### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Jun e 21, 200 5

JEFF REY WAY NE HAITH COT E v. S TAT E OF TEN NES SEE

Appeal f romthe Circ uit Court for Bedf ord County No. 9934, 9935 Lee R ussell, Ju dge

No. M2004- 02196-CCA -R3-P C - F iled Septem ber 2, 2005

The pe titioner, J eff

rey Way n e Ha i t hcote, a

ppeals the tria l court' s denial of post-c onviction relief. The sing le issue pre sented for revie w is w hether the petitioner was denied the ef fec tive assistance of counse l. The judg ment is affirme d.

Tenn. R. App . P . 3; Judgme nts of the Trial Court Affi rm ed

G AR Y R. W ADE , P.J ., delivere d the opinion of th e co u rt , i n which J OS EP H M. T I PTON a ndJ.C. M C L IN , J J ., joined.

Andy Myrick Jr., Attorney , Fa y etteville, Tenne ssee f or the a ppellant, J eff

rey Way ne Ha ithcote.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l & Re po rt e r; B e njamin A. B a ll, As sis ta nt A tto rn e y Ge ne ra l; and Micha el D. Randles, Assistant District Attorney , for the a ppellee, State of

Tenne ssee.

OP IN ION

On Ma y 8, 20 03 , pol ice of

fi c e rs ob se rv e d th e pe tit ion e r dri ve a truc k a lon g a

le vy in Shelby ville, maneuve r up an embankment, and st op in a par king a rea near CityHall. When Offic er Trac y Nelson investig ated, she smelled alcohol emanating from the inside of t he truck and saw a ca n of bee r betwe en the pe titioner' s leg s. As she examine d t h e petitioner' s drivers lice nse, two other of fi c e rs arrive d a t th e sc e ne . O ne of the off ice rs saw that th e pa sse ng e r i n th e ve hic le wa s in possession of a roc k of coc aine. At that point, t h e p etitioner sped a way in his vehicle, striking Offic er Nelson as he did so. As a result of the incident, the petitioner was convicted of felony

e va din g arr e st a ndre c kle ss e ndangerme nt andhere c e ive d e ig ht andfo ur y e ar s e nte nc e s, respe ctively . A charg e of violation of t he open container law re sulted in an ac quittal. The petitioner also had pending an unrela ted charg e of esca pe wherein he was re prese nted by the same c ounsel and a fourth char g e, whe rein he had sepa rate counsel. The fourth cha rg e wa s ultim at el ydismiss ed by
ag ree ment. Pursuant to the plea a g ree ment on the esc ape c harg e, all pending char g es we re r esolved at one time. The petitioner was sentenc ed to a consec utive term of four y ear s for the esc ape. T he eff ective te rm for a ll thre e sentenc es was, there fore
, six teen y ear s. As a part of the ag ree ment, the-2-

pe tit ion e r w a ive d h is rig ht t o a pp e a l th e c on vic tio ns fo r e va din g arr e st a ndre c kle ss e nd a ng e rm e nt.

On Ma y 17 , 200 4, the pe tit ion e r fi le d this pe tit ion fo r p os t- c on vic tio n r e lie f, c ha lle ng ing his convictions for r eckle ss endang erme n t an d evading arr est on the g rounds that he ha d been de nied the e ff e c tiv e a ssi sta nc e of c ou ns e l. Th e pe tit ion e r sp e c if ic a lly a lle g e d that his tr ia l c ou ns e l, R us se ll L eonar d, was inef

fec tive for ha ving f

ailed to ac cept a

mistrial offer ed by

the trial judg e, for

having failed to a ppeal, for ha ving f

ailed to ade quately

investigate and pr epar e for trial, and for

having failed
to uti lize a s a de fe ns e that he did no t " ma nif e st" his ve hic le a s a

de a dly we apo n. Th e pe tit ion e r a lso contende d that his trial counsel was ineffe ctive for having failed to reque st rec usal of t he trial judg e, for ha ving failed to revie w transc ripts of the pre liminary hearing prior to trial, and for having failed
to s ub po e na

a po te nti a l w itn e ss, Jame s Ri c ha rd so n. He a lso a lle g e d that hi s tria l c ou ns e l f a ile d to d e t e r m i n e o r

r a i s e a s a

d e f e n s e w h e t h e r

t h e p e t i t i o n e r

o p e r a t e d h i s v e h i c l e o n a " s tr e e t , h i g h w a y, alley , or roa d," f

ailed to interview witnesses, failed to adequately investigate the police vide otapes of the inc i d en t , failed to objec t to the testimonyof City Manag er, Ed Craig, f

ailed to pursue discovery from the state, and failed to de termine the petitioner' s proper sentenc ing r ang e. I n a sec ond
pe tit ion fi le d th e sa me da y , the pe tit ion e r a lle g e d th a t hi s c ou ns e l ha d a lso be e n in e ff e c tiv e a s to his
g uil ty ple a to fe lon y e sc ape e nte re d on Janu ary 26
, 20 04

. He a sse rt e d that his cou ns el h ad ag a in failed to de termine his appr opriate r ang e for sentenc ing pur

poses, re sulting in a Rang e I I I sentenc e as a pe rsistent offe nder.

