IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
BRENT ALLEN BLYE V . STATE OF TENNESSEE Direct Appeal from the Criminal Court for Sullivan County

No. C40,364 R. Jerry Beck , Judge

No. E1999-01141-CCA-R3-PC - Dec ided May 26, 2000

Petitioner Brent Allen Blye filed a petition for post-conviction relief in the Sullivan County Criminal Court. Following an evidentiary hearing, the post-conviction court denied the petition. Petitioner challenges that denial, rai sing the following issue: whether he received ineffective assistance of counsel at trial and on direct appeal. The judgment of the post-conviction court denying the petition is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

W OODALL , J. delivered the opinion of the court, in which T IPTON , J. and W ITT , J. joined. Stephen M. Wallace, District Public Defender, and Joseph F. Harrison, Assistant Public Defender, Blountville, Tennessee, for the appellant, Brent Allen Blye , at trial; John E. Herbison, Nashville, Tennessee, for the appellant Brent Allen Blye, on appeal.

Paul G. Summers, Attorney Generaland Reporter, R. Stephen Jobe, Assistant Attorney General, H. Greeley Wells, Jr., Distric t Atto rney General, a

nd Mary Katharin

e Harvey, for th

e appellee, State of Tennessee.

OPINION
I. BACKGROUND

On February 24, 1995, Petitioner was convicted of evading arrest and possessing more than .5 grams of cocaine

with intent to sell.

Petitioner subsequently received an effective sentence of ten years. The evide

nce leading to the

convictions was su

mmarized by this Cou

rt on direct appe

al: While on routin e patrol on July 8, 1994, Officer Dion Spriggs of the Kingsport Police Department

spotted a black Chevrolet Caval ier be ing driven on the street with its stereo blaring loudly. Officer Spriggs estimated that the car was approximately 75 to 100 feet away from him when he first heard the music. He followed the car a short distance, a

ctivated his blue lights, and ultimately stopped the car. Officer Spriggs testified that the purpose

of the stop was not to issue a citati on to the driver, bu

t to inform him

that he was violati

ng a city noise ordinance which prohibits onefrom making unnecessary noise that can be heard over-2-

25 feet away. Immediately upon stopping the car, the officer began

to radio his position t

o the dispatch officer. However, before the offi cer could transm

it his location and th

e purpose of the stop to dispat

ch, [Petitioner] , who was a passen ger in the car, stepped out of the car. The officer immedia

tely ordered [Pe

titioner] to get ba

ck into his car. [Petitioner] refused the officer’s command, stating that he did not have to stay. [Petitioner] then fled on foot into a nearby housing project. At about the same time, two other officers of the Kingsport Police Department

appeared on the

sc en e. When Officer David Samples saw Officer Spriggs chasin g [Petitio ner], he joined in the chase. During the pursuit, Officer Spriggs saw [Petitioner] drop a clear plastic bag containing what was ultimately determined to be c oc aine. After [Pe titi oner] was apprehended, arrested, and placed in a patrol car, the of ficers went back to where [Petitioner] had dropped the bag of cocaine and rec o vered it. In addit

ion to recovering 11.6 grams of coc aine, the office

rs seized $558.70

and a package o

f cigarette rolling papers dur

ing a search of [

Petitioner] which

was made inciden

t to his arrest. Statev. Brent

Allen Blye , No. 03C01-9508-CC-00245, 1996 WL 414412, at *1 (Tenn. Crim. App., Knoxville, July 23, 1996), app. denied , (Tenn. Jan. 27, 1997). This Court upheld the convictions and sentences on direct appeal and the Tennessee Supreme Court denied permission to appeal. Id. , 1996 WL 414412.

Petitioner filed a petition for post-conv i ction relief on July 28, 1997, and an amended petition on September 28, 1998. The post-conviction court conducted a hearing on February 8, 1999.

Petitioner testified at the post-conviction hearing that he had received ineffective assistance of couns el at trial be cause his attorney had failed to make the State meet its burden of proof in a suppression hearing. Specifically, Petitioner alleged that the attorney was ineffective because the Statehad asserted that the vehicle stop was constitutional because Officer Spriggs had stopped the vehicle for a violation of a municipal noise ordi n ance and the atto rney never for

ced the State to prove that the noise ordinance actually existed. Petitioner also tes tified that his attorney was ineffective be

cause he failed

to raise this issue o

n direct appeal.

Petitioner testified that he also rece ived ineffe ctive assistance of counsel on direct appeal because his attorney faile

d to raise the issue

of the trial court

’s denial of a motio

n for a mistrial. Specifically, Petitioner alleged that the attorney should have appealed the trial court’s failure to grant
a motion for a mi s trial when Officer Samples provided inadmissible and unresponsive testimony about why he believed

that Petitioner had

possessed the coc

aine for resale

rather than personal use.

