### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 23, 2001 Ses sion
STATE OF TENNESSEE v. JEREMY WAYNE AIKENS
Direct Appeal from the Criminal Court for Loudon County

No. 9622 E. Eugene Eblen, Judge

No. E2000-00997-CCA-R3-CD July 30, 2001

The Loudon County Grand Jury ind icted the Defendant for driving under the influence of an intoxicant. The Defendant’s first jury trial resulted in a mistrial. Following a second trial, a Loudon County jury convicted the Defendant of the offense charg

ed. The trial cou

rt sentenced him

to eleven months, twenty-nine

days incar

ceration, with

all but four

days suspended, and fined him $400. The Defendant

now appeals his co

nviction, arguin

g (1) that insuff

icient evidence

was presente

d to support his conviction ; an d (2) that he received ineffective assistance of counsel at trial. Upon review of the record, we conclude that the evidence presented at trial was sufficient to support the Defendant’s conviction, and we conclude that the Defendant received adequate representation at trial. We thus affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the op inion of the court,

in which G ARY R. W ADE , P.J., and T HOMAS T. W OODALL , J., joined.

Wesle y M. Baker, Knoxville, Tennessee (on appeal); and Alfred Hathcock, Harriman, Tennesse e (at trial); for th

e appellant, Jere

my Wayn e Aikens.

Paul G. Summers, Attorne y General and Reporter; Ang

ele M. Gregory, Assistant Attorney Ge

neral; J. Scott McCluen, Di stri ct Attorney General; D. Rog

er Delp, Assistan

t District Attorney

General; for the appellee, State of Tennessee.

OPINION

In April 1998, the Loudon County Grand Jury indicted the D efendant, Jeremy Wayne A ikens , for one count of driving under the influence of an intoxicant. The c

ase subsequently

proceeded to trial, but resu lted i n a mistrial. On Janua ry 13, 1999, a

second trial was c

onducted, and at i

ts conclusion, a Loudon County jury found the Defendant guilty of the offense charg ed. On October 12, 1999, the trial court sentenced the Defendant to

eleven months,

twenty-nine days’ incarc

eration, all suspended except four days. The trial court also fined the Defendant $400. The Defe ndant now-2-

appeals his conviction, arguing (1) that the evidence presented at tria

l was insufficien

t to support his conviction, and (2) that he received ineffective assistance of counsel at trial. We affirm the judgment of the trial court

.
At trial, Officer David A. Flynn testified that he had served as a patrol police officer

for the Knoxville Police Department

from 1990 until 1997 and for the Lenoir City Police Department since Ju ly 28, 199 7. He stated that it was part of his regular duties to make arrests for alcohol-related offenses. Officer Flynn recalled that on December 6 , 1997, while he was working the “midnight shift” in Lenoir City

, he received a

radio dispatch at

approximately

3:45 a.m. for a “b

urglary i n progress” at an apa rtment complex. The dispatcher informed him that the suspects were two individuals in a black truck who were leaving the scene.
Flynn testified that from the time o f the initial dispatc

h, it took him a minute or less to reach the apartment complex. He recalled that as he was pulling into the apart ment complex, he saw a black t ruck containing

two individuals lea

ving the complex. H

e activated his lig

hts and pulled in front of the truck to

stop it. The truck stopped approximately 100 yards from the apartments. Fly nn then radioed the dispa

tcher and repor

ted that he had stopped a vehicle matching the description previously provided. Other officers soon arrived at the scene

. Flynn testified that he ap proached the driver’s side of the truck and that another officer approached

the passenger’s side of the truck. Flynn reporte d that he asked the driver to step out of the vehicle. He stated that he recognized the driver as the Defendant, whom he had seen on other occasions. Flynn

recalled that as the Defendant exited the truck, he “was a little unsteady on his feet, kind of swaying.” He also noted that the Defendant “had an odor of alcoholic bever

age about him,

. . . kind of slurred speech, glassy eyes.” Flynn stated that the odor of alcohol was coming from the Defendant’s breath, and he recalled that the Defendant was wearing a blue shirt and blue jeans that “were wet on his left side.” He also reported that the Defendant behaved differently than he ha d behaved on other

occasions when F

lynn had see

n him.
Flynn testified that he asked the Defenda nt if he had just come from apartment 8-A at McGhee Square Apartments, the apartment where the burglary had reportedly just occ urred

