IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 20, 2006

STATE OF TENNESSEE v. JEREMY S. CROSBY

Direct Appeal from the Criminal Court for Davidson County

No. 2003-C-1601 Steve Dozier, Judge

No. M2005-00548-CCA-R3-CD - Filed January 26, 2007

Following a jury trial, Defendant, Jeremy S. Crosby, was convicted of possession of over .5 grams

of cocaine with intent to sell and unlawful possession of drug paraphernalia. He was sentenced to

serve eighteen yearsin the Department of Correction for the cocaine conviction and eleven months,

twenty-nine days for the paraphernalia conviction, for an effective sentence of eighteen years. On

appeal, he argues that the trial court erred in failing to grant his motion to suppress, and that he

received ineffective assistance of counsel. After a review of the record, the judgments of the trial

court are affirmed. 

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

THOMAS T.WOODALL,J., delivered the opinion of the court, in which DAVID G.HAYES and NORMA

MCGEE OGLE, JJ. joined.

Michael Colavecchio, Nashville, Tennessee, (on appeal); and Ross E. Alderman, District Public

Defender; Rebecca Warfield, Assistant Public Defender; and J. Michael Engle, Assistant Public

Defender, Nashville, Tennessee, (at trial), for the appellant, Jeremy S. Crosby.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney

General; Victor S. (Torry) Johnson III, District Attorney General; Amy H. Eisenbeck, Assistant

District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the

appellee, the State of Tennessee.

OPINION

I. Background

On May 6, 2003, Scott Byrd of the Metropolitan Police Department responded to a drug

complaint at the Pear Tree Inn, room 234. Officer Byrd was a member of the Flex Unit which

specialized in investigating drug complaints and other illegal activities in high crime areas. When

Officer Byrd arrived at room 234, he encountered several individuals, one of whom was Bryan Ward.
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There was “drug activity” in the room, and Mr. Ward had drugs on his person. Mr. Ward was

arrested but later released after receiving a misdemeanor citation. Mr. Ward told the officers he was

not staying at the motel. When Officer Byrd went to the motel office to advise the clerk about what

had occurred in room 234, he learned that Mr. Ward was a registered guest staying in room 430 at

the motel. 

At her request, Officer Byrd accompanied the motel office clerk to perform a “lock out” on

room 430. After receiving no response from her knock, the motel clerk opened the door to the room.

From the doorway, Officer Byrd saw two beds in the room. Michael Barnes was lying on the bed

closest to the door, and Defendant was lying on the other bed. Officer Byrd saw a “tray sitting at the

foot or partially underneath [Defendant’s] bed with some marijuana seeds and marijuana residue on

it.” He also saw a box of sandwich bags sitting on the dresser to the right of the door. 

Mr. Barnes and Defendant were placed under arrest. Officer Byrd conducted a search of their

persons incident to their arrests. Defendant was in possession of a white substance which fieldtested positive for cocaine. Officer Byrd Mirandized Defendant and asked him some questions.

Defendant said he “pulled the cocaine off the nightstand and stuffed it in his pocket when he heard

the knocking at the door, because he didn’t know who was at the door.” The officers at the scene

also recovered a spoon containing a white residue, baking soda, and two sets of digital scales, one

of which contained a white residue, and another bag containing a white substance which field-tested

positive for cocaine. 

Officer Byrd testified that sandwich bags, like the ones recovered from the motel room, were

typically used to package drugs. He also explained that scales are “used to weigh out the amount of

drugs . . . . For the purpose of packaging them for the purposes of sale.” One set of scales was found

on the dresser in close proximity to the sandwich bags. Officer Byrd said that baking soda was

“generally used as a cutting agent or an agent to help mix in with the cocaine.” The cocaine found

in the room was in powder form. 

Officer Kristina Vivrette was called to the scene as back-up for Officer Byrd. At trial, she

testified that she was the last one to arrive at the motel room where Defendant was arrested. She was

aware that the room had been rented by Mr. Ward. She said that it was common for someone to rent

a motel room and then “set up somebody to sell the drugs for them out of the room.” While

investigating the motel room, Officer Vivrette noticed a sock behind the nightstand. She picked up

the sock and discovered that it contained a bag of cocaine larger than the bag that was initially found.