The Petitioner’s attorney at trial testified that during his

research, he was unable to find the type of noise ordinance that Officer Spriggs had referred to as a basis for the vehicle stop, but he did find a nuisance ordinance that he believed was a valid basis for the stop. He stated that he could not remember

whether he had r

aised the la

c k of proof of a noise ordinance during the suppression hearing, but he believed that it was the kind of issue that he would typically raise. In addition, he testified that he did in fact raise the lack of

proof of th

e noise ord inance as an issue in the direct appeal of this case.-3-

The attorney testified that he madea conscious deci sion not to

appeal the trial court’s denial of a mistrial because he did not want to detract from the suppression issue, which he believed was the strongest issue on appeal. He also testified on cross-examinat

ion that his decision

to abandon this issue on direct appeal was a tactical one.

On February 24, 1999, the post-convictioncourt denied relief in a detailed written order. The post-conviction court found that the issue relating to the lack of proof of the noise ordinance had in fact been raised both at

trial a nd on direct appeal. The post-conviction court also found that regardless,

this issue had no merit because the vehicle stop was valid based on a suspected violation of the disorderly co nduct law. In addition, the post-conviction court found that counsel was not ineffective in failing to

raise the denial of a mistrial as a issue on direct appeal because the trial court sustained the objection to Officer Sample’s testimony and also gave the jury a curative instruction.

II. INEFFECTIVE ASSISTA NCE OF COUNSEL

Petitioner contends that he r

eceived ineffe

ctiv e as sistance of counsel both at trial and on direct appeal. We disagree.

Article I, Section 9 of the Tennessee Constitution provides “that in all criminal prosecutions, the accused hath the

right to be heard b

y himself and his

counsel.” Tenn. Const. art I, § 9. Similarly, the Sixth Amendment to the United S tates Constitution guarantees that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the assistanceof counsel for his defense.” U.S. Const. amen d. VI. “These constitutional provisions afford to the accused in a criminal prosecution the right to effective assistance of c ounsel.” Hen ley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).

When a petitioner see

ks p ost-co nviction relief on the basis of ineffective assistance of counsel, th e petitioner bea rs the burden of sh

owing that (a) the

services rende

red by trial couns

e l
were deficient and (b) the deficient performance was prejudicial. Powers v. State , 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the petitioner must show that the services rendered or the advice given was below “the range of competence demanded of attorneys in crimi

nal c ases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). In

order to demonstrate

prejudice, the pe

titioner must show tha

t there is a reaso

nable probability that, butfor counsel’s deficient performance, the result of the proceeding would

have been different. Strickland
v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 206 8, 80 L.Ed. 2d 674 (1984). “Because a petitioner must establish both pr

ongs of the test to pr

evail on a claim of

ineffective as s is tance of counsel, failure to prove

either deficien

t performance o

r resu lting pre

judice provides a sufficient basis to deny relief on the claim.” Henley , 960 S.W.2d at 580. “Indeed, a court need not address the components in any particular order or even address both if the defendant makes an insufficient showing of one component.” Id.

A petitioner has the burden of proving his or her allegat ions by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). The post-conviction court’s findings of fact are conclusive on appeal unless the evidence in the record prepond

erates against th

ose findings. State-4-

v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). However, the post-conviction court’s application of the law to the facts is reviewed de novo without any presumption of correctness. Id. “[T]he issues of deficient performance by counsel

and possible

prejudice to the defense are mixed questions of law and fact” and thus, our review of these issues is de novo. Id. (citation omitted).

A.

Petitioner contends that he received ineffective assistance o f counsel because his attorney was deficient both during trial and on direct appeal in the way that he challenged the admissibility of the evidence discovered after the vehicle stop.

Officer Dion Spriggs testified during the suppression hearing that he made the stop of the vehicle in which Petitioner

was a passe

nger. Spr iggs stopped the ve hicle because o

f “extremely loud” music that was coming from it. Several complaints had previously been received about loud music in the residential neighborhood where Sprigg s spotted the vehicl e and the music on th

is occasion was so loud that Spri ggs had actually h

eard the music

before thevehicle came into view. Spriggs testified that he stopped the vehicle because he believed that the loud music was violating
a municipal noise

ordinance. S priggs also testified that he believed that the noise level was loud enough that it was a violation of the disorderly conduct statute.