. Accor d ing to Flynn, the

Defendant repo

rted that he had be

en visiting rela

tives at an apart

ment in building e leven at McGh ee Square. Fly nn then sent one of

the other office

rs at the scene to apartment 8-A to collect information.
Following this discussion, Off icer Flynn asked the Defen

dant to perform f

ield sobriety te

sts. He first asked the Defendant to perform the walk-and-turn. Flynn explained that this test requires the suspect to take nine steps in a straight line, touching heel to toe each step. Following the ninth
s tep, the suspect must pivot to face the opposite direction and again take nine steps heel-to- toe , returning to the starting point. Flynn stated that he also had the Defendant perform a one-leg stand. He explained that this test requires the suspect to stand on one foot, with hands down by his or her sides; raise one f

oot off of the gr

ound; and remain in

that position for thi

rty seconds

.-3-

Flynn recalled that the Defendant was “kind of talkative and l

oud” during the f

ield sobriety tests. He t estifi ed that he had to explain the walk-and-turn test to the Defendant twice before the Defendant

understood the instructions, and Flynn sta ted that the Defe

ndant could not kee

p his balance while listening to the instructions. Flynn testified that the Defendant first tried to perform the test wearing his boots, but quickly stopp

ed to remove his boo

ts before resumin

g the test in his socks. Flynn state

d that the Defend

ant was “kind of w

obbly” while

wearing his boot

s. He reported that when the Defend

ant attempted the test after remov ing his boots, he mis sed two steps while returning to the starting point. Flynn testified that the Defendant successfully completed “about half” of the test and stated, “[H]e didn’t really pass.” Flynn furthertestified that when attempting the oneleg stand, the Defendant raised his arms to catch his balance and put his foot down at fifteen seconds

. He then quit the test at twenty-five seconds and told Officer Fly

nn that he could not

perform the test.
Following the tests, Flynn placed the Defendant under arrest. He reported that he also placed the passenger in th

e truck, whom he de

scribed as “extre

mely intoxicat

ed,” under arr

est for public intoxication. Flynn

testified that after arresting the two men, he found a twelve -pack of Miller L

ite beer bottles in the cab of the tru ck. He s tated that only six full bottles remained in the cardboard container.

After placing the two men under arrest, Flynn went to apar tment 8-A at McGhee Square Apartments. He founda Miller Lite beer bottle lying next to the door of the apartment. Fly nn recalled that the door of the

apartment,

which was metal, had

scuff marks and a footprint on it. He stated, “[I]t was bowed in about . . . an inch.” Flynn testified that the footprint appeared to have been made by a tennis shoe and that the scuff marks appeared to have be en mad e by a boot; Flynn recalled that on the night of the arrests, the D e fendant wore boots, and the passenger in the truck wore tennis shoes.

Officer Mark Grossbard testified that he had served as a police officer for the L enoi r Ci ty Police Department

for approximately three years a nd stated that he was working with Officer Flynn on the night of December 6, 1997. Officer Grossbard repor

ted that he rece

ived a police rad

io call concerning a possible break-in at one of the apartments at McGhee Square. He stated that when he responded to the call, he encountered Officer Flynn’s police vehicle a t the scene. He recalled that Flynn and the Defendant were talking when he arrived, and he therefore went to the passenger’s side of the Def endan t’s truck to speak to the passenger. Grossbard stated that he recognized the passenger as “Russell” or his nickname, “Gator.” Grossbard testified tha t when he approached Russell, he noticed

“an obvious odor of analcoholic beverage on his person,” and he stated that he “believe[d]” Russell was unsteady on his feet.
Sergeant John M. Tinnel of the Lenoir City Police Department testified that he had served as a police officer for about twelve years and that he had been a sergeant for eight of those twelve years. He stated that

he was serving as the midnight shift supervisor on the night of the Defendant’s arrest. Tinnel recalled that between 3:00 and 4:00 a.m., he was dispatched to a “burglary

in progress call” at McGhee Square Apartments. When he arrived, he discovered that Officer Flynn had stopped
a vehicle matching the description given by the dispatcher for the vehicle containing the burglary-4-

suspects. Tinnel recalled that when he arrived at the

scene, Office

r Flynn was

administering fi

eld
so briet y tests to the Defendant. Tinnel described the Defendant as “impaired” and stated, “He appeared to be un s teady to me.

