IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2012

MICHAEL STEWART v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 08-02042 J. Robert Carter, Judge

No. W2012-00622-CCA-R3-PC - Filed January 23, 2013

The Petitioner, Michael Stewart, appeals the Shelby County Criminal Court’s denial of his

petition for post-conviction relief from his 2008 conviction for destruction or interference

with utility lines and histhree-year, three-month sentence. On appeal, the Petitioner contends

that counsel provided him the ineffective assistance of counsel (1) by failing to object to

hearsay statements and (2) by failing to obtain a Memphis Light, Gas and Water incident

report. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and ROGER A. PAGE, JJ., joined.

Neil Umsted, Memphis, Tennessee, for the appellant, Michael Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Betsy Weintraub, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

This court summarized the facts of the case in the Petitioner’s appeal of his

conviction:

Officer Donald Wicks of the Memphis Police Department

testified that he was driving in his patrol car when he saw

Stewart “chopping at a utility pole with an instrument in his

hand.” This sighting occurred around 2:30 p.m. on December

2, 2007. Officer Wicks said he “observed [Stewart] for a few
seconds and he was continuously chopping at the pole.” Officer

Wicks testified that Stewart used a tool which looked like “a

jack-handle type instrument.” Officer Wicks approached

Stewart and asked what he was doing. Stewart responded that

a baby was locked in a car, and he needed wire to unlock the

door. Officer Wicks testified that no one was in the immediate

area, so he did not investigate Stewart’s claim about the baby.

Officer Wicks did notice that a “line leading from the pole had

been cut.” He did not recall, however, whether the wire was still

attached to the pole. Stewart was placed in the patrol car, and

several other officers were called to the scene.

Scott Locke, an agent for the Memphis Light, Gas and

Water division, testified that he responded to a call regarding the

damaged utility pole. Locke inspected the pole and determined

the pole’s grounding wire was damaged and no longer

functional. The wire was still attached to the pole, but it was

flattened and pulled. Locke said the wire was made of copper,

and valued at $4.00 per pound. Steward attempted to cut a twofoot section of the wire that was probably worth about $6.00.

Locke testified that he spoke with Stewart, who was detained in

a patrol car. Stewart said he needed the wire to help a woman

break into her car. Later, Locke testified that Stewart “didn’t

say anything about a baby, or a woman, he just needed a stiff

piece of wire to break into a car.”

Rena Davis testified that on the afternoon of Stewart’s

arrest, she was driving in her car with her two-year-old

grandson. Her grandson was secured in a car-seat in the back

seat of her car. Her tires needed air, so she stopped at a laundry

mat that had an air dispenser. She turned off the engine, but

accidently left the keys in the ignition. Davis stepped out of her

car and closed the door. She then realized that she had locked

herself out of the car. Davis tried to get her grandson to unlock

the car, but she was unsuccessful. She did not have access to a

phone. Davis estimated that she stood outside of her car for

about twenty minutes before another car pulled up to use the air

dispenser. Davis said Stewart stepped out of the car. She

explained her situation to him, and he offered to help. Stewart

went into the laundry mat, and he returned with a hanger which

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he used to try to unlock the door. Stewart was not able to open

the door, so he went back into the laundry mat. He returned with

a thicker hanger, but he still was unable to unlock the car. Davis

estimated that Stewart spent twenty to twenty-five minutes

trying to open the door. Stewart then walked away from the

laundry mat without saying where he was going or whether he

was coming back. Davis assumed he would return because his

car was still parked near the air dispenser; however, Stewart did

not return. Davis eventually found someone with a phone, and

she contacted her daughter. Her daughter had a spare key, and

she was able to unlock the car.

Davis said she felt her grandson was in danger. Her car

was parked on a small slope and her emergency brake was not

on. Davis said she worried that her grandson would get out of

his car-seat and set the car in motion. Nonetheless, Davis

testified that she did not believe her grandson was in “physical

danger.” She did not recall acting frantic or upset during the

incident or telling Stewart that she was afraid of what might

happen. Davis said her windows were rolled up, but the inside

of her car “wasn’t too hot, or too cold.” She chose not to break

a car window because she worried her grandson might be

harmed by the glass.

Stewart testified that he stopped at the air dispenser

because one of his tires was low. He immediately noticed a

woman standing next to the air dispenser talking to a baby inside

of her car. The woman had locked herself out, and she was

trying to get the baby to open the door. Stewart offered to help

the woman, and he went into the laundry mat to find a hanger.