She said that digital scales had also been found inside the drawer of the nightstand. 

Kathy Carman, a forensic investigator with the Tennessee Bureau of Investigation, conducted

lab tests on the two bags of white powder taken from the scene. She testified that the substance

found in each bag was cocaine. One bag of cocaine weighed one point five three (1.53) grams, and

the other bag was point nine four (.94) grams, for a total amount of two point four (2.4) grams. 
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Michael Barnes testified that he went to the Pear Tree Inn on the night of the incident to “get

some powder” from Brian Ward. When he arrived at the motel room he knew to be Mr. Ward’s,

Defendant was the only person present in the room. It was Mr. Barnes’ understanding that Mr. Ward

had left the room to get some cocaine. When Mr. Ward returned, Mr. Barnes bought “thirty dollars

worth of powder” from him. He identified the smaller of the two bags of cocaine recovered from

the scene as the cocaine he purchased from Mr. Ward. Mr. Barnes denied any knowledge of the

other bag of cocaine found in the sock behind the nightstand. He said that the baking soda and the

spoon found at the scene belonged to him. He had a girlfriend bring the baking soda to the motel

room so that he could “cook crack cocaine” on the spoon. He said that “a junkie uses a spoon,” and

one gram would be the maximum amount that could be cooked in a spoon. Mr. Barnes said that the

scales and the marijuana seeds were already in the motel room when he arrived. 

While he was waiting to get the cocaine from Mr. Ward, Mr. Barnes drank a bottle of vodka

with Defendant and got “staggering drunk.” As a result of the alcohol, he passed out on the bed

before he had an opportunity to use the cocaine. He purchased the cocaine before he passed out, but

left the cocaine laying on the nightstand while he was asleep. He said that Defendant did not use

cocaine, and he was not worried about him taking the cocaine. Additionally, he said that the room

belonged to Mr. Ward and anybody who needed any drugs could get them from Mr. Ward and would

not need to steal his drugs. According to Mr. Barnes, he and his girlfriend, Mr. Ward, and

Defendant, were the only individuals in the room during that time. Mr. Barnes said that there were

numerous knocks on the door, but he and Defendant did not answer the door. Mr. Ward came “in

and out a few times” before the police came to the room. 

Detective Jesse Burchwell of the Metropolitan Nashville Police Department testified as an

expert on drugs and drug investigation. Detective Burchwell said that the spoon recovered from the

motel room had a white powdery substance inside the spoon and the backside of the spoon looked

as though it had been burned. He said that he had seen spoons in a similar condition in drug houses

and in the possession of individuals who use and sell drugs. According to Detective Burchwell, the

spoons are used to cook a small amount of powder cocaine into crack cocaine by using a lighter as

the heat source. He said that when an individual is found in a motel room, with a large quantity of

cocaine and a spoon but no crack pipe, the assumption would be that the individual is manufacturing

crack cocaine and selling it out of the room. Detective Buchwell could not define what constitutes

a “large quantity of cocaine.”

II. Suppression Hearing

Prior to trial, Defendant filed a motion to suppress the evidence obtained as a result of the

officers’ warrantless entry into the motel room. The proof presented at the suppression hearing was

essentially the same proof presented at trial with the exception of Defendant’s testimony. The State

objected to Defendant’s standing to protest the search, arguing that he could not assert a privacy

interest in the motel room. In response, Defendant testified that he had a Play Station Two, a gold

necklace, a gold ring, his clothes, bag, and his mail in the motel room. He also said that he had over

three-hundred dollars in his pocket when he was arrested. Defendant said that he arrived at the motel
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room approximately three days before he was arrested. He said that he and Mr. Ward went to school

together, and Mr. Ward gave him the motel room because he needed a place to live and Mr. Ward

no longer needed the room. Defendant said that Mr. Barnes had been in the motel room as long as

Defendant, and that Defendant had been paying their motel bill. He said that the motel was aware

that he was staying in the room, but he did not transfer the room into his name because he did not

have valid identification. 

