### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 9, 2016 Session

CHARLES BRADFORD STEWART v. STATE OF TENNESSEE

Appeal from the Circuit Court for Montgomery County

No. 40700425 John H. Gasaway, III, Judge

___________________________________

No. M2015

- 02449

- CCA

- R3

- PC

– Filed June 20, 2017

___________________________________

The State appeals from the post

- conviction court’s grant of post

- conviction relief to

Petitioner, Charles B radford Stewart. Petitioner was convicted of ve hicular assault and

originally sentenced to serve twelve years as a career offender, with split confinement of

one year in jail and eleven years in community corrections. The State appealed the

sentence on the basis that community corrections was erroneou sly granted. This court

reversed and remanded. State v. Charles B. Stewart , No. M2010

- 01948

- CCA

- R3

- CD,

2011 WL 4794942, at *1 and *3 (Tenn. Crim. App. Oct. 11, 20 1 1). Upon remand the

trial court sentenced Petitioner to serve the entirety of the twelve

- y ear sentence by

incarceration. This Court affirmed. State v. Stewart , 439 S.W.3d 906, 907

- 08 (Tenn.

Crim. App. 2013). Petitioner timely filed, pro se , a petition for post

- conviction relief.

Counsel was appointed, and Petitioner subsequently filed a “co rrected” petition.

Following an evidentiary hearing , t he post

- conviction court granted relief. After review,

we reverse the judgment of the post

- conviction court and reinstate the judgment of

conviction.

Tenn. R. App. P. 3 Appeal as of Right;

Judgment of the Criminal Court Reversed and Remanded

T HOMAS T. W OODALL

, P.J., delivered the opinion of the court, in which R OBERT H.

M ONTGOMERY

, J R

., and J. R OSS D YER

, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior

Counsel ; John Wesley Carney, Jr. , District Attorney General; and Arthur Bieber

, Assistant District Attorney General, for the appellant, State of Tennessee.

B. Nathan Hunt, Clarksville, Tennessee, for the appellee, Charles Bradford Stewart.2 OPINION

At the outset we address the unusual procedure utilized by the post

- conviction

court in reaching its ruling on the post

- conviction petition in this case. Only two

witnesses testified at the post

- conviction hearing

– Petitioner and his trial coun sel. Trial

counsel represented Petitioner pre

- trial, during the trial, through Petitioner’s first direct

appeal

, and through a motion for new trial hearing following disposition of the first

appeal . T he sole issue in the first appeal was the State’s chal lenge to the sentence of split

confinement

, with community corrections after one year of incarceration. See State v.

Charles B

. Stewart , 2011 WL 4794942. No exhibits were introduced at the post

conviction hearing . I t appears that the post

- conviction cou rt declined to accept the

State’s and Petitioner’s requests for the Court to take the transcripts and copies of

motions from the trial which were tendered at the conclusion of the post

- conviction

hearing.

Specifically, the following transpired after Peti tioner rest ed his case in the post

conviction hearing:

[P ETITIONER’S COUNSEL ]: . . . We have that [trial] transcript. The

initial sentencing hearing on August 10 th of 2010, we have that transcript

for the court as well as pro se motions including his motion for new trial.

If we could pass those forward, Your Honor

.

THE COURT: You can but

- - but wait just a minute.

[PETITIONER’S COUNSEL]: Yes, sir.

[PROSECUTOR ]: Okay.

THE COURT: Go ahead.

[PROSECUTOR]: State joins in the motion to pass these

transcripts up.

THE COURT: Okay. But I

- - is there anything else

you want to say?

[PROSECUTOR]: I think the only thing the State would

want to say is it loo ks like the blood alcohol motion is in here. I think

we do not have the transcript of the new trial motion on the merits. And3

we’re going to have to check on that. We may be missing just one

transcript here.

THE COURT: Okay. But before you

- - okay, just

hold on. Anything else?

[PROSECUTOR]: The Stat e does not wish to introduce

anything other than the transcripts.

THE COURT: All right. But the reason that I’m

hesitating taking that right now is because, [Petitio ner’s Counsel], using

that I want you to draft me an order that is in the form of a finding of fact

and a conclusion of law, and draft it as if I’m granting you relief. I don’t

know whether I’m going to grant relief or not. But if you present me

with an order that’s drafted in that way I will be able to refer to what you

say in your order, and X out what I disagree with or . . . you see what

I’m saying?

[PETITIONER’S COUNSEL] : I do, Your Honor.

[PROSECUTOR]: Makes sense, Your Honor. It’s

- - it’s

rea lly rather complex.

THE COURT: This case

- - well, do that. And I know

that’s a lot of work, but

- - but . . .

[PROSECUTOR]: The only thing

- -

THE COURT: I’m thinking very seriously about this,

and I want you to draft that as if I’m going to gra nt it but then I’m going

to take out my pen and I’m going to

- - I’m going to reform it in my own

way, and the outcome may be granted and the outcome may be denied.

. . .

[PROSECUTOR]: I would just ask to

- -

THE COURT: Yeah, you copy

- -

[PROSE CUTOR]: For a copy.4

THE COURT: You copy [Prosecutor] now, because

- -

[PETITIONER’S COUNSEL]: Sure.

THE COURT: He wants to take out his pen too, so.

[PETITIONER’S COUNSEL]: I understand.

[PROSECUTOR]: Well, it’s

- - it’s the Court’s red pen

that counts. In case something comes up.

THE COURT: I know it is, but that doesn’t mean you

don’t get to use your blue pen to cull

- - to bring it to my attention, what

you think about it.

[PROSECUTOR]: The only thing we would ask, Your

Honor, is if there’s missing pages in a transcript or

- - we think it’s

correct and complete; if there’s some sort of problem, if the Court would

please let Counsel know.

THE COURT: Oh, I will, I will.

[PETITIONER’S COUNSEL]: Your Honor, can I retain

- - should I

retain these for now?

THE COURT: Yes. And then based on what you said

this original petition is really

- - it’s

- - it’s super [ s ] eded by this

[“corrected” petition for post

- conviction relief].

[PETITIONER’S COUNSEL]: I believe that’s accurate, Your Ho nor.

THE COURT: Okay.

[PETITIONER’S COUNSEL]: I believe that’s accurate.

THE COURT: And then you do that, and submit that

to me, and

- - and we’ll go from there.

Subsequently, Petitioner’s counsel submitted a proposed findings of fact and

conclusi ons of law, but later filed an amended proposed findings of fact and conclusions

of law. The appellate record indicates that the State filed no objections to Petitioner’s5

findings of fact and conclusions of law, in its original form or as amended.

Approx imately three weeks later, the post

- conviction court filed the order granting post

conviction relief. The language in the order as to the court’s findings of fact and

conclusions of law are identical (it appears to be word for word) to Petitioner’s amende d

proposed findings of fact and conclusions of law. The order granting relief is set forth

herein:

The Court hereby finds as follows:

FINDINGS OF

FACT

1. On July 19, 2004, Petitioner was involved in a traffic accident.

2. On February 28, 2005, warrants were issued for Petitioner’s arrest,

charging him with vehicular assault and violation of the financial responsibility law

and said warrants were served on Petitioner on May 17, 2005.

3. On December 5, 2005, the Montgomery County Grand Jury returned

an indictment charging Petitioner with reckless endangerment, vehicular assault, and

violation of the financial responsibility law.

4. On March 6, 2007, the Montgomery County Grand Jury returned a

superseding indictment charging Petitioner with reckless endangerment, vehicular

assault, violation of the financial responsibility law, aggravated assault by use of a

deadly weapon (the vehicle Petitioner was operating), and aggravated assault by

causing serious bodily injury.

