### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J anuary

15, 2003
FLOYD W. SMITH, II v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Wilson County

No. 95-407 Don Ash, Special Judge

No. M2002-01933-CCA-R3-PC -Filed June 27, 2003

A Wilson County jury

convicted the Petitioner of second degree murder . The trial court sentenced the Petitioner to twenty y

ears in the Department of

Correct ion. On dir

ect appe al, the Petitio ner’s so le issue was that the twenty y ear sentence

imposed by the trial court wa s excessive. This Court affirmed the trial court’s twenty -year sentence. Th e Peti tioner then filed a petition for postconviction relief, alleging that he was denied e

ffectiv e assista

nce of c ounsel at

trial and on appea l. The post-conviction co urt found tha t Petitione

r failed to prese nt clear and convincing e

vidence to support his claimsand dismiss ed the pe tit ion. The Petitioner

now appe als, arg

uing that the postconviction court erred in deny ing post-conviction relief based on ineffective assistance of counsel and flaw s in the voi

r dire. F inding no error, we affi

rm the judg

ment of the

post-con viction c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OBERT W. W EDEMEYER , J., delive red the opinion of the court, in which D AVID H. W ELLES and T HOM AS T. W OODA LL , JJ., joined.
Ja mes H. F lo od, Leba non , Te nne ss ee, for th e ap pel lan t, Flo yd W. Sm it h, II.
Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Tom P. Thompson, Jr., District Attorney General; and David E. Durham, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION I. Backg round
The facts of the underly

ing case, as described by

this Court on direct

appeal, are as f

ollows: At approximately midnight on the evening of February

18, 1995, a fi ftee nye ar-old high school sophomore was killed after a fig ht broke out among several individua ls in a shopp ing center parking lot. The cause of death wa s a single stab wound to the victim’s chest which penetrated his heart. Imme diately prior to the-2-

kill ing, the group of

young pe ople gathered on the parking lot had been involved in some sort of an altercation. Although the evidence demonstrated that the Petitioner inflicted the fatal knife wound to the v ictim, the Petitioner

argue d that he a

cted in se lf defense. Statev. Smith , No. 01C01-9711-CR-00511, 1998 Tenn. Crim. App. LEXI S 1018, at ** 1-2 (Tenn. Crim. App., Nashville, Sept. 30, 1998). At trial, Pacer Fields, the Petitioner’s friend, testified that some hours before the st abbin g, the Petitioner said “he wondered what it felt like if someone got cut.” Another

friend, Dustin Fie

lds, testified that the Petitioner pulled out a knife earlier in the night in anticipation of a fight in Mt. Juliet and said, “well if I have to use it, I will.” The Petitioner ’s trial c ounsel ar gued un success fully

to exclude te stimony

of these allege d stateme

nts.
A Wilson County jury

convicted the Petitioner for second degree murder, a

nd the trial court imposed a twenty-y

ear sentence. The Petitioner appealed, as se rt in g a si ng le is su e, th at th e t we nt yyear sentence was excessive. This Court affirmed the sentence on direct appea l, and the Tennessee Supreme C ourt deni ed the Pet itioner’ s applica

tion for p ermission

to appea l.
On March 10, 2000, the Petitioner filed a pro se post-con viction pe

tition. The

postconviction court

appointed counsel to assist the Petitioner, and counsel filed an amended petition. The post-conviction court conducted a hearing on the petition, as amended, on September 7, 2001.
The following evidence was presented a t the post-conviction he ar ing: Frank La nnom, the Petitioner’s trial atto

rney , testifie d that he a

nd Mr. Ne al Age e tried Pe titioner’ s case

t ogether. Though it was Lannom’s first murder trial, L annom had been practicing law sinc e 1992 and w as under the guidance of Agee

who was a “senior member of the bar.” Lannom ac

knowledged that he filed a cursory

new trial motion, but he stated that the substantia l new tria l motion wa s assigned to the Public Defender’s office. He also commente d on the voir dire process in this case, agree ing that he was satisfied with the jury selected.
The Petitio ner testifie d that he s poke to the Public Defender ’s offic e a coup le of time s to discuss the new trial motion, though he spoke to someone other than the pers on who filed his motion. Additionally, the Petitioner stated that he spoke to his appellate counsel, Gregory

Smith, twice. The Petitioner asserted that Smith did not raise certain issues which the Petitioner

proposed during their two phone conversations. The Petitioner also presented a diag ram charting thevoir dire processin this case, specifically noting two jurors allegedly

exposed to pre-trial information about the case who were never individually questioned.
II . Analy sis
A. Ineffective Assistance of Counsel-3-

