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

Briefs J uly 16, 2003

THOMAS D. SMITH

v. STATE OF TEN NESSEE

Direct Appeal from the Circuit Court for Robertson County No. 97-0290 John H. Gasaway, III, Judge

No. M2002-02181-CCA-R3-CD - F iled August 12, 2003

The state appeals the Robertson County Circ uit Court’s granting of post-conviction relief to the petitioner, Thomas D. Smith. The state co ntends the post-con viction c ourt err

ed in granting relief based upon the o

rigina l trial co urt’s fa

ilure to r educe to writing its answe r to a jury question

posed during deliberations at the petitioner’s trial. Upon review of the record and the applicable law, we

revers e the judg

ment of the

post-con viction c ourt.
Tenn. R. App. P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Rever sed; Remanded

J OE G. R ILEY , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and A LAN E. G LENN , JJ., joined.

Paul G. Summers
, Attorney Gene ral and Reporter; David H. Findley , Assistant Attorney Genera l; John Wesley Carney , Jr., District A ttorney Genera l; and B. Dent Morr

iss, Assistant District Attorney General, for the appellant, State of Tennesse e.
Gregory D. Smith, Clarksville, Tennessee, for the appellee, Thomas D. Smith.

OPINION

The petitioner was convicted of simple possession of marijuana and possession of 0.5 g

rams
or more of c ocaine w ith the inte nt to sell in a Drug-Free School Z one. See Tenn. Code Ann. §§ 39- 17-417(a)(4) (poss ession with intent to sell), -418(a) (simple possession), -432(b) (Drug-F ree Scho o l Zon e Act). The petitioner received an ef fective sentence of sixty

years inc arceration a s a caree r offender. His convictions and sen tences were affirmed on direct appeal. See State v. Smith
, 48 S.W.3d 159 (Tenn. Crim. App. 2000).

The facts as presented at trial according to this court’s opinion on direct appeal are as follows:-2- On February

10, 1997, at approximately 8:00 pm., Sergeant Ricky Morris of the Springfield Police Department apprehended the [pe titi oner] in possession of approxima

tely one point four (1.4) grams of crack cocaine and one

point nine (1.9) grams of marijuana. The [petitioner] confessed to the police th at he inte nded to se ll the crack c ocaine i n order t o pay his elec tric bill. At the time of his enc ounter w ith the police, t

he [petitio ner] was s eated in a car in the parking lot of a public housing project situated w ithin one th ousand (1 ,000) fe et of a lo cal ele mentary school.

Id. at 161-62.

I. POST-CON VICTION PROC EEDINGS

The crucial issue presented by the petitioner

at his post-conviction hearing was whether trial counsel was ineffective

in failing to file a m

otion to sup

press the seizure of the drugs. Because the resolution of

this issue i s releva

nt to the u ltima

te dis posit

ion of this a ppea l, we brie fly summa rize the testimony relating

to this issue.

At the post-conviction r el ief hearing, Sergea nt Ricky Morris testified that on Febr uary 10, 1997, at appro ximately

7:58 p.m., he and another officer approa ched a vehicle which was blocking the entranc e to a par

king lot, and he observed the petitioner, a passeng er, holding an open container of beer in violati on of

a c it y ordinance. The officer stated he r equested the petitioner to exit the vehicle intending to issue him a citation for violating the open container ordinance. He further stated this was at night in a “very dangerous” neighborhood, a nd the defendant consented to a pat -dow n search.

Sergeant

Morris stated he then conducted a pat-down sear ch of th e petitioner’s person for safety purposes. The officer stated that although he did not

feel any weapons, he felt “lumpy

rocks contained in . . . plas tic feel ing mate rial” in the petitione

r’s fron t shirt poc ket. When Se

rgean t Morris

as ked the petitioner if the substance was crack coc aine, the petitioner nodded his hea d in th e affirmative. The off

icer the n retrie ved the su

bstance from the p etitioner ’s front s hirt pock et. Sergeant Morris denied the petitioner wa s w earing a bulky winter c oat which

he had to u

nzip to retrieve the cocaine.

The petitioner testified that when he was searched, he was wearing a “pullover bomb jacke t stuffed with goose feathers,” which was zipped. He stated that during the search, the officer touched

an item u nder neath the petitioner’s coat and asked him whether the substanc e was crack cocaine; however, the petitioner did not respond. Sergeant Morris then unzipped his coat, reached inside, and retriev ed the sub stance f

rom his pocket. The petitioner denied indicating the substance was c rack cocaine, giving

the offic er perm

ission to re ach insid

e his coat, or

making any

movements indicating he possessed a weapon.

