State v. Johnny Smith ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1999 SESSION
FILED
July 1, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
JOHNNY L. SMITH, )
) C.C.A. NO. 02C01-9806-CR-00193
Appellant, )
) SHELBY COUNTY
VS. )
) HON. L. T. LAFFERTY,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
ALICIA A. HOWARD PAUL G. SUMMERS
4299 Elvis Presley Blvd. Attorney General & Reporter
Memphis, TN 38116
CLINTON J. MORGAN
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
RHEA CLIFT
Asst. District Attorney General
201 Poplar Ave., Suite 301
Memphis, TN 38103-1947
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
Following a jury trial, the petitioner was convicted of aggravated sexual
battery, aggravated burglary, two counts of especially aggravated kidnapping, and two
counts of aggravated robbery and given an effective sentence of thirty-eight years in the
Department of Correction. On direct appeal, a panel of this Court affirmed the petitioner’s
convictions. See State v. Johnny L. Smith, No. 02C01-9602-CR-00061, Shelby County
(Tenn. Crim. App. filed May 15, 1997, at Jackson). In January 1998, the petitioner filed
a post-conviction relief petition and subsequently amendments, alleging that he was
denied effective assistance of counsel. After an evidentiary hearing, the post-conviction
court denied the petitioner relief. The petitioner now appeals, arguing that the post-
conviction court erred by failing to conclude his trial counsel was ineffective and that
newly discovered evidence entitled him to post-conviction relief. Finding no error, we
affirm the post-conviction court’s order denying relief.
The petitioner claims that his trial counsel, Lilah Kathleen Mitchell, was
ineffective for failing to impeach the victim’s trial testimony with a prior inconsistent
statement. According to the petitioner’s testimony at the post-conviction hearing, the
victim’s testimony at the preliminary hearing was different from her testimony at trial. The
record fails to contain an account of the proceedings at the preliminary hearing or at trial.
We recognize that the post-conviction court judge, who relied heavily on the trial
transcript in evaluating the petitioner’s factual allegations, specifically found that Ms.
Mitchell reviewed the preliminary hearing testimony, but at trial, did not cross-examine the
victim about her prior testimony. Because the record fails to contain an account of the
victim’s testimony at the preliminary hearing and at trial, however, we are unable to
evaluate whether the victim’s hearing testimony was in fact inconsistent with her trial
testimony in a material manner and if so, whether Ms. Mitchell’s failure to impeach the
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victim with these inconsistencies prejudiced the petitioner. Where, as here, the appellant
fails to furnish a complete record for review, this Court is precluded from considering the
issues presented and must presume that the trial court’s ruling is correct. See, e.g., State
v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993); State v. Locust, 914 S.W.2d 554, 557
(Tenn. Crim. App. 1995).
The petitioner also claims that Ms. Mitchell failed to thoroughly investigate
the case and interview all possible witnesses. At the post-conviction hearing, the
petitioner testified that prior to trial, he was aware of potential defense witnesses other
than those who testified at trial. He admitted not knowing these potential witnesses’
addresses (and for some, even their last names), but he maintained he could have
learned that information had Ms. Mitchell asked. Ms. Mitchell testified that the petitioner
never told her about these other potential witnesses. She testified that the only witnesses
of whom she was aware were those who testified at trial. Even assuming that Ms.
Mitchell somehow performed deficiently, the petitioner has failed to prove prejudice
because he has not shown how any benefit would have come from interviewing these
supposed witnesses. Without showing prejudice, the petitioner is not entitled to post-
conviction relief. See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984);
Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
Finally, we note that the petitioner has listed as an issue for review the
following: “Whether the trial court erred by not finding that appellant had new evidence
which was not available to him at the time of his trial.” Because the petitioner has failed
to provide any argument or citations to authority on this point, this issue is waived. Rules
of the Court of Criminal Appeals of Tennessee 10(b); State v. Killebrew, 760 S.W.2d 228,
231 (Tenn. Crim. App. 1988).
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In sum, the petitioner has not carried his burden of showing entitlement to
post-conviction relief. Accordingly, the post-conviction court’s order denying relief is
affirmed.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOE G. RILEY, Judge
______________________________
THOMAS T. W OODALL, Judge
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