The first hanger he found was too thin, so he returned to the

laundry mat and found a thicker hanger. Stewart was still

unable to unlock the car. Stewart said he told the woman that he

was going to a nearby filling station to find help; however, in

looking down the street, he noticed a wire hanging off a utility

pole. Stewart believed he could unlock the car with the wire, so

he went to his car and got his jack-iron. Stewart began striking

the wire with the jack-iron when he was spotted by the police.

Stewart said he told the officer that he needed the wire to rescue

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a baby who was trapped in a nearby car. The officer did not,

however, investigate his claim.

Stewart was asked whether he thought the child was in

danger. He responded:

Well, I’ve got several grandkids, myself and I

didn’t know it was her grand-baby, I thought it

was her baby, so I just went into the Superman

mode and went to try to help, that’s all I did.

That’s all I did, I just started trying to help her off

the top of my head. I wasn’t thinking of nothing.

No, I didn’t think the baby was in any danger, I

just wanted to get the child out, you know. I was

just helping, you know.

Stewart denied that he was trying to steal copper. He

stated, “I was just thinking about getting the kid. The thought

of doing something wrong was not in my mind at that time.”

Stewart did, however, say that during the incident, he thought

the baby “was in a dangerous situation.” Stewart admitted that

he damaged the utility pole by striking it with his jack-iron.

State v. Michael Stewart, No. W2008-02680-CCA-R3-CD,slip op. at 1-3 (Tenn. Crim. App.

Feb. 26, 2010).

At the post-conviction hearing, counsel testified that he was employed by the Shelby

County Public Defender’s Office and that he represented the Petitioner at the trial. He said

the Petitioner waived his right to a jury trial and that a bench trial was held. He said that

although he did not recommend a jury trial or a bench trial to the Petitioner, he advised the

Petitioner of his right to a jury trial, his right to waive that right, and his right to a bench trial.

He said the Petitioner told counsel of his desire to have a bench trial during his arraignment.

He said the Petitioner wanted a bench trial because the Petitioner believed the case would

have been resolved quicker than if a jury trial was held.

Counsel testified that the Petitioner’s main defenses were duress and necessity and

that the Petitioner never denied attempting to remove the copper wire from the utility pole.

He said the Petitioner claimed that he attempted to remove the wire to help a woman unlock

her car because her grandchild was locked inside. He recalled that the woman feared the car

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would roll out of the parking lot and harm the child and that the Petitioner was anxious to

open the door. Counsel said the defense theory was that the Petitioner acted under duress

because the Petitioner believed the child was in distress and that he needed to open the door.

Counsel testified that he did not recall discussing with the Petitioner the extent of the

damage to the utility pole. When asked if he recalled the Petitioner’s telling him that the

Petitioner hit a horseshoe ring securing the wires to the pole instead of the wires, counsel said

that sounded familiar. He denied considering an argument involving an incomplete crime

due to a lack of damage to the pole and said he focused on the duress and necessity defenses.

He said the damage to the pole was not a “big issue” at the trial.

Counsel testified that he did not recall the Petitioner’s asking him to obtain a copy of

the Memphis Light, Gas & Water (MLG&W) incident report regarding the damage to the

utility pole. He agreed that at the trial, Scott Locke testified that he worked for MLG&W and

that he inspected the pole at the scene for damage. He agreed Mr. Locke testified that with

regard to whether the pole was functional, Mr. Locke “thought at first that it was, but when

the repair crew got there they said that it was not functional. I’m not an engineer. They came

in and determined that it was not functional and had to be replaced.” Counsel agreed the

testimony contained inadmissible hearsay and said he did not object to the statement. He did

not recall a tactical decision for his not objecting and said the statement was material because

the State was required to prove that the Petitioner knowingly tapped, cut, burned, broke

down, injured, destroyed, interrupted, or interfered with the current lines, cables, poles,

power fixtures, or appliances utilized to furnish a service to the general public. He stated that

he did not recall reviewing Mr. Locke’s report and that the report was not in his file. The

report was received as an exhibit, which showed Mr. Locke concluded that “[t]he damage

to the grounding wire was minimal, and need[ed] no repair, and there was no actual theft of

property.”

Counsel testified that according to his notes, he and the Petitioner met four times

before the trial and that the Petitioner testified at the trial. He said they discussed the reasons

for the Petitioner’s attempting to remove the copper wire before the trial.

On cross-examination, counsel testified that with regard to Mr. Locke’s hearsay

statement during the trial, he did not have any reason to doubt the truth of the statement. He

agreed that had he objected on hearsay grounds, the court would have sustained the

objection, and the State would have been permitted to call as witnesses the engineers who

told Mr. Locke the utility pole was no longer functional. He agreed Mr. Locke saw the

damage to the pole.