5. On August 10, 2007, the State filed notice seeking to have Petitioner

sentenced as a career offender, if convicted.6

6. Counts 2 (vehicular assault) and 4 (aggravated assault by use of a deadly

weapon) were tried by a jury on May 17

- 18, 2010. Following trial, Petitioner was

found guilty by a jury of both counts as charged.

7. On August 10, 2010, a sentencing hearing was conducted and the trial

court took the matter under advisement.

8. On August 12, 2010, the trial court merged count 4 into count 2 and

imposed a twelve

- year sentence with one year to be served in the Montgomery County

Jail and the balance of the sentence of eleven (11) years to be served on community

corrections.

9. The State appealed the Court’s sentencing of Petitioner and on October

11, 2011, the Court of Criminal Appeals rendered its opinion and judgment

reversing the trial court’s sentence and remanding the case for further proceedings.

10. On December 7, 2011, the trial court resentenced Petitioner to twelve

(12) years in the Tennessee Department of Correction [ ]

.

11. Following resentencing, Petitioner appealed and the Court of Criminal

Appeals upheld the trial court’s sentencing of Petitioner as set forth above.

12. On July 7, 2014, Petitioner filed a timely petition for post

- conviction

relief with this court and on November 25, 2014, attorney B. Nathan Hunt was

appointed to represent Petitioner regarding his petition for post

- conviction relief.

13. On March 30, 2015, the Petitioner filed a “corrected” petition for post

conviction relief.7

14. On May 13, 2015, an evidentiary hearing was conducted regarding the

petition and “corrected” [petition] for post

- conviction relief.

15. At the evidentiary hearing, Petitioner testified as follows : (emphasis

added)

(a) That his trial counsel, [ ]

, only met with Petitioner 4

- 5 times prior to

his jury trial.

(b) That his conviction was based on use of evidence gained pursuant to an

unconstitutional search and seizure.

i. Officer Michael Caver did not show reasonable grounds to

believe that Petitioner was operating a motor vehicle while under

the influence. However, Petitioner’s trial counsel failed to file a

motion to suppress the evidence gained pursuant to the

unconstitutional search and seizure.

(c) That the Tennessee Bureau of Investigation’s (“TBI’’) official toxicology

report was illegal evidence because the State failed to preserve the

blood sample or provide a valid chain of custody.

i. Petitioner’s blood sample was destroyed before Petitioner’s

preliminary hearing, indictment, and arraignment. This was done

without notice to Petitioner, leaving him unable to obtain

comparable evidence from said sample and leaving Petitioner no

other means to obtain evidence that could have possessed

exculpatory value.

ii. Petitioner passed the field sobriety tests administered by Officer

Cav er at the scene and was not arrested and was allowed to

leave without any citations issued.

iii

. The blood sample was compromised due to an invalid chain of

custody.

(d) That he received ineffective assistance of counsel at the trial and appellate

stages.

i. Trial counsel failed to file a pre

- trial motion requesting that8 Petitioner’s blood sample taken on July 19, 2004 be made

available to Petitioner for comparative testing at Petitioner’s

expense.

ii. Trial counsel failed to investigate and present to the court all the

grounds why the TBI toxicology report should have been excluded.

iii

. Trial counsel failed to file a motion to dismiss the indictment of

aggravated assault.

iv. Trial counsel failed to adequately use exculpatory evidence at trial.

v. Trial counsel prejudiced the Petitioner with statements to the

jury in counsel’s closing arguments by misquoting Officer Caver.

vi. Trial counsel failed to cross

- examine the paramedic at trial

regarding the effects cocaine has on a person’s pupils when a

person is intoxicated by the drug.

vii

. Trial counsel failed to cross

- examine Cynthia Mallard, who was

also involved in the accident at issue, and would have testified

regarding her actions and contributions to the accident and would

have also refuted the testimony of the State’s other witnesses.

viii. Trial counsel failed to investigate and present evidence to

impeach the State’s statements and challenge the proof of reckless

aggravated assault.

ix. Trial counsel failed to present an expert witness to impeach

toxicologist’s testimony introduced by the State.

x. Trial counsel failed to introduce evidence that Petitioner

suffered from bipolar disorder and to show how Petitioner’s

bipolar disorder would have affected his behavior on the day in

question.

xi. Trial counsel failed to protect Petitioner’s due process rights

when he advised Petitioner to withdraw his motion for a new trial.

xii. Petitioner’s counsel on appeal, Roger E. Nell, failed to protect

Petitioner’s 14th Amendment due process rights when he9 conceded on the second appeal that Petitioner was likely

procedurally barred from raising certain issues in the second

appeal by failing to raise said issues in the first appeal, which

was initiated by the State, but requested the Court to consider

Petitioner’s claims anyway.

CONCLUSIONS OF LAW

16. For a petitioner to prevail on an ineffective assistance of counsel claim,

a petitioner must show two (2) components as set forth by the United States

Supreme Court in Strickland v. Washington

, 466 U.S. 668, 690 (1984). A petitioner

must meet the requirements of showing that counsel’s performance was deficient

and in order to satisfy this requirement a petitioner must show that counsel made

errors serious enough to result in a deprivation of petitioner’s Sixth Amendment

right to counsel. Id. at 691. A petitioner must also show that there is a reasonable

probability that but for counsel’s error the result of the proceeding would have been

different. Id

. at 694. In other words, a petitioner must show a “ reasonable

probability sufficient to undermine confidence in the outcome”.

17. In Baxter v. Rose

, 523 S.W. 2d 930 ( Tenn. 1975), the Tennessee

Supreme Court held that “ [ d]efense counsel must perform at least as well as lawyers

with ordinary training and skill in criminal law and must conscientiously protect his

client’s interests, undeflected by conflicting considerations. Defense counsel must

investigate all apparently substantial defenses available to the Defendant and must

assert them in a timely and proper manner.”10

18. The Court finds that Petitioner has met his burden under Strickland to

prevail on an ineffective assistance of counsel claim for the following reasons:

(a) Trial counsel failed to file a pre

- trial motion requesting that the blood

sample taken from Petitioner on July 19, 2004 be made available to

Petitioner for comparative testing at a State approved laboratory at the

defense’s expense, to establish the sample’s identity through DNA

testing and to challenge the alleged contents recorded on the TBI’s

Official Toxicology Report. Had trial counsel filed the appropriate

motions the State would not have been able to produce the blood

sample because it was destroyed before Petitioner was notified of its

existence making the Official Toxicology Report invalid as evidence

for use to support the indictment of vehicular assault and that

indictment would have been dismissed because the report would have

been excluded or suppressed under State v. Ferguson

, 2 S.W.3d 912

( Tenn. 1999).

In United States v. Nixon

, 418 U.S. 683 (1974), the Supreme Court spoke of the

need for discovery in the adversary system, holding:

We have elected to employ an adversary system of criminal justice in

which the parties contest all issues before a court of law. The need to

develop all relevant facts in the adversary system is both fundamental

and comprehensive. The ends of criminal justice would be defeated if

judgments were to be founded on a partial or speculative presentation of

the facts. The very integrity of the judicial system and public confidence

in the system depend on full disclosure of all the facts within the

framework of the rules of evidence.

In Ferguson, 2 S.W.3d at 912, the Tennessee Supreme Court adopted a

balancing approach for courts to use to determine when the loss or

destruction of evidence has deprived a defendant of his fundamental right to

a fair trial. Id

. at 917. Under this approach, the first step is to determine

whether the State had a duty to preserve the evidence. As a general rule,

[ “ ] the State has a duty to preserve all evidence subject to discovery and

inspection under Tenn. R. Crim, P. 16, or other applicable law.” I d

. If the

proof shows that the State had a duty to preserve the evidence, and that the

State failed in its duty, the court must then consider the following factors

which bear upon the consequences of the State’s breach of its duty: (1) the

degree of negligence involved; (2) the significance of the destroyed

evidence, considered in light of the probative value and reliability of11

secondary or substitute evidence that remains available; and, (3) the

sufficiency of the other evidence used to support the conviction. Id. If

the court concludes, after consideration of all the factors, that a trial

without the missing evidence would not be fundamentally fair, the court

has the option, of dismissing the charges against the defendant, issuing a

special jury instruction on the significance of the missing evidence, or taking

any other steps necessary to ensure a fair trial. Id

.