At the outset of the e videntiary hearing, the petitioner, who ha d filed a motion for the rec usal of the post-c onviction judge who had a lso presided ove r the trial, withdre w the re quest

. He then testified that he had employ ed, rathe r than appointed, counsel on eac h of the thre e cha rg es for which he wa s convicted. H e stated tha t he was imprisoned in N ashville befor e trial and his trial counse l was in Winchester, a drive of an hour and fifteen mi nutes, and that their separation by distance w as

a n o bs ta c le to pr epar ati on s. Th e pe tit ion e r c omp la ine d th a t hi s tria l c ou ns e l me t w ith him in Na sh vil le on ly

on c e prior

to tr ia l for

abo ut t wo ho ur s a ndthe n o nly on c e a t th e B e df

or d Co un ty

Jail for less than a n hour on the nig ht before the trial. He believed that his trial co unsel should have
prese nted or further de veloped se vera l d ef en s es , including the claims that he ha d not driven on a public street or

highw ay , that he had not use d or " manifested" his vehicle a s a we apon, and that he had drive n away

from the of

fice rs out of necessity . As to the last point, he explained that he fe are d that his passeng er, w ho was a rmed with a gun, mi g ht become violent with the office rs and that he d ro v e aw ay i n o rd er t o av o i d a co n fr o n t at i o n

. T h e p et i t i o n erac k n o wl ed ged t h at t h e p ri m ar y s tra t egy of the de fense was to utiliz e the de fense of necessity but complained that ther e should have been alternative defe nses and tha t t h e failure of his trial counsel to ade quately prepa re limited the eff ectivene ss of the strate g y

chosen.

T h e p e t i t i o n e r

a c k n o w l e d g e d t h a th e h a d p r i o r c o n v i c t i o n s , s p e c i f

i c a l l y r o b b e r y an d b u r g l a r y, that could have been used for impeachment purposes and that, in conseque nce, he had chosen not
to t e sti fy . H e c omp la ine d, ho we ve r, that hi s tria l c ou ns e l sh ou ld h a ve su bp oen a e d h is b a il b o n d s m a n , J a m e s R i c h ar d s o n , t o b e a w i t n e s s a t tr i a l i n o r d e r t o e s t ab l i s h t h e d e f e n s e o f n e c e s s i t y. He e x plained that after his arr est, he had informed Ri char dson of what had happe ned and unde rstood that Richardson, de spite any rules against hear say , might be able to give a statement bec ause he was-3-

an " office r of the c ourt." The petitioner claimed that he had told Richa rdson that he fled fr om the

arr esting office rs in order to avoid trouble bec ause the passeng er in his ca r had a g un.
The pe titioner, wh o wa s repr esente d by the public def

ender ' s office at the pre liminary hearing, was unaware as t o whether there was a transcript of t he hearing and complained that his trial counsel did not revie w the audiotape s in advanc e of the trial. He pointed out that ha d he re viewed the tapes, his tria l c ounsel would have had the benef it of knowing in a dvance the testimony of the office rs, which, he contende d, was in conflict with the testimony provided by

the same of

fice rs at tr ia l.

Th e pe tit ion e r al so c on te nd e d tha t his tri a l cou ns e l had faile d to do suf fi c ie nt re se arc h on h is prior criminal recor d and that he had been errone ously classified as a R ang e I I I , persistent off ender

. He insisted that his J une 29, 1989, Fr anklin Countyconvictions for r obbery , attempted burg lary , and larc e ny a nd his June 30
, 19 89
, B e df or d Cou nty c on vic tio ns fo r g rand larc e ny a nd a g g ra vate d a ssa ult should have be en counte d as a singl e o ff en se bec ause the y

took place w ithin a twenty -four hour period on Oc tober 19 and October 20, 1988. The pe titioner also complained that his trial counse l failed to e x amine a videotape that Offic er Tony Colli ns had taken from his police cruiser a nd failed to p ur su e dis c ov e ry

a ft e r a writt e n r e qu e st f

or the state to p ro du c e ma te ri a ls.

As to the "ma nifestation" defe nse, the petitioner testified that he "ne ver pointed [hi s] t ruck toward the [female office r]" in the sense of using the vehicle as a de adly wea pon. He c laimed that he wa s merel yusing his truc k as a me ans of e scape . The pe titioner insist ed that his trial counse l

s h o u l d h a v e " a tl e a s tb r o u g h t[ t h i s d e f e n s e ] t o t h e a t t e n t i o n " o f

t h e j u r y.
The pe titioner also testified that his counsel had informed the jury during closing arg ument that he de c ide d th a t th e pe tit ion e r s ho uldno t te sti fy . H e re c a lle d that a ft e rw a rd
, the tr ia l ju dg e , w hil e out of the pre sence of the jury
, ruled that the arg ument was improper and then of

fer ed to dec lare a

m i s tri al o r, i n t h e al t er n at i v e, re o p en t h e pr o o f an d p er m i tt h e p et i t i o n er t o t es t i fy

. T h e t ri al j u d ge also g ave the petitioner the option of proc eeding with the trial. The pe titioner stated that he confirme d during a re cess that he had chosen on his ow n acc ord not to testify at the trial a nd elec ted
ag ainst the ac cepta nce of

a mistrial, explaining t hat hi s trial counsel be lieved that he ha d a strong issue for a ppeal be cause the t rial court had re fused to cha rg e the de fense of nec essity . The pe titioner expressed his understanding that he would have re ceive d a new trial had he chosen to a cce pt the of fe r o f m ist

ri a l.