The Petitioner

allege s that he r

eceive d ineffective as sistance of counse l at trial a nd on appe al. Sp ec if ic al ly, the Petitioner

contends that

counsel f ailed to a rgue in a motion fo

r new tri al, and a

gain on appeal that the trial court erred by allowing the

State to introduce statements attributed to the Petitioner which were unrelated to the offense a nd were more prejudicial than probative.
In order to obtain post-conviction relief, a petitioner must show that his or her conviction or sentenc e is void

or voidable because of the abridgment of a constitutional right. Tenn. Code Ann. § 40-30-203. The petitioner bears the burden of proving factua l alleg ations in th

e petitionfor postconviction relief by c lear

and convincing evidence. Id. § 40-30-210(f). A post-conviction court’s factual findings are subject to a de novo review b y th is Court; however, we must accord these factua l findi ngs a presumption of correctness, which is overcome only when a pr eponderanc e of the evidence is contrary to the post-conviction court’s factual findings. Fields v. State , 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of la w a re su bj ec t t o a pu re ly de novo review by this Court, with no presumption of correctness. Id. at 457. The Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed question of law and fact and, as such, is subject to de novo review. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).
The right of

a crimina

lly a ccused t o repre sentation

is guar ante e d by

both the Sixth Amendment

to the United States Constitution and Article I, Section 9 of the Tennessee Constitution. Id. ; Baxter v. Rose , 523 S.W.2d 930, 936 (Te nn. 197 5). This right to representation includes the right to “reasonably

effective” assistance. Burns , 6 S.W.3d at 461. In reviewing a claim of ineffectiveassistance of counsel, this Court must determine whether the advice g iven or services rendered by the attor ney are with in the rang e of comp etence demande d of attor

ney s in crimin al case s. Baxter , 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s represen tati on fell below an objective standard of reasona bleness,” Strickland v . Washing ton , 466 U.S. 668, 688 (1984), and that this performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687 ; Cooper v. State , 849 S.W.2d 744, 747 (Tenn.1993). To satisfy the requirement of prejudice, a petitioner

must show a

reasona ble probabil ity that, but for counsel’s unr easo nable er ror, the fact finder woul d have ha d reason able doubtregarding the petitioner’s g uilt. Strickland , 466 U.S. a t 695. This r

easonab le proba

bility must be “sufficient to undermine conf idence in t he outcome.” Id. at 694; see also Harris v . State , 875 S.W.2d 662, 665 (Tenn. 1994).
When evaluat

ing an ineffec tive assis t ance of couns el cla im, t he revi ewing c ourt s houl d jud ge the attorne

y’ s perfor mance w ithin the c ontext of the case asa whole, taking into account all relevant circumst ances. Strickland , 466 U.S. at 690 ; State v. Mitchell , 753 S.W.2d 14 8, 149 (Te nn. Crim. App

. 1988). The reviewing court must evaluate the que stionable conduct from the a tt or ne y’ s perspective at the time. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d a t 746; Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the revie wing court must be highl y def erential and “should indulge a strong presumption that coun sel’s con duct falls within the wide range of reasona ble professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemedto have been ineffective merely

because a different proce dure or strategy

might have produced a differe nt result. Williams v. Sta

te , 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).-4-

At trial, Pet itioner’ s counsel , Mr . Lannom, proficiently ar gued the inadmissability of the statemen ts in question. Lannom filed a cursory motion for a

new trial before turning the case over to the Public Defender’s office. The Petiti oner disc ussed the motion for

a new tri al with the

Public Defender’s office

“may be twice .” The r

ecord isscant on the details of the new trial motion, and the Petitioner fails topresent clear and convincing e vidence to support his claim of ineffective assistance of trial counsel. Though the Petitioner’s appellate counsel, Gre gory Smith, raised only one issue on appeal, no evidence was presented to show that Smith’s performance fell below an objective standardof reasonableness or prejudiced the Petitioner . We find no thing in t he reco rd to indic ate that the post-conviction court erred in finding that the Petitioner’s counsel wa s effective.
B. Voir D ire Proc ess
We also reject the Petitioner’s final contention that flaws in the voir dire in this case deprived defense counsel o f the info

rmation necessar

y to select a fair and impartial jury . The alleged flaw was the failure to administer individual voir dire to two venire members who indicated that theyhad pretrial knowledge of the case.
It is well es tablished

that a pa rty may not r ais e an issue in a post-conviction petition that could have been raised on direct appea l. State v. Townes , 56 S.W.3d 3 0, 35 (Te nn. Crim. App. 2000). “A ground for r

elief is w aiv ed if the petitione r person ally

or throug h an attor ney failed to present it for determination in any proc eeding before a court of competent jurisdiction in which the ground could have been

present ed.” Te nn. Code A

nn.§ 40-3 0-206(g ). “The

opportuni

ty to raise the issue during a direct appeal of the conviction, coupled with a failure to pursue that appeal or a f ailure to raise the issue during that appeal, constitutes a waiver of the issue pursuant to Code section 40-30- 206(g) for purposes of a post-conviction re lief proceeding.” Townes , 56 S.W.3d at 35.
The Petitioner did not raise this issue before the trial court, in his motion for a new trial, or on direct appeal. Accordingly , the issue is waived. Notwithstanding the waiver, we ag ree with the post-conviction court’s determination that the alleged error was not pre judicial to the outcome of the case. For the foregoing r easons, the judgment of the trial court is AFFI RMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE