Phillippe Rogers v. State of Tennessee ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 12, 2015 Session
PHILLIPPE ROGERS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2005-C-2271 Seth Norman, Judge
No. M2014-01445-CCA-R3-PC – Filed July 2, 2015
The petitioner, Phillippe Rogers, appeals the denial of post-conviction relief from his
2008 Davidson County Criminal Court jury convictions of both conspiracy to sell and
possession with intent to sell 300 grams or more of cocaine, claiming that he was denied
the effective assistance of counsel. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Cynthia M. Fort (on appeal and at trial) and Joseph L. Morrissey, Jr. (at trial), Nashville,
Tennessee, for the appellant, Phillippe Rogers.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Dan Hamm and Andrea
Green, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The evidence at the petitioner‟s jury trial revealed that members of the
Metropolitan Nashville Police Department (“Metro”) drug task force began wiretapping
Jerry Smith‟s telephone conversations on November 5, 2004, to further their investigation
into Mr. Smith‟s drug activity. State v. Phillippe Rogers, No. M2009-00101-CCA-R3-
CD, slip op. at 2-3 (Tenn. Crim. App., Nashville, Aug. 19, 2010), perm. app. denied
(Tenn. Jan. 13, 2011). On November 19, the task force intercepted calls between Mr.
Smith and the petitioner in which the two men discussed a cocaine delivery from Atlanta
to Nashville that was set to take place on November 20. Id., slip op. at 3. Through the
testimony of task force Sergeant James McWright, the State presented multiple
recordings of wiretapped conversations:
In the first call, the [petitioner] left an electronic voice mail
message on Mr. Smith‟s telephone in which he told Mr.
Smith, “It‟s a done deal.” The call was recorded at 12:36
a.m. on November 10, 2004.
In the call between Mr. Smith and Jeremiah Milan,
another conspirator, recorded at 10:19 a.m. on November 20,
2004, Mr. Smith informed Mr. Milan that “ain‟t none come
through yet,” and Mr. Milan asked, “Roger and them still got
them five?” Sergeant McWright explained that, based on his
experience and training, he understood “five” to mean five
kilograms of cocaine.
A telephone call made at 12:44 p.m. on November 20,
2004, between the [petitioner] and Mr. Smith was played to
the jury. The [petitioner] told Mr. Smith that he and some
other men were running late but that he would call when they
arrived in “a little bit.”
In another call, recorded at 4:04 p.m. on the same day,
Mr. Smith explained that he talked to a “dude” that was
running late but was “definitely gonna be here with them
nickels.” Mr. Smith said that the man would call Mr. Smith
that evening. Mr. Milan said that another man was “supposed
to give [him] that nine” and that Mr. Milan was following the
man. Mr. Milan told Mr. Smith that he “got some stuff lined
up.” Sergeant McWright explained that “nickel” usually
refers to the number five and that he understood the call to
mean five kilograms of cocaine. He also said that, from his
understanding, Mr. Milan was finding a “nine piece” of
cocaine to suffice him until the “nickels” came in from
Atlanta.
The next call was recorded at 4:22 p.m. and involved
Mr. Smith and the [petitioner]. The [petitioner] told Mr.
Smith, “I‟m gonna be over there getting me a piece of that hot
chicken, probably in about 45 or 50 minutes.” The
[petitioner] clarified that he would be at “the hot chicken
place” and that he would contact Mr. Smith with “the angle.”
Sergeant McWright testified that, at this point, he and his
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officers believed that the men were talking about Prince‟s Hot
Chicken. However, he discovered that while Mr. Smith
thought they were meeting at Prince‟s Hot Chicken, the
[petitioner] believed they were meeting at Hotchickens.com, a
different hot chicken restaurant.
The next calls between Mr. Smith and the [petitioner]
were recorded at 5:37 p.m. and 6:13 p.m. During the first
call, the [petitioner] told Mr. Smith that he was 15 minutes
from the “chicken house,” and Mr. Smith responded, “Okay,
I‟ll be watching.” During the next call the [petitioner] told
Mr. Smith that he was standing at the door, and Mr. Smith
said he could not see him from the parking lot. Sergeant
McWright testified that he had monitored Prince‟s Hot
Chicken and did not observe either Mr. Smith or the
[petitioner].
A 6:57 p.m. call between Mr. Milan and Mr. Smith
reflected that Mr. Smith “didn‟t know if dude . . . gonna stay
here or not.” Mr. Milan said, “I know we can move them
bastards tomorrow.” Mr. Smith stated that he would not be
able to “get up there” until 2:00 p.m. the following day
because he had church. Mr. Smith mentioned that “the dude”
from Atlanta “got four of [them],” and Mr. Milan said he
would “try and line them up.”
During another call between Mr. Milan and Mr. Smith
at 7:25 p.m., Mr. Smith put the [petitioner] on the telephone
with Mr. Milan. The [petitioner] told Mr. Milan that he was
“sitting with all these clothes in [his] lap” and that he was
“trying to see cause them dudes was pushing.” The
[petitioner] stated that he was trying to “pull it together”
because he had “a good situation.” He asked Mr. Milan when
he could “give [him] concrete.” Mr. Milan responded “about
1:30.” The [petitioner] then stated that he had met with some
people who were “rolling kinda heavy” and “about 65 deep.”
Sergeant McWright explained that he interpreted this to mean
“whoever [the petitioner] was getting [cocaine] from had
another 65 kilos, or they could have 65,000 in on those four.”
He further explained, “I interpreted it that [the petitioner] had
gotten four from whoever already had 65 [kilos], but the jury
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will have to determine which interpretation they want to
believe.”
The next call between Mr. Milan and Mr. Smith
occurred at 10:14 p.m. In this call Mr. Smith said that he “put
him in the [Maxwell House] hotel.” He said, “He got some
glass, got four of them.” Sergeant McWright testified that
“glass” referenced “high quality cocaine.”
At 10:07 a.m. on Sunday, November 21, 2004, Mr.
Smith and Mr. Milan had a telephone conversation wherein
Mr. Smith stated that he would go to the hotel to talk to a man
after church at appoximately 2:00 p.m. Mr. Milan asked,
“How many is it?,” and Mr. Smith responded, “Four.” Mr.
Milan said that he would “round them up.”
At 1:10 p.m. on November 21, the defendant called
Mr. Smith, and Mr. Smith informed him that he “[j]ust got
out” and would “be right over.”
Id., slip op. at 3-5.
Metro Officer Roy Michael Lee testified that he was assigned to assist the
drug task force with an anticipated drug delivery on November 21, 2004. Id., slip op. at
2. Officer Lee was told “„that a drug delivery was going to be made in Nashville that
afternoon and they wanted somebody to stop the vehicle and take the drugs off.‟” Id. Per
Officer Lee‟s instructions, he waited for Mr. Smith to arrive at the Maxwell House hotel
driving a white Lincoln Navigator where Mr. Smith was expected to “pick up narcotics to
deliver to another location later that day.” Id.
Sergeant McWright testified that he and Sergeant Richard Hamilton were
surveilling the Maxwell House hotel on November 21 and that at 1:25 p.m., Mr. Smith
arrived at the hotel driving a white Lincoln Navigator. Id., slip op. at 5. Sergeant
McWright observed Mr. Smith enter the hotel lobby and place a call on the hotel‟s house
telephone. Id. Because Sergeant McWright had learned that „“the individuals [they]
were looking for was supposed to be staying in Room 717,”‟ he stationed himself on the
seventh floor and saw the petitioner enter Room 717. Id. Sergeant McWright then
returned to the hotel lobby; he later observed Mr. Smith pull his vehicle to the front of the
hotel and saw the petitioner exit the elevator and enter Mr. Smith‟s vehicle. Id. At 1:30
p.m., Sergeant Hamilton observed the Navigator pull behind a dark pickup truck; the
petitioner got out of the Navigator and walked to the pickup truck. Id., slip op at 6.