III. Motion for New Trial

Following his conviction, Defendant filed a motion for new trial in which he included the

issue that he had received ineffective assistance of counsel. At the motion for new trial hearing, Mr.

Ward testified that he rented room 430 at the Pear Tree Inn for one day. When he decided not to use

the room, Defendant offered to take the room and reimburse Mr. Ward for his expenses. Mr. Ward

agreed and helped Defendant take his Play Station Two and a trash bag full of clothes to the motel

room. Mr. Ward was not aware that the room remained rented in his name for several days. He

never saw Defendant pay money to the motel clerk to rent a room. He said he was at the motel three

days later visiting a friend, not staying in room 430, when he received a citation and was ordered to

leave the premises. Following Defendant’s arrest, Mr. Ward helped Defendant’s girlfriend retrieve

Defendant’s belongings from the motel. Mr. Ward said that nothing in the motel room belonged to

him. 

Defendant testified that he was represented at trial by Rebecca Warfield, and that she never

came to see him while he was incarcerated. He said that his only contact with Ms. Warfield was

during court appearances. They never had a private conversation during these meetings because

Defendant was in a holding cell. He said that he was never interviewed by an investigator from the

public defender’s office. 

According to Defendant, Ms. Warfield advised him that he would lose if he went to trial. He

said that he asked her to subpoena Brian Ward to testify on his behalf at the suppression hearing and

she refused to do so. He said that trial counsel also refused to file a motion to sever the trial of

Defendant and his co-defendant and to file a motion to independently test the evidence against him.

Defendant said that an independent test should have been conducted because more than one bag of

cocaine was taken from the room, but only a single sample was tested. 

Defendant said that trial counsel failed to obtain the identify of the clerk at the Pear Tree Inn

or to question that clerk as to whether Defendant had paid for the motel room everyday. He likewise

complained that trial counsel did not question other individuals from themotel who could verify that

he stayed there frequently and was renting room 430 at the time of his arrest. He did not know the

night clerk who let Officer Byrd into the motel room on the night of the incident, nor did he see her

in the room that night. Defendant said that the only defense witness trial counsel subpoenaed to

testify was Detective Jesse Burchwell, and he did not feel the testimony was helpful to his case. 
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Defendant said he was employed at Nashville Mobile Products at the time of his arrest, but

he worked “whenever” he wanted to because he and his boss were friends. He said that his mailing

address was Xavier Drive, Antioch, Tennessee, but admitted that he “basically” floats around from

motel to motel with a bag of clothing and money to pay for a room. He maintained that the drugs

found in his pocket belonged to Michael Barnes, and that he was not using drugs the night of the

arrest. He denied that he was cooking or selling crack cocaine in the motel room. 

IV. Analysis

A. Motion to Suppress

Defendant first argues that the trial court erred in failing to grant his motion to suppress the

evidence found as a result of Officer Byrd’s warrantless search of the motel room. The State asserts

that Defendant does not have standing to challenge the search because he did not demonstrate a

legitimate expectation of privacy in the motel room. Defendant argues that he had a legitimate

expectation of privacy in the motel room because he had personal belongings in the room, and

because he paid for the room on the night of the arrest and one night prior to the night of the arrest.

He further argues that the motel clerk was acting as an agent for the State when she opened the door

to the room, and the search was illegal because the officer and the clerk lacked probable cause to

enter the room without a warrant. 

When the trial court makes findings of fact at the conclusion of a suppression hearing, the

facts are accorded the weight of a jury verdict. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn.

1994). The trial court’s findings are binding upon this court unless the evidence in the record

preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Questions of

credibility of witnesses, the weight and value of the evidence, and resolution of conflicts in evidence

are matters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is

entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well

as all reasonable and legitimate inferences that may be drawn from the evidence. Odom, 928 S.W.2d

at 23. The application of the law to the facts, however, requires de novo review. State v. Daniel,

12 S.W.3d 420, 423-24 (Tenn. 2000). Likewise, if the evidence does not involve a credibility

assessment, the reviewing court must examine the record de novo without a presumption of

correctness. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Review is not limited to the

record of the suppression hearing; rather, it extends to the entire record of proceedings. State v.

Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

The Fourth Amendment to the United States Constitution and article I, section 7 of the

Tennessee Constitution, provide protection for citizens against “unreasonable searches and seizures.”

“The essence of the prohibition against unreasonable searches and seizures under the Fourth

Amendment is to ‘safeguard the privacy and security of individuals against arbitrary invasions of

government officials.’” State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (quoting Camara v.

Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967)); see also State v. Zagorski, 701

S.W.2d 808, 812 (Tenn. 1985) (“Fourth Amendment protection is inapplicable to a search or seizure
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effected by a private individual not acting as an agent of the government or with the participation

or knowledge of any government official.”). Consequently, the Fourth Amendment acts as a restraint

only on government actors. 

“The Fourth Amendment protects legitimate expectations of privacy rather than simply

places.” Illinois v. Andreas, 463 U .S. 765, 771, 103 S. Ct. 3319, 3324 (1983). “One who challenges

the reasonableness of a search or seizure has the initial burden of establishing a legitimate

expectation of privacy in the place where property is searched.” State v. Oody, 823 S.W.2d 554, 560

(Tenn. Crim. App. 1991) (citing Rawlings v. Kentucky, 448 U.S. 98, 105-06, 100 S. Ct. 2556, 2561-

62 (1980); State v. Roberge, 642 S.W.2d 716, 718 (Tenn. 1982)). Accordingly, when evaluating

whether a particular defendant’s Fourth Amendment rights have been violated, we look to two

inquiries: (1) whether the individual, by his conduct, has “exhibited an actual (subjective)

expectation of privacy,” and (2) whether the individual’s subjective expectation of privacy is “one

that society is prepared to recognize as ‘reasonable.’” State v. Ross, 49 S.W.3d 833, 840 (Tenn.

2001) (citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)

(Harlan, J., concurring)). The same protection enjoyed by a citizen in his home is extended to a

citizen in a “motel room and other temporary living spaces.” Ross, 49 S.W.3d at 840. 

In the present case, the trial court found as follows: 

The State’s position is that the defendant does not have standing to contest the search

of room 430. This Court agrees. The proof was re-opened to hear testimony from

the defendant regarding his standing. The defendant testified that he had a video

game system and other items of personalty in room 430. One who challenges a

search or seizure has the initial burden of establishing a legitimate expectation of

privacy in the place or thing to be searched. State v. Oody, 823 S.W.2d 554, 560

(Tenn. Crim. App. 1991). One who does not have such expectation of privacy lacks

standing to challenge the search. See State v. Patterson, 966 S.W.2d 435, 441 (Tenn.

Crim. App. 1997). There are seven factors to be considered when determining if a

legitimate expectation of privacy exists: 

(1) ownership of the property; (2) whether the defendant has a

possessory interest in the thing seized; (3) whether the defendant has

a possessory interest in the placed [sic] searched; (4) whether the

defendant has the right to exclude other[s]from the place; (5) whether

he has exhibited a subjective expectation that the place would remain

free from intrusion by the state; (6) whether the defendant took

normal precautions to maintain his privacy; and (7) whether he was

legitimately on the premises. Oody, 823 S.W.2d at 560. 

The fact that a person is an overnight guest in a residence or in an apartment,

standing alone, is sufficient to clothe the guest with a legitimate expectation of

privacy in the premises sufficient to challenge the search or any resulting seizure.
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See Minnesota v. Olson, 495 U.S. 91 (1990). However, a “casual visitor” or a

“transient party guest” does not have a reasonable expectation in the host’s residence

or apartment. See United States v. Dix, No. 94-4065, 1995 WL 351182 (6 Cir., June th

9, 1995) (“As a casual, albeit frequent, visitor to his sister’s apartment, who did not

keep clothing there, who did not receive mail there, and who had no key, Dix had no

reasonable expectation of privacy in the premises.[“]); See also State v. Nash, 2002

WL 1905328 (Tenn. Crim. App. 2002). The Court did not hear any testimony that

the defendant has any ownership interest in the motel room, nor was there any proof

that the defendant had the right to exclude others. 