When he spoke, his sp eech was somewh

at slurred.” He

also testified, “[H]ad I made th at tr a ffic stop, I would have also had him perform field sobriety te sts.”

Brian Russell was called as a witness for the defense. He testified that his nickna m e was “Gator,” and he stated that he was the passenger in the Defendant’s truck on the night of the arrests. Russell testified that prior to being arrested on December 6, 1997, he and the De fendant went dancing at a club in Knoxville called Judy’s, where they arr ived at approximately 11:00 p.m. He maintained that the Defendant had agreed to be their designated driver for the evening. Af ter leaving Judy’s, he and the Defendant then went to the Mouse’s Ear, a “strip clu b” also located in

Knoxville. Russell testified that he and the Defendant stayed at the Mouse’s Ear until it closed.

Russell testified that after he and the Defendant left the Mouse’s Ear, they went to McGhee Square Apartments in

Lenoir City to visit Russell’s girlfriend. Russell admitted that he did not know his girlfriend’s last name and that he had only known her for approximately two we eks prior to the incident. Russell

testified that

when he and the Defendant arrived at his girlfriend’s apartment, they knockedon the door, but no one answered. However, he claimed that they he ard a “TV . . . blaring real loud,” so they

knocked harder

. Russell admitt

ed that he may have kicked the door, but maintained that he

did not kick it hard e

nough to damag

e it.

Russell recalled that

during the course of the ev ening, he drank

approximately

eight beers. He stated that he drank two beers at Judy’s and later purchased a twelve-pack of Miller L ite. He reported that the Defendant also drank two beers at Judy’s, but

did not consume any other alcohol that evening.

On cross-examination

, Russe ll admitted that he was not exactly sure how many beer s he dran k on December 6, 1997. Although he had stated on direct examination that he was no t intoxicated, he admitted he had been found guilty of public drunkenne

ss. He also acknowledged that he “was n’t in p erfe ct c ond iti on. ” Fin all y, Russell admitted that he may have kicked the apartment door harder than he originally thought.

I. SUFFI CIENCY OF THE

EVIDENCE

The Defendant first

challe nge s the sufficiency of the evidence used to convict him. The Defendant

was convicted of driving under the influence of an intoxicant, defined in Tennessee Code Annotated § 55-10

-401. This statute p

rovides, in pertin

ent part, as follo

ws: It is unlawful for

any person to drive or to be in physical control of any

automobile
or other motor driven vehicle on any of the public roads or highways of the state, or
on any streets or alleys, or

while on the premises of any shopping center, trailer park
or any apartment

house complex, or any other premises which is generally frequented by the public at large, while . . . [u]nder the influence of any intoxican

t, marijuana,-5-

narcotic drug, or drug producing stimulating effects on the central nervous system .

. . . Tenn. Code Ann. § 55-10-401(a)(1).

When an accused challenges the sufficiency of the evidence, an appellate co urt’s standard of review is whether, after

considering the evidence in the light most favorable to the prosecution, any rational trier

of fact could have

found the essentia

l elements of the c

rime beyond

a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 324 (1 979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct e vidence, circumstan tial evidenc e, or a combination of both direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other grounds , State v. Hooper , 29 S.W.3d 1 (Tenn. 2000).

In determining the

sufficiency

of the evidence

, this Court should

not re-weigh or

re-evaluate th e evidence. State v. Matthews , 805 S.W.2d 776, 779 (T enn. Crim. App. 1990

). Nor may th

is Courtsubstitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs , 995 S.W.2d 102, 105 (Tenn . 1999); Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956)

. Questions
co ncerning the credibility of the witnesses, t

he weight and va

lue of the evidenc

e, as well as all factual issues rai sed b y the evidence are resolved by the trier of fact. Liakas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the strongest legitimate view of the evidence containedin the record, as well as all reasonable inferences which may be draw n from the evidence. Statev. Evans , 838 S.W.2d 185, 191 (T enn. 1992). Bec

ause a verdict of

guilt against

a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden

of showing that the evidence was legally

insufficient to sus

tain a guilty verdict. Id.

