IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

WILLIAM E. JOHNSON v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-19671 Chris Craft, Judge

No. W1999-00929-CCA-R3-CD - Decided June 27, 2000

The petitioner, William E. Johnson, appeals the trial court’s denial of post-conviction relief. He

contends that he received the ineffective assistance of counsel because his trial attorney failed to

investigate the case, did not interview witnesses, did not subpoena psychological experts, and

referred to himself as a “criminal defense lawyer” in front of the jury. He also argues that the

convicting court erred by denying his request that it appoint him a new attorney. We affirm the trial

court’s denial of post-conviction relief.

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

TIPTON, J., delivered the opinion of the court, in which RILEY and GLENN, JJ., joined.

Jeffery S. Glatstein, Memphis, Tennessee, attorney for appellant, William Johnson.

Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Counsel for the State; William

L. Gibbons, District Attorney General; and Glen C. Baity, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

The petitioner, William E. Johnson, appeals as of right from the Shelby County Criminal

Court’s denial of post-conviction relief from his 1995 convictions for aggravated assault, driving on

a revoked license, and leaving the scene of an accident for which he received an effective sentence

of twelve years in the Department of Correction. The convictions were affirmed on appeal. State

v. Billy E. Johnson, No. 02C01-9605-CR-00162, Shelby County (Tenn. Crim. App. Mar. 19, 1997),

app. denied (Tenn. Dec. 8, 1997). He contends that the trial court erred in finding that he received

the effective assistance of counsel and that the convicting court should have granted his request for

other counsel. We affirm the trial court.

The circumstances surrounding the offenses, as stated in this court’s opinion on the direct

appeal, are as follows:
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On July 24, 1993, thirteen-year-old Becky Bailey was riding her bicycle on

the street where she lived in Shelby County. As she was riding down Hale Street

towards Merton, she noticed a white truck turning right onto Hale Street. The truck

was traveling about 30-35 mph as it turned. She watched the driver swing the vehicle

wide as he made the turn, causing the vehicle to cross over the center of the roadway

to the wrong side of the street. She testified that the driver was looking over his left

shoulder as he turned. Miss Bailey stated that the truck came into the lane of traffic

where she was riding and headed straight for her. As a result, the truck struck her

body and threw her from the bicycle onto the grassy area next to the curb.

The driver exited the truck and asked her if she was OK. She replied that she

was hurt and asked that he summon her parents, who lived on the corner. The driver,

promising to get help, returned to his vehicle and drove away. He never returned to

the scene of the accident.

Two neighbors witnessed the accident and went to Miss Bailey’s aid.

Someone called the police and the neighbors decided to follow the man in the truck.

As the truck went to the end of the street and turned onto Bingham, the driver began

throwing Budweiser beer cans out of the truck. The two men followed the truck for

several miles and wrote down the license number, but lost sight of the vehicle as they

tried to flag down a policeman.

Miss Bailey suffered a broken arm, a hairline fracture of her left leg, and

numerous bruises and scratches. Several days after the accident, she went to the

police station and identified the appellant from a photo lineup as the driver of the

truck. She also identified him at trial. The two men who followed appellant’s truck

likewise identified him at trial. One of the men, Clarence Williams, was an

eyewitness to the accident. He confirmed that the truck was traveling 30-35 mph as

it came around the corner. He described the event saying appellant “just went wide

. . . he just lost control” and the truck jumped onto the opposite curb. Williams

admitted that there may have been cars parked on the street where appellant turned.

However, he denied that appellant needed to swing wide in order to avoid hitting

them. While following the truck, appellant stopped once and asked Williams “Why

you following me. If I was you, I wouldn’t do you like that.”

The other man, Mitchell Chandler, corroborated most aspects of Williams’

testimony. He did not actually see the truck strike Miss Bailey; he only heard the

accident. Chandler also testified that he observed a noticeable odor of alcohol about

the appellant when he exited the truck to check on the victim. During the

conversation Williams had with appellant after leaving the scene, Chandler heard

appellant say that he was driving on a revoked license and that he was drunk. On

cross-examination, he denied that either he or Williams threatened appellant during

this conversation. Both Williams and Chandler confirmed that they heard appellant

say he was going to get help when he left Miss Bailey.
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Johnson, slip op at 2-4.

The petitioner claims that his trial attorney failed to investigate the case and interview

witnesses, failed to subpoena psychological experts, and improperly prejudiced him by the attorney

referring to himself before the jury as a “criminal defense lawyer.” The petitioner and his trial

attorney testified at the post-conviction evidentiary hearing. The gist of the petitioner’s testimony

was that he gave his attorney the names of witnesses, but the attorney failed to interview them. The

petitioner also claimed that he wanted doctors from the Veterans Administration Hospital to appear

and testify regarding his competency but that his attorney only got their medical records. He said

that he was not happy with his attorney, but that the trial court rejected his request made a month

before trial that the court appoint him another attorney. Finally, the petitioner believed that he was

prejudiced by his attorney referring to himself before the jury as a criminal defense lawyer.

The petitioner’s trial attorney testified that the state offered the petitioner a four-year sentence

but that the petitioner rejected it. He said that the petitioner did not give him the names of any

witnesses. However, the attorney interviewed the witnesses that the state expected to call and

investigated the scene of the accident. He said the defense theory was simply that the petitioner was

not driving in a reckless manner. The attorney testified that he had the petitioner evaluated by a

psychologist. He said that he obtained the Veterans Administration Hospital records and that the

psychologist reviewed them as part of his evaluation. 

The trial court denied the petitioner post-conviction relief. It concluded that the trial attorney

was more credible than the petitioner and that, in any event, the petitioner did not present any

eyewitness or medical witness to show any prejudice. 

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

burden is upon the petitioner to show (1) that counsel's performance was deficient and (2) that 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, 369-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied, as well, 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
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S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured by "20-20 hindsight"). 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 Hellard, 629 S.W.2d at 9; DeCoster, 487 F.2d at 1201.

Also, we note that the approach to the issue of the ineffective assistance of counsel does not

have to start with an analysis of an attorney's conduct. If prejudice is not shown, we need not seek

to determine the validity of the allegations of deficient performance. Strickland, 466 U.S. at 697,

104 S. Ct. at 2069. 

The petitioner must show both deficiency and prejudice by clear and convincing evidence.

See Tenn. Code Ann. § 40-30-210(f). Our long-standing standard of review on appeal has bound

us to the trial court’s findings regarding the issue of ineffective assistance of counsel. See e.g.,

Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, while reaffirming this standard for

factual issues, our supreme court recently stated, without further explanation, that “the issues of

deficient performance by counsel and possible prejudice to the defense are mixed questions of law

and fact,” requiring a de novo review by this court. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

Regardless of which standard is used, the result in this case is the same. 

Simply put, the record fully supports the trial court’s findings. Moreover, the petitioner’s

failure to present the testimony of any witness that he claimed should have been at his trial is fatal

to his complaints regarding his attorney’s investigation and failure to call witnesses. See Black v.

State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Likewise, he has not shown in any fashion

that the jury was prejudiced against him because his attorney called himself a criminal defense

lawyer. Given the trial attorney’s testimony, the record justifies a conclusion that the attorney acted

competently and that the petitioner was not prejudiced by any action or non-action by his counsel.

Consequently, the convicting court did not err in refusing to substitute counsel. The judgment of

the trial court is affirmed.