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Counsel testified that the MLG&W incident reportstated that the Petitioner attempted

to take a piece of grounding wire from the utility pole and that the Petitioner told the police

officer he had “done this before” that day. He said that the report might have been damaging

to the Petitioner’s case but that it was unclear what “done this before” meant. He agreed the

report stated that the damage was minimal and said the amount of damage was not his focus.

He said he focused on the defense of duress and necessity. He based the theory of defense

upon the Petitioner’s version of events. Upon examination by the trial court, counsel agreed

that he presented as a witness the woman whose grandchild was locked inside her car.

The Petitioner testified that he allowed counsel’s experience and professional

judgment to determine whether duress and necessity defenses were appropriate. He said he

told counsel that he knew pulling on the wire attached to the utility pole would not damage

the pole. He said that children played with the wire daily after school and that the plastic

stripping was already torn. He said that the copper wire stuck out from the stripping and that

he never would have noticed the wire otherwise.

The Petitioner testified that he went to a nearby laundromat obtain a clothes hanger

to unlock the door but that they did not have any. He said that as he was driving from the

laundry mat to a convenience store, he saw the wire sticking out. He said that when he saw

the police officer, he asked for a “slim-jim” to get the child out of the woman’s car and that

he thought the child was in danger “for a moment.” He said that it was cloudy outside but

not raining that day. He said the woman was hysterical because her grandchild was crying.

He said the woman attempted to talk the child out of his car seat, but the child cried. He said

that the woman attempted to calm the child and that he attempted to calm the woman. He

said counsel explained to him the duress and necessity defenses.

The Petitioner testified that his statement to the police that he had “done this before”

meant that he had unlocked cars with clothes hangers before that day. He said that he

explained the facts to counsel and that he did not feel confident in the duress and necessity

defenses because he knew he did not damage the utility pole. He asked counsel to request

the MLG&W incident report to confirm his not damaging the pole and said counsel never

requested the report. He agreed he wanted counsel to present evidence that he did not

damage the pole. He said that although he hit the “horseshoe ring,” he did not hit the wire.

He said the ring was mounted to the pole and held the wire. He said he used a jack iron from

his Jeep Cherokee to strike the horseshoe. He said that although he explained to the police

officer that he was attempting to “save a child,” the officer accused him of attempting to steal

copper wiring. He said that although counsel did not request the incident report from

MLG&W, he relied on counsel’s advice in choosing a defense.

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The Petitioner testified that he requested a bench trial because he believed the case

would be resolved quickly. He said that he had custody of his twelve-year-old son and that

he needed to be home for his son. He understood he had a right to a jury trial. He said that

counsel prepared him for the trial by telling him to tell the trial judge “exactly what

happened, how [he] felt the child was in danger, that [he] was there trying to do a noble act.”

He said counsel reviewed with him before the trial the questions he would ask at the trial.

The Petitioner testified that he requested counsel to argue at the trial that the crime in

which he was charged was not completed. He said counsel did not “follow through” on the

things the Petitioner requested. He said that although counsel was human, counsel made

errors and that the Petitioner attempted to prove he did not do anything wrong. On crossexamination, the Petitioner stated that he did not mention the MLG&W incident report in his

petition for relief.

Upon examination by the trial court, the Petitioner testified that he explained to

counsel when he began his representation that his actions were based on a young child being

locked inside a car. When asked why the Petitioner did not break the car window with the

tire iron, he explained that he did not want the woman to have to pay an expensive repair bill.

He did not think the woman had the money to repair a broken window. He said he was in

confinement at the time of the post-conviction hearing because of an automobile theft charge

and a probation violation from Jackson, Tennessee.

In denying the petition for post-conviction relief, the trial court credited counsel’s

testimony. The court found that the Petitioner wanted a quick resolution to the case and that

a bench trial was requested to achieve that goal. The court found that the defense theory was

to show that the Petitioner acted under duress and necessity to free a child from a locked car.

The court found that although the Petitioner did not deny damaging the utility pole and wire

at the trial, he claimed at the post-conviction hearing that he did not damage the pole or the

wire. The court stated that the MLG&W incident report showed the pole sustained minimal

damage. The court found that the Petitioner sought to change trial strategies after the chosen

strategy failed at the trial and concluded that counsel was not deficient in arguing the

Petitioner acted under duress and necessity. The court found that there was “ample

evidence” showing the utility pole and wire were damaged. The court found that there was

no evidence presented at the hearing to show that the Petitioner would have been successful

at the trial had counsel argued that the Petitioner did not damage the pole or wire. The court

noted that during the sentencing hearing, the Petitioner admitted “destroying someone else’s

property.” With regard to the hearsay testimony offered by Mr. Locke at the trial, the court

found that counsel did not object. This appeal followed.