At the conclusion of

the suppression he

aring, the trial c

ourt found that the

stop of the vehicle
was constitutional bec

ause Officer Sp

riggs had reason

able suspicion tha

t the loud music comin g from the vehicle was a

violation of both

the municipal noise

ordinance and th

e disorderly

conduct statute.
Petitioner

contends that his attorney was deficient in his handling of the suppression issue in that he failed

to argue that because the State never proved tha

t the noise ordinan

ce actually existed, the stop of the vehicle could not bejustified by any alleged violation of the ordinance. In addition, Petitioner contends that his attorney was deficient in that he failed to ar gue that the stop
was also illegal because the evidence introduced during the suppression hearing wo uld no t have supported a conviction under the disorderly conduct statute.

The record indicate

s that the attorney

did in fact challe

n ge the State’s failure to prove that the noise ordinance existed during the suppression heari ng. During the suppression hearing, he made the following argu

ment: [Petitioner] was stopped as a pa ssenger in a vehic

l e. His liberty is restrained when the vehicl e that he is riding in as a passenger is stopped. So I think Your Honor’s primar y consideration is the constitutionality of the stop, and that’s where we get into law that Your Honor already knows, th

at the offic

er has t o acting [sic] under a reasonable suspicion that there has been some criminal activity there. And he was unable to articulate to the Court what unlawf ul ac tivity—he had a vague notion about a noise ordinance, a noise violation which was not produced

. He was not—it just

was not proven that the ordinance existed, or applied in any way

. . . . And the noise violation, Your Honor, again, has not

been produced ,-5-

it has not been proven that—the reasonable suspicion of criminal activity just has not been shown. (Emphasis added). Thus, it is evident that, although he was not successful, counsel did argue that the State’s failure to prove that the noise ordinance existed required suppression of the evidence in this case.

The record also indic

ates that the attor

ney argued durin

g the suppression h

earin g that the vehi cle stop could not be just ified based on an

alleged violation

of the disorderly

conduct statu

te

. Th e trial court speci

fically noted tha

t although the State

had not introduce

d enough evidenc

e to establish a violation of the d

isorderly conduc

t statu te beyond areasonable doubt, that standard of proof was not required and the actual standard requiring only a reasonable suspicion of a violation had been satisfied.

Petitioner also contends that

his attorney was d

eficient becau

se he failed to

argue on direct appeal that the vehicle s

top could not be justified by either an alleged violation of the municipal noise ordinance or an

alleged violation

of the disorderly

conduct statute. T

his Co urt may t ake judicial notice of court records in an earlier pro ceeding o f the same case. Delbridge v. State , 742 S.W.2d 266, 267 (Tenn. 1987). We have reviewed the brief filed by counsel in the direct appeal of this case. In the brief, he argued that “Officer Spri ggs ment ioned a noise ordinance which was loosely referred

to but was never placed in evidence or made available by the State.” In addition, he specifically argued that “the disorderly conduc t statute . . . is completely ina pplicable, since

it requires an ‘intent to

cause public ann

oyance or alar

m’ , or ‘the preventing of others from carrying
on lawfu l acti vities’ . . . There was no evidence

of either in this ca

se.” In response

to these arguments, this Court held:

. . . The trial court found that there was a loud noise blaring from the car p rior to Officer Spriggs stopping the car. The court further stated; “there is evidently, a city ordinance in Kingsport as [Petitioner’s cou

nsel] alluded to in writing in his pleading, and cited. Mr. Hickman asked . . . questions from it, and the officer described

it, and [the assistan

t district attorney

] asked questions a

bout it; butnobody ever introdu ced it. S o, I just know there is a city ordinance, and everybody seems to agree that it applies to noise.” Having found that there is a noise ordinance in Kingsport, the trial court further found that the loud stereo playing from the car gave Officer Spriggs a reasonable basis to stop the
car both under the city ordinance as well as under the disorderly conduct statute found at Tennessee Code Annotated section 39-17-305. In State v. Stephen C. Cloyd , Washin g ton County (Tenn. Crim. App., at Knoxville, March 21, 1985) (No number in original), perm. to appeal denied

(Tenn. 1985), this

court upheld

the stop of a vehic

le where the basis of the stop was a violation of the State’s muffler law found at Tennessee Code Annotated section 55-9-202(a). Subsequent to the stop, the officer had reason to believe the driver was intoxicated and ultimately arrested him for driving under the influence. Like

wise, in the case at bar, the apparent noise ordinance violation gave Officer Spriggs a reasonable basis upon which to stop the vehicle in which [Petitioner] was riding.