The petitioner testified he met with trial counsel on three occasions, and each meeting continued for appr

oximately twenty to thir ty minutes. He stated that although he never discussed-3-

the pat-down search with trial counsel, he informed trial counse l of the events. He maintained that if trial counsel had filed a motion to suppress, the outcome would have been diffe rent.

Trial counsel testified that although he did not file a motion to suppress, he discu sse d the issue with the pe

titioner. He state d that bas ed on this discussion, he believed the petitioner voluntar ily consented to the search. Trial counsel further stated that at the time, h e believed the search was lawf ul. He opined that although the motion to suppress would not have been fr ivolous, it would have been denied by the trial court.

Trial counsel testified the pet i ti one r di d no t re que st th at h e fi le a mo ti on t o su ppr ess . In addition, the petitioner

never informed him that he was wearing a coat when the officer

conducted the pat-down search.

During fina l argument, the petitioner’s counsel contended ther e was no basis for the frisk, and the seizure was in violation of the “p lain fee l” doctrine. See Minnesota v. Dickerson , 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993).

II. FIND INGS REG

ARDING

MOTION TO SUP

PRESS

The post- convicti on court f ound that i f a motion t

o suppress had been filed, the cre dibility of the petitioner and Sergeant Morris would have been at issue. The court further found the credibi lity issue would hav e been r

esolved i n favor o f the off icer, a nd the motio n to suppre ss would have been denied.

In view of the officer’s testimony that the pat-down was consensual, which tri al counse l stated was also his understanding, and the officer’s testimony that the defenda nt acknowledged that the object was cocaine, the evidence d oes n ot prepon derate

agains t the findi ngs of the postconviction court. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999) (holding the post-conviction judge’s findings are conclusive unless the evidence preponderates other wise) . Ther efore, altho ugh the ruling of the post-conviction court was not challenged in the petitioner’s brief, we conclude the petitioner is not entitled to relief on this issue.

III. JURY

QUESTION

During jury

deliber ations at the pet itioner’s original trial, the jury wrote a note to the trial court indicatin g that “ [a] juror ha s a questi on or con cern ove r the matt er of did or did not. Juror is not comfortable with the law and the officer not knowing the law concer ning the thousand foot law.” The trial court gave a lengthy ora l res ponse which, in essence, clarified the orig inal charge and explained that possession of cocaine over 0.5 grams with intent to sell is enhanced if the jury also finds bey ond a rea sonable d

oubt that it

was within

one thousa

nd feet o f a schoo l.

After the trial court gave a portion of its response, an “ off-the-record” bench c onference transpired. The content of this conference is not available for review. Thereafter, the

tria l court-4-

explained to the jury that it would not be proper f or it to commenton the question as it related to a ju ror not b eing “ comfortable with the law and the officer not knowing the law.” The jury

then resumed its deliberations. At that point, the trial court as ked coun sel if the y w ere in a

greem ent with the trial cou

rt’ s response. The assistant district attorney general stated he had “no proble m.” Defens e counsel stated, “We don’t have, I agree with - - .” There is no indication the trial court’s respo nse was ever re duced to wri ting.

The peti t ioner’s post-conviction counsel determined this issue was frivolous and did not pursue it as a basis for post-conviction relief. The only mention of this issu e in the post-conviction testimonywas the testimony of the petiti oner who , when as ked if the re was “ any

thing el se you want to tell the Court,” opined trial counsel should have objected to the fa ilure to r educe th e respon se to writi ng. Further

more, be cause th

is was not percei ved by either c ounsel to be an issue, there were no questions asked of, nor testimony by , trial counsel concerning this matter.

The post-conviction court, sua sponte , expressed concern about this issue during final argume nt. The petitione

r’s coun sel state d this issue was not ra

ised bec ause of h

is obliga tion to rai se only “nonfrivolous issues.” After a lengthy discussion about the issue, the petiti oner’s c ounsel ba sed his final argument strictly

upon the failure to file a motion to suppress. The state did likewise.