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Although Sergeant Hamilton was unable to see what transpired because of an obstructed
view, he then saw the petitioner approach the Navigator “„with a black bag in his hand
and place[] it in the back behind the passenger‟s door and then he got in the front
passenger‟s seat and they drove away.‟” Id., slip op. at 6-7. The State introduced into
evidence photographs of the petitioner placing the bag into the Navigator. Id., slip op. at
7.
As the Navigator pulled away from the hotel, Sergeant McWright followed
it “while maintaining radio contact with Officer Lee.” Id., slip op. at 5. Sergeant
McWright instructed Officer Lee to stop the Navigator “before it left Davidson County
but after passing the Old Hickory Boulevard exit on Interstate 24.” Id. At trial, Sergeant
McWright explained that “Mr. Smith‟s passing the Old Hickory Boulevard exit indicated
that he was going to Clarksville where Mr. Milan lived.” Id. Sergeant McWright also
instructed Officer Lee “not to „burn the wire‟ because they wanted to continue to use the
wiretapped recordings from Mr. Smith‟s telephone to continue their investigation” and
“to only arrest the [petitioner].” Id.
When Officer Lee stopped the Navigator as instructed, he asked both Mr.
Smith and the petitioner to exit the vehicle, and Officer Lee testified that Mr. Smith
consented to a search of his vehicle. Id., slip op. at 2. During the search, Officer Lee
located “a „small little soft-shell briefcase‟ that contained a small amount of marijuana
and some marijuana cigarettes, of which Mr. Smith claimed ownership.” Id. The drug
task force had informed Officer Lee that narcotics would be inside a black bag, but “he
recalled that when he found the bag it contained „computer equipment, like brand new
boxes of stuff.‟” Id. Because he found no other drugs in the vehicle, Officer Lee
contacted Sergeant McWright, and, based on that conversation, Officer Lee “cut into one
of the computer equipment boxes and discovered a „brick‟ of what appeared to be
cocaine.” Id. After field testing the substance and confirming that it was in fact cocaine,
Officer Lee continued to search the vehicle and discovered “a total of four bricks of
cocaine” that “collectively weighed „[a] little bit over four kilograms.‟” Id. Sergeant
McWright testified that Mr. Smith and the petitioner “were exchanging each kilogram of
cocaine for $22,000 or $23,000, but that the „wholesale value on them was probably
between 90 and $100,000.‟” Id., slip op. at 6. Tests conducted by the Tennessee Bureau
of Investigation crime laboratory revealed that the four bricks contained cocaine and that
the aggregate weight of the bricks was 3,992 grams. Id., slip op. at 8.
The State introduced into evidence a recording of a call placed by the
petitioner on Mr. Smith‟s telephone to Mr. Smith‟s wife at 1:45 p.m. on November 21.
Id., slip op. at 5. On the recording, the petitioner “told Mrs. Smith that he was Mr.
Smith‟s partner and that they had been pulled over by police on Interstate 24 on their way
toward Clarksville.” Id.
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Officer Lee arrested the petitioner “but released Mr. Smith, explaining that
the drug task force wanted Mr. Smith released because his telephone was wiretapped.”
Id., slip op. at 2. At 2:57 p.m., Mr. Smith placed a call to Terry Rucker “to inform him
that the police had arrested the [petitioner], who had „four of them things,‟ but that the
police did not arrest Mr. Smith.” Id., slip op. at 5-6. Officer Lee testified that he was
unable to identify any fingerprints on the bricks of cocaine. Id., slip op. at 2. On cross-
examination, Officer Lee admitted that the Lincoln Navigator was registered to Mr.
Smith; that the task force had wiretapped Mr. Smith‟s telephone and not the petitioner‟s
telephone; that the petitioner‟s fingerprints were not found on either the cocaine bricks or
the boxes containing them; that nothing indicated the petitioner knew about the drugs;
and that the bag containing the drugs had been located behind Mr. Smith‟s seat. Id., slip
op. at 2-3.