(b) Trial counsel failed to investigate and present to the court all the legal

grounds why the TBI Official Toxicology Report should be excluded

or suppressed in his pre

- trial suppression motion and had trial counsel

done so the court would have excluded or suppressed the TBI

Toxicology Report and the indictment for vehicular assault would have

been dismissed.

(c) Trial counsel failed to cross

- examine Paramedic Hightower to question

her regarding the effects cocaine has on a person’s pupils when a

person is intoxicated by the drug. Had trial counsel adequately cross

examined Paramedic Hightower counsel would have inquired about

the effects of cocaine on an individual’s pupils and her testimony

would have raised reasonable doubt as to Petitioner’s alleged

intoxication and the outcome of the trial would have been different.

(d) Trial counsel failed to adequately use exculpatory evidence at trial. Trial

counsel should have made the Tennessee Uniform Traffic Crash Report

an exhibit at trial for impeachment purposes. Trial counsel had

possession of said report at trial, but failed to make it an exhibit. The

report was identified by Officer Caver at trial and in the report Officer

Caver had marked “no contributing actions for Driver 1 (Petitioner).” At

trial, counsel asked Officer Caver if he remembered marking Petitioner’s

driving actions in the report and Officer Caver testified that he marked in

the report that Petitioner was following improperly and careless or erratic

driving, which was not consistent with the report and trial counsel’s

failure to use the report to impeach Officer Caver was ineffective

assistance of counsel pursuant to Strickland. Had trial counsel used the

report to impeach the testimony of Officer Caver it would have raised

reasonable doubt that Petitioner acted recklessly or was intoxicated and

the outcome of the trial would have been different.

(e) Trial counsel prejudiced the Petitioner with his statements to the jury in12 counsel’s closing arguments by misquoting Officer Caver.

(f) Trial counsel failed to investigate and present evidence to i mpeach the

State’s statements and challenge the alleged proof of reckless

aggravated assault. Officer C aver’s testimony regarding the

circumstances of the accident was conflicting and inconsistent. However,

trial counsel failed to present facts to impeach Officer Caver’s

testimony and also present facts that would have raised reasonable doubt

that the Petitioner acted recklessly and had trial counsel done so the

outcome of the trial would have been different.

(g) Trial counsel failed to pres ent an expert witness to impeach the

toxicologist’s testimony at trial. The toxicologist testified that finding

cocaine in the blood sample means that a person’s [ s i c ] used cocaine

within the last three hours. Specifically, “well, the two hours work to

the benefit of the subject, so it’s reasonable to assume that the cocaine

was used within an hour before that accident”. This testimony was

misleading and prejudicial and was designed to persuade the jury into

believing the Petitioner was intoxicated at the time of the accident and

was not based on facts.

There was no specific type of cocaine metabolites recorded on the

toxicology report and nothing in the record indicating how much cocaine

the Petitioner allegedly used. Additionally, there was no evidence or

facts to support the toxicologist’s opinion. Had trial counsel provided an

expert witness, the witness’ testimony would have impeached the

toxicologist’s testimony and given the jury an alternative to consider and

the outcome of the trial would have been different. This failure by trial

counsel constituted ineffective [ ] assistance of counsel pursuant to

Strickland.

(h) Trial counsel failed to investigate, obtain, and present evidence that

Petitioner suffers from bipolar manic depression, which he was diagnosed

with in 1988 and was taking medication for at the time of the accident.

Additionally, Petitioner had been examined by and was receiving

benefits from both the Social Security Administration and the Veterans

Administration for this disorder since 1997. Had trial counsel presented

said evidence it would have assisted in explaining any erratic behavior

the Petitioner exhibited following the accident and provided the jury with

a logical explanation of Petitioner’s actions following the accident. This13 failure by trial counsel to introduce said evidence constituted ineffective [ ]

assistance of counsel pursuant to Strickland.

(i) Trial counsel also failed to offer an expert witness to explain how bipolar

manic depression effects a person’s behavior, attitude, and ability to take

directions and perform specific tasks. The expert’s testimony would

have explained the Petitioner’s demeanor at the time of the accident,

why he performed the field sobriety tests quickly, and why he seemed

excited. Had trial counsel presented offered [sic] an expert witness for

testimony, it would have given the jury an alternative to consider

regarding Petitioner’s actions at the accident scene and would have

raised reasonable doubt as to Petitioner’s alleged intoxication and the

outcome of trial would have been different.

(j) Trial counsel failed to protect Petitioner’s due process rights when

counsel advised Petitioner to withdraw his pro se motion for a new

trial and notice of appeal. At the motions hearings on September 29,

2010, trial counsel advised the court “we’ll withdraw that” and trial

counsel withdrew Petitioner’s pro se motion for a new trial. This

constituted ineffective assistance of counsel because this was not a

“tactical” or “strategic” decision based on a reasonable investigation

into the matter. Additionally, the motion was not without merit and

should have been heard by the court as it contained non

- frivolous

issues. It was also in Petitioner’s best interest to have these issues

addressed and by withdrawing the motion, trial counsel violated

Petitioner’s 14th Amendment right to due process of law and

Petitioner’s 6th Amendment right to the effective assistance of counsel.

Had trial counsel left the motion for new trial on the docket to be

heard, it would have protected Petitioner’s right to due process and

allowed Petitioner to address the merits of his conviction on direct

appeal.

(k) Counsel failed to communicate with Petitioner when preparing and filing

the reply brief to the State’s appeal. Trial counsel did not consult with

Petitioner about the said brief nor did counsel allow Petitioner to

review the brief before it was filed. This action was inappropriate

because Petitioner had the right to review the brief his attorney had

prepared on his behalf before it was filed. This allows the Petitioner to

actively participate in his own defense by allowing a criminal defendant

to agree with what is being filed on his behalf. It is not a strategic or14 tactical decision to file a reply brief without consulting with the

Petitioner first and it is not feasible to believe that there was any reason

trial counsel could not have allowed Petitioner to review the reply brief

before it was filed. Trial counsel had Petitioner’s contact information at

all times during the course of his representation of Petitioner. Had trial

counsel communicated with Petitioner and allowed Petitioner to review

the reply brief before it was filed Petitioner would have requested that

counsel amend the brief prior to its filing. However, trial counsel failed

to do so. Petitioner never consented to what counsel filed and wanted the

merits of his conviction addressed in the reply brief. Trial counsel’s

failure to communicate with Petitioner allowed Petitioner’s due process

rights to be violated and was ineffective assistance of counsel according

to Evitts v. Lucey

, 469 U.S. 387 (1985). Trial counsel’s ineffectiveness

prejudiced the Petitioner by causing him to be procedurally barred from

raising any issues concerning the merits of Petitioner’s conviction.

The State initiated the first direct appeal in this case, but that did not

prevent the Petitioner from raising issue regarding sufficiency of the

evidence in his reply brief. See Tenn. R. App. P. 27(h) (“‘if appellee

is also requesting relief from the judgment, the brief of the appellee

shall contain the issues and arguments involved in his request for

relief as well as the answer to the brief of the appellant. [’][”] ); see

also State v. Watkins, 804 S. [ W ]

. 2d 884, 886 (Tenn. 1991) (deeming

the filing of a separate cross

- appeal “ unnecessary” to preserve an issue

for appeal when the issue was “properly

. .. raised in the

... reply

brief ” ). As the State observes, and Petitioner concedes, the Court of

Criminal Appeals has held that a d efendant’s failure to raise issues in a

first appeal results in a waiver of those issues in a subsequent appeal. See

State v. Ronnie Henry, 2009 Tenn. Crim. App. LEXIS 825, *7 (Tenn.