During its oral ruling, the post-conviction court first determined the petitioner’s suppression issue was without merit. Then the post-conviction court, sua spo nte , noted trial counsel did not object to the origina

l trial judge’s or

al respo nse and f

ailed to preserve the issue in the motion for new trial. However, the post-conviction court appear ed to conc lude that

the failu re of the trial cou rt to reduce the response to writing justified post-con viction re lief, not i neffec tive assis tance of counsel. Alth ough the post-conviction court acknow ledged it had “no idea” whether it affected the jury’s verdict and “no id

ea” whe ther an a ppellate court wo uld fin d error , it f ound the verdict was “undermined

[by] the failure of the trial court to instruct the jury in writing” as to its question. The written order of t

he post-conv iction court setting aside the conviction was based upon the “Tria l Judge[’s] fail[ing] to provide the jury with all jury charges in written form and fail[ing] to ful l y explain the law pursuant to a jury question request.” The o r der made no reference to ineffective assistanc e of tria

l counsel

.
IV. WAIVER

The state first contends the issue regarding the trial court’s failure to reduce the supplemental instruction to writing is a “free-standing claim” unr elated to ineffective assistance of trial counse l and is, there

fore, w aived fo

r fail ure to ob

jec t at tri al a nd p res erv e th e is sue for di rec t ap pea l. In response, the petitioner asserts the issue involves ineffective assistance of trial counsel based upon trial counsel’s failure to object at trial. We agre e with the state.1 W e also conc lude i t was a reasonabl e choice not

to pursu e thi s is sue.

-5- A. Petition for Post-Conviction Relief

The petitioner originally

filed a pro se petition for post-conviction relief in which hedid not specify grounds for relief but referred to an a ttached memorandum of law. I n this memorandum, the petitioner asserted the trial court’s failure to reduce the supplemental jury instruction to writing was plain error and an abuse of discretion. Upon appointment of post-conviction counsel, the petition

was amended to include an unspecified claim of “ineffective assistance of counsel” in one paragraph and specific ally referred

to ineffective assistance of counsel relating to the suppression issue in the next paragraph. I

t made no reference to the jury question issue.

B. Analysis

The Post-C onviction

Procedu re Act of 1995 prov ides that:

[a] ground for relief is waived if the pe tition er personally

or through an attorney failed to present it for determination in any proce eding before a court of competent jurisdict ion in whic h the gr

ound coul d have be en prese nted unle ss: (1) The claim for

relief is based upon a constitutional right not recognized as existing at the time of

trial if e ither the federa l or state constituti o n req uires retroactive application of that right; or (2) The failure to present the ground was the result of state action in violation of the federal or state constitution.

Tenn. Code Ann. § 40-30-206(g). Further , a petitio n for post -convic tion relie

f should “ specify

facts supporting [a ny] claim for relief” and desc ribe how the petiti oner wa s prejudi ced. Te nn. Sup. Ct. R. 28 § 5(E) (3), (4) ; see Tenn. Code Ann. § 40-30-204(e).

In the case at bar, the original trial cour t’s failure to redu ce a supp le mental ins truction t o writing was not framed as an ineffective assistance of counsel i ssue in the

petitione r’s original postconviction relief petition nor in counsel’s amended petition. No pleading alleged trial counsel was deficient in failing to preserve this issue. Furthermore, during the post-conviction r elie f heari ng, defense counsel stated his argument focused on the claim of ineffe ctive assistance of counsel based upon trial counsel’s failure to file a motion to suppress. Defense counsel f urther stated

he believed the issue regar

ding the jury charg e to be “w ithout mer it.” Thus, the failu

re to alle ge this a s a

basis for relief was a deliberate choice. 1 It further appea rs the post-conviction court’s grant of relief wa s not based on ineff

ective a ssis tance of counsel but rather the failure of the trial court to reduce the respo nse to writi ng.

Based upon the circumstance s, we con clude the issue re gardin g the jur

y c harge was n o t includ ed as a groun d for ineffective assistance of counsel. We fur ther conclude this issue was waived b y the failur

e to pursu e the obje ction at tr ial and pr eserve the issue for the d irect ap peal.-6- V. INEFF

ECTIVE ASSISTA NCE OF C OUNSEL

Regar dless of waiver, we conclude th at even if the claim had been based upon ineff ective assistance of trial counsel, the petitioner is not entitled to relief.

