### 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 petitio ner , William E. Johnson, appeals the trial court’s denial of post-conviction relief. He c ontends that he receive

d the ineffectiv

e assistance of c

ounsel because h

is trial attorney

failed to investigate

the case, did n ot interview witnesses, did not subpoena psychological experts, and referred to himself as a “cr

iminal defense lawyer” in front of the jury. H e also argues that the convicting court erred by

denying hi

s 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; Judgme

nt of the Criminal C

ourt Affirmed
T IPTON , J., delivered the opinion of the court, in which R ILEY and G LENN , 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 petit ioner, 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. W

e affirm the tria

l court.
The circumst ances surrounding the offenses, as stated in this court’s opinion on the direct appeal, are as

follows:-2- On July 24, 1993, thirteen-year-old Becky Baileywas riding her bicycle on the street where she

lived in Sh elby Coun ty. As she was riding down Hale Street towards Merton, she notice d a white truck tur

ning right onto

Hale Street. The truck was traveling about 30-35 mph as it turned. She watched thedriver swing the v ehicle 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 th

e lane of traff

ic where she was riding and headed straight f

or her. As a resu

lt , th e 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 a

ccident.
Two neighbors witnessed the acciden t an d 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 h

airlin e fractur e of her left leg, and numerous bruises and scratches. Several days after the accident, she went to the police station and identified the a ppel lant 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 tr

ial. One of the men

, Clarence Wil

liams, was an eyewitness

to the accident. He confirmed that thetruck 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 c urb. W illiams admitted that there may have been cars parked on the street where appellant turned. However, he denied tha t appellant needed to swing wide in order to avoid hitting them. While

following the truc

k, appellant stoppe

d 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 Wil liams’ testimony. He did not actually see the truck strike Miss Bailey; he only heard th e accident. Chandler

also testified tha

t he observed a no

ticeable odor of alcohol about the appellant when he exited the truck to check on the victi m. During the con versation Williams had with appellant after leaving the scene, Chandler hea r d 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.-3-

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 himse l f 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 Adminis

tration Hospital to

appear and testify regarding his competency but that his attorney only got their medical records. Hesaid tha the was not happy wi th his attorney, but

that the trial cour

t rejected his re

quest ma de a mont h before trial that the cour

t 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 t estified that the stat e offered the petitioner a four-year sentence butthat the petitioner rejected it. He said that the petitioner did not give h im the names of any witnesses. However, the attorne y interviewe d 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 notdriving in a reckless manner. The attorney testified that he had the petitioner evaluated by a psychologist. He said tha t he obtai ned 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 th

an the petitioner

and that, in

any ev ent, 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. Fretw ell , 506 U.S. 364, 369-72, 113 S. Ct. 838, 842-44 (1993). The Strick land st andard 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 re ndered were wi thin the range of competence demanded of attorneys in criminal ca ses. Further, the court stated that the range of competence was to be measured by the duties and criteria set forth i n 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 c onduct f rom counsel's perspective at the time." Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629-4-

S.W.2d 4, 9 (Tenn. 1982) (counsel's condu ct will not be measu

red by "20-20 hinds

ight"). Thus, the fact that a particular strategy or tactic failed or even hurt the def

ense does not, alo

ne, support a cla

im of ineffective assistance. Deference is made to trial strategy or tactical choices if theyare 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 regard ing the issue of ine

ffective ass

istance 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 suprem e court recentl

y stated, without f

u rther 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. Statev. 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 p etitioner’s failure to present the testimony of any witness that he claimed should have been at his trial is fatal to his complaints rega

rding his attorney ’s investigation an d 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 th e jury was prejud

iced against him be

cause his attorne

y called himself a

criminal d

efens e 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 couns el. Consequently, the convi cting c ourt did not err in refusing to substitute counsel. The judgment of the trial court is affirmed.