        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 18, 2012

                BARRY SMELLEY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                     No. 2005-B-1408     Steve R. Dozier, Judge


                 No. M2011-01228-CCA-R3-PC - Filed June 26, 2012


The petitioner, Barry Smelley, appeals the post-conviction court’s denial of his petition for
post-conviction relief, arguing that the post-conviction court should be reversed for failing
to make findings on his specific claims and that counsel’s unilateral decision to release a
witness from a subpoena violated his rights to compulsory process and to present a defense.
After review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OGER A. P AGE, JJ., joined.

David Christensen, Brentwood, Tennessee, for the appellant, Barry Smelley.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS

       The petitioner was convicted by a Davidson County Criminal Court jury of attempted
first degree murder, especially aggravated burglary, and two counts of reckless
endangerment and was sentenced to an effective term of twenty-nine years. This court
affirmed his convictions and sentences on direct appeal, and our supreme court denied his
application for permission to appeal .        State v. Barry Ronnell Smelley, No.
M2007-01884-CCA-R3-CD, 2009 WL 453989, at *1 (Tenn. Crim. App. Feb. 24, 2009),
perm. to appeal denied (Tenn. Aug. 24, 2009).
        Our opinion on direct appeal reveals that the petitioner’s convictions stemmed from
his shooting the victim, Laquita Bell, as she was lying in bed in her home with her
five-year-old and eight-year-old sons around 11:00 p.m. on August 11, 2004. Id. According
to the victim’s testimony at trial, she and the petitioner had been dating and living together
until two days before the shooting, when they began to frequently argue and she asked him
to move out. Id. The petitioner stopped by the victim’s home earlier in the day of the
shooting to retrieve his clothes, and the two of them argued. Id. Before leaving, the
petitioner told the victim that she was a “sitting duck” and then repeatedly telephoned and
relayed messages to her through her son, causing the victim to change the locks to her home.
Id. That night, the petitioner kicked open the locked door of the victim’s duplex, called her
by her nickname, and then shot her four times. Id.

        The victim’s mother, who lived next door to the victim, saw someone on the victim’s
porch after she heard the shots and was certain that the person was the petitioner. Id. at *2.
The victim’s sister heard the petitioner and the victim arguing earlier in the day of the
shooting and heard the petitioner tell the victim that he was going to “get her.” Id. Sergeant
Charles Harrison, the officer who responded to the scene, recalled that the victim told him
that the petitioner was the shooter. Id. The petitioner denied shooting the victim. Id.

       On August 20, 2010, the petitioner filed a pro se petition for post-conviction relief
in which he alleged that he was denied the effective assistance of trial counsel and that
“[o]ther grounds” entitled him to relief. Post-conviction counsel was appointed, and an
amended petition was filed in which the petitioner alleged that counsel’s decision to release
witness Mike Bunch from his subpoena violated his rights to compulsory process and to
present a defense.

        At the evidentiary hearing, the petitioner testified that Mike Bunch was the paramedic
who responded to the scene and was supposed to testify at his trial. According to the
petitioner, Bunch would have testified that “he heard a statement from the victim in the case
say something that contradicts what they said as me being the shooter.” The petitioner
identified a letter he received from counsel which he took to inform him that counsel was
going to call Bunch to testify that the victim was asleep when she was shot. The petitioner
said that he did not find out that counsel had relieved Bunch from his subpoena until the
second day of trial. He claimed that he would have never gone to trial and, instead, would
have taken a “reasonable” plea had one been offered, had he known that Bunch was not
going to testify. The petitioner stated that he did not agree with counsel’s decision to
introduce Bunch’s report instead of live witness testimony.

         The petitioner’s trial counsel testified that he issued a subpoena for Bunch to testify
at trial, but Bunch contacted him the night before he was to testify and said that he wanted

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to remain out-of-town with his sick father if his presence at trial was not required. Counsel
said that he was aware that Bunch’s report “basically stated that when he spoke with [the
victim] she said that she was asleep when she was shot.” However, after conversing with
Bunch and the prosecutor, counsel said that “[i]t became apparent that [Bunch] would
elaborate more on that statement on the notation tha[n] was in his report . . . [and] was afraid
that [Bunch] might qualify [his statement].” Counsel admitted that he unilaterally made the
decision to release Bunch from subpoena and that the petitioner did not agree with that
decision.

        On cross-examination, counsel testified that he had been licensed to practice law
since 1982 and dedicated approximately eighty percent of his practice to criminal defense.
Counsel elaborated that, during a discussion with the court after he informed the petitioner
that he had released Bunch, the prosecutor said that she had talked to Bunch and Bunch had
said that he could have been paraphrasing in his report. Counsel recalled that the prosecutor
further informed them that Bunch had said he would have put quotation marks around
anything in his statement that someone had said verbatim. Counsel maintained that he felt
it would be more effective to go forward with the trial with Bunch’s statement rather than
the live witness to keep the prosecutor from getting Bunch to elaborate on or qualify what
was in his statement. Counsel said that the parties had never been close to a plea deal
because the petitioner always maintained his innocence and that the plan all along was for
the petitioner to testify to explain his theory “that there was another person who perpetrated
the shooting.”

