        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 12, 2012

                DAVIDSON TAYLOR v. STATE OF TENNESSEE

                    Appeal from the Shelby County Criminal Court
                      No. 04-01632    W. Otis Higgs, Jr., Judge


                  No. W2011-00979-CCA-R3-PC - Filed June 29, 2012


Davidson Taylor (“the Petitioner”) filed for post-conviction relief from his convictions for
evading arrest in a motor vehicle and driving under the influence. In his petition, he alleged
that he received ineffective assistance of counsel at trial. After an evidentiary hearing, the
post-conviction court denied the petition. The Petitioner appeals, arguing that the post-
conviction court erred in denying his petition. On appeal, the Petitioner asserts that his trial
counsel: (1) failed to advise the Petitioner properly regarding his right to testify; and (2)
failed to request a continuance once trial counsel learned of a death in his family. After a
careful review of the record, we affirm the judgment of the post-conviction court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and R OGER A. P AGE, JJ., joined.

Ryan Wiley (on appeal) and James Allison (at hearing), Memphis, Tennessee, for the
appellant, Davidson Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Steve Jones, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                          OPINION

                              Background Facts and Procedure

        On August 24, 2005, a Shelby County jury convicted the Petitioner of felony evading
arrest in a motor vehicle and driving under the influence (“DUI”). For the evading arrest
conviction, the Petitioner received a one-year suspended sentence. For the DUI conviction,
the Petitioner was sentenced to eleven months and twenty-nine days, with forty-eight hours
to be served in confinement. On appeal, this Court affirmed the convictions. See State v.
Davidson M. Taylor, No. W2006-00543-CCA-R3-CD, 2007 WL 3026374 (Tenn. Crim. App.
Oct. 12, 2007), perm. app. denied, (Tenn. March 3, 2008).

       The Petitioner filed for post-conviction relief on March 2, 2009, alleging ineffective
assistance of counsel. The post-conviction court held an evidentiary hearing on September
30, 2010, and November 4, 2010. The post-conviction court entered a written order denying
the petition on March 25, 2011. The Petitioner timely appeals, arguing that the post-
conviction court erred when it denied his claim of ineffective assistance of counsel.

                                              Evidence at Trial

      On direct appeal, this Court set forth the following facts underlying the Petitioner’s 1
convictions:

                Around midnight on May 2, 2003, John Tremmel, an off-duty deputy
        with the Shelby County Sheriff’s Department, was traveling home on Interstate
        40 after completing his shift.2 As he approached the Austin Peay exit, he
        noticed several cars making abrupt lane changes. As he neared these cars, he
        determined that they were swerving to avoid an extremely slow-moving Grand
        Marquis, which was being driven erratically and was “going from one side of
        the [three-lane] highway to the other.” Tremmel was not prepared to stop the
        vehicle, as he was not in uniform at the time, and he was driving an unmarked
        Sheriff’s department vehicle. Nonetheless, Tremmel continued to follow the
        Grand Marquis. As the car approached the Summer Avenue exit, it came to
        a complete stop in the middle of the roadway. According to Tremmel, other
        vehicles traveling on the roadway were forced to swerve around the stopped
        car in order to avoid hitting it. After remaining stationary for ten to fifteen
        seconds, the vehicle drove away and resumed travel on the interstate, still
        driving erratically. During this time, Tremmel was able to arm himself with
        his service weapon, put on his bulletproof vest, and place his badge around his
        neck.



        1
            The Petitioner is referred to as “the Appellant” in the cited portions of the direct appeal opinion.
        2
        Tremmel testified that he was a detective in the Narcotics Division of the Shelby County Sheriff’s
Department.

                                                       -2-
               Once Tremmel was properly prepared to stop the car, he activated his
       emergency equipment, including both lights and sirens. Although Tremmel
       activated his emergency equipment just past the Walnut Grove exit, the
       Marquis continued on until it reached the Nonconnah exit. After taking this
       exit, the driver of the Marquis stopped the car straddling the line between the
       emergency lane and the lane of traffic, creating a traffic risk for drivers exiting
       on the ramp who could not see the parked car. Tremmel observed the driver
       of the Marquis emerge from the car and noted that he had difficulty standing
       and walking. As Tremmel approached the driver, later identified as the
       Appellant, he also noticed that the Appellant smelled of alcohol, that his eyes
       were watery and bloodshot, and that his speech was slurred. The Appellant
       informed Tremmel that he had been to an office party.