A. Ineffective Assistance of Counsel - Standard of Review

When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the burden is upon the complaining party to show (1) that

counsel’s performance was def icient, and (2) the deficie

ncy was pre judicial i n terms of

rendering a reasonable

probability that the result of the trial

was unreliable o r the proceedings fundamentally unfair. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984) . In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 197 5), our sup reme court required that the services be rendered within the range of competence demanded of attorney s in criminal cases. In revie wing co unsel ’s conduct, a “fa ir assessment

of attorney pe

rformance r equires that every e ffort be made to eliminate the distorting effec ts of hindsig

ht, to rec onstruct

the circ umstance s o f

counsel’ s challe

nged c onduct, a

nd to evaluat e the condu ct from c ounsel’s perspec tiv e at t he time.” Strickland , 466 U.S. a t 689, 104 S. Ct. at 2065 ; s ee Nichols v. State , 90 S.W.3d 576, 587 (Tenn. 2002).

It is unnece ss ary for

a court to address deficiency and prejudice in any

particular order, or

even to address both if the petitioner makes an insufficient

showing on either. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a “‘rea sonable probabil ity that, but for counsel’s unprofessional errors, the result of the pr ocee ding would have been differe nt. A reas onable proba bility is a probability sufficient to undermine confidence in the outcome.’” Burns , 6 S. W.3d at 463 (quot ing Strickland , 466 U.S. at 694, 104 S

. Ct. at 2068) (citations omitted). The petit ioner be ars the b urden of proving the fac tual alle gatio ns that would entitle the petitioner to relief by clear and convincing evidence

. Tenn. Code Ann. § 40-30-210(f).

B. Analysis

In the case at bar, the trial cour t fa iled to reduce to writing its response to a jury question. Trial co unsel failed to o bject at t rial and failed to raise it a s an issue

in the motio n for new

trial. However, we note the following. There was an “off -the-record” bench confe

rence at trial concerning this matte r to which neither we nor the post-conviction court was privy . At the post-conviction hearin g, trial counsel was never asked why he voiced no objection to the oral response. Based upon

our review of the transcript, it is reasonable to assume that one of the attorneys sug gested that the trial court further instruct the jury that it could not comment on the jury’s ques tion about the proprie ty of the one-thousand-foot law. The trial court did exactly that. Further, it would appear the trial court’s oral response did not misstate the law and was acc urate. Although it certainly was not

a verbati m re-reading of

the original charge, it appe ars to accurately clarify the

law concerning the Drug-Free

School Z one Act. It is further apparent from the trial transcr ipt that trial counsel voiced

n o objection and was satisfied with the trial court’s instructions. Again, we note there wa s n o testimony by

trial counsel at the post-conviction hearing that addre ssed this issue.2 The Faulkner court deemed i t un neces sary to d eterm ine this issue because any erro r would b e harmless. Thomas J. Faulkner, Jr. , 2001 T enn. Crim. App. LEX IS 293, at *39. However, we agree with Judge Tipton’s concurring opini on indicating “supplemen tal post-t rial instructions” shou ld be reduced to writi ng. Id.
, at *49 (Tipton, J., concurring).

-7- In order to secure post-conviction relief, the petitioner must show prejudice. Strickland , 466 U.S. at 687. In th e context o f this cas e, the pe titioner m ust estab lish that there wa s a reas onable probabil ity that the result of the trial would have been different or that he would have received a new trial had trial counsel objected and preserved this issue. However, if trial counsel had objected, the trial court may we

ll have submitted a written instruction. Furthermore, e ven thoug h it may be sub ject to d ebate whether a supplemental jury instruction in response to a jury que stion is subject to the writing requirement of Rule 30(c) of the Tennessee Rules of Criminal Procedure, see State v. Thomas J. Faulkner, Jr. , No. E2000-00309-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 293, at *39 (Tenn. Crim. App. Apr. 17, 2001, at Knoxville), 2 perm. to app. denied (Tenn. 2001), any

deficiency is subject to harmless error analysis, see State v. Barnard , 899 S.W.2d 617, 623 (Tenn. Crim. App. 1994 ); Th omas J. Faulkner, Jr. , 2001 Tenn. Crim. App. LEXI S 293, at **39-40. In this case, the post-conviction court did not find, nor has ther e been a showing , that the

jury verdict was likel y affect ed. We further conclude that had trial counsel objected and pr eserved the issue for direc t appeal, it likely

would have been deemed harmless error . The petitioner has failed to establish the prejudic e prong

of an ine ffectiv e assista

nce of c ounsel cl aim.

Accord ingly , we rev erse the

judgmen t of the po st-convi ction cou rt.

JOE G. RILEY, JUDGE