Russell L eonar d, who was e mploy ed as trial counsel only wee ks befor e the tria l, testified that he re prese nted the petitioner on the evading arr est and re ckless endang erme nt char g es. He stated that the petitioner ha d initiallystated his desire f or " a packa g e deal" within a four to six y ear rang e and had instructed that he wanted to g o to trial if that was not a vailable. Trial counsel testified tha t the state had of

fer ed nothing less than a twe lve y ear sentenc e p artly

beca use of the pe titioner' s prior convictions from 1988. Trial counsel de scribed the defe nse theory as primarily one of nece ssity , that is, that th e pe tit ion e r h a d to le a ve the sc e ne in o rd e r t o p re ve nt a vio le nt c on fr on ta tio n be tw e e n h is-4-

arme d passeng er a nd the police. It was his position, however, that he also raise d the " manifestation" defe nse, whe rein the pe titioner had not intended to enda ng er the office r with his truck.

Trial counse l stated that he a nd the petitioner a g ree d that beca use o f the pe titioner' s prior

re c or d h e c ou ld n ot t e sti fy abo ut the neces si ty defe ns e , w hic h h e be lie ve d to be the mos t vi able alternative. I t was his purpose to try to prove the de fense throug h Chris Hill, t he passe ng er in the vehicle. Counsel explained that the petitioner and his f amily wer e unable to a ssist hi m in contacting Hill prior to trial and despite his e fforts to interview him in adva nce, he first saw him on the date the petitioner wa s tried. At trial, Hill acknow ledg ed that he ha d a g un in his possession at the time the police ar rived a nd that he first display ed the we apon to the petitioner whe n they wer e stopped by

the police.

Trial counse l acknow ledg ed that he had made a misstatement to the jury

reg arding whether it w a s h is d e c isi on or

the pe tit ion e r' s d e c isi on a s to wh e the r t o te sti fy . H e e xpla ine d th a t he sh ou ld have stated that the def

endant ha d "cho s en n o t t o t estify upon the advice of counse l" a nd had not done so beca

use of nervousne ss and concern about t he potential outcome of the trial. Tria l counsel testified that Hill " was not e x actly what I thought was the most c onvincing of witnesses

. . . and

. .

. I fo re s aw t h at we wo u l d p ro b ab l y b e l o o k i n g at a c o n v i ct i o n

. " H e re ca l l ed t h at wh en t h e t ri al j u d ge of fe re d to de c lare a

mis tr ia l, h e dis c us se d th re e op tio ns wi th the pe tit ion e r: (1 ) ac c e pt the mis tr ia l; (2) r eopen the proof; and ( 3) g o on wi t h t h e t ri al. Trial c ounsel stated that he sug g ested that the
pe tit ion e r p ro c e e d w ith the tr ia l eve n thou g h a con vic tio n wa s li ke ly be c a us e the re wa s a

re a so na ble chanc e of succe ss on appea l as t o the court's refusa l to instruct on nece ssity . He e x plained that the proof wa s strong , that another trial would not c hang e the fac ts, and that the testimony of Richar dson, who the petitioner de sired as a witness, was simply not admissible beca use i t did not fall within any
p e r m i s s i b l e e x c e p t i o n t o ru l e a g a i n s th e ar s a y.

Trial counsel also testified that he had told the petitioner that he would repr esent h i m on appea l " [b] eca

use I thought the nece ssity char g e wa s something that . . . should have been c harg ed." He ex plain e d th a t h e b e li e v e d th e e rr o r mi g h t q u a li f

y th e p e ti ti o n e r

f o r a n e w tria l. T r ia l c o u n s el the n s ta te d that afte r the tr ia l, the pe tit ion e r w ro te a le tte r t o th e tr ia l ju dg e " c ha lle ng ing my competenc y ," w hich trial counse l considere d as an e ffort to terminate his employ ment. Trial counse l

rec alled that ther e wa s a hea ring on the letter at the same time as the plea submissi on hearing on the

e sc ape c ha

rg e a nd that a ft e r a " lon g c on ve rs a tio n, " a n a g re e me nt w a s r e a c he d o n a ll p e nd ing ma tte rs

. Trial counse l pointed out that the petitioner had a nother law y er " independe nt of [his ] represe ntation" on a fo u rt h char g e, which w as dismissed. The ag ree ment addre ssed the leng th and ra ng e of the
sentenc es and the manner of ser vice. Trial counsel c onfirmed that ther e wa s a wa iver of the rig ht to appea l on the evading arr est and re ckless endang erme nt convictions as part of that compre hensive ple a a g re e me nt:

[B ]e tw e e n th e th r e e o f u s a n d o u r c o n v e r s a ti o n s w ith [t h e a s s is tan t d is tric t att o r n e y ], in w h i c h M r

. H a i t h c o t e w a s e xtr e m e l y a c t i v e a n d e xtr e m e l y

v o c a l
, M r

. H a i t h c ote made a conscious dec ision to acce pt the plea ag ree ment [as to leng th and rang e] that

was e ventually

made.-5- ***

I thi nk the re c or d wi ll re fl e c t that the jud g e a sk e d Mr

. Ha ith c ote if he wa s d oin g thi s fre ely and voluntarily . I f he w as under any duress, and Mr. Haithcote indicated that h e k n ew ex ac t l y

wh at h e w as d o i n g.
As to prepa

rations for the trial, trial counse l contended that "we went into every thing Mr. Haithcote w anted to discuss." He state d that he had me t with the petitioner for two hour s at the
priso n a ndon e ho ur

a t th e jail b e fo re the tr ia l a nde xpla ine d th a t th e " on ly thi ng that I

ne ve r a c tua lly ha d a n o pp ortun ity to go ov er" wi th the pe tit ion e r w e re tw o v ide os that w e re " br ou g ht t o my at t en t i o n rig ht before trial." He state d, howeve r, that he did view the videos bef ore tria l and determined that they

rea lly contained no e vidence helpful to the def ense. Trial counsel further stated

a s f oll ow s:

I d i s c u s s e d w i t h M r

. H a i t h c o t e e i t h e rv i a p h o n e o r t h r e e

- w a y w i t h S h e rr [ y] [Haithcote], or . . . by

letter or at our individual appea ranc es, just about every thing that possiblycould have been disc ussed conc erning this case. He ve ry meticulously

wrote out not only

his theory

of def ense, a nd what he contends took pl ac e, b ut he has a lso provided me with . . . [c]ode sections on

e ve rythi ng that c ould po ss ib ly ha ve c ome up du ri ng the c ou rs e of a ll f ou r o f the se indictments. . . . An d I ha ve re a d e ve ry on e of th os e . I ' ve hig hli g hte d s ome of the m th a t I thought we re of

particula r intere st. . . .

Trial co u n s el conce ded that he w ould have be en able to communicate more with the petitioner had he been inc arc erated in the local jail rather than in prison. He did not, however
, believe that the outcome of the trial would have been differ ent had they met more ofte n, pointing out that th e de fe ns e ha d in su rm ou nta ble fa c tua l ob sta c le s.

Trial counse l acknowle dg ed that he w as unable to acquire the audiotape s of the pre liminary hearing. H e did, howeve r, cla im to have had a leng thy conver sation with the petitioner as to wha t too k p la c e du ri ng the pr e lim ina ry he ari ng a ndit w a s h is o pin ion that th e te stimo ny of th e state wi tne sse s d id n ot c ha ng e fr om tha t he ari ng to the tr ia l.

Trial counse l also stated that he ha d filed pre -trial dis co very motions wherein he r ece ived

answe rs from the sta te listing th e ev i dence the state intende d to produce at trial and a lso the petitioner' s prior criminal recor d. He also claimed that he had persona lly investigated the sce ne of the crime. Trial counse l was not able to state w ith cert ai n t y wh ether he had spoke n with Office r Nelson prior to the tria l and appa rently d id not talk to any

of the other

witnesses who testified f or the state . It w a s tria l c ou ns e l' s o pin ion that the vid e o sh ow n a t tr ia l wa s n ot h e lpf ul t o th e state in that it did n o t s how the petitioner' s vehicle a ctually strike the off

icer . He implied that this might ha ve a ssi ste d in the " ma nif e statio n" de fe ns e . T ri a l c ou ns e l st a te d th a t th e vid e o d id n ot i nd ic a te-6-

whether the petitioner' s passeng er, Chris Hill, wa s in possession of either c ocaine or a w eapon. Acc ording to trial counsel, the probative value of the videotape was that the petitioner' s vehicle w as drive n a way

fr om the po lic e of

fi c e r. A s e c on d v ide o r e vie we d b y tr ia l c ou ns e l me re ly

re c or de d s ome of the conver sation betwee n the police as they beg an pursuit of the pe titioner' s vehicle. Trial counsel

asserted that throug h one of the state witnesses he was a ble to elicit testimony that the petitioner wa s not seen driving on a public road during the course of his e scape

. Whil e trial c ounsel hoped the jury might see this testim ony

as a potential defe nse, the transcr ipt of the trial established that all of the other state w itnesses did place the petitioner' s vehicle on a public road.

At the conc lusion o f t h e evide ntiary hearing, the post-conviction court filed an e x tensive

me mor a nd um o pin ion de ny ing re lie f andho ldi ng , in su mma ry , a s f oll ow s: (1) On May

8, 2003, the petitioner " dro v e cross-country " a long an earthen embankment into t h e p ar king a rea for the City

Hall in Shelby ville acr oss from the Be dford County

Courthouse. As an of

fice r appr oache d the vehicle , a passe ng er appea red to ha ve coc aine in his hand so the pe titioner sped from the sce ne, striking an off icer as he did so. (2 ) D ur ing c los ing arg ume nt, tr ia l c ou ns e l r e pr e se nte d to the jury th at it was his d ec i s i o n for the pe titioner not to testifyat trial. This statement re sulted in the trial court off ering three al t ernatives: (a) mistrial, (b) a re opening of the proof with the
pe tit ion e r al low e d to tes tif y , or (c ) a co nti nu a tio n of the tr ia l. T he pe tit ion e r c ho se the latter c ourse. (3 ) L a te r, a t a

ple a a c c e pta nc e he ari ng , th e peti ti on e r kno wi ng ly a ndvo lun tari ly waived his rig ht to appeal the e vading arr est and re ckless endang erme nt convictions
as a pa rt of a ple a ag ree ment involving settlement of another c ase. (4) The amount of time trial counse l spent in prepar ation of t he ca se wa s sufficient
g ive n th e si mp li city

of the fa c ts. Th e re wa s in a de qu a te pr oo f that ha d mo re tim e be e n s pe nt i n p re pa

ratio n, the re su lts wo uldha ve be e n d if fe re nt. (5) The audiotape of

the pr el i m i n ary

hearing w as blank a nd there was insuffic ient proof that inconsistenc ies betwe en the testimony of the witnesse s at the trial and the
pr e lim ina ry he ari ng wo uldha ve be e n h e lpf ul f or imp e a c hme nt p ur

po se s. (6) Trial counsel had revie wed police videotape prior t o trial and was not ineffe ctive for ha ving f