Crim. App., Jackson, Sept. 28, 2009). The Court of Criminal Appeals

held in Petitioner’s second appeal as follows: “Because the defendant’s

challenge to the sufficiency of the convicting evidence is procedurally

barred and because the defendant does not challenge the propriety of the

sentence imposed on remand, we affirm the judgment of the trial

court.” See State v. Charles Bradford Stewart, 2013 Tenn. Crim. App.

LEXIS 994, Case No. M2013

- 00488 [

- ] CCA

- R3

- CD (Tenn. Crim. App.

November 18, 2013). As previously set forth herein, this failure by trial

counsel to preserve Petitioner’s rights on appeal constituted ineffective

assistance of counsel pursuant to Strickland.15

(1) 

### T rial counsel failed to subpoena Ms. Leeman for trial or obtain a

deposition from her to explain her role in the accident and her

version of how the accident occurred. Ms. Leeman was in the process

of turning when the left front of Petitioner’s vehicle made contact

with the right rear bumper of Ms. Leeman’s vehicle. Ms. Pamela

Jones

- Sanders testified that Ms. Leeman’s vehicle was moving

immediately before the accident occurred. Trial counsel [’ s ] failure to

subpoena Ms. Leeman for trial to show her involvement in the

accident was prejudicial to Petitioner’s defense and constituted

ineffective assistance of counsel pursuant to Strickland.

(m) Trial counsel failed to cross

- examine Cynthia Mallard. Trial counsel

should have cross

- examined Ms. Mallard to obtain facts regarding her

actions and contributions to the accident and for impeachment purposes.

Ms. Mallard testified that her vehicle was hit and that she did not see

another vehicle in front of her before the accident occurred. Ms.

Mallard’s testimony at trial essentially indicated that she really did not

know what happened the day of the accident, except that she was in an

accident. Had trial counsel properly investigated the case, examined

the photos of the accident, and cross

- examined Ms. Mallard at trial

concerning these matters, it would have impeached her testimony and

provided the jury an alternative to consider and the outcome of the

trial would have been different.

19. There was no evidence that the Petitioner was intoxicated and no

evidence establishing a connection between Petitioner’s alleged intoxication and the

injuries caused by the accident. A detectable amount of cocaine or any other

substance that is found in a person’s blood does not establish that the person was

intoxicated. See T.C.A. § 39

- 13

- 106. The presence of a substance in a person’s

system does not establish criminal liability and instead criminal liability is based

upon establishing that a person is intoxicated by a substance. The State presented

evidence that cocaine was detected in the Petitioner’s blood sample, but did not16

prove Petitioner was intoxicated at the time of the accident. There was no

evidence quantifying the alleged amount detected and the State presented no

evidence regarding the possible effects of cocaine on a person’s ability to operate

a motor vehicle.

Officer Caver testified that Petitioner was excited, but also testified that

Petitioner passed all the field sobriety tests. Therefore, Officer Caver did not find

evidence to support probable cause to arrest the Petitioner for driving under the

influence. The statute requires the State to prove that intoxication was the

proximate cause of the accident, which the State clearly failed to do in the present

case. Accordingly, the convictions should be overturned and Petitioner awarded

a new trial.

20. There is no record of Petitioner driving in an intentionally hostile

manner. Petitioner was simply traveling in the turning lane preparing to turn left

onto Ringgold Road in Clarksville, Tennessee. The evidence failed to establish that

Petitioner [ ’ s] manner of use of his vehicle made it a deadly weapon and the

record at trial does not indicate that Petitioner was speeding, veering violently, or

engaging in any reckless conduct or that Petitioner gave no thought to the safety of

his fellow motorist[]s during the period leading up to the accident. Further,

Petitioner was not cited for violation of T.C.A. §§ 55

- 8

- 140(5)(B) or 55

- 8

- 140(5)(D)

because Petitioner was using the left turn lane in accordance with the17

aforementioned statutes. Petitioner was preparing to turn left and Petitioner was

within a safe distance from where he was going to turn. Accordingly, the record and

evidence introduced at trial did not support the guilty verdict in the present case and

had trial counsel presented these facts in Petitioner’s reply brief, then the outcome

of the State’s appeal would have been different.

21. Trial counsel’s errors should be examined in the cumulative error light.

When the cumulative effect of errors in a trial casts doubt on the reliability of a verdict,

relief is warranted. See Taylor v. Kentucky [,] 436 U.S. 478, 487

- 8 8[ ] (1978)

(holding that “the combination of the skeletal [jury] instructions, the possible harmful

inferences from the references to the indictment, and the repeated suggestions that

petitioner’s status as a defendant tended to establish his guilt created a genuine

danger that the jury would convict [him] on the basis of those extraneous

considerations, rather than on the evidence introduced at trial”); see also State v.

Zimmerman, 823 S.W.2d 220, 228 (Tenn. Crim. App. 1991). In the present case,

when the totality of trial counsel’s errors as previously set forth herein are examined in

the cumulative error light, relief is warranted.

It is therefore ORDERED, ADJUDGED, and DECREED that Petitioner’s

convictions are hereby reversed and a new trial is ordered.

ENTERED, this 20th day of November, 2015.18 John

We now summarize the testimony elicited at the post

- conviction hearing, which is

contained in fifty

- four (54) pages of transcript.

Petitioner testified that trial counsel represented Petitioner at a jury trial wherein

he was convicted of vehicular assault and reckless aggravated assault. The reckless

aggravated assault conviction was merged with the vehicular assault conviction.

Pet itioner was sentenced to serve twelve years. Petitioner filed a motion for new trial and

a notice of appeal. Trial counsel advised Petitioner to withdraw the motion for new trial

because Petitioner’s issues on the merits of the case could be addressed in the reply brief

in the State’s appeal of the sentencing ruling. Petitioner appeared in open court and

withdrew the motion for new trial and the notice of appeal.

Subsequently, Petitioner received a copy of the brief filed by trial counsel

, and the

on ly issue argued regarded the State’s appeal of the sentence . T he issues in the

withdrawn notice of appeal were not addressed. Petitioner stated that when asked by

Petitioner why the other issues were not raised, trial counsel said, “the only thing that

[ trial counsel] could address was the type of sentencing because that’s all the State was

appealing.” The split confinement sentence with one year of incarceration and eleven

years of service in community corrections was reversed, and at a subsequent sente ncing

hearing where he was represented by trial counsel, Petitioner received the sentence of

twelve years of incarceration.

Petitioner testified that trial counsel met with Petitioner four to five times prior to

trial during a span of approximately five years. Petitioner said trial counsel conveyed the

State’s offer to settle the case with a sentence of six years, but Petitioner declined to

accept it. Petitioner said trial counsel told him he would be sentenced to Range II.

Petitioner said he thought h e was only facing eight years when he turned down a sentence

of six years.

Petitioner testified that he never gave trial counsel the names of any witnesses that

Petitioner wanted called at trial. Petitioner said that he and trial counsel discussed

medic ations Petitioner was taking and that Petitioner’s blood sample was no longer

available.

Petitioner testified that his blood sample was the result of an unconstitutional

search and seizure because Officer Caver did not have “reasonable grounds to believe19

that I was under the influence because I passed a field sobriety test that

– that he [Officer

Caver] administered.” Petitioner further asserted that Officer Caver did not arrest

Petitioner the day of the wreck, and thus Officer Caver did not have reasona ble grounds

to request Petitioner to submit to a blood test. Petitioner stated that trial counsel rendered

deficient representation by not moving to suppress the blood test results on this basis.