Sergeant Hamilton, along with other law enforcement officers, stopped the
pickup truck, which was driven by Khalid Shabazz. Id., slip op. at 7. A search of the
pickup revealed
a Walgreen‟s recipt reflecting a purchase made in Nashville at
11:03 p.m. on November 20, 2004; an envelope from
Attorney Paul Gabbert addressed to the [petitioner]; “some
type of drive-out tag, August 29th of 2000, from South Lake
Ford” in Jonesboro, Georgia; a map of Atlanta, Georgia; an
atlas; a bank overdraft statement, a collections bill, and a
“warranty notification card” addressed to a Joshua Rabia in
Fairbanks, Georgia, which was another name used by the
[petitioner]; three mobile telephones and four travel chargers;
a pager; rolling papers; an envelope containing marijuana;
and a City of Los Angeles parking ticket from September 30,
2004.
Id.
Sergeant McWright admitted on cross-examination that both “a beauty
pageant and a college sorority event took place at the Maxwell House hotel during the
time that he monitored the property.” Id., slip op. at 6. Sergeant McWright
acknowledged that Mr. Smith “was the primary target” of the investigation and that he
used “a target named Eric Davis to get to” Mr. Smith. Id. Sergeant McWright explained
that “Mr. Smith supplied cocaine to Mr. Davis and that the [petitioner] supplied Mr.
Smith.” Id.
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Defense counsel asked Sergeant McWright whether he
had “specific knowledge” of the [petitioner‟s] knowledge of
the presence of drugs in the Navigator. Sergeant McWright
responded, “[M]y interpretation of what the wire said and my
observations – if somebody goes to a truck and removes a
bag, I think his intent is pretty clear.” He admitted that he
could not tell what was in the black bag containing the
cocaine by looking at it. He further admitted the boxes
containing the bricks of cocaine did not appear “offensive.”
He stated that he did not observe any suspicious behavior by
the [petitioner] at the hotel, and that, had he not known about
the recorded telephone calls, he would not have noticed the
[petitioner]. He admittted that he had no experiences with the
[petitioner] previous to this investigation.
Sergeant McWright also admitted that no officers
found any fingerprints on any of the cocaine or boxes. He
testified that “[i]t‟s not surprising . . . . When the drug dealers
put it in the boxes, normally they use rubber gloves.”
Sergeant McWright testified that he understood the
[petitioner‟s] saying he had “clothes in his lap” to mean
drugs; however, he acknowledged that the hotel in which the
defendant stayed hosted a beauty pageant and “the girls wear
nice clothes.”
Id.
Following the petitioner‟s arrest, task force Officer Ed Rigsby and Drug
Enforcement Agency (“DEA”) Agent Brittle interviewed the petitioner. Id., slip op. at 7.
The petitioner claimed “that Mr. Smith „set him up‟ and „called the Feds.‟” Id. The
petitioner told the officers that “he was in Nashville to watch his niece participate in a
beauty pageant and that he only wanted to meet Mr. Smith to get some hot chicken.” Id.
The petitioner stated that “the cocaine was already in Mr. Smith‟s truck when he entered
the vehicle.” Id. Officer Rigsby testified that the petitioner initially told him that he was
staying at the Maxwell House hotel but that he later stated that he was staying with
family in Smyrna. Id. Officer Rigsby also testified that the petitioner “could not give a
name for the niece he purported to visit.” Id. Although Officer Rigsby was unable to
locate the telephone the petitioner used to make the wiretapped telephone calls, Officer
Rigsby did find a cellular telephone of the defendant‟s in which Mr. Smith‟s telephone
number was programmed. Id., slip op. at 7-8.