ailed to ade quately

investigate in that reg ard. (7) Eve n though trial counsel had failed to interview the witnesses for the state, no prejudice resulted to the pe titioner because the witnesse s were almost e xc lu s iv e ly la w enfor ceme nt office rs whose te stimony was in no way helpful to the def

ense, w ith the

e xce pti on of

a sin g le of fi c e r w ho se te sti mon y

that th e pe tit ion e r h a d n ot dri ve n o nto the stree t before driving back dow n the embankment was in conflict with the other

o f f i c e r s ' t e s t i m o n y. (8) Trial cou n s el was not inef fec tive for ha ving f

ailed to discover

exculpatory evidenc e bec ause none was in the possession of the sta te. (9 ) T ri a l c ou ns e l a de qu a te ly inv e sti g a te d th e sc e ne of the inc ide nt. (10) The re w as no basis to sustain a motion for the re cusal of the trial judg e.-7-

(11) While it was unclea

r what the petit ioner meant by the " manifestation" defe nse, there was inade quate pr oof to establish that trial cou n s el h ad bee n ineffe ctive for failu re to p ur su e oth e r d e fe ns e s. (1 2) Tria l c ou ns e l w a s n ot i ne ff e c tiv e fo r f

a ili ng to cal l Jam e s Ri c ha rd so n a s a d e f e n s e w i t n e s s b e c a u s e h i s t e s t i m o n y w o u l d h a v e b e e n i n a d m i s s ab l e h e ar s a y. (13) B eca use the objec tion would not have bee n sustained, trial counsel was not ineffe ctive for having failed to object to the t estimony of S helby ville Cit y Manag er, EdCr a ig , w ho te sti fi e d to the c on te nt of a vid e ota pe ma de by a

c a me ra mou nte d in a patr ol car

. (14) Trial counsel wa s not ineffe ctive for having failed to a dvise his client to acc ept the offe r of mistrial be cause the petitioner, had he elec ted to te stify
, could have be en impeache d by

his prior criminal re cord a nd beca use the state' s proof would not have be e n w e ake r i n th e e ve nt o f a ne w t ri a l. (1 5) Tria l c ou ns e l w a s n ot i ne ff e c tiv e fo r h a vin g faile d to pu rs ue a n a pp e a l be c a us e the petitioner knowing ly

and voluntarily

waived his right to appe al by the ac cepta nce of the ple a a g re e me nt. (1 6) B e c a us e the pe titio ner had nin e prior fe lon y c on vic tio ns , h e wa s p ro pe rl y classified a s Rang e I I I rathe r t han R ang e I I for purposes of sentencing and, more over, the petitioner fa iled to establish at t he evidentiary hearing that the three convictions arising on October 19, 1988, and the three convictions arising on October 20, 1988,

wer e within twenty -four

hours of one an o t h er and were pa rt of the sa me cour se of conduct; ther efor e, the petitioner di d not establish at the evidentiary hearing that he

wa s p re jud ic e d b y

a ny a c tio ns on the pa

rt of his tr ia l c ou ns e l. Furthe r, pu rs ua nt t o the plea a g ree ment, the state c onsented to le ss tha n the maxi mum se ntence s and the petitioner knowing ly

and voluntarily

acc epted the Ra ng e I I I

classification. As f

urther indication that the plea w as knowing and voluntary befor e ac ceptance of

the plea
ag ree ment, the petitioner met with ea ch of his two attorney s and the a ssistant dist rict

a tto rn e y fo r m or e tha n tw o h ou rs

.

I n a sepa rate order , the post-convicti o n co u rt denied r elief on a post-conviction petition wher ein t he petiti oner a lleg ed that his trial counse l had bee n ineffe ctive in the esc ape c ase in whic h he ha d en t er ed a guilty

plea a nd rec eived a

Rang e I I I , four- y ear

sentenc e. As in the fir st case, the
pe tit ion e r ha d a lle g e d that his tr ia l c ou ns e l w a s in e ff e c tiv e fo r h a vin g faile d to de mon str a te that hi s convictions arising out of incidents on Octobe r 19 and O ctober 20, 1988, should have be en re duced in numbe r be c a us e the y we re pa rt of the sa me c ou rs e of

c on du c t. T he po st- c on vic tio n c ou rt , w hil e acknow ledg ing the re w as a f actua l dispute betwee n the state and the pe titioner befor e the e ntry of the ple a , d e te rm ine d th a t th e pe tit ion e r h a d kno wi ng ly and volun tari ly e nte re d a ple a of g uil ty to fe l o n y es ca p e a n d h ad re ce i v ed a se n t en ce o f fo u r y ea rs , l es s t h an t h e m ax i m u mwi t h i n t h e R an ge I I I classification.

I n th is a pp e a l, the pe tit ion e r a

rg ue s th a t hi s tria l c ou ns e l w a s ine ff e c tiv e fo r ha vin g faile d to adequately

prese nt the nece ssitydefe nse at trial, ineffec tive for having failed to acc ept the off er of mis tr ia l, i ne ff

e c tiv e fo r h a vin g fa ile d to a de qu a te ly pr e pa re fo r t ri a l, ine ff e c tiv e fo r n ot s uf

fi c ie ntl y-8-

pursuing the " manifestation def ense," and inef

fec tive for having f

ailed to establish that the petitioner was less than a

Rang e I I I
, p er s i s t en t o ff ender based upon his prior c riminal rec ord. The sta te, of

c ou rs e , d isa g re e s.
When a petitioner see ks post-conviction relief on the ba s i s o f i n eff

ective a ssistance of

co u n s el
, h e m u s tfi rs tes t ab l i s h t h at t h e s er v i ce s re n d er ed o r t h e ad v i ce gi v en we re b el o w " t h e r an ge of compe tence demande d of attorne y s in criminal case s." B axter v. Rose
, 5 2 3 S.W .2d 930, 936 (Tenn. 197 5 ). Second, he must show that the de ficienc ies " actua lly had an a dverse eff

ect on the de fe ns e ." Str ic kla ndv. Was hin g ton , 4 66 U. S. 66 8, 69 3 (1 98 4)

. Th e e rr or mus t be so se ri ou s a s to rende r an unr eliable r esult. I d. at 687. It is not necessary , howeve r, t hat absent the def iciency , the tri al wo u l d have r esulted in an a cquittal. I d. at 695. Should the petitioner fail to establish either fa c tor , h e is n ot e nti tle d to re lie f. Ou r s up re me c ou rt de sc ri be d th e sta nd ardof re vie w a s f

oll ow s:

Be cause a petitioner must establish both prong s of the test, a failure to prove either de ficienc y

or pre judice provide s a sufficient basis to deny relief on the ineffe ctive assistanc e cla im. I ndeed, a court ne ed not addr ess the components in any particula r orde r or even addre ss both if the [petit ioner] ma kes an insuffic ient showing of on e c omp on e nt.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffe ctive assist ance of counsel, the petitioner is not entitled to the benef it of hindsight, may

not second-g uess a r easona bly based tria l strateg y , and cannot criticize a sound, but

unsucce ssful, tactica l decision made during the course of the proc eeding s

. Adkins v. State, 911 S.W. 2d33 4, 34 7 ( Te nn . Crim. Ap p. 19 94 ). Suc h d e fe re nc e to the ta c tic a l de c isi on s o f co un se l, howeve r, applies only

if the choic es ar e made afte r ade quate pr epar ation fo r t h e ca s e. Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.

Cla ims of ine ff e c tiv e a ssi sta nc e of

c ou ns e l ar e re g ard e d a s mi xedqu e sti on s o f l a w a ndfa c t. State v. Honey cutt, 54 S.W .3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999). When revie wing the applica t i o n o f l aw to the post-c onviction court' s fac tual finding s, our revie w is de novo, and the post-conviction court' s conclusions of law a re g iven no pre sumption of

corr ectne ss. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. Eng land, 19 S.W .3d 762, 766 (Tenn. 2000)

.

Un de r o ur statut ory la w, the pe tit ion e r be ars the bu rd e n of p ro vin g the a lle g a tio ns in h is p os tconviction petit ion by clea r and convincing evidenc e. See Tenn. Code Ann. § 40-30-110(f) ( 2003). Evidence is clear

and convinc ing w hen there i s no serious or substantial doubt about t he ac cura cy of the c onclusions drawn f rom the evide nce. H icks v. State, 983 S.W .2d 240, 245 (Tenn. Crim. App. 1998). On a

ppeal, the findings of fac t made by the pos t-conviction court are conclusive a nd will not be disturbed unless the e videnc e contained in the re cord pr eponder ates a g ainst them. Br ooks v. State, 756 S.W .2d 288, 289 (Tenn. Crim. App. 1988). The burden i s on the petitioner to show that the e vid e nc e pr e po nd e rate d a g a ins t th os e fi nd ing s. Cle nn y v. Sta te , 5 76 S.W. 2d 12 , 1 4 ( Te nn . Crim.-9-

App. 1978). The cre dibilit y of the witnesses and the weig ht and value to be a ffor ded their te stimony

are questions to be resolved by the post-conviction court. Ba tes v. State, 973 S.W .2d 615 (Tenn. Crim. App. 1997).

I I n his init ial arg ument, t h e p et i tioner asse rts that trial counsel wa s ineffe ctive for having failed to pe rsuade the trial court to inst ruct the jury on the d efe nse of ne cessity as set out by Tenne ssee Code A nnotated sec tion 39-11-609: Ex cept a s provided in §§ 39-11-611 [throug h] 39-11-621, conduct is justified if: (1 ) T he pe rs on re a so na

bly be lie ve s the c on du c t is imm e diate ly ne c e ssa ry to avoid imminent harm; and (2) The desirability

and urg ency

of av o i d i n g the harm clearly outweig h,

acc ording to ordinary

stan d ar d s of re asonable ness, the harm sought to be
preve nted by

the law pr escribing the c onduct.

Tenn. Code Ann. § 39- 11-609 (2003)

. The pe titioner conce des t hat bef ore the trial court is re quired to instruct the jury on the defe nse of nece ssity
, the fac ts pr esente d at trial must " fairly satisfy " the elements of t h e defense. Sta te v. Da ve np ort, 97 3 S.W. 2d 28 3, 28 7 (T e nn . Crim. Ap p. 19 98 ). Th e pe tit ion e r b a se s h is c la im

on app e a l on the fa c t that his tri a l cou ns e l did not sp e ak to the pa sse ng e r i n th e c ar, Chris H ill , u nti l he wa s c a lle d a s a

wi tne ss at th e tr ia l. T e sti mon y of fe re d at tria l w a s a s f

oll ow s: Q. Did y ou make [t he petitioner] a war e of the fac t that y ou had a g un, when y ou enter ed his vehicle? A. Not until the last mi nute, sir.

*** Q

. W h a td o y o u m e a n b y " t h e l a s tm i n u t e ?" A. Until we g ot pulled over.