Petitioner testified that according to t he toxicology rep ort issued by the Tennessee

Bureau of Investigation (TBI), the blood sample was destroyed before Petitioner was

arrested in May 2005. However, Petitioner testified later that “they said it was destroyed

August of 2005.” Petitioner claimed the toxicology report was “illegal evidence”

because he was unable to have an expert examine the blood sample and because the chain

of custody of the blood sample was questionable. Petitioner’s testimony about who

handled the sample and the problems associated with it c an best be explained by quoting

his testimony.

Q. And describe the chain of custody as you understood it

occurred in this case, Mr. Stewart.

A. Well, the blood sample goes to the lab; it’s

- - it’s issued a

travel number and a chain of evidence custod y report that goes along

with it. Everybody that handles that evidence looks at it, takes tests on

it, and they have to put it on that report where it’s gone, who has it and

who handles it.

All right. Now, this

- - up and until Ms. Kirk

- - I think it was

Dabney Kirk to Ms. Swiney, who did the alcohol blood test of it, shows

that she took it out of her

- - from Ms. Kirk and she put it in her

refrigerator, then she relinquish

- - to her refrigerator, relinquished it to

her, and she had it out. But she k ept it for 32 days. And after those 32

days we don’t know where the blood sample’s at. And 32

- - she said in

her testimony that she kept it all

- - kept it in her possession, but for 32

days is highly unlikely to believe it was in her possession.

And that’s very significant, because it was the next officer

- - or the

next person in the chain of custody who

- - who found the alleged

cocaine in the blood sample. So I think that during that time we can

- - you know, we don’t know where the sample was and that’s a

compromised sample.20

As to the allegations of ineffective assistance of counsel, Petitioner discussed trial

counsel’s failure to file motions to suppress the results of the testing on his blood sample

and his failure to require the State to prov ide the sample for independent testing.

Petitioner’s theories to suppress the results of the blood test were that the statutory

“implied consent” for taking blood samples was not followed because: Officer Caver did

not have reasonable grounds to believe Petitioner was under the influence of alcohol or

drugs; Petitioner was not in custody or under arrest; and Officer Caver was not the

arresting officer, he was only the investigating officer.

Petitioner testified that trial counsel also rendered i neffective assistance of counsel

because he did not file a motion to dismiss the count of the indictment charging reckless

aggravated assault. Petitioner asserted that the motion would have merit because the

evidence of the distance he drove in the turn l ane was wrong, and there was nothing in

the record that Petitioner acted recklessly or violently or was speeding or swerving.

Petitioner claimed ineffective assistance of counsel by trial counsel’s fail ure to

cross

- examine a paramedic regarding whether cocaine would dilate pupils . Petitioner

testified that his pupils were constricted according to the police officer, and since cocaine

causes pupils to dilate, it would prove he was not intoxicated if a quali fied witness could

testify to this fact.

Petitioner also testified that trial counsel failed to present exculpatory evidence at

trial. Specifically, trial counsel failed to request Officer Caver’s Uniform Traffic Crash

Report to be admitted into evide nce. Petitioner testified that the report stated that

Petitioner appeared normal and there were no contributing actions by him in causing the

wreck. However, even though Petitioner testified that he received a copy of Officer

Caver’s report from trial co unsel, the report was not submitted as evidence at the post

conviction hearing, and Officer Caver was not called as a witness at the post

- conviction

hearing.

Petitioner also testified about some photographs that he claimed were exculpatory

evidence avail able to trial counsel, but not presented at trial. Again, it is best to quote

Petitioner’s testimony to explain his thoughts on why these photographs contained

exculpatory evidence:

You know, and, you know, that

- - the one

- - and

- - and some

pictures of the front end of my vehicle showing me sitting in the

- - if the

turning lane, not over here to the right like they claimed where I’d hit

her, knocked her into

- - she was already in oncoming traffic, it proves

- -21

it

- - it would

- - it would impeach the testimony and the

- - and the story

of the officer of how things happened.

Petitioner testified that trial counsel, in closing arguments to the jury, stated the

“things that Officer Caver talked about pointed to probable cause.” Petitioner asserted

that none of the things Officer Caver testified about “pointed to probable cause.”

Petitioner stated that trial counsel told the jury that Petitioner was “in the turning lane

from the bridge to where the accident happened,” but “it’s nowhere in the record that it

was said that way.” Petitioner testified that trial counsel’s closing argument “made me

look intoxicated or reckless.”

Petitioner testified that trial counsel rendered ineffective assistance of counsel by

failing to investigate in order to pr esent evidence to impeach and challenge the State’s

proof regarding the charge of reckless aggravated assault. In the words of Petitioner,

Well, that’s what I was about before, there is nothing in the record

about me being in the turning lane. I cross ed the bridge, I come up the

hill, I was going to turn left. I got in the turning lane to turn left and I lit

a cigarette; I dropped the cigarette lighter, look back up, this vehicle was

already turning when I looked back up she had stopped; I hit my brak es,

I tried to miss her. The brake

- - the skid marks will show it. That’s also

something that was not shown to the jury, those.

And there’s nothing in the record to prove any reckless act

- - any recklessness. There’s nothing showing that I

- - that I

- - that I had

disregarded any

- - any

- - anybody’s safety by

- - to the wreck. It was

just simply a car wreck.

Petitioner testified that trial counsel failed to present the testimony of an expert

witness to challenge the testimony of the toxicologis t who testified for the State that

cocaine can be detected in the blood for three hours. Petitioner testified of his own

knowledge that cocaine can be detected up to twelve hours, and that cocaine “only keeps

you high for roughly 15 to 20 minutes.”

Peti tioner stated that he is bipolar, manic depressive and ADHD. He testified that

the trial counsel rendered ineffective assistance because he failed to introduce evidence of

these conditions to explain his conduct, nervousness, statements, etc. at the wreck scene

to refute the inference that he was under the influence of cocaine.

Petitioner’s testimony about trial counsel’s advice to withdraw his motion for new

trial was that he was procedurally barred from raising the issues in that motion for new22

trial a fter the State’s appeal was decided. The motion for new trial that was withdrawn

by Petitioner was not presented at the post

- conviction hearing and the issues contained in

it were not specifically stated by Petitioner in his testimony . Petitioner did not indicate

that the procedurally late motion for new trial filed by trial counsel after the first appeal

brought up “some of the issues that I wanted brought up in the appellate brief.”

Petitioner testified that trial counsel rendered ineffective assistance of counsel by

failing to subpoena Ms. Leeman, the driver of the pick

- up truck hit by Petitioner, causing

Ms. Leeman’s vehicle to strike Ms. Mallard’s vehicle. Although Petitioner testified as to

what he thought Ms. Leeman could testify to, he a dmitted that he had never talked to Ms.

Leeman.

Petitioner testified that trial counsel rendered ineffective assistance by not cross

examining Ms. Mallard, the victim in the vehicular assault case. Petitioner

acknowledged that Ms. Mallard testified that she did not remember anything and did not

know anything except that she was in a wreck. Ms. Mallard was not called by Petitioner

to testify at the post

- conviction hearing.

Petitioner testified that his appellate counsel, who represented him in the seco nd

appeal, rendered ineffective assistance of counsel because, as noted in the appellate

court’s opinion, appellate counsel conceded that the issue of insufficient evidence to

sustain the conviction was likely barred by the failure to raise it in the first direct appeal.

Petitioner testified that appellate counsel should have said, “the petitioner [sic] should be

heard due to the ineffective assistance of counsel while [sic] his merits [sic] were not

heard.” Petitioner testified that by just giving up, ap pellate counsel was ineffective.

Petitioner closed out his direct testimony by asserting that trial counsel rendered

ineffective assistance of counsel as shown by all of trial counsel’s errors being considered

cumulatively.

During cross

- examination, Pe titioner testified that after his trial, he had not

received his medications and he was “stressed.” As a result, he filed h is pro se motion

for a new trial. Afterward, in Petitioner’s words, he “got medicated somewhat and knew

that the motion was not nee ded.” Petitioner acknowledged that he caused the wreck

which caused Ms. Mallard to be injured, that the trial court had given him a “fair and

impartial ruling” by granting a sentence of split confinement, and that the motion for new

trial was “not needed. ” Petitioner admitted that it was his request for the motion for new

trial to be withdrawn, and that he was competent and sane when he did so. Petitioner

added that he withdrew the motion “on the behest of my attorney who told me to do so.”

Petitioner a dmitted that when his second motion for new trial, filed after he had been

resentenced as per directions of the appellate court, was heard

, the trial court considered23

whether there was sufficient evidence to support the conviction and ultimately held

again st Petitioner.

Even though the trial court’s order granting post

- conviction relief did not

summarize trial counsel’s testimony, we will summarize that testimony herein. Called by

Petitioner, trial counsel testified that he had been practicing law about forty

- two years at

the time of the post

- conviction hearing. Petitioner first came to see trial counsel in May

2005. Trial counsel stated that he met with Petitioner “a number of times” prior to the

trial in 2010. At the time of the post

- conviction heari ng in 2015, trial counsel could not

recall any details of an offer from the State for a negotiated plea agreement, nor could he

recall the details of discussions with Petitioner on his sentencing range exposure. Trial

counsel recalled that Petitioner had voluntarily agreed to hav e his blood sample drawn.

Trial counsel remembered filing a motion concerning the blood test, and it had been

denied. He did not recall any discussion with Petitioner about filing a motion to dismiss

the aggravated assault count of the indictment.

Trial counsel could not recall the paramedic’s testimony. He also could not recall

any discussion with Petitioner about using exculpatory evidence from “an accident

report.” Trial counsel testified that he did not recall discussing O fficer Caver’s testimony

during closing arguments nor discussing with Petitioner whether to call an expert witness

to impeach the toxicologist who testified for the State.

Trial counsel did not recall having any discussions with Petitioner as to what

iss ues would be addressed in Petitioner’s brief in the first direct appeal. Trial counsel

agreed that strategy

- wise, it was best to just argue against reversing the split

- confinement

sentence and not to address any other issue.

Trial counsel testified that he attempted to locate Ms. Leeman prior to trial, but

could not locate her. Trial counsel felt that he obtained at least one trial continuance

because of the inability to locate Ms. Leeman. When asked why he did not cross

examine the victim, Ms. Mallard , trial counsel testified that it was “a real judgment call.”

Because she had been severely injured, limped to the witness stand, and there was no

certainty on what she might say, trial counsel felt that it was in Petitioner’s best interest

that Ms. Malla rd not be cross

- examined. Trial counsel concluded direct examination by

testifying that he had effectively represented Petitioner pre

- trial, during the trial, and on

the first appeal.

During cross

- examination, trial counsel testified that he challenged the chain of

custody during trial. He also testified that he did not file a motion to suppress the blood

test results on the basis of an improper request by Officer Caver. Trial counsel stated that

there were some field sobriety tests, Petitioner was “wr inging his hands,” his eyes were24

dilated, Petitioner was not handcuffed or arrested, and Petitioner was asked if he would

take a blood test and Petitioner said “yes.”

The proof at the evidentiary hearing concluded after cross

- examination of trial

counsel , without any exhibits entered into evidence.

ANA L YSIS

In a post

- conviction proceeding, the burden is on the p etitioner to prove his factual

allegations for relief by clear and convincing evidence. T.C.A. § 40

- 30

- 110(f); see

Dellinger v. State , 279 S.W. 3d 282, 293

- 94 (Tenn. 2009). On appeal, we are bound by

the trial court’s findings of fact unless we conclude that the evidence in the record

preponderates against those findings. Mobley v. State , 397 S.W.3d 70, 80 (Tenn. 2013).

Additionally, appellate courts generally defer to the post

- conviction court ’ s findings

concerning the credibility of the witnesses, the weight and value to be given their

testimony, and the factual issues raised by the evidence. Id . Because they relate to

mixed questions of law and fact, we review the trial court’s conclusions as to whether

counsel’s performance was deficient and whether that deficiency was prejudicial under a

de novo standard with no presumption of correctness. I d.

In order to prevail on an ineffective assistance of counsel claim, the petitioner

mus t establish that (1) his lawyer’ s performance was deficient and (2) the deficient

performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687

(19 84); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). “[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 [petitioner] makes an insufficient showing of one component.”

Goad v. State , 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland , 466 U.S. at 697). A

petitioner successfully demonstrates deficient performance when the ev idence proves that

his attorney’ s conduct fell below “an objective standard of reasonableness under

prevailing professional norms.” Id. at 369 (citing Strickland , 466 U.S. at 688; Baxter

, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated on ce the petitioner

establishes “ ‘ a reasonable pr obability that, but for counsel’ s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a

probability sufficient to under mine confidence in the outcome.’ ” Id. at 370 (quoting

Strickland , 466 U.S. at 694).

Furthermore, this Court has stated,

It is well settled that when a [p]etitioner in post

- conviction proceedings

asserts that counsel rendered ineffective assistance of counsel by failing25

to call certain witnesses to testify, or by failing to interview certain

witnesses, these witnesses should be called to testify at the post

convictio n hearing; otherwise, [p]etitioner asks the Court to grant relief

based upon mere speculation. Black v. State , 794 S.W.2d 752, 757

(Tenn. 1990).

Terrance Cecil v. State , No. M2009

- 00671

- CCA

- R3

- PC, 2011 WL 4012436

, at *8

(Tenn. Crim. App. Sept. 12, 2011).

The same standard is applicable whenever a petitioner asserts that trial counsel

rendered ineffective assistance of counsel by failing to file and present a pre

- trial motion

to suppress evidence. It is a petitioner’s burden to submit evidence (and not just his

testimony surmising on the merits of a pre

- trial suppression motion) that the suppression

motion would have been granted and that there is a reasonable probability that the trial

proceedings would have concluded differently if trial counsel had pu rsued a motion to

suppress evidence. Id .; citing Vaughn v. State , 202 S.W.3d 106, 120 (Tenn. 2006).

“In essence, the petitioner should incorporate a motion to suppress within the

proof presented at the post

- conviction hearing.” Terrance Cecil

, 2011 WL 4012436, at

*8; See also Joe Travis Northern, Jr. v. State , No. W2016

- 01058

- CCA

- R3

- PC, 2017 WL

1508185 at *8 (Tenn. Crim. App. Apr. 25, 2017); Willie C. Cole v. State , No. M2016

-

00625

- CCA

- R3

- PC, 2017 WL 809943 at *5 (Tenn. Crim. App. Mar. 1, 2017); Timothy

Richard Singleton v. State , No. M2015

- 02319

- CCA

- R3

- PC, 2016 WL 6069231 at *9

(Tenn. Crim. App. Oct. 17, 2016) perm. app. denied (Tenn. Jan. 19, 2017) ; Willie

Gatewood v. State , No. 2015

- 02480

- CCA

- R3

- PC, 2017 W L 696850 at *5

- 6 (Tenn. Crim.

App. Feb. 17, 20 17).