              After the Appellant was stopped, Tremmel requested that a “Metro DUI
       officer” be dispatched to the scene. In the interim, Tremmel obtained the
       Appellant’s driver’s license and attempted to keep the Appellant occupied by
       talking with him until the requested DUI officer arrived. After approximately
       ten minutes, the Appellant became frustrated and returned to his car. Despite
       Tremmel’s instruction to stop, the Appellant proceeded to drive away, and
       Tremmel did not believe that it was safe to attempt to stop the Appellant under
       the circumstances. Rather, Tremmel followed the Appellant and alerted
       dispatch to the situation. As the Appellant turned onto Ridgeline Road,
       Tremmel realized that the Appellant was proceeding to the address listed on
       his driver’s license. The Appellant parked near his residence, got out of the
       car, and walked toward his house. At that point, Tremmel exited his vehicle
       and handcuffed the Appellant. Minutes later, other officers arrived on the
       scene to assist.

               Sergeant Davis, the dispatched “DUI tech,” administered several field
       sobriety tests to the Appellant, all of which the Appellant was unable to
       successfully complete. According to Davis, the Appellant had problems even
       paying attention to the instructions for completion of the tests. Based upon his
       inability to perform various field sobriety tests, which were videotaped, Davis
       determined that the Appellant was extremely impaired.

Id. at *1-2 (footnote in original).

       Additionally, the defense proffered the testimony of the Petitioner’s wife, Mary Lee
Taylor. On direct examination, trial counsel asked Taylor whether she had ever seen the
Petitioner intoxicated, and she replied that she had not. The State argued that the defense had

                                               -3-
opened the door to the Petitioner’s prior conviction for DUI in 1981. The trial court
determined that the prejudicial effect of the Petitioner’s prior DUI conviction substantially
outweighed its probative value and refused its admission. However, the trial court also
struck Taylor’s testimony in its entirety. On direct appeal, we affirmed the trial court’s
decision. See id. at *2-5 (Smith, J., concurring). Thus, the Petitioner did not admit any
evidence on his behalf. Following a Momon hearing, he elected not to testify.

                                Evidence at Post-Conviction Hearing

       Both the Petitioner and trial counsel testified at the post-conviction hearing. The
Petitioner stated that the defense’s initial strategy was for him not to testify at trial because
of his prior DUI conviction. The Petitioner, however, believed that trial counsel made a
“mistake” in examining Taylor, who was the defense’s only proffered witness. After
Taylor’s testimony was stricken, the Petitioner thought that he should have taken the stand
to “defend [himself]” and “to clarify any questions that the jury. . . might have.” 3

         The Petitioner stated that he then asked trial counsel whether he should testify and that
trial counsel instructed him not to testify. According to the Petitioner, trial counsel’s advice
in this regard stemmed from the fact that, at some point during the trial, trial counsel learned
that his brother-in-law had been killed while serving in Iraq. In his testimony at the post-
conviction hearing, the Petitioner was uncertain about precisely when trial counsel received
this news. The Petitioner believed the news came on the second day of trial and, at different
times, stated that the news came before the State closed its proof and before Taylor testified.

        The Petitioner maintained, however, that trial counsel learned of his brother-in-law’s
death before the Petitioner and trial counsel finally decided whether he should testify. The
Petitioner said that he thought trial counsel had been a “competent” and “good attorney” and
acknowledged that trial counsel discussed strategy and tactics with him. Yet, the Petitioner
believed that, “[a]fter the death of his brother-in-law, [trial counsel] just seemed to come
apart all together. He didn’t act himself, and he acted very, very nervous and out of it.” Trial
counsel’s demeanor became “very disgruntled . . . like he had actually seen a ghost.” Trial
counsel told the Petitioner that he was “totally devastated” and “just need[ed] this [trial] to
be over with.” The Petitioner said that trial counsel asked him to plead guilty, but he
declined to do so because the trial had started and the Petitioner believed that he had “a good
chance of proving [his] innocence.” The Petitioner claimed that he asked trial counsel about
the possibility of a continuance, but trial counsel told him that he “just need[ed] this to be
over . . . right now, or as soon as possible.”



       3
           The Petitioner did not elaborate on what his trial testimony would have been had he testified.

                                                     -4-
        On cross-examination, the Petitioner said that in deciding whether to testify, he “was
really open for whatever my attorney advised me to do under the circumstances.” The
Petitioner claimed, however, that the decision was taken out of his hands by trial counsel’s
statement that he needed the trial to conclude as soon as possible. The Petitioner elaborated
that trial counsel looked at his watch as he made this statement. The Petitioner said that he
then asked Taylor whether he should testify, and she told him to follow trial counsel’s advice
and not testify. The Petitioner recalled testifying at his Momon hearing and telling the trial
court that he voluntarily decided not to testify at trial. The Petitioner said that he did so
based upon Taylor’s advice to heed trial counsel’s advice.

       Trial counsel testified that he had been licensed to practice law since 2000 and that
his practice was devoted to criminal defense. Trial counsel stated that he frequently met with
the Petitioner and that they “talked extensively” about the case. Trial counsel advised the
Petitioner to plead guilty, but after the Petitioner declined, trial counsel prepared for trial.
Trial counsel had “strong reservations” about whether the Petitioner should testify and
steadfastly advised him not to do so. Trial counsel was aware of the Petitioner’s prior DUI
conviction and “wanted to be careful not to open the door” to the conviction’s admissibility.

        The trial transcript, which was admitted into evidence, reflects that the Petitioner’s
trial began on August 22, 2005, with voir dire, jury selection, reading of the indictment, and
opening statements occurring on that day. On August 23, 2005, the State put forth its proof
and rested. On that same day, the defense put forth its proof, conducted the Momon hearing,
and rested. On August 24, 2005, closing arguments took place, and the jury rendered a
verdict. Trial counsel recalled that he was notified of his brother-in-law’s death at
approximately 5:15 a.m. on August 24, 2005. He remembered that he tried to talk about his
brother-in-law’s death during closing arguments in a manner that would be advantageous to
the Petitioner but was met with an objection.4

        Trial counsel denied that he was distraught over his brother-in-law’s death at the time
that he advised the Petitioner not to testify. Trial counsel stated, “[T]hat couldn’t have
happened because I did not receive that news until after the proof had closed, period.” He
acknowledged that he may have reassessed whether the Petitioner should testify in light of
Taylor’s excluded testimony but maintained that he advised the Petitioner not to testify
because of the possibility that the Petitioner’s prior DUI conviction could be used for
impeachment purposes. Trial counsel did not recall the Petitioner telling him that he wanted
to testify or contesting the decision not to testify. Trial counsel also relayed that he had


        4
         As reflected in the trial transcript, trial counsel told the jury, “I got a call this morning that someone
in my family who is serving in Iraq was killed.” The trial court sustained the State’s objection on the ground
of relevance.

                                                       -5-
“never worn a watch” and that he had not “owned a watch in over twenty years.” Trial
counsel recalled questioning the Petitioner “very extensively” during the Momon hearing
about his decision whether to testify and that “unequivocally, at all crossroads” the Petitioner
“said he did not desire to testify.” Trial counsel noted that the Petitioner’s prior DUI
conviction was not introduced as evidence at trial.

        After hearing this evidence, the post-conviction court denied relief. The court found
that the Petitioner had failed to show either deficient performance or prejudice to his case.
First, the post-conviction court reviewed the Petitioner’s claim that trial counsel refused to
allow the Petitioner to testify at trial. The court found that the Petitioner’s testimony at the
post-conviction hearing directly contradicted his allegation in the petition, which stated that
the initial trial strategy had been for the Petitioner to testify. The post-conviction court found
that the Petitioner’s testimony was not credible and that trial counsel’s testimony, as well as
the trial transcript, revealed that trial counsel did not learn of his brother-in-law’s death until
the morning after the defense had rested. The post-conviction court also found that the trial
transcript indicated that the Petitioner knowingly and voluntarily waived his right to testify.

       Second, the post-conviction court reviewed the Petitioner’s claim that trial counsel
should have requested a continuance after learning of his brother-in-law’s death. The court
did not find credible the Petitioner’s claim that he asked trial counsel to request a
continuance during the defense’s proof and that trial counsel replied that “I just need this to
be over . . . right now or as soon as possible.” Furthermore, the post-conviction court found
no evidence of any reason that would have necessitated or justified a continuance in the
Petitioner’s trial.

       The Petitioner appeals, arguing that the post-conviction court erred in denying his
claim of ineffective assistance of counsel. From our review of the Petitioner’s brief, we
glean the following specific issues:

       (1) Whether trial counsel failed to advise the Petitioner adequately regarding
       his right to testify; and

       (2) Whether trial counsel failed to preserve the Petitioner’s right to a fair trial
       by seeking a continuance after learning of his brother-in-law’s death.

                                      Standard of Review

      Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of

                                                -6-
the United States.” Tenn. Code Ann. § 40-30-103 (2006). To prevail on a post-conviction
claim of a constitutional violation, the petitioner must prove his or her allegations of fact by
“clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f) (2006). See Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999). This Court will not overturn a post-conviction
court’s findings of fact unless the preponderance of the evidence is otherwise. Pylant v.
State, 263 S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim.
App. 2004). We will defer to the post-conviction court’s findings with respect to the
witnesses’ credibility, the weight and value of their testimony, and the resolution of factual
issues presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising
mixed questions of law and fact, however, including claims of ineffective assistance of
counsel, our review is de novo with no presumption of correctness. See Pylant, 263 S.W.3d
at 867-68; Sexton, 151 S.W.3d at 531.

                               Ineffective Assistance of Counsel

         The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel
at trial.5 Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that this right is to “reasonably effective” assistance, which is assistance that falls
“within the range of competence demanded of attorneys in criminal cases.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). The deprivation of effective assistance of counsel at trial presents a claim cognizable
under Tennessee’s Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-103;
Pylant, 263 S.W.3d at 868.

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
establish two prongs: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland, 466 U.S. at 687; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The petitioner’s failure to establish either prong is fatal to
his or her claim of ineffective assistance of counsel. Goad, 938 S.W.2d at 370. Accordingly,
if we determine that either prong is not satisfied, we need not consider the other prong. Id.

        To establish the first prong of deficient performance, the petitioner must demonstrate
that his lawyer’s “acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,



       5
         The Sixth Amendment right to counsel is applicable to the States through the Fourteenth
Amendment to the United States Constitution. See Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State
v. Howell, 868 S.W.2d 238, 251 (Tenn. 1993).

                                                 -7-
116 (Tenn. 2006) (quoting Strickland, 466 U.S. at 688)). Our Supreme Court has explained
that:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It
       is a violation of this standard for defense counsel to deprive a criminal
       defendant of a substantial defense by his own ineffectiveness or incompetence.
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.

Baxter, 523 S.W.2d at 934-35 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974)). When a court reviews a lawyer’s performance, it “must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from the perspective of counsel at that time.” Howell
v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
Additionally, a reviewing court “must be highly deferential and ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466
U.S. at 689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to tactical
choices only applies if the choices are informed ones based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982)).

       As to the prejudice prong, the petitioner must establish a “reasonable probability that
but for counsel’s errors the result of the proceeding would have been different.” Vaughn,
202 S.W.3d at 116 (citing Strickland, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
“That is, the petitioner must establish that his counsel’s deficient performance was of such
a degree that it deprived him of a fair trial and called into question the reliability of the
outcome.” Pylant, 263 S.W.3d at 869 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies the
second prong of Strickland.” Id.

       Turning to the Petitioner’s specific complaints, he first argues that trial counsel
inadequately advised him regarding his decision not to testify. At the post-conviction
hearing, the Petitioner testified that the defense’s original strategy was for him not to testify
because of his prior DUI conviction. The Petitioner asserted that after Taylor’s testimony

                                               -8-
was stricken from the record, he wanted to testify, but trial counsel refused to let him do so.
The Petitioner claimed that trial counsel’s refusal was because he had learned of a death in
his family and wanted the trial to be over with as soon as possible. Trial counsel testified that
he consistently advised the Petitioner not to testify because the Petitioner’s prior DUI
conviction could be used to impeach him. Trial counsel also testified that he did not learn
of his brother-in-law’s death until after the Petitioner had waived his right to testify.

        The post-conviction court found that the Petitioner was not a credible witness. On the
other hand, the court found that trial counsel’s testimony was credible and that the trial
transcript supported trial counsel’s version of events. Moreover, the post-conviction court
found that the trial transcript revealed a knowing and voluntary waiver by the Petitioner of
his right to testify. Thus, the post-conviction court concluded that the Petitioner had failed
to show either deficient performance or prejudice to his case.

        We have reviewed the record and conclude that the evidence does not preponderate
against the post-conviction court’s findings. In light of the post-conviction court’s finding
that the Petitioner was not a credible witness, the evidence clearly shows that the decision
whether to testify was a strategic decision made by the Petitioner absent any influence from
the family tragedy that befell trial counsel. Because this Court will not second-guess
adequately informed strategic decisions, the Petitioner has failed to show that trial counsel
performed deficiently. See Cooper, 847 S.W.2d at 528. Additionally, we have reviewed the
transcript of the Petitioner’s Momon hearing and agree with the post-conviction court’s
finding that the Petitioner voluntarily and knowingly waived his right to testify. Thus, the
Petitioner has also failed to show prejudice to his case.6 Accordingly, the Petitioner is not
entitled to relief on this issue.

        The Petitioner also asserts that trial counsel performed ineffectively by failing to
request a continuance once he learned of his brother-in-law’s death. In its findings, the post-
conviction court reiterated that the Petitioner’s testimony was not credible. Furthermore, the
post-conviction court found no evidence of any reason that would have necessitated or
justified a continuance in the Petitioner’s trial. Having reviewed the record, we agree with
the post-conviction court’s assessment and conclude that the Petitioner has not proven either
deficient performance or prejudice to his case. Consequently, the Petitioner is not entitled
to relief on this issue.




        6
           Moreover, the Petitioner provided no testimony at the post-conviction hearing regarding what his
trial testimony would have been. Thus, we are left to speculate as to how the Petitioner’s testimony may
have affected the outcome of his trial. See Black v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990).

                                                   -9-
                             CONCLUSION

For the foregoing reasons, we affirm the judgment of the post-conviction court.




                                           _________________________
                                           JEFFREY S. BIVINS, JUDGE




                                    -10-