Notwithstanding the Court finds that the defendant lacks standing to contest

the search, the search of room 430 is nonetheless a constitutional search. It is well

settled that under both the federal and state constitutions, warrantless searches and

seizures are presumed to be unreasonable. See State v. Keith, 978 S.W.2d 861, 865

(Tenn. 1998). It is the burden of the State to prove by a preponderance of the

evidence that the search or seizure falls under a recognized exception to the warrant

requirement. Id. at 865. The applicable exception in this case is found in the plain

view doctrine. The Court has stated that the plain view doctrine applies when (1) the

items seized were in plain view; (2) the viewer had the right to be in the position to

view the items; (3) the items seized were inadvertently discovered; and (4) the

incriminating nature of the items was immediately apparent. State v. Hawk, 969

S.W.2d 936, (Tenn. Crim. App. 1997). 

Turning to the facts of this case, Officer Byrd testified that the apartment manager

asked him if he would care to accompany her to perform a lock out on room 430.

According to the testimony, the officer did not enter the threshold of the dwelling

until he observed the items of contraband in plain view. The apartment manager,

who is not a state agent, opened the door to the apartment without any prompting by

the officer. The Court finds that the officer was lawfully in a position to view the

items in plain view when the door opened. Therefore, the defendant’s motion to

suppress should be respectfully denied. 

We find nothing in the record which preponderates against the trial court’s findings. In our

view, the trial court properly applied the seven-factor test for determining whether an individual has

exhibited an actual, subjective expectation of privacy and, therefore, has “standing” to contest a

search or seizure. See Oody, 823 S.W.2d at 560; State v. Turnbill, 640 S.W.2d 40, 46 (Tenn. Crim.

App. 1982). The Tennessee Supreme Court has characterized this test as a “totality of the

circumstances approach.” Ross, 49 S.W.3d at 841. Despite Defendant’s contentions to the contrary,

there was no evidence that Defendant had a possessory interest in the rooms. No one saw Defendant

pay the motel clerk to rent the motel room. He never transferred the motel room into his name.

There was no evidence to indicate how long Defendant had actually been staying in the motel room,

nor any witnesses who testified that they had seen Defendant occupying the room for a period of

consecutive days. Nor was there any testimony that Defendant had acted to prevent anyone from
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entering the motel room. In fact, when the officer inquired as to Defendant’s address, he gave the

officer a home address of 4593 Xavier Drive, Antioch, Tennessee. Although Defendant had property

in the room, a Play Station Two, some mail, and various items of clothing, the trial court did not find

this sufficient to indicate Defendant had an expectation of privacy in the room. We agree with the

trial court. 

Furthermore, we agree with the trial court’s finding that the search was within the “plain

view” exception to the warrant requirement. As noted by the trial court, a warrantless search is

generally presumed unreasonable, thus violative of constitutional protections. State v. Bartram, 925

S.W.2d 227, 229-30 (Tenn. 1996) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.

Ct. 2022, 2032, 29 L. Ed.2d 564 (1971)). As the trial court also noted, the “plain view” doctrine is

one of the well-recognized exceptions to the warrant requirement. State v. Bartram, 925 S.W.2d at

230. If the circumstances of a challenged search fall within this recognized exception, the fruits of

that search are not subject to operation of the exclusionary rule and may be properly admitted into

evidence. State v. Shaw, 603 S.W.2d 741, 743 (Tenn. Crim. App. 1980). The State has the burden

of establishing that the search was conducted pursuant to an exception to the warrant requirement.