. . . . . . . The trial court’s denial of [Petitioner’s] motion to suppress is affirmed.-6-

Brent Allen Blye , 1996 WL 414412, at *2 (f ootnote omitted). A

lthough not expres sly stated, it is evident from the above language that this Court approved the trial court’s reasoning that the vehicle stop was valid becaus

e Officer Sprigg

s had a reasonab

le articulable su

spic ion that the disorder

ly conduct statute had been violated. Quite simply, Petitioner has failed to establish that anythi ng h is attorney could have done would have resulted in a

different outcome for the suppression issue. It is evident that when Officer Spriggs heard the extremely loud music coming from the vehicle in a residential area where

several reports of excessive noise had been made, Spriggs had a reasonable, articulable suspicion that the disorderly

conduct statute was being violated and therefore, the vehicle stop was valid. See State
v. Hiner , 988 S.W.2d 697, 700 (Tenn. Crim. App. 1998) (citing Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (196 8)) (“An investig atory stop of a moto

r vehicl e may be made upon a reasonable

suspicion by a polic

e officer, suppo

rted by specific

and articulable

facts, that a criminal offense has been or is about to be committed.”).

In short, Petitioner has failed to meet his burden of showing that he was prejudiced by any allegeddeficiencies in

counsel’s handling of the suppression issue. Petitioner is not entitled to relief on this issue.

B.

Petitioner contends t

hat he received ineffective assistance of counsel because his attorney failed to challen

ge the denial of th

e motion for a mistr

ial on direct appe

al.

The record indicates that during the cross-examination of Offic er Samples, counsel asked Sa mples whether he had discovered any materials used to prepare drugs for resale whe n h e apprehended Petitioner. Samples then stated: The five hundred and

fifty dollars ($550.00) that was stuc k down in the front o

f his pants,
a very high percentage of the drug arrests we make, that’s where the money is kept. Okay. And that falls right along with it. Most people aroundhere don’t stick money down in the front of their pants. I me

ant t hat’s just n ot—you know, most pe ople will put it in thei

r pocket. Okay. They also keep that money separate from their own personal money—you know, the eight dollars and seventy cents ($8.70) may have been [Petitioner’s] own personal money. Also, the large amount of cocaine, that you won’t find on any one person . Most people over there cann ot affor d that much cocaine. That’s, on street value, that is—that’s worth a lot. At this point, counsel objected to this testimony on the ground that it was not responsive to the question. The trial court then conducted a juryout hearing, in which the petitioner’s attorney moved for a mistrial. The trial court sustained the objection as to thetestimony about whe re most people keep their money and about whether “most people over there can afford cocaine,” but the trial court denied the motion for a mistrial. Immediately thereafter, the jury returned and the trial court instructed the jury that Officer Sa mples’ tes timony about whether most people keep their money in the front of their pants was-7-

improper and unresponsive opinion testimony. The trial court a lso instructed the j ury that it could notconsider Samples’ improper opinion testimony and it must be disregarded. The trial court then asked each member of the jury to raise his or her hand to indicate that they would disreg ard th e statement and all o

f the jurors raise

d their hands.

The petiti oner’ s attorney testified during the post-conviction hearing that he made a conscious decision not to appeal the trial court’s denial of a mistrial becaus

e he did not want to detract from the suppression issue, which he believed was the strongest issue on appe al. He also testified on cross-examination that his decision to abandon this issue on direct appeal was a tactical
one.
The Tennessee Supreme Court has stated that “there is

no constitutional requirement that an attorney ar gue every issue on appeal.” Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993)

. “Furth er, experienced a

dvocates have lo

ng emphasized the

importance of win

nowing out w eake r arguments

on appeal and focusing on one central issue if possible, or at most a few key issues.” Id. (citation and internal quotations omitted). “Generally, the determination of which issues to present
on appeal is a matter which addresses itself to the professiona l judgment and sound discretion of appellate counsel.” Id.

The attorney’s decisionto abandon the mistrial issue on direct appeal was clearly a tactical decision that should not be second guessed. Ho wever, assuming for the sake of argument that counsel’s performance was de fici ent in this regard, Petitioner has failed to establish that he was prejudiced as a r

esult.

In this case, the trial court gave a prompt curative instruction in whichit instructed the jury notto consider the improper testimony. It is we ll-es tablished that the jury is presumed to have followed the trial court’s curative instructions. See State v. Smith , 893 S.W.2d 908, 914 (Tenn. 1994); State v. Johnson , 762 S.W.2d 110, 116 (Tenn. 1988); State v. Williams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). Thus, any challenge to the denial of a mistrial had no merit and pursuing it on direct appea

l would not have re

sulted in an outcome

that was any diffe

rent.

In short, Petitioner has failed to meet his burdenof showin g that he was prejudiced by counsel’s alleged deficiency in failing to challenge the denial of the motion for a mistrial on direct appeal. Petitioner is not entitled to relief on this issue. Accordingly, the judgment of the post-conviction court denying the petition is AFFIRMED.