We are satisfied tha

t ample evidence was pr

esented in this ca

se from which a jury could have adduced the Defendant’s guilt. The arresting officer testified that when he stoppe

d the Defendant, the Defendant’s spe

ech was slurred

, his e ye s were glassy, he was unsteady on his feet, and he smelled of alcohol. He also stated that he was acquainted with the Defendant and reported that the Defendant

behaved differently on the night of the arrest than he nor mally behaved. T he officer further testified that

he found a tw elve-pack of beer, with o nly six beers remaining, in the cab of the Defendant’s truck. Finally, the officer testified that the Defendant fa iled two field sobriety

tests. Another officer called to the scene verified that the Defendant appeared to be impaired on the night of the arrest. The jury

weighed this evidence against testimony by defense witness

Brian Russell, who claimed that the Defendant drank only two beers prior to his arrest,

and apparently accredited the testimony of the police officers present at the scene of the arrest. We will not disturb this finding on appeal. See Liakas , 286 S.W.2d at 859.

II. INEFF

ECTIVE ASSISTANCE OF COUNSEL

The Defendant next contends that he received ineffective assistance of counsel at trial. The record reveal s that Assistant

Public Defender

Rowland Cowden re

presented the De

fendant at his fir

st-6-

trial. At the second trial, Assistant Public Defender Alfred Lee Hathcock, Jr., represente d the Defendant. The Defendant n ow compla

ins tha t he did not realize that Hathcock would be representing him at his second trial until the morning of trial. He also c omplains tha t Hathcock failed to interview Bria

n Russell and him prio

r to his second trial and t

hat Hathcock fa

iled to prepare them to testify at trial.

Alfred Lee Hath

cock, Jr., was cal

led to testify

at the hearing o

n the motion for new

trial. Hathcock testified that he h

ad been an assista

nt public defender for over ten years and had practiced law for approximately twenty-five y ears. He stated t

hat he had k nown the Defendant for several years. Hathcock reca

lled th at he fir st discussed this case with the Defendant when the Defendant visited the Public Defender’s Office just prior to his first

trial, which ended in a mistrial. He stated that he thought he had also seen the Defendant on other occasions prior to the first trial when the Defendant had visited the office.

H athcock t estified that duri ng the week prio

r to the Defenda

nt’s second trial,

Assistant Public Defender Cowden asked him to

handle the Defendant’s second trial, stating that he no longer wished to represent the Defendant. Hathcock agreed. Hathcock could not recall whether he contacted the Defendant after agreeing to accept the case, but he ma

intained that he wa

s “well grounde

d” in the facts of the Defendant’s case. He stated that he hadheard the Defendant’s discussions with Cowden prior to the first trial. He also stated that he reviewed the Defendant’s file and read the transcript of the mistrial. Finally, he reported that he was familiar with the road and area where the Defendant was stopped and subsequently arrested.

Hathcock testified that he spoke with the Defendant on the morning of trial, but admitted that he did not d iscuss the second trial with the Defendant prior to that morning. However, Hathco c k emphasized that he had participated in preparing the Defendant for his first trial. Hathcock could notrecall whether

he had spoken with

defense witness Brian Russell prior to the day of trial, but he stated that he thought Russell had visited the Public Defender’s Office prior to trial. He recalled that he did speak with Russell on the morning of trial, prior to calling him as a witness, and he admitted that his preparation with Russell was not lengthy. Hathcock reported that he was aware

of Russell’s conviction for public intoxication and its possible effect on the jury. However, Hathcock maintained that he called Russell a

s a witness at the Defendant’s instruction. He stated, “I would have preferre d to have called [the Defendant]. And then not ha ve cal led Mr. Russell unle ss he was needed

to corroborate [the Defendant’s] tes timony. But I

proceeded in

this matter according to instruction.”

Hathcock stated that the Defendant’s case was not “part icula rly complex,” and he maintained that he felt that he was as prepared as he could have b een for the trial. He testified, “[W]hen you have as many cas

es a s we have, there’s always something that y ou could probably think of. But under these circumstances, I think I understood the issues and the fac ts, and I think there wasn’t anything else I could put in place.”