Th e pe tit ion e r c la ims that be c a us e tr ia l c ou ns e l did no t g o int o a ny fu rthe r d e ta il a ndbe c a us e Hi ll t e sti fi e d d ur ing c ro ss- e xami nati on that he ha d n oth ing in h is h a nd s w he n th e of fi c e rs fi rs t approa ched the vehicle, the trial court ref used to char g e the de fense of nec essity . I t is his contention that hi s tria l c ou ns e l sh ou ld h a ve fur th er d e ve lop e d th e iss ue so a s to a ssu re that app ro pr ia te instructions were provided.

I nitially , the petitioner did not claim i n his post-conviction petition that his t rial counse l was ineffe ctive for

having failed to prese nt or ade quately develop the de fense of nec essity . He f irst made the complaint during his testimonyat the evide ntiary hearing. In response , trial counsel e x plained that he had a dvised t h e petitioner, who ha d nine prior f elony convictions, not to testify on the

nece ssitydefe nse bec ause the state would impeach his c redibility by bring ing the se off

enses to the attention of the jury . Hill testified that he had a we apon and f irst display ed it to the petitioner whe n

s t o p p ed b y

t h e p o l i ce

. Du ri n g cl o s i n g ar gu m en t , tri al co u n s e l as k ed t h e j u ryt o i n fe r f ro mHi l l 's testimonythat the petitioner ha d fled in orde r to avoid a violent c onfrontation with the police. It was-10-

his intention, shoul d the jury return w ith a ver d i ct of g uilt, to appeal and pr esent a s err or the trial

c ou rt ' s r e fu sa l to ins truc t on the po te nti a l nec e ssi ty de fe ns e

. Whil e that strate g y wa s u ns uc c e ssf

ul, it wa s nevertheless a strateg y , one that was altere d by the hea ring on J anuary

26 that resulted in the petitioner' s waiver

of his rig ht t o ap p ea l as a part of resolving two other pe nding c harg es and

r e a c h i n g a

c o m p r o m i s e s e n t e n c e w i t h t h e s t a t e

. M o r e o v e r , t h a t t h e d e f e n d a n tc h o s e n o tt o t e s t i f y,

even a fter the trial judge had offere d him a second opportunity to do so, sug g ests that the potential benef it of further

developing the def

ense of nece ssity was outweig hed by the dang ers inhere nt in the petitioner off

ering himself as a witness. The evidentiary hearing did not, in our view , produce any other e vidence to support the nece ssitydefe nse.

II

As to the second issue, w hile trial counsel was defic ient for ha ving r epre sented to the jury during closing arg ument that he had instruc ted his client not to testify
, it does not nece ssarily follow that he wa s ineffe ctive for not having insisted that the petiti o n er acc ept the off er of mistrial. I n a leng thy discussion out of the prese nce of the j ury , the petitioner wa s offe red a mistrial, was offe red
t h e o p p o rt u n i t y

t o t es t i fy
, an d wa s o ff

er ed t h e op p o rt u n i t y t o p ro ce ed wi t h t h e t ri al wi t h o u tt es t i fy i n g. The tra nscript documents the f act that he chose t h e l at t er course. I t was incumbent upon the petitioner to establish prejudice at the evide ntiary h ea ring . Henley v. State, 960 S.W .2d 572, 579 (Tenn. 1997) ; Cooper v. State, 847 S.W.2d 521,527 (Tenn. Crim. App. 1992). That is, if in f act tria l counsel ha d been de ficient by having failed to r ecommend the acc eptanc e of a mistrial, then the state,
upon retria l, w ould ha ve had a wea ker case or the defe nse a strong er one. The petition er offe red nothing at the evidentiary hearing to indicate that any prejudice resulted f

rom the re commendation of his tr ia l c ou ns e l to pr oc e e d. Ha d the pe tit ion e r ch os e n to tes tif y , h e wo uldha ve be e n f

a c e d w ith being cross-e x amined by

a leng thy prior criminal recor d.

III

As his ne xt iss ue , the pe tit ion e r ar g ue s tha t his c ou ns e l w a s in e ff e c tiv e fo r h a vin g faile d to communicate in pe rson with the petitioner for no more than thr ee h o u rs p rior to trial, for having fa i l ed t o re v i ew t h e t ap e o f t h e p re l i m i n ar y h ea ri n g, fo r h av i n g fa i l ed t o i n t er v i ew an y o f t h e s t at e's witnesses, for

having failed to re view the police videotapes with the petitioner, and f or having failed to interview the primary

defe nse witness, Chris Hill.

Th e re c or d e sta

bli sh e s th a t tria l c ou ns e l, o n th e da y be fo re the tr ia l, c urta ile d h is m e e tin g wi th the petitioner to an hour , explaining that he wa s having "a bad day ." Pr i o r t o t h at , t h e onlydirec t verbal co m m u n i ca t i o n b et we en t h e p et i t i o n eran d tri al co u n s el co n s i s t ed o f o n e o t h erm ee t i n g, wh i ch lasted two hours, some discussion at c ourt hea ring s, and a fe w p hone ca lls. W hile the level of communication could have, and perhaps s hould have, been gr eate r, t he burden was on the pe titioner to demonstrate how the lack of communication affec ted t he results of the trial. He has fa iled to do that.-11-

Also, althoug h the post-conviction court found littl e fault with his failure to interv i ew the wi tn ess e s f

or the state or

Chris H ill , th e prima

ry wi tne ss f

or the de fe ns e (w ho wa s a pp are ntl y difficult to loc ate prior to trial), it is hardly commendable for those omissions to have occ urre d. The petitioner' s liberty

was at stake. An u n derstanding of the stre ng th of the state' s case and an

ev aluation of the c redibility of the primary

defe nse witness in adva nce of trial are critica l

c omp on e nts of

a n e ff e c tiv e pr e pa

ratio n. As the po st- c on vic tio n c ou rt po int e d o ut, ho we ve r, the fa c ts

we re re la tiv e ly

simple , th e pr e lim ina

ry he ari ng tape wa s b la nk , th e po lic e vid e ota pe s o ff e re d li ttl e probative e vidence , and the pe titioner was unable to demonstrate at the evidentiary hearing how a more intensive investig ation of the circ umstances of the crime might have altere d the outcome of the

case . See State v. Z immerman, 823 S.W.2d 220, 225-28 (Tenn. Crim. App. 1991).

Finally , Chris Hill was not called as a witnes s at t he evide ntiary hearing. T he petitioner claimed that his trial counse l was ineff ective f or having failed to clarify Hill's testimony

reg arding when the pe titioner was first made awa re of the pre sence of the we apon. I n Bl ac k v

. S t ate, 794 S.W

. 2 d 7 5 2
, 757 (Tenn. Crim. App. 1990) , this court place d the burde n on the post-conviction
pe tit ion e r t o p ro du c e that te sti mon y wh ic h he c on te nd s ma y ha ve be e n he lpf ul. Th e sa me ratio na le
must apply to a

w it n e s s w h o s e te s ti mo n y h a s n o t b e e n f

u ll y d e v e lo p e d

. T h e b u r d e n is o n the
pe tit ion e r t o c a ll the wi tne ss a t the e vid e nti ary he a ri ng in or de r to c lari fy the te sti mon y so that th is
court ne ed not spe culate as to e ither defic iency in pe rformance or pre judice in re sult. S ee B lack, 794 S.W .2d at 757. The pe titioner did not meet this burden.

IV

As a fourth issue, the petitioner a rg ues that his trial counsel wa s ineffe ctive by having failed to pursue or f

urther develop his c laim that he did not "ma nifest" his truc k as a deadly wea pon. He has not, howeve r, supported his claim with any arg ument or citation to authority . That qualifies a s

a wa ive r o f the iss ue . T e nn

. Ct. Cr im. Ap p. R. 10 (b ) (" I ssu e s wh ic h are no t su pp orte d b y arg ume nt,

c itatio n to a uth or iti e s, or app ro pr ia te re fe re nc e s to the re c or d w ill be tr eat e d a s w a ive d in thi s

c ou rt ." ); se e a lso Te nn . R. Ap p. P. 27 (a )( 7) ; Sta te v. Ha mmo ns , 73 7 S.W. 2d54 9, 55 2 ( Te nn . Crim. App. 1987). More over, the proof at trial established that the petit ioner, while attempting to flee from the po lic e , s truc k Of

fi c e r Tr a c y Ne lso n with his ve hic le

. Th e te sti mon y of the of fi c e r wa s la

rg e ly

un c on te ste d. Th e pe tit ion e r of fe re d noth ing a t the e vid e nti ary he ari ng that su g g e sts that hi s v e hic le was not utiliz ed in a manner threa tening to the safe ty of the off icer . Under

these c ircumstance s, the defe nse wa s lacking in merit. Trial counse l can hardly be faulted for ha ving be en unable to find evidenc e to support a de fense theory when ther e wa s none.

V.

The pe titioner' s fifth and fina l complaint is that his trial counsel wa s ineffe ctive for having allowed him to enter into a plea ag ree ment as a Rang e I I I , persistent off ender , which re quires ser vice

o f f o rt y -f i v e p er ce n to f t h e s en t en ce p ri o r t o re l ea s e e l i gi b i l i t y as t o al l t h re e c o n v i ct i o n s

. T h e R an ge I I I se nte nc e s, e a c h o f w hic h w a s to be se rv e d c on se c uti ve ly to the oth e r, we re e ig ht y e ars , f ou r y e ars , and four y ear s, for a n eff

ective sentenc e of six teen y ear s. I n order to qualify as a pe rsistent offe nder,-12-

the petitioner must have f ive or more prior felony convictions within the conviction class or hig her. Tenn. Code Ann. § 40- 35-107(a )(1) . The statue pr ovides that " acts res u l ting in bodily injury or threatened bodily

injury to the victim or victims shall not be construe d to b e a si ng le cour se of conduct." Tenn. Code Ann. § 40- 35-107(b) (4). The rec ord establishes that the petitioner pre sented this iss ue at his J an u ar y 2 6 th hearing and, while re prese nted by trial counsel on two of the convictions and by separ ate counsel on a third char g e, chose to a cce pt the offe r made by the state. The pe titioner acc epted a plea a g ree ment that was less than the max imum possi ble sentenc e. A compromise wa s rea ched. N othing in this rec ord sug g ests that the petitioner should have be en classified at less than a Rang e I I I
, persistent offe nder. The petitioner has not demonstrated pre judice. As to th e esca pe char g e , h e ha s b e e n u na ble to d e mon str a te that bu t f or the ine ff e c tiv e ne ss o f h is

c o u n s e l
, h e w o u l d n o th a v e p l e d g u i l t y.

Acc ording ly , the judg ment of the trial c ourt is affirmed.

___________________________________ GARY R. WADE, PRES I DING JUDGE