        After the hearing, the post-conviction court denied relief, finding that the petitioner
failed to prove that he received the ineffective assistance of counsel.

                                         ANALYSIS

       The petitioner argues that the post-conviction court should be reversed for failing to
comply with Tennessee Code Annotated section 40-30-111(b), in that the court did not make
findings on his free-standing constitutional claims, addressing instead only whether he
received the ineffective assistance of counsel. He also argues that counsel’s unilateral
decision to release a witness from a subpoena violated his rights to compulsory process and
to present a defense.

        The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the
court are conclusive on appeal unless the evidence preponderates against them. See Tidwell
v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual

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issues, the appellate court should not reweigh or reevaluate the evidence. See Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of
the law to the facts of the case is de novo, with no presumption of correctness. See Ruff v.
State, 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counsel and
possible prejudice to the defense are mixed questions of law and fact and, thus, subject to
de novo review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

                                 I. Constitutional Claims

       Again, the petitioner argues that counsel’s unilateral decision to release a witness
from a subpoena violated his rights to compulsory process and to present a defense and that
the post-conviction court should be reversed for failing to make findings on his specific
claims.

      Our post-conviction statute provides for the waiver of issues that could have been,
but were not, raised in a previous proceeding. Tenn. Code Ann. §§ 40-30-106(g), -110(f)
(2006). In determining whether an issue is waived in a post-conviction proceeding, the
Tennessee Code provides:

       (g) A ground for relief is waived if the petitioner personally or through an
       attorney failed to present it for determination in any proceeding before a court
       of competent jurisdiction in which the ground could have been presented
       unless:

              (1) The claim for relief is based upon a constitutional right not
              recognized as existing at the time of trial if either the federal or
              state constitution requires 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.

Id. § 40-30-106(g). The petitioner’s claims that trial counsel’s unilateral decision to release
a witness from subpoena violated his rights to compulsory process and to present a defense
could have been raised in the direct appeal but were not, and neither of the special
circumstances provided for in Tennessee Code Annotated section § 40-30-106(g)(1)-(2)
applies in this case. Therefore, consideration of these issues is waived. See, e.g., House v.
State, 911 S.W.2d 705, 713-14 (Tenn. 1995). Accordingly, the petitioner’s argument that
the post-conviction court should be reversed for failing to make specific findings is
pretermitted.

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                           II. Ineffective Assistance of Counsel

       Even though the petitioner did not raise in this appeal the issue of ineffective
assistance of counsel with regard to counsel’s release of Mike Bunch from subpoena,
because he raised it in his pro se petition and it is somewhat intermingled with his free-
standing claims, we will address it.

       The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn.
Const. art. I, § 9. To establish a claim of ineffective assistance of counsel, the petitioner has
the burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington,
466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is
applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong
test:

       First, the [petitioner] must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
       Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and
may not second-guess the tactical and strategic choices made by trial counsel unless those
choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.

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        With regard to whether counsel was ineffective in releasing Bunch from subpoena,
the post-conviction court found that the petitioner failed to prove by clear and convincing
evidence that he was prejudiced by counsel’s tactical decision to release Bunch. The court
noted that admission of only the statement, rather than live witness testimony, kept Bunch
from being subjected to cross-examination and “the possibility of lessening the impact of
the statement.” The post-conviction court observed the trial court’s findings from when the
issue arose at trial:

              “A” scenario would be, the witness is called, makes some statements
       that have already been alluded to that he might very well make, that this
       wasn’t a quote and he can’t really attribute to her. And, it may be
       paraphrasing that he thought she meant she was asleep just because she said
       she was in bed and his whole case falls apart. He gets convicted and, then, he
       claims that you should have not called him.

              So, I mean, I have to not totally rely on what . . . [counsel]’s impression
       is about what’s best for [the petitioner], but, give that great deference because
       of what could happen on cross and in [counsel’s] opinion, it’s better to have
       what is already a given versus what could result if he is crossed. In other
       words, he’s ending up, apparently, now with a better statement than the
       witness is willing to make live and in person, both sides having spoken with
       him.

The post-conviction court also found that the petitioner failed to prove by clear and
convincing evidence that “‘but for’” counsel’s decision to release Bunch, the result of the
proceeding would have been different.

       After review, we agree with the findings of the post-conviction court. Counsel’s
decision to proceed only with Bunch’s statement was a tactical decision he made based on
his knowledge of the case and the possibilities that could arise if Bunch was subjected to
cross-examination. The petitioner is not entitled to relief.

                                      CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the petition.



                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE

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