State v. McClanahan, 806 S.W.2d 219, 220 (Tenn. Crim. App. 1991). If the State fails to satisfy its

burden, the exclusionary rule may operate to bar the admissibility of any evidence obtained directly

or derivatively from the unconstitutional search. Wong Sun v. United States, 371 U.S. 471, 485, 83

S. Ct. 407, 416, 9 L. Ed.2d 441 (1963); State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992). 

The trial court correctly set forth the requirements of the plain view doctrine. The evidence

shows the items that Officer Byrd observed were in his plain view. Officer Byrd testified that he

accompanied the motel clerk to room 430 to perform a “lock out” at her request. After receiving no

response to her knocks on the door, the motel clerk opened the motel room door to proceed with the

“lock out.” The clerk opened the door of her own volition, and was not acting at the officer’s

request, or as a state agent when she did so. While he was lawfully standing outside the door to the

motel room, Officer Byrd shined his flashlight into the room and saw marijuana seeds and a

substance resembling marijuana on a tray that was protruding from under the bed. He also observed

sandwich bags and scales on top of the dresser. Based on his experience, Officer Byrd identified the

items as drug paraphernalia used in the distribution and sale of drugs, thus providing him with

probable cause to arrest the occupants of the room. See State v. Cothran, 115 S.W.3d 513, 524 -525

(Tenn. Crim. App. 2003). 

After waking the occupants of the motel room, Officer Byrd placed them under arrest based

on the items in plain view. He then conducted a search of their persons incident to that arrest. The

search revealed that Defendant had cocaine in his front pocket. In addition to the plain view

doctrine, a contemporaneous police search following a lawful custodial arrest is an exception to the

warrant requirement. State v. Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999). The officer may

conduct a search of the person arrested and the immediate surrounding area. Id. A search may

precede a formal arrest if the police officer had probable cause to arrest at the time of the search, and

the items seized as a result of the search were not necessary to support probable cause to arrest.

Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564, 65 L. Ed. 2d 633 (1980).
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Accordingly, Officer Byrd was justified in searching the person of the occupants and the immediate

area incident to their arrests. Because the search was conducted contemporaneous with the arrest,

the search was a valid search, and the officer lawfully seized the drugs found in Defendant’s pocket

as a result of the search. The drugs found in the floor behind the night stand were likewise lawfully

seized. We conclude that the officer had probable cause to arrest the occupants based on the items

in plain view, and that as a result of the search incident to the arrest, he properly seized the drugs.

Cothran, 115 S.W.3d at 526. Defendant is not entitled to relief on this issue. 

B. Ineffective Assistance of Counsel

Defendant next argues that the trial court erred in failing to find that he received ineffective

assistance of counsel. Specifically, he argues that trial counsel was ineffective in (1) failing to

subpoena Brian Ward to testify at the motion to suppress hearing and at trial; (2) failing to meet with

Defendant privately prior to trial; (3) failing to identity and subpoena the motel clerk who Defendant

allegedly paid his rent to each day; (4) failing to object to the hearsay testimony by Officer Byrd

relating to his conversation with the motel clerk; and (6) ignoring the “convoluted testimony” as

related to the number of bags of cocaine recovered from the motel room and the exact locations of

the bags of cocaine when they were discovered by law enforcement.”

We first note that claims ofineffective assistance of counsel are generally more appropriately

raised in a petition for post-conviction relief rather than on direct appeal. See State v. Carruthers,

35 S.W.3d 516, 551 (Tenn. 2000); see also State v. Anderson, 835 S.W.2d 600, 606 (Tenn. Crim.

App. 1992) (“Raising issues pertaining to the ineffective assistance of counsel for the first time [on

direct appeal] in the appellate court is a practice fraught with peril.”). However, because there is

nothing barring a defendant from bringing an ineffectiveness claim in a direct appeal, we will

proceed with our analysis of Defendant’s claim.

