1 See State v . Te rry W

. Smith , C. C.A. No. 01C0 1-96 09-CC- 00404, 1998 Tenn . Cr im. App. LEX IS 1331 (T enn.

Crim . App . Dec . 31, 1 998 , at Na shville). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs A ugust 14, 2002 TERRY W. SMITH v. STATE OF TENN ESSEE Direct Appeal from the Circuit Court for Cheatham County No. 12158A Robert E. Burch, Judge

No. M2001-03062-CCA-R3-PC - Filed September 27, 2002

This is an appeal fr om t he denial of post-conviction relief concerning petitioner's conviction for aggravated

kidnapping. The s ole issue in t his appeal is whether the petitioner was deprived of effectiveassistance of counsel when trial counsel, during the trial of the case , "opened thedoor" to the state's introduction of evidence of defe ndan t's p rior arre sts. We

agree with the post-conviction court 's finding that

petitione r failed to establish

prejudic e; thus, we

affirm t he judg ment of the

postconviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID G. H AYES and N ORMA M C G EE O GLE , JJ., joined. Wade Bobo, Ashland City, Tenne ssee, for the appellant, Terry W. Smith. Paul G. Summers, Attorney Gene ral and Reporter; David H. Findley , AssistantAttorney Genera l; Dan Mitchum Alsobrooks, District Attorney Gene ral; and Robert S. Wilson, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.
OPINION Petitioner was convicted by

a Cheatham County jury

of the offense of

aggravated

kidnapping and attempted aggravated r ape and sentenced by

the trial court to co nc urrent te rms of ten

ye ars in the Departm

ent of Cor rection . The con

victions a nd senten ces wer e affir med on dir

ect appe al, 1 and pet itioner timely sought post-conviction re lief. The post-conviction court found the attempted aggravated

rape indictment

to be defective and insufficient to confer jurisdiction upon the trial court. The post-conviction court, therefore, set aside the attempted aggravated r

ape conviction. Alth ough-2-

the state originally

appealed this dismissal, it subsequently withdrew its appea l. Thus, this dismissal is not an issue in this appeal. The sole issue in this appeal relating to petitioner's conviction for aggr avated k idnapping is wh eth er trial counsel provided ineffective assistance of c ounsel during petitioner's trial when he aske d pet itioner's stepmother whether she thought the petitioner wa s capable of committing the offense. After she replied in the negative and testified as to his characte r, the state was allowed t

o question the wi tness as to h er kno wledge of petitio ner's p rior arr ests for assa

ult, agg ravate d assault and a drug

offense . The post

- convic tion court concluded trial counsel's performanc e did not undermine the confidence in theout come of the trial and dismissed the petition. This appeal followed.

INEFF ECTIVE ASSISTA NCE OF C OUNSEL A. Proceedings at Original Trial Petitioner contendshe was de

prived of the eff ective a ssista

nce of counsel. Trial counsel realized that petitioner had prior arrests; trial counsel was also awar e that petitioner had no prior convicti ons. The theory of the defense was alibi. During trial counsel' s direc t exam ination of petit ioner 's stepmother, he asked her if she believed the def enda nt was c apable of committing the offense. She replied in the negative and further state d the defendant was good-nature d and had a heart. The trial cou

rt then a llowed the

state to question the stepmother as to whether she was aware that the petitioner had been arrested twice in 1 987 for assaul t, in 1991 for assault and aggrava ted assault, and in 1995 for a drug offense. Althoug h s he admitt

ed she was aware of the arr ests, she stated the petitioner was not convicted on any of these charges. The trial court instructed the jury that this testimony was not to be considere d as substantive evidencebut o nly to te st th e step moth er's knowl edge of the petitioner's character. Petitioner c laims this evide nce essentia ll y destroy

ed his alibi defense. B. Standard of Review When a claim

of ineffective assistance of counsel is made unde r the Sixth Amendment, the burden is upon the complain ing par ty to show (1) that coun sel's pe rforman ce was d eficien t, and (2) the deficie

ncy was pre judicial in terms of

render ing a re asonable

probabil ity that the result of the trial was unrel iable or the proceedings fundamentally unfair. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2 052, 2064, 80 L. Ed. 2d 674 (1984) . Our supreme court has applied the Stricklandstandar

d to the rig

ht to counsel under Article I, Section 9 of the Tennessee Constitution. See 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 required that the services be rendered within the range of competence demanded

of attorn ey s in crimin al case s. Further, the court stated that the range of competence was to be

measure d by

the dutie s and criteria-3-

set forth in Beasley

v. United States , 491 F.2d 687 (6th Cir. 1974), and United States v. DeCoster , 487 F.2d 1197 (D.C. Cir. 1973). I n reviewing counse l's conduct, a “fair assessment of attorney performance

requires that every

effort be mad e to el iminate the distorting eff ects of h indsight , to reconstruct

the circumstances of counsel' s challenged conduct, and to evaluate the conduct from couns el's perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; s ee Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982).
It is un ne ce ss ar y fo r a co ur t t o a dd re ss de fi ci en cy a nd pr ej ud ic e i n a ny p articular or der, or even to address both if the petitioner makes an insufficient showing on either