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Based on this evidence, a Davidson County Criminal Court jury convicted
the petitioner of one count of possession with intent to sell 300 grams or more of cocaine
and one count of conspiracy to sell 300 grams or more of cocaine. Id., slip op. at 8. The
trial court imposed an effective sentence of 50 years‟ incarceration, and this court
affirmed the judgments on direct appeal. Id.
On January 13, 2012, the petitioner filed, pro se, a timely petition for post-
conviction relief. Following the appointment of counsel, the post-conviction court held
an evidentiary hearing on April 14, 2014.
The petitioner testified that he had suffered from multiple sclerosis since
2000 and that the disease affected his short-term memory. The petitioner recalled that
trial counsel visited him once while he was incarcerated with respect to a bond hearing
and that he did not see trial counsel again until he informed the petitioner that he was
withdrawing from his case. According to the petitioner, trial counsel‟s stated reason for
attempting to withdraw was the petitioner‟s “heading for an ambush or something like
that.” The trial court did not permit trial counsel to withdraw, and he remained the
petitioner‟s attorney.
The petitioner testified that, although he had a copy of the transcripts of the
wiretapped telephone calls, trial counsel never reviewed the recordings with him. The
petitioner had the impression that trial counsel had never listened to the recordings or
read the transcripts “because [trial counsel] was never aware of anything that was in the
transcripts.” According to the petitioner, he expressed in the first recorded call with Mr.
Smith “that we wanted to do numbers,” which the petitioner explained meant gambling
and not drug dealing.
On the morning of his trial, the petitioner believed he was arriving for a
suppression hearing “because that was the main thing that I kept stressing to [trial
counsel] by letters in the mail and the messages I left with whoever works in his office.”
However, prior to the start of the trial, trial counsel informed the trial court that the
petitioner “wanted a suppression motion but [trial counsel] did not believe there was a
legal basis for filing it,” so the case proceeded to trial.
On cross-examination, the petitioner admitted that “some of the things on
the [wiretapped] recording . . . was me.” With respect to the cocaine found in Mr.
Smith‟s vehicle, the petitioner stated that he “never physically touched it, saw it, smelled
it.” The petitioner stated that Officer Lee‟s testimony that he stopped Mr. Smith for
failure to yield to an emergency vehicle was untrue, insisting that “there was no
emergency vehicle on the freeway.” Although the petitioner wanted trial counsel to
object to the officer‟s testimony on this matter, trial counsel would not do so. According
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to the petitioner, he was a passenger in Mr. Smith‟s car on November 21 because Mr.
Smith was going to show the petitioner where his new restaurant was located in
Clarksville.
The petitioner explained that he had met Mr. Smith “through a cousin and
what they had together was a numbers operation” but that he had never “dealt drugs
with” Mr. Smith. The petitioner stated that he was in town on November 21 to see his
niece participate in a beauty pageant at the Maxwell House hotel and because he wanted
to set up a “numbers” operation with Mr. Smith. The petitioner testified that the
transcripts of the wiretapped telelphone conversations contained statements “about
numbers, number of books, number of pads, throwing number pads away and things of
that nature” and that he wanted that testimony to be introduced at trial but that trial
counsel failed to do so.
The petitioner admitted that he had a prior misdemeanor conviction
involving marijuana and that he had previously served a 10-year sentence in Georgia in a
robbery and assault case. The petitioner acknowledged that he had turned down an offer
of 18 years‟ incarceration in the instant case.
Trial counsel testified that he provided the petitioner with all of his
discovery materials, including the transcripts of the wiretapped telephone conversations.
Trial counsel recalled “a number of discussions” with the petitioner regarding “the calls
that both were involved with him and other people‟s calls.” With respect to the
petitioner‟s interest in placing his gambling involvement before the jury, trial counsel
recalled that he had “discussed the difficulty of presenting to a jury, you know, I wanted
to be involved in Felony A and got involved in Felony B, that seems very difficult.”
Trial counsel admitted that he had not used any of the transcribed telephone calls that
referenced “books” as part of the petitioner‟s defense.