On appeal, the State argues that the post

- conviction court erred by granting relief

to Petitioner because (1) Petitioner failed to present evidence proving prejudice pursuant

to Strickland , and/or failed to present “competent evidence” in support of the grounds for

relief determined by the post

- conviction court. Petitioner argues that the post

- conviction

court did not err. Both parties argue the issue by examining each separate ground for

relief determined by the post

- conviction court.

We will ex amine each separate ground for relief determined by the post

conviction court in the chronological order the grounds are set forth in the post

conviction court’s order. Notwithstanding the post

- conviction court’s designation

FINDINGS OF FACT for items 1 t hrough 15, items 1 through 14 are more like a

procedural history statement of the case from the day of the conduct (wreck) through the

post

- conviction evidentiary hearing.26

It is necessary to point out, because it is crucial to our analysis of this case, that

item 15 states “At the evidentiary hearing, Petitioner testified as follows :” (emphasis

added)

. Sub

- items (a) through (d), with three sub

- parts to 15(c) and twelve sub

- parts to

15(d)

, by the very language used by the post

- conviction court

, are merely a summary of

Petitioner’s testimony. The matters discussed in item 15 are not findings of facts by the

post

- conviction court to support Petitioner’s claim on appeal that the post

- conviction

court properly granted Petitioner relief. Only what is set fort h in items 18 through 21 can

be considered as findings of fact relevant to the issue of ineffective assistance of counsel

. Accordingly, our analysis is limited to a review of items 18 through 21 to determine if

both prejudice and deficient performance occ urred by trial counsel’s actions or inactions,

keeping in mind we must determine whether the evidence at the hearing preponderates

against the post

- conviction court’s factual findings.

Item 18(a)

- The State argues that the post

- conviction court erred by concluding

that trial counsel rendered ineffective assistance of counsel by failing to file a motion to

suppress evidence of the toxicology results of Petitioner’s blood showing that Petitioner

had cocaine in his blood. The post

- conviction court conclude d that under State v.

Ferguson , 2 S.W.3d 912 (Tenn. 1999), because the State’s T.B.I. lab ultimately destroyed

the blood, a suppression motion would have been granted, “ and the indictment would

have been dismissed .” (emphasis added). The State asserts tha t in State v. Leath , 461

S.W.3d 73, 98 (Tenn. Crim. App. 2013) this Court held that the rule in Ferguson does not

apply to blood tests like the one in Petitioner’s case. Whether Leath applies or not, there

is absolutely no evidence in the record that tria l counsel’s inaction resulted in prejudice to

Petitioner. There is no proof of what evidence could have been developed in a pre

- trial

Ferguson hearing. See Black, 794 S.W.2d at 757 ; Terrance Cecil

, 2011 WL 4012436, at

*8 . As noted in the post

- conviction court’s order granting relief, various factors must be

considered. Ferguson , 2 S.W.3d at 917

. Petitioner was not entitled to post

- conviction

relief under item 18(a).

Item 18(b)

- Again, Petitioner did not present proo f of what would have been

developed in a motion to suppress evidence of the results of the toxicology test. The

post

- conviction court made no findings of fact in support of this ground for relief.

Petitioner was not entitled to post

- conviction relief und er item 18(b).

Item 18(c)

- Petitioner did not present Paramedic Hightower at the post

- conviction

evidentiary hearing to testify as to her opinion on the effects of cocaine on a user’s

pupils. Therefore, no prejudice to Petitioner could be established. Black , 794 S.W.2d at

757. Petitioner was not entitled to relief under item 18(c).

Item 18(d)

- For the same failures as above, where Petitioner did not submit the

Traffic Crash Report or call Officer Caver as a witness to explain information in the27

rep ort, it is pure speculation to conclude, as did the post

- conviction court, that “had trial

counsel used the report to impeach the testimony of Officer Caver it would have raised

reasonable doubt that Petitioner acted recklessly or was intoxicated.” Petiti oner was not

entitled to relief in item 18(d) because there is no evidence of prejudice to Petitioner. Id

.

Item 18(e)

- First, the post

- conviction court made no explicit findings of fact in its

order as to the statement(s) made by trial counsel during closing arguments. We note that

in the post

- conviction court’s summary of Petitioner’s testimony, the Court stated only

that Petitioner testified “[t]rial counsel prejudiced the Petitioner with statements to the

jury in counsel’s closing argument by misquoting Officer Caver. ” See item 15(d)v, post

conviction court’s order granting relief. In any event, w e have reviewed tr ial counsel’s

entire closing argument, and found nothing to suggest ineffective assistance of counsel.

Petitioner was not entitled to relief under item 18(e).

Item 18(f)

- The post

- conviction court granted relief on the basis of trial counsel’s

failure to investigate and present evidence to challenge proof of reckless aggravated

assault and to impeach the “State’s statements.” However, the post

- conviction court cited

no facts that existed which trial counsel failed to present. There is absolutely noth ing in

the findings of the post

- conviction court to support granting post

- conviction relief under

item 18(f).

Item 18(g)

- The post

- conviction court erred by granting post

- conviction relief

under item 18(g) on the basis that trial counsel failed to prese nt an expert witness to

impeach the toxicologist called by the State. Petitioner did not present an expert witness

at the evidentiary hearing, and therefore failed to prove prejudice. Black , 794 S.W.2d at

757. Petitioner’s testimony on this precise issu e could not show he was prejudiced

because Petitioner was not qualified as an expert witness on the matter at the evidentiary

hearing.

Items 18(h) and (i)

- Again, the post

- conviction court erred by granting post

conviction relief on the basis of trial c ounsel’s failure to present evidence of Petitioner’s

“bipolar manic depression,” when none of the medical records or testimony of a witness

to interpret the records was presented at the evidentiary hearing. No proof of prejudice to

Petitioner was establis hed. Id . Likewise, it was error to grant post

- conviction relief on

the basis that trial counsel failed to offer an expert witness at trial to testify and explain

how bipolar manic depression affects a person to rebut evidence presented by the State

that Petitioner was intoxicated. No evidence of prejudice was shown. Id.

Item 18(j)

- Petitioner failed to offer into evidence at the evidentiary hearing the

pro se motion for new trial that he withdrew before it could be heard. Petitioner did not

testify at the evidentiary hearing as to any of the grounds that were alleged in his pro se28

motion for new trial. He testified at the evidentiary hearing that he was sane and

competent and wanted the motion withdrawn. The post

- conviction court found in its

orde r that the motion for new trial “was not without merit and should have been heard by

the court as it contained non

- frivolous issues,” but made no finding of what the issues

were that led to the stated conclusion. Petitioner should not have been granted po st

conviction relief under item 18(j) because he failed to establish evidence of prejudice, i d

. and the record contains no facts to support deficient performance by trial counsel in

advising Petitioner to withdraw his pro se motion for new trial.

Item 18(k)

- Assuming that the record establishes that trial counsel rendered

deficient performance by not consulting with Petitioner prior to filing the appellee brief

on behalf of Petitioner in the first direct appeal, prejudice could only be shown if

Petitio ner would have been granted relief because the evidence was insufficient to

support the conviction of vehicular assault. As stated in the discussion on item 18(j),

Petitioner did not prove what issues were in his pro se motion for new trial, and therefore

prejudice cannot be shown because of trial counsel’s failure to raise issues which must be

raised in a motion for new trial for plenary review

. S ee Tenn . R.App. P . 3(e) (“[I]n all

cases tried by a jury, no issue presented for review shall be predicated u pon error in the

admission or exclusion of evidence, jury instructions granted or refused , misconduct of

jurors, parties or counsel, or other action committed or occurring during the trial of the

case, or other ground upon which a new trial is sought, unle ss the same was specifically

stated in a motion for a new trial ; otherwise such issues will be treated as waived.”)

However, a challenge to the sufficiency of the evidence can be raised on appeal

even if no motion for new trial is filed. State v. Boxley

, 76 S.W.3d 381, 390 (Tenn. Crim.

