir st trial. H e said tha t he was a ble to ef fective ly cross-examine McGuire and that the st

ate 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 c onsidered calling to testify butdid not wa s Phillips. He said he ultimately decided a gainst calling her because she would ha ve testified that the petitioner’s car came close to the office rs’ cars which was not helpful to the petitioner.

On cross-e

xamination, the attor

ney acknowl edged

Phillips cou

ld have te stif

ied 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 transc ripts from the first two trials to the third trial. He acknowledged that if he had brou ght them , it might have helped him be more effective in cross-examining the witnesses about their discre pancies from

the first two trials. He agreed

that Officer Overbey ’s testimony in the first two trials that he saw the pe titioner driving the ligh

t blue ca r while stating in the third trial that he did not see the petitioner driving the
car was a material and relevant discrepa ncy. He said that his cross-examination could have been
mo re thoroug

h if he ha d questioned the oth

er offic ers on the

ir discre pancies as well. H e said th a t in the third trial, he had the pe titioner’s family wait outside the cour troom in case any

thing 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 theineffe ctive as sistance of counse

l, finding that the d iscrepa ncies in the witnesses’ testimony from the first two trials and the third were slight and immaterial. The trial-6-

co urt determined that counsel’s failure to cross-examine witnesses about these diff erences wou ld no t have changed the outcome in the ca se 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 wa s deficient and (2) the deficie ncy was pre judicial i n terms of

render ing a re asonable

probabil ity that the result of the trial
was unrelia

ble or the proceedings fundamentally unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 205 2, 2064 (1 984); see Lockhart v. Fretwe ll , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland st and ard has bee n ap pl ied to th e ri ght to cou nse l u nde r ar ti cle I, section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose , 52 3 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that at to rn eys should be h

eld to the gener al standa rd of whe ther the service s render

ed were with in the range of competence demanded of attorneys in cr

iminal cases. Further, the court state d that the ran ge 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 per

formance requires that every e ffort be made to eliminate the distorting effects of hindsig ht, to reconstruct the circumstances of cou nsel’ s chal lenge d conduct, and to evaluate the conduct from counsel’s perspective at thetime.” Strickland , 466 U.S. at 689, 104 S. Ct. at 206 5; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Th us, the fact that a particular strategy or tactic f ailed or even hurt the defense does not, a

lone, supp ort a cla

imof ineff

ective a ssistance . Defer

ence is made t o tria l str ategy or tactical choices if they

are informed ones based upon adequate prepara tion. See DeCoster , 487 F.2d at 1 201; Hellard , 629 S.W.2d a t 9

.
In a post-conviction case, the burden is on the petitioner to pr ov e b y c lear and convincing evidence his grounds for relief. T.C.A. § 40-30-110(f) (2003). On appeal, we a re bound by the trial court’s finding s o f fact u nle ss we conclude tha t the evid ence in t he reco rd prepo nderate s again st those findings. Fields v. State , 40 S.W.3d 450, 456 (Tenn. 2001). Because they relat e t o mixed questions of law and fact, we review the trial co urt’s conclusions as to whether counsel’s performance

was deficient and whether that deficiency was pre judicial under a de n ovo stan dard with no presumption of correctness. Id. at 457.
The petitioner contends that counsel was ineffective by failing to cross-examine witnesses
on discrep ancies i n their te stimony from the f

irst tw o trials a

nd th e third trial. As noted, the trial court found tha

t the discr epancie s in the witnesses’ testimony from the f irst two trials and the third trial were immaterial and would not have affect ed the jur y’ s verdic t. It f

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

was notineffective for failing to cross-examine witnesses about the minuscule

varianc es in witne sses’ testi mony. The record does n ot pre ponde rate aga inst this findi ng.
The petition er conte nds that counsel was ineffective because he failed to call significant witnesses to testify, including Dona ld Carl Smith, Sr., Jon McGuire, and an expert on blood alcohol-7-

concen trations. The petitione r claims that his father should have testified because he mig ht have heard information on a scanner or while he was at jail. When his father testified at the evidentiary hearin g, however, he did not state any thing to which he could

testify that would have be en helpful to the petitioner. As to the petitioner’s claim that counsel wa s deficient for failing to call Jon McGuire, the statement that McGuire gave to police directly inculpates the petition er . In light of this, we will not ques tion counsel ’s strategic decision not to call McGuire to testify . As to the petitioner’s claim that counsel was deficient for failing to ca ll 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 testimonythat a

witness would have offered, the petitioner cannot demonstra te that he was prejudiced

by the failure of

the witness to be interviewed or called on his behalf. See Black v . State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The petitioner has failed to provide any evidence that his attorney was de

ficient 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 reje ction of the petiti on is that it

did not bel

ieve the petitione r was entitled to re lief 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 evi dentiar y he aring. Although the petitioner a nd his family testified that they were

never informed about consecutive sentencing , counsel said he was
aware that

the petitioner could receive consecutive sentenc es and that it was his pr actice to explain sentencing possibilitie s 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 sentenc ed consecutively

.
In any event, th e petitioner has f

ailed to show that bu

t for his a ttorney ’s alleg ed failu

re to tell him that he could receive consecutive sentenc es, he would have p led guilty, there by establishing prejudice. The petitioner’s testimony at the post-conviction hearing reflects that he wa nted to prove his innocence and that he believed that he had a chance to beacquitted on a ll th e ch arg es. In addition, his attorney testified that the petitioner was adamant throughout the three trials a boutgoing to trial rather

than acc epting a

plea ag reemen t from the state. No thing in t

he reco rd befor e us dispels the reliability of the attorney ’s testimony. His testimony and the petitioner’s testimony that he w ent 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 possib le sente

ncing c onseque

nces. We hold that the petiti oner hasfailed to show that h

e rece ived the i neffec tive assis tance of counsel.

Based upon the foregoing and the re cord as a whole, we affirm the judg ment of the trial court.

___________________________________ JOSEPH M. TIPTON, JUDGE