Under Tennessee Code Annotated section 40-30-110(f) (2003), a defendant seeking postconviction relief on the basis of ineffective assistance of counsel is required to prove his or her

allegations “by clear and convincing evidence.” This same standard should apply even when the

claim of ineffective assistance of counsel is raised on direct appeal. State v. Burns, 6 S.W.3d 453,

461 (Tenn. 1999) (citing State v. Anderson, 835 S.W.2d 600 (Tenn. Crim. App. 1992)). On appeal,

the findings of fact made by the trial court are conclusive and will not be disturbed unless the

evidence contained in the record preponderates against them. Brooks v. State, 756 S.W.2d 288-89

(Tenn. Crim. App. 1988). 

When a defendant seeks post-conviction relief on the basis of ineffective assistance of

counsel, he must first establish that the services rendered or the advice given were below “the range

of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). He must then show that the deficiencies “actually had an adverse effect on the

defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674

(1984). The error must be so serious as to render an unreliable result. Id. at 687. Should the

petitioner fail to establish either factor, he is not entitled to relief. “Because a petitioner must
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establish both prongs of the test, a failure to prove either deficiency or prejudice provides a sufficient

basis to deny relief on the ineffective assistance claim. Indeed, a court need not address the

components in any particular order or even address both if the defendant makes an insufficient

showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). 

On claims of ineffective assistance of counsel, the defendant is not entitled to the benefit of

hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but

unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911

S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,

however, applies only if the choices are made after adequate preparation for the case. Cooper v.

State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Claims of ineffective assistance of counsel

are regarded as mixed questions of law and fact. State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.

2001). When reviewing the application of law to the trial court’s factual findings, our review is

de novo, and the trial court’s conclusions of law are given no presumption of correctness. Fields v.

State, 40 S.W.3d 450, 457-58 (Tenn. 2001).

Defendant first argues that counsel was ineffective for failing to call Mr. Ward to testify at

the suppression hearing or at trial. Defendant contends that Mr. Ward’s testimony would have

established that Defendant had standing to contest the search because he had been staying in and

paying for the motel room for several days. The trial court found 

Mr. Ward’s testimony would not have been admissible [to prove standing] because

he testified that he was not at the motel every night and could not verify that the

defendant was the one in fact paying for the room each day. Therefore, Mr. Ward

had no personal knowledge that the defendant was the one paying for the room. He

could only assume that he was. The admissible testimony of Mr. Ward actually

confirms the defendant’ s lack of standing. Additionally, the defendant has not made

available the motel clerk or records from the motel for purposes of this hearing and

the Court finds that this issue is therefore waived. 

We agree with the trial court that Defendant has failed to carry his burden by failing to

demonstrate how he was prejudiced by the fact that Mr. Ward did not testify. Mr. Ward’s testimony

at the hearing on the motion for new trial did not aid in establishing Defendant’s standing to contest

the search of the motel room. It established only that Defendant gave Mr. Ward money to stay in

the motel room for one night and that Mr. Ward helped Defendant carry some of his belongings into

the room. 

Defendant next argues that trial counsel was ineffective for failing to meet with Defendant

privately prior to trial. The trial court found 

[D]efendant testified that he saw his trial attorney on days he was in court and in the

holding cells, where therewere other inmates around during their conversations. The

Court is of the opinion that trial counsel did keep the defendant properly advised of
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the case and did adequately communicate with him. Additionally, on the record is

an excerpt of the proceedings where trial counsel announced that she had advised

defendant not to proceed to trial based on the Court’s rulings on the motions to

suppress and dismiss. Tran. Pg. 1, lines 1-9. After being advised of the potential

range of punishment and the manner in which it would be served in connection with

his other cases, the defendant will [sic] wanted to proceed to trial. Tran. Pg. 1, lines

9-12.

There was no testimony from trial counsel at the hearing on the motion for new trial.

Defendant provided the only testimony regarding this issue. There was no further proof introduced

to show that trial counsel failed to keep Defendant properly apprised of his case or to render advice

as to how to proceed with his case. No evidence was presented to show how additional meetings

or more private meetings would have changed the outcome of Defendant’s trial. There is nothing

in the record which preponderates against the trial court’s findings. Therefore, we conclude that

Defendant has failed to show how he was prejudiced by a lack of private meetings with his trial

counsel. 