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The burden in a post-conviction proceeding is on the petitioner to prove his grounds

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). 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. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.

2001). 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. Id. at 457.

Post-conviction relief may only be given if a conviction or sentence is void or voidable

because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because the

petitioner must also show that but for the substandard performance, there is a “reasonable

probability that . . . the result of the proceeding would have been different.” Strickland, 466

U.S. at 694. The Strickland standard has been applied to the right to counsel under article

I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.

1989).

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were within

the range of competence demanded of attorneys in criminal cases. Further, the court stated

that the range of competence was to be measured by the duties and criteria set forth in

Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster,

487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See Baxter, 523 S.W.2d at 936. Also, in

reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689. “Thus, the fact that a particular

strategy or tactic failed or even hurt the defense does not, alone, support a claim of

ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Deference is made to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487

F.2d at 1201.

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner raising a claim of ineffectiveness to

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show that counsel’s representation fell below an objective standard of reasonableness or

“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

The prejudice prong requires a petitioner to demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. A reasonable probability means a “probability sufficient

to undermine confidence in the outcome.” Id.

I

The Petitioner contends that counsel’s failure to object to Mr. Locke’s hearsay

testimony regarding damage to the utility pole was ineffective assistance. He argues that the

trial court would have sustained an objection and prevented sufficient evidence supporting

his conviction. The State responds that the trial court properly determined that counsel did

not provide ineffective assistance of counsel. We agree with the State.

With regard to whether the utility pole was functional, Mr. Locke testified at the trial

that he “thought at first that it was, but when the repair crew got there they said that it was

not functional. I’m not an engineer. They came in and determined that it was not functional

and had to be replaced.” Counsel agreed that Mr. Locke’stestimony regarding the engineers’

conclusions about the functionality of the pole was inadmissible hearsay and that he did not

object. Hearsay is a “statement . . . offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). As a general rule, hearsay is not admissible unless it

qualifies under an exception to the rule. Tenn. R. Evid. 802. “Hearsay is present only if the

statement is used to prove the truth of the matter asserted in the statement. . . .” See Neil P.

Cohen et al., Tennessee Law of Evidence § 9.01[7] (6th ed. 2011).

We conclude that counsel should have objected to the hearsay evidence. We also

conclude, though, that had counsel objected and the trial court excluded Mr. Locke’s hearsay

testimony, the elements of destruction or interference with utility lines, fixtures, or appliances

were sufficiently proven without the hearsay. Mr. Locke testified at the trial that after he

arrived at the scene, he inspected the utility pole. When asked if he saw any damage, he

stated, “The grounding wire had been pulled and damaged . . . flattened and pulled to the

point where it wasn’t as effective as it should have been for the job it needed to do.”

Although Mr. Locke believed the pole was still functional, he testified about the damage he

observed. The Petitioner did not deny attempting to remove the wire or damaging the wiring.

We conclude that the Petitioner has failed to establish prejudice.

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II

The Petitioner contends that counsel provided ineffective assistance by failing to

obtain Mr. Locke’s MLG&W incident report that discredited the evidence used to convict

him. He argues that the report could have been used to impeach Mr. Locke’s testimony

regarding the extent of the damage. The State responds that counsel did not provide the

Petitioner ineffective assistance. We agree with the State.

Although Mr. Locke testified that the engineers concluded the utility pole had to be

replaced because of the damage, his incident report, received as a exhibit at the postconviction hearing, showed he concluded that “[t]he damage to the grounding wire was

minimal, and need[ed] no repair, and there was no actual theft of property.” Mr. Locke

testified at the trial that he believed the pole was functional before he spoke to the engineers

who inspected the damage. The evidence contained in the incident report showing that Mr.

Locke thought the damage was minimal was presented during Mr. Locke’s trial testimony.

We note that counsel did not recall the Petitioner’s asking him to obtain a copy of the

MLG&W incident report. Although counsel determined that duress and necessity were the

best defenses available to the Petitioner, counsel made an uninformed decision to proceed

on those defenses without the benefit of Mr. Locke’s incident report. Although counsel’s

uninformed decision was deficient performance, the Petitioner has failed to establish

prejudice. Although Mr. Locke’s report showed minimal damage to the utility pole, the

evidence at the trial showed that the pole was damaged. Counsel’s credited testimony

showed that the Petitioner never denied attempting to remove copper wire from the pole.

Although counsel should have obtained a copy of Mr. Locke’s report before choosing a

defense, duress and necessity were reasonable in light of the facts. An unsuccessful strategy

does not always support a claim of ineffective assistance of counsel. See Cooper, 847

S.W.2d at 528.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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