Trial counsel stated that the State initially made a plea offer to the petitioner
of 15 years to be served at 30 percent but that the offer was rescinded when the petitioner
failed to appear at a scheduled status hearing. The State later made a second offer of 17
years, and trial counsel opined that the petitioner “absolutely positively should have taken
the [plea] offer” because, at the time the State made the offer, the State was unaware that
the petitioner had a criminal history in the state of Georgia. Trial counsel made the
petitioner “sign a statement saying I‟m aware of this offer and I‟m refusing this offer.”
After the State learned of the petitioner‟s criminal history, no further plea offers were
made to the petitioner.
With respect to the petitioner‟s desire to file a motion to suppress, trial
counsel explained as follows:
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[T]here was a wiretap, there is discussion about bringing us
four, there is photographs of my client leaving the hotel with
a bag that turns out to have three boxes that contained four
packages of drugs in the amount requested, they are in his
possession and in his bag at the time of the traffic stop. I
researched – I can‟t tell you right offhand the cites, the cases,
that we looked at but we didn‟t believe that there was a legal
basis for suppressing the stop.
....
And I knew the officer was going to testify about the –
it was something about an emergency vehicle or something to
that effect.
Trial counsel testified that he believed failure to yield to an emergency vehicle was a
valid reason for the traffic stop. Trial counsel stated that he could not recall whether he
had researched the issue of whether the search of Mr. Smith‟s vehicle “exceed[ed] the
purpose of the stop.” Trial counsel acknowledged, however, that exigent circumstances
could have justified the warrantless stop and search.
With this evidence, the post-conviction court denied relief, specifically
accrediting trial counsel‟s testimony over that of the petitioner‟s. The court found that “a
suppression motion would not have been successful in this matter” and that the petitioner
had accordingly failed to show that trial counsel was ineffective in his decision not to file
such a motion. With respect to the petitioner‟s claim that trial counsel should have used
the telephone recordings to prove that the petitioner was actually involved in a gambling
operation rather than drug dealing, the post-conviction court noted trial counsel‟s
testimony that it would be better “to not illustrate [p]etitioner‟s involvement with
additional felonious activity” because “a jury might consider [p]etitioner to be prone to
participation in criminal activity,” an implication that trial counsel wished to avoid. The
post-conviction court opined that “such a strategy was highly prudent considering the
circumstances.” The post-conviction court found that trial counsel “zealously
represented the [p]etitioner throughout the proceedings, attempting [to] exonerate his
client with legal aptitude and efficiency.”
On appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, contending that trial counsel was ineffective by failing to file a motion to
suppress the evidence found in the search of Mr. Smith‟s vehicle and by failing to prove
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the petitioner‟s involvement in gambling as an alternative theory of his business dealings
with Mr. Smith.
We view the petitioner‟s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2006). A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court‟s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court‟s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).
Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel‟s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel‟s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.
When reviewing a claim of ineffective assistance of counsel, we will not
grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Claims of ineffective assistance of counsel are mixed questions of law and
fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d
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762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). When
reviewing the application of law to the trial court‟s factual findings, our review is de
novo, and the trial court‟s conclusions of law are given no presumption of correctness.
Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn.
2000).
In our view, the record unquestionably supports the post-conviction court‟s
denial of relief. With respect to trial counsel‟s failure to seek suppression of the items
seized following the search of Mr. Smith‟s vehicle, such a tactical decision was clearly
made after adequate preparation on the part of trial counsel, given, among other things,
that the petitioner had no standing to challenge the search of a vehicle that did not belong
to him, and we will not second-guess this reasonable trial strategy. See Adkins, 911
S.W.2d at 347. Likewise, trial counsel‟s decision to eschew proof that the petitioner was
involved in an illegal – and felonious – gambling operation was certainly a reasonable
one. See id. As such, we hold the petitioner has failed to prove by clear and convincing
evidence that trial counsel‟s representation was deficient or prejudicial.
The petitioner failed to establish that he was denied the effective assistance
of counsel at trial. Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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