App. 2001 ) (By failing to file a timely motion for new trial Defendant has waived his

right to appeal any of the issues he raised in his motion for new trial other than

sufficiency of the evidence and sentencing)

. We have reviewed the record of the trial

proceedings and agree with the State that there was sufficient evidence presented, taken

in the light most favorable to the State, to support the conviction for vehicular assault.

That conviction is the only one presently existing because the conviction for reckless

aggravated assault was merged with the vehicular assault conviction, and that is now a

final judgment.

When an accused challenges the sufficiency of the evidence, this court must

review the record to determine if the evidence adduced during the trial was sufficient “to

support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R.

App. P. 13(e). The appellate court determines “whether, after viewing the evidence in the

light most favora ble to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443

U.S. 307, 319 (1979). In determining the sufficiency of the evidence, this court does not29

reweig h or reevaluate the evidence. State v. Goodwin , 143 S.W.3d 771, 775 (Tenn.

2004). Instead, this court affords the State the strongest legitimate view of the evidence

contained in the record, as well as all reasonable and legitimate inferences that may be

drawn from that evidence. State v. Elkins , 102 S.W.3d 578, 581 (Tenn. 2003). “A guilty

verdict by the jury, approved by the trial court, accredits the testimony of the witnesses

for the State and resolves all confli cts in favor of the prosecution’ s theo ry.” State v.

Bland , 958 S.W.2d 651, 659 (Tenn. 1997). The conviction replaces the presumption of

innocence with a presumption of guilt, and the accused has the burden of illustrating why

the evidence is insufficient to support the verdict returned by th e trier of fact. State v.

Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

This court applies the same standard of review regardless of whether the

conviction was predicated on direct or circumstantial evidence. State v. Dorantes , 331

S.W.3d 370, 381 (Tenn. 2011). “Circumstantial evidence alone is sufficient to support a

conviction, and the circumstantial evidence need not exclude every reasonable hypothesis

except that of guilt.” State v. Wagner , 382 S.W.3d 289, 297 (Tenn. 2012).

“ A person commits vehicular assault who, as the pro ximate result of the person’ s

intoxication as set forth in § 55

- 10

- 401, recklessly causes serious bodily injury to another

person by the operation of a motor vehicle.” T

. C

. A

. § 39

- 13

- 106 (2003)

. A person

c ommits reckless aggravated assault when he or she “[r]ecklessly commits an assault as

defined in § 39

- 13

- 101(a)(1), and the assault : (i) [r]esults in serious bodily injury to

another; (ii) [r]esults in the death of another; (iii) [i]nvolved the use or disp lay of a deadly

weapon; . . . ” T.C.A. § 39

- 13

- 102 (a)(1)(B). Tennessee Code Annotated section 39

- 13

- 101(a)(1) defines assault as when a person “[i]ntentionally, knowingly or recklessly

causes bodily injury to another.”

As noted above, when determining the legal sufficiency of the evidence to support

a conviction, the proof introduced at trial must be viewed in the light most favorable to

the State. It cannot be viewed in the light most favorable to a defendant . A defendant’s

different conclusions and opinion s of what the evidence showed is for consideration by

the trier of fact in the trial . Such opinions by a defendant are not a consideration for the

appellate court.

After reviewing the evidence submitted at the trial, taken in the light most

favor able to the State, we conclude that the evidence was sufficient to sustain the

conviction of vehicular assault and the conviction of reckless aggravated assault, which

was ultimately merged with vehicular assault.

Officer Caver’s testimony, including exh ibits admitted into evidence, showed that

Petitioner drove his vehicle for approximately one

- half mile in a turn lane prior to30

striking Ms. Leeman’s pick

- up truck in its rear end. Skid marks from Petitioner’s tires

were less than ten feet long, indicating that Petitioner did not apply his brakes until just

before the collision. Petitioner hit Ms. Leeman’s truck with enough force to cause it to

go airborne and land directly in front of Ms. Mallard’s van, which was traveling in the

oncoming lane of traffic. Ms. Mallard suffered serious bodily injuries: a complete

fracture of her left femur, a broken ankle, and a fractured hip. At the time of the trial, she

had had four surgeries as a result of her injuries, and would have to have hip replacement

surgery i n the future. A bone had been “sawed” resulting in her left leg being two inches

shorter than the right leg. She was unable to walk for one and one

- half years after the

wreck.

A witness to the wreck talked with Petitioner at the scene. Petitioner di d not

understand what had happened. Petitioner appeared “like he was in another world” and

looked like “he was on something.”

Officer Caver testified that at the scene Petitioner appeared “excited,” nervous,

and intoxicated. Petitioner asked Officer Caver multiple times: “Are we done?”; “Are

we done yet?”; “Can I go?”. During the times that Officer Caver was directly

communicating with Petitioner, Petitioner was constantly “balling” his hands up and

making fists. Petitioner could not find his vehic le registration or a document showing

that he had insurance and went to the trunk of his car to search for these documents. The

trunk contained what appeared to Officer Caver to be garbage : empty food bags, old

papers, and discolored papers. Petitioner s earched the trunk for a while without having

found his vehicle registration or proof of insurance and looked back and asked Officer

Caver

, “Are we done yet, can I go?” Petitioner never found the vehicle registration or

proof of insurance.

Officer Cav er could not detect alcohol on Petitioner, but

, suspicious that

Petitioner’s conduct meant “there was something else going on,” he had Petitioner

perform field sobriety tests. In the walk and turn test, Petitioner exhibited two “clues” :

h e could not main tain his balance during the instruction stage, and he did not make the

turn as he had been instructed and had to step to the side to maintain his balance in the

turn. Petitioner also counted quickly in the walking portion.

In the one

- leg stand test, P etitioner did not count as instruct ed , i.e., “one thousand

one, one thousand two,” etc., but instead counted “1, 2, 3, 4,” etc. This was also a “clue.”

Officer Caver testified that he often saw that people who count fast during the field

sobriety tests a re under the influence of a stimulant. Petitioner agreed to submit to a

blood test. After being analyzed, the blood was found to contain cocaine. The forensic

toxicologist stated that cocaine has a short half

- life in blood and that to detect it in the

b lood meant that the cocaine was ingested within three hours. The wreck was at31

approximately 3:00 p.m., and the blood sample was taken from Petitioner at

approximately 5:00 p.m., meaning that Petitioner ingested the cocaine within one hour

before the wreck . The jury could reasonably conclude and find that Petitioner’s rather

bizarre behavior after the wreck, his driving in a turn lane for one

- half mile, and his

failure to realize he was running up on Ms. Leeman’s vehicle until he was less than ten

feet awa y

, was indicative of the fact he was under the influence of cocaine when he

caused the major traffic collision.

The evidence clearly established Petitioner’s guilt of both offenses, and the post

conviction court erred by granting relief to Petitioner bas ed upon trial counsel’s failure to

challenge sufficiency of the evidence in the first appeal.

Item 21

- The post

- conviction court erred by granting post

- conviction relief

because of “trial counsel’s errors” in the “cumulative error light.” We have exami ned the

allegations of ineffective assistance of counsel and found that Petitioner failed to submit

evidence of prejudice. Without any proof of prejudice, there is no “cumulative” error by

trial counsel that can entitle Petitioner to relief. Petitioner w as not entitled to post

conviction relief based on “cumulative errors” of trial counsel.

CONCLUSION

Having done an exhaustive review of the post

- conviction record and the trial

record, we conclude that the post

- conviction court erred by granting post

- con viction

relief. Accordingly, the judgment of the post

- conviction court is reversed

, and the

judgment of conviction is reinstated.

____________________ ___________________ THOMAS T. WOODALL, PRESIDING JUDGE