. Strickland , 466 U.S. at 697, 104 S. C t. at 2069. In or der to establish

prejudic e, the pe

titioner m ust estab lisha "rea sonable probabil ity that, but for counsel's unprofessional errors, the r esult of the procee ding wou ld have been differe nt. A reasonable pr obability is a probability sufficie nt to undermine confidence in the outcome.” State v. Burns , 6 S.W.3d 453, 463 (quot ing Stri ckland , 466 U.S. at 694, 104 S.Ct. at 2068) (citations omitted). The petitioner bears the burden of proving the factual alleg ations that would entitle petitioner to relief by c lear

and convincing evidence. Tenn. Code Ann. § 40-30-210(f). We reviewthe postconviction court's factual findings underly ing a claim of ineffective assistance of counsel under a de novo standar

d with a pr

esumption

that those

finding s are co

rrect – unless the preponderance of the evidence establishes otherwise. Burns , 6 S.W.3d at 461. Ho wever, the po st-co nvict ion co urt's conclusions of law – such as whether counsel's perfor mance was deficient or whether that deficiency was prejudicial – are reviewed under a de novo standard with no presumption of correctness. Fields v. State , 40 S.W.3d 450, 457 (Tenn. 2001) (citations omitted)

. C. Analysis Petitioner now contends trial counsel was deficient and should have realized that, by a sking this question o f the step mother, th is "opened the door" for

the state to ask her about petitioner's prior arrestsbecause they

were relevant to her

knowl edge of t he pet itio ner's character. I n the direct appea

l, petitioner raised the issue as to whether the trial court erred in allowingthe state's question regarding the prior arrests. See Terr y W

. Smith , 1998 Ten

n. Crim. App. LEXI S 1331, at *38. We concluded the state's questioning was proper under Rule 405(a) of the Tennessee Rules of Evidence and fur ther observed that the trial court instructed the jury not to consider

this as substantive evidence, but only to test the stepmother's knowledge of the petitioner' s character. Id . at *39. The po st -convic tion cour t conclud ed trial c ounsel' s decisio n to ask the question w as a "mistake ;" however, the post-conviction court concluded the " mistake" was not suff icient t o under mine the confidence in the outcome of the trial. We agr ee with the post-conviction cou rt' s assessment. As we noted in our original opinion, the victim was held captive about fif teen minu tes, giving the victim ample time to observe the perpetrator; her description of the perpetrator was c onsistent withthe petitioner's appearance; the victim never waivered in her identification of the petitioner; the-4-

victi m's identification was reliable. Id . at **27-30. Moreover, an officer testified a t trial that he saw the petit ioner 's speeding car near the sc ene of the offense between 8:00 p.m. and 9:00 p.m. and saw the car again at the Shell station about thirty minutes later. Id . at **9-10. Furthermore, petitioner was arrested about 9:30 p.m., which contradicted not only his testimony

that he was in Nashville at 9:30 p.m. and a

rrived a t the Shell s tation at 1 1:15 p.m., but also the pe titi oner's broth er-in -law's testimony that he saw the petitioner a t his residence the following morning. Id . at **17-20.
We also observe that the jury wa s aware

that petitione

r had only

been ar rested o n these charg es, not convicted. Furthermore, the trial court instructed the jury not to consider this evidence substantively. See State v. Butler , 880 S.W.2d 3 95, 399 (T enn. Crim. App. 1994 ) (holdin g jury is presumed to follow instructions of the trial court).
In view of the evidence against the petitioner and the othe r circumstances surrounding the introduction of the evidence, we agr ee petitioner

ha s f ai le d t o e st ab li sh pr ej ud ic e. Mo re sp ec if ic al ly, he has failed

to establish a reasonable probability that, but for trial counsel's "opening the door " to evidence of petitioner's prior arrests, the result of the proc eeding would have been any diffe rent

. Having concluded the petitioner has failed to establish prejudice, we need not address whe ther trial counsel was deficient in askingthe stepmother this question. See Goad v. Sta te , 938 S.W.2d 363, 370 (Tenn. 1996). We affirm the judgment of the trial court.

___________________________________ JOE G. RILEY, JUDGE