        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 18, 2013

         BRODERICK JOSEPH SMITH v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2009-A-501    J. Randall Wyatt, Jr., Judge


                No. M2012-02705-CCA-R3-PC            Filed October 18, 2013


The petitioner, Broderick Joseph Smith, appeals the denial of his petition for post-conviction
relief, arguing he received the ineffective assistance of counsel. 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 J OSEPH M. T IPTON, P.J., and
J EFFREY S. B IVINS, J., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Broderick Joseph Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Amy Hunter Eisenbeck,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       The petitioner was convicted by a Davidson County Criminal Court jury of two counts
of carjacking, three counts of attempted robbery, one count of misdemeanor assault, one
count of aggravated robbery, and one count of attempted carjacking and was sentenced to an
effective term of eighty-nine years. State v. Broderick Joseph Smith, No. M2009-01427-
CCA-R3-CD, 2011 WL 322358, at *1 (Tenn. Crim. App. Jan. 14, 2011), aff’d after remand,
2011 WL 3568110, at *1 (Tenn. Crim. App. Aug. 15, 2011), perm. app. denied (Tenn. Dec.
14, 2011). His convictions arose out of a two-day crime spree in the Nashville area on June
24 and 25, 2007, that the petitioner committed because, according to his statement to police,
he needed money to buy a handgun so he could kill his ex-girlfriend, her new boyfriend, and
“who ever got in [his] way.” Id. At the time of his trial, the petitioner had already pled guilty
in federal court to two armed bank robberies that occurred during the crime spree. Id.

        The proof at trial showed that the petitioner’s crime spree began in Madison,
Tennessee, when the petitioner, armed with scissors, robbed a gas station clerk of $400. Id.
at *2. Later that evening, the petitioner used a knife at a gas station near Vanderbilt
University to rob a driver of her purse and minivan. Id. The next day, the petitioner drove
the stolen minivan to the Fifth-Third Bank on Donelson Pike in Nashville, which he
proceeded to rob. Id. Within twenty minutes of the robbery, the petitioner drove to the
Wachovia Bank on West End Avenue and robbed it. Id. Thereafter, the petitioner drove to
the Baptist Hospital parking garage and abandoned the stolen minivan. Id. The petitioner
attempted to carjack two other people in the parking garage but was unsuccessful, and he
drove away in the stolen minivan and abandoned it a few blocks away. Id. at *2-3. In an
alley, the petitioner threw a knife and his pants that were covered in red dye from a dye pack
in the money taken from the banks into the back of a parked truck. Id. at *3.

        The petitioner then tried to steal a Federal Express delivery truck. Id. The driver
escaped and ran to the parking lot of the Lentz Health Center, alerting others to lock their
doors as the petitioner chased her. Id. The petitioner jumped into another car and demanded
the driver’s keys. Id. When the driver refused, the petitioner grabbed the keys, but the driver
was able to hold onto the key to the ignition. Id. The petitioner then punched a man who
tried to assist the driver. Id. After that, the petitioner chased a pregnant woman, slammed
her into a wall, and tried to grab her car keys. Id. Bystanders pulled the petitioner off the
pregnant woman, and he started to walk away from the parking lot. Id. He was arrested a
short while later, carrying a duffle bag containing a large amount of cash. Id. at *4. The
petitioner was taken to the hospital, where he signed a waiver of rights and gave a statement.
Id.

       On direct appeal, this court affirmed the judgments of the trial court, but the
Tennessee Supreme Court granted permission to appeal and remanded the case for
reconsideration in light of its opinion in State v. Garrett, 331 S.W.3d 392 (Tenn. 2011). See
State v. Broderick Joseph Smith, No. M2011-01173-CCA-RM-CD, 2011 WL 3568110, at
*1 (Tenn. Crim. App. Aug. 15, 2011), perm. app. denied (Tenn. Dec. 14, 2011). After
remand, the judgments were again affirmed, and the supreme court denied permission to
appeal. Id.

        On April 12, 2012, the petitioner filed a pro se petition for post-conviction relief and,
after the appointment of counsel, an amended petition was filed. The post-conviction court
conducted an evidentiary hearing, at which the petitioner testified that in June of 2007, he
started “acting real irrationally” and went on a two-week drug and drinking binge after

                                               -2-
learning that his girlfriend was not being faithful to him. He was arrested twice after
smoking crack cocaine in front of police officers. He explained that he was “just acting real
irrationally and . . . drinking real real heavy” during that time period. The petitioner stated
that he was about fifty years old in 2007 and had used drugs off and on since the age of
seventeen or eighteen.

         The petitioner testified that he pled guilty to the federal charges before his case began
in state court and that counsel started representing him in February 2009 when he was
transported to Nashville from federal prison. He claimed that counsel told him at their first
meeting that, because he had given a confession, “it was a waste of time and resources” for
counsel to represent him and that it made “no sense” to challenge any of the evidence against
him. He stated that “[they] started immediately having conflicts” after counsel said that to
him, and he asked counsel to withdraw from the case. When counsel refused to withdraw,
the petitioner called counsel’s supervisor at the public defender’s office, as well as wrote her
letters, asking for a new attorney and complaining about counsel’s representation. However,
he was told that he could not be assigned another attorney and that he had “to make the best
of it.”

        The petitioner testified that, in 1982, when he was twenty-six years old, he underwent
a mental evaluation at Vanderbilt Psychiatric Outpatient Clinic because “[i]t was a stipulation
of [his] parole from TDOC that [he] get mental health treatment.” He was diagnosed with
“a thinking disorder, a cognitive dysfunction” and was prescribed psychotropic medications.
However, against medical advice, he dropped out of treatment and stopped taking his
medication, and “progressively over the years [his] condition worsen[ed].” He said that at
the time of the bank robberies, he was experiencing “some mental . . . anguish” and was “also
under the influence of cocaine and alcohol too heavily[.]”

        The petitioner testified that he told counsel “everything” about his mental health
issues, drug use, and mental state at the time of the incident. He said that he asked counsel
if he was going to challenge any of the evidence, but counsel told him there “ain’t nothing
that I can do for you” because he had signed a confession. The petitioner did not know
whether counsel filed a motion to suppress his statement.

        The petitioner testified that he was not given a mental evaluation until after the trial,
when the attorney handling a matter in federal court suggested that he be evaluated and
counsel “jumped on the band wagon.” He recalled that federal counsel obtained funding
from the federal court to have him evaluated by an “addiction specialist,” Dr. Murray Smith,
in relation to his federal matter. The petitioner said that federal counsel’s representation
overlapped with trial counsel’s representation in state court, and he was certain that the two
attorneys talked several times.

                                               -3-
       The petitioner testified that, at the time of the incident, his ex-girlfriend and her new
boyfriend both worked at Vanderbilt Hospital, and he told counsel that his plan had been to
go there and kill them and anybody else who got in his way. The petitioner believed that
counsel’s wife worked as a psychologist at Vanderbilt. The petitioner felt that counsel’s
continued representation was a conflict “because [the petitioner was] talking about going out
there and killing these folks at the hospital and [counsel’s] wife works there and she could
have got caught up in all of that[.]” He told counsel that was another reason for him to
withdraw from the case. When counsel said that he would not withdraw, the petitioner
contacted the public defender and told her about the potential conflict, but she told him “that
[was] not going to affect [counsel]’s representation of [him].”

        The petitioner testified that he was brought back to Nashville a little more than a
month before his mid-March trial. He recalled having discussions with counsel about the
trial date. He told counsel that they could go to trial “whenever you say we are ready . . .
since it seems like I can’t get rid of you.” The petitioner did not recall counsel’s ever saying
that there were other things he could do if he had more time, and he denied telling counsel
that he wanted to have a trial rather than ask for more time to prepare. The petitioner did not
think that counsel “put on much of a case for [him],” called any defense witnesses, or
challenged any of the testimony or the confession.

         On cross-examination, the petitioner did not remember filing a motion for speedy trial,
explaining that it had been almost four years ago but that he would “take [the State’s] word
for it.” He acknowledged that he had written numerous letters to the public defender and the
district attorney about speeding up his transfer from federal custody under the Interstate
Compact on Detainers. It was his understanding that, under the Compact, he had to be
transferred to state custody and tried within 180 days after the request was filed. He said that
he “wrote some letters trying to get back here, trying to expedite [his] transfer[,] . . . [n]ot
requesting a speedy trial.”

          The petitioner acknowledged that the mental evaluation for his federal proceedings
took place after his state trial and that, if a similar evaluation had taken place before his state
trial, it would have taken time and required that he agree to being tried outside of the 180-day
period. However, he could not remember whether he was willing to waive his 180-day
period. The petitioner said that he thought counsel should have called his landlord to testify
at trial because the landlord “kn[e]w the anguish that [he] was going . . . through and stuff[.]”
He admitted committing the offenses but said, “[W]hen I signed the confession[,] I was out
of my mind.”

       Trial counsel testified that he had worked in the public defender’s officer at two
different times for a total of twenty-four or twenty-five years. He became involved in the

                                                -4-
case on the day of the petitioner’s arraignment. However, other attorneys in the office “had
extensive contact” with the petitioner prior to that in assisting him with the Interstate
Compact on Detainers process. He recalled that “[t]here was a somewhat inexplicable delay
in getting him here.” By counsel’s calculations, when the petitioner arrived in the state, “he
had to be tried within 180 days of his request . . . [i]n other words, 32 days later.” He said
that the petitioner “was very acutely aware” of the time frame in which his case had to be
tried and was unwilling to waive the 180-day requirement because doing so would have
eliminated “the potential motion to dismiss in the plausible event the State was unable to
bring him to trial within those 32 days.” The petitioner was also aware that waiving the 180-
day requirement would give counsel additional time to prepare for trial and file potential
motions, but the petitioner “absolutely did not want to waive the 180 days.”

        Counsel testified that he knew the petitioner was represented by federal counsel in his
federal habeas corpus action, which concerned the attorney appointed to represent the
petitioner on the federal bank robbery charges. Although the petitioner’s federal, trial-level
attorney was willing to provide information to counsel, the petitioner “absolutely prohibited
[counsel] from getting with [federal trial counsel] about the case . . . or obtaining documents
from him[.]” Counsel was particularly interested in obtaining the federal presentence report
because he thought that it would contain information about the petitioner’s social and
treatment history. He “thought that would have been a critical document for trying to
determine whether or not there were any such avenues to be explored.” Counsel also had
several informal conversations about the case with federal habeas counsel, but they did not
“exchange any significant information” until after the trial. Both federal trial and habeas
counsel offered to provide the document if the petitioner signed a release, but the petitioner
would not do so. Counsel also contacted an Assistant United States Attorney, who told him
that giving him a copy of the report would violate federal law. Counsel filed a motion in
district court to have the document released, and “it was summarily dismissed without a
hearing.”

        Counsel testified that the petitioner wanted him to file a motion to suppress the
statement due to “his profound intoxication by use of drugs and his distraught emotional
state.” However, the petitioner told counsel that he was the only possible witness to those
matters. Counsel also reviewed the statement and thought that the petitioner responded
coherently to the detective’s questions and “d[id]n’t sound crazy.” He did not think the
statement had a “[]gross indicia of invalidity” and said they “would have need[ed] to have
had a lot more information about [the petitioner]’s