Defendant next contends that counsel was ineffective for failing to identify and subpoena the

motel clerk who Defendant allegedly paid his rent to each day. Defendant argues again that had the

motel clerk been identified and called to testify, the clerk would have established his standing to

contest the search. In our opinion, Defendant has not shown how he was prejudiced by trial

counsel’s failure to subpoena the motel clerk to testify. The motel clerk did not testify at the motion

for new trial hearing, no motel records were introduced to show Defendant paid for the room, and

no witnesses testified that they saw Defendant paying the motel clerk. Defendant offered only his

own testimony as evidence that he paid for the motel room and therefore had standing to contest the

search. Additionally, the trial court found that “[a]ssuming arguendo that the defendant had standing

to contest the search, the Court is of the opinion that the search was not illegal based on the Fourth

Amendment as addressed earlier in the defendant’s first issue. Therefore, any error in failing to

locate the motel clerk would be harmless error. The court is of the opinion that this issue is without

merit.” 

Defendant next argues that trial counsel was ineffective in failing to object to the hearsay

testimony offered by Officer Byrd relating to his conversation with the motel clerk. Defendant fails

to cite any specific portion of the record as hearsay and further fails to allege how he was prejudiced

by counsel’s alleged failure to object to the hearsay. The trial court stated: 

The defense argues that the testimony by Officer Byrd regarding the motel clerk was

hearsay and attempted to establish that the motel room in question belonged to Brian

Ward, and not to the defendant. The Court has reviewed the area of Officer Byrd’s

testimony wherein the defendant alleged the hearsay occurred. The Court finds that

the statement “It was at that point in time in discussing with the Clerk what we found

in the room that we discovered that this Brian Ward subject, who was up in this other

room has a room registered, as well, I believe it was Room 430" is not hearsay since
-12-

it was being offered to show why the police went to Room 430 with the motel clerk.

Tran. Vol. 1, Pg. 2, lines 21-24. Accordingly, the defendant’s argument that trial

counsel was ineffective must fail. 

The trial court concluded that the purported hearsaystatement was not hearsay because it was

not offered for the truth of the matter asserted. In so doing, the court implied that had an objection

been made by trial counsel, it would have been overruled. If trial counsel had objected, and if the

State had argued that the statement was not hearsay, and if the trial court had ruled as implied, any

error in the evidentiary ruling would be harmless error, and therefore we agree with the trial court

that Defendant has not shown that he was prejudiced by trial counsel’s failure to object to Officer

Byrd’s statement. Consequently, he has not shown that trial counsel was ineffective with respect to

this issue. 

Finally, Defendant argues that trial counsel was ineffective because he ignored the

“convoluted testimony as it relates to the number of bags of cocaine, and the exact locations [of the

bags] when discovered by law enforcement, in the room.” Defendant argues that although two or

three bags of cocaine were discovered in the motel room, the lab report from the Tennessee Bureau

of Investigation indicated only one sample was submitted for testing. The trial court found as

follows: 

The defense alleges that based on the arrest affidavits, there appears to be 3 bags of

cocaine but the lab report indicates only two. The defense argues that the bags must

have been “mixed” and that this results in the destruction of evidence critical to the

defense. Testimony by Officer Byrd at both the motion to suppress hearing and at

trial indicate there were two bags containing cocaine. Additionally, the testimony at

the suppression hearing is that both bags field tested positive for cocaine base. The

court affirms its previous ruling on this issue and is of the opinion this issue is

without merit.” 

Defendant has not demonstrated counsel’s performance was below the required standard with

respect to this issue. Nor has he shown how he was prejudiced by counsel’s actions. We agree with

the trial court and conclude that this issue is without merit. 

With respect to all claims raised regarding his alleged ineffective assistance of counsel,

Defendant has failed to demonstrate that counsel was deficient in his representation or that he was

prejudiced by counsel’s performance. Accordingly, Defendant is not entitled to relief on this issue.

CONCLUSION 

For the foregoing reasons, the judgments of the trial court are affirmed. 

_________________________________

THOMAS T. WOODALL, JUDGE