The right of a crimin

ally accus

ed to representa

tion is guarante

ed by both the Sixth Amendment

to the United States Constitution and Article I, Section 9 of the Tennessee Constitution.-7-

Statev. Burns , 6 S.W.3d 453, 461 (Ten n. 1999); Baxter

v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the right to “reasonably e ffective” assistance. Burns , 6 S.W.3d at 461.

In reviewing a cl

aim of ineffecti

ve assistance of

counsel, this Court m

ust determine whether the advice given or services rendered by the attorney are

within the range of competence demanded of attorneys in criminal cases. Baxter , 523 S.W.2d at 936. T o prevail on a c laim of ineffective assistance of

counsel, a defendant must show that “counsel’s representation fell below an objective standardof reasonableness,” Strickland v. Washington , 466 U.S. 668, 688 (19 84), a nd that this performance

prejudiced the de

fense, resulting

in a failu re to produce a reliable result, id. at 687 ; Cooper v. State , 849 S.W.2d 74 4 , 747 (Tenn. 1993). To satisfy the requirement of prejudice, a defendant must show a reason

able probability

that, but for couns

el’s u nreason able error, the fact finder would have had reasonable doubt regarding the petitioner’s guilt. Strickland , 466 U.S. at 695. This reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694;
see also Harris v. State , 875 S.W.2d 662, 665 (Tenn. 1994).

When evaluating an in

effective assis

tance of counse

l c l aim, the rev iewing court should ju dge the attorney’s performance within the context of the case

as a whole, taking into account all relevant circumstances. Strickland , 466 U.S. at 690 ; State v. Mitchell , 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The revie

wing court must e

valuate the quest

ionable conduct f

rom t he attorney ’s perspective at the time. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d at 746; Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 198 2). In doing

so, the reviewing

court mu st be highly deferential and “should indulge a st

rong pres umption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemed to have been ineffective merely because a differe nt procedure or strategy might have produc ed a different result. Williams v. State , 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

A defendant claim

ing ineffecti

ve as sistance of counsel must prove the allegations of fact underlying

the claim by

clear and convincing evidence. Tenn. Code Ann. § 40 -30-210(f); State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). This standard applies regardless of whether the defendant brings the claim on direct appeal or in a post-conviction petition. Burns , 6 S.W. 3d at 461 n.5. A claim of deficie

nt representatio

n presents a

mixed question of law and fact and thus is subject to a de novo review. Id. at 461. How ever, the tr ial court’s findings of fact are accorded a presumption of correc tne ss, whi le i ts c onc lus ion s of law are s ubj ect to a pur ely de novo review by t his Court

. Fields v. State , 40 S.W.3d 450, 456-457 (Tenn. 2001).
Having reviewed the record, weconclude that co unsel’s perform

ance in this case

was well within the range of competence demanded of attorney s in criminal cases. Althoug h Hathcock accepted the case shortly prior to t rial, his un contradicted te stimony was th

at he was suffici

ently prepared for trial. He testified that he was familiar with

both the Defenda

nt and this case pr

ior to accepting the case. He reported that he participated to some extent in the preparations for the Defendant’s first trial, that he reviewed the Defendant’s file, and that he reviewed the transcript of the Defendant’s fir

st trial. He furthe

r testified that he

met with boththe Defendant a

nd Brian Russell-8-

on the morning of trial. Finally, he stated that he was aware of Russell’s public intoxication conviction and maintained tha t t he decision to call Russell as a witness was the Defendant’s decision. We find no error on the part of the Defendant’s attorney. Howe ver, even assuming that Hathcock’s representation of the Defendant was in some way deficient, we are satisfied that any
error on Hathcock’s part was harmless. The Defendant po ints to no prejudice re

sulting from his attorney’s performance. O n the basis of this

record, weare simply unconvinced that had Hathcock performed

differently

, the jury wo

uld have had rea

sonable doubt concerning the

Defendant’s g

uilt. We therefore fin

d this issue to be with

out merit.
Accordingly, we AFFI

RM the judgment of the trial court.

___________________________________ ROBERT W. WEDEMEYER, JUDGE