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

RONNIE RAY HOOVER v. STA TE OF TENNESSEE
Direct Appeal from the Criminal Court for Cumberland County

No. 18024 Leon Burns, Jr., Judge

No. E1999-01114-CCA-R3-PC - Dec ided April 24, 2000

In this post-convictio

n appeal followin

g convictions for v

ehicular homic

ide by intoxication and vehicular a ssault, the petitioner, Ronnie Ray Hoover, claims that his attorney was ineffective f o r failing to interview the only defense witness until the morning of trial and failing to visit the scene of the accident. The petitioner also states numerous other grounds for post-conviction r

elief in his statement of the issues but does not present these grounds in theargument section of his brief. We view those issues not presented in the argument section to be meritless, and we further hold

that with respect to the issues presented, the petitioner has failed to demonstrate prejudice. Thus, we affirm the trial court’s denial of the post-conviction petition. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Affirmed

T IPTON , J. delivered the opinion of the court, in which WITT and O GLE , JJ., joined. John E. Appman, Jamestown, Tennessee, for the appellant, Ronnie Ray Hoover.

Pa ul G. Summers, Attorne y General & Repor

ter; R. Stephen Jobe

, Assistant Attorne

y General; William Edward

Gibson, District At

torney General ; and Anthony J. Craighead, Assistant Attorney General, for the appellee, State of Tennessee.
OPINION

The petitioner, Ronnie

Ray Hoover, appe

als as of right fro

m the Cumberland Cou

nty Criminal Court’s denial of his petition for post-conviction relief. The petitioner was convicted by
a jury for vehicula

r homicide by intoxi

cation, a Class C fe

lony, and vehicula

r assault, a Class D felony. As a Range III, persistent offender, the petitioner received sentences of fifteen and twelve years, respectively, to

be served concurrently. The convictions were affirmed on direct appeal. State
v. Ronnie Ray Hoover , No. 03C01-9507-CC-00199, Cumberland County ( Tenn. Crim. App. Sept. 4, 1996). The petitioner

contends that he received the ineffective assistance of counsel. We affirm the trial court’s denial of the petition. The facts underlying theconvictions, as stated in this court’s opinion on direct appeal, are-2-

as follows: These convictions are the result of a motor vehicle collision which o ccurr ed at approximately

5:20 p.m. on Sunday Augus t15, 1993, on Shotgun Ro ad– an asphalt roadin southwest

Cumberland County. Appellant was traveling west in his pickup truck when he made a left turn to go i nto his drive way. In doing so, Appellant’s vehicle was struck by an east-bound motorcycle carrying two teenage boys. Michael Frazier, the seventeen-year-old driver of the motorcycle, was transported to a nearby hospital where he soon died of an aortic rupture caused by the collision. John Kelley,
one of Michael Frazi er ’s best friends, w as the passenger

on the motorcycle . As a result of his injuries, Mr. Kelley was hospitalized for three or four days during which time surgery was performed on his knee and ankle. Evidence at the trial showed that the petitioner had a blood alcohol content level of .17 percent two hours after the accident. The petitioner’s theories were (1) that he took a sub st antial drink of moonshine immediately before the a ccident; thus, he was not impaired at the time of the accident butonly later and (2)

that the motorcyc

le was traveling at

a high rate of speed, and whether he was impaired or not, he did not have enough time to react in order to avoid the collision.

At the evidentiary hearing, the petitioner’s argument focused upon his trial attorney’s failure to conduct an adequate investigation. Th e attorne y testified that although he did not interview witnesses, his investigator did. He recalled his investigator interviewing L a ndon Wyatt, the petitioner’s brother-in-law. Mr. Wyatt reported to the investigator that the motorcyc

le was traveling at about fifty- five miles-per-hour w hen the crash oc

curred, and Mr.

Wyatt testified to

this at trial. The attorney testified at the evidentiary heari ng that he did not interview the petitioner’s wife, Catherine Frazier Hoover, and had no recollection of intervie wing the petitioner’s sister, Joyce Brewer. Th e attorney testifie d that he was able

to present the def

ense theory throu

gh crossexamination of the state’s witn esses. He testifi

ed that he was abl

e to elicit from the investigating officer that the officer had che

cked the box on his

report stating that the petitioner was not impaired. He further testified that the state’s accident reconstr uctionist admitted that it was possible the petitioner had only 3.28 seconds to react to the oncoming motorcycle.

Landon Wyatt testified at the evidentiary hearing that he spoke with the investigator for the petitioner’s attorney onceover the telephone. He said that he spoke with the petitioner’s attorney
on the morning of tria

l. He stated that he testified at trial that the motorcycle was traveling at about fifty-five miles-per-hour. Joyc e Brewer, the petitioner’s sister, testified that she smelled alcohol on the petition er’ s breath immediate

ly after the accident and that the petitioner seemed to become increasingly impaired after the acci

dent. She acknowl

edged that the pe

titioner did not wan

t her to testify at tr

ial.

Catherine Frazier Hoover testified that immediatel y after th e accident, she saw a jar of moonshine in her house. She said that the jar w as almost full and that she poured it out. Ms. Hoover admitted that she smelled alcohol on the petitioner before the accident and had refused to ride w

ith the petitioner. She admitted that she testifiedat tr ial that the petitioner was under the influence before the acc

ident.-3-

The petitioner testified that on the afternoon of the accident, he decided to take a jar of moonshine to his uncle who was visiting from Indiana. He said that he dr ove about one and

one-half miles from his house

and decided not to deliver the moonshine. He testified that he pulled off the roadand took “a big drink” of the moonshine. He said that he the n drove back to his

house and that the wreck occurred as he was pulling into his driveway. He testified that he took the moonshine to his house after th

e accident. Upon the foregoing proof, thetrial court denied the post-conviction petition. With respect to the petitioner’s allegation that his trial attorney failed to conduct an adequate investigation by not interviewing and

calling crucial w

itnesses, the tria

l court found that: In light of the evidence in the case, and in light of the evidence that was presented on behalf of the Defendant through the State’s witnesses, [the attorney] made a tactical decision to call only

the one witness, believing that there was oth er evidence . . .

to support his theory through t

he State’s witness

es. . . . I don’t bel

ieve it can be sai

d that the Defendant was prejudiced beca use the proof was already in there, in the record.

. . . . Obviously, the re w as an effort made on behalf of -- by counsel and by the investigator

to determine what the allegations were, to determine what the facts were, determine what the proof would be, and to present the best defense available, and I’m of the opinion that counsel did that, and I cannotfind that his deficiencies, if any, prejudiced the Defendant.

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 r esult of the trial was unreliable or the proceedings fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. F retwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied to the righ t to co unsel under Artic le 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 att orn eys should be held to the general sta

nda rd 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 se t 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 re quires that every effort be made to eliminate the distorting effec ts 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 Hellardv. State , 629 S.W.2d 4, 9 (Tenn. 1982).-4-

We also note that the approach to the issue of the ineffective assistance of counsel does not have to start with an analysis of an att orney’s condu ct. If prejudice is not shown, we need not seek to determine the validity of the allegations about deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069.

In a post-conviction cas e, t he burden is on the petitioner to prove his grounds for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). “The findings of fact of the trial judge on a petition for post-conviction relief are afforded the weight of a jury verdict and are conclusive on ap peal unless the evidence in the record preponderates against those findings.” Henley
v. State , 960 S.W.2d 572, 578-7 9 (Tenn. 1997) (c

itation omitted); see also R ichard C. T aylor v. State , No. 01C01-9709-CC-00384, Williamson County, slip op. at 26 (Tenn. Crim. App . Ju ly 21, 1999) (noting that a jur

y verdict is

inherently the jury’s answer to a mixed question of fact and law) ; but see Statev. Burns , 6 S.W.3d 453, 461 (Tenn. 1999) (stating that “the issues of deficient performance

by counsel a

nd possible

prejudice to the d

efense are mixed questions

of law and fact” requiring a de novo review).

Init ial ly, we note that in

the “Issues Presented for Review” section of the petitioner’s brief, the pet iti one r li sts num erou s gro und s up on w hic h he all eges ine ffec tiv enes s by h is t ria l at tor ney. The pe titioner contends that his a

ttorney wa

s ineffective fo

r calling only

one witness whom h e interviewed only minutes before trial; failing to interview witnesses who would have said that the petitioner turned into the dri

veway as us

ual; failing to examine the vehicle’s damage to show that the motorcycle had to have b een traveling at a high rate of speed; failing to secure an acc ident reconstructioni

st; failing to

secure an expert to testify about the effects of alcohol on the brain and bod y; failing to explain t

o the defendant h

is right to testify; failing to interview the defendant’s father and sister; and fa

iling to interview

the person who sold

the victim his

motorcycle to show that

the motorcycle had no brakes when it was sold. Despite raising these myriad claims, the only issues the petitioner pursues in the argument section of his brief are the attorney’s failure to visit the scene of the accident and failure to speak withLandon Wyatt until the morning of trial. Nevertheless, we have reviewed the unargued issues in light of the entire record. Many of the allegations are directly refuted by

proof at the evidentiary hearing, and w

e view all of the un

argued issues to

be without merit.

As to the issues the pe

titio ner argues, we view them to be without merit as well. The petitioner has simply fa

iled to demonstrate

prejudice. Altho

ugh he complains

that his attorney di

d notspe ak w ith Land on W yatt unt il t he m orn ing o f tr ial , te sti mon y from the evidentiary hearing showed that the attorney’ s investigator di d speak with

Mr. Wyatt before trial and learned that Mr. Wyatt estimated the victims’ motorcycle to be traveling at about fifty -five miles-per-hour. Mr

. Wyatt testified to th

is at trial, and the petitioner does not explain wha

t additional inform

ation his attorney could have received from Mr. Wyatt that would have affecte d the outcome of the

trial. Furthermore, although the petitioner argues that his attorney should have visited the accident scene, he again fails to demonstrate how this would have benefi tted him a

t trial. The petitioner has not shown that the rec

ord prepondera

tes against the t

rial court’s find

ings.-5-

In consideration of the foregoing and the record as a whole, we af firm the trial court’s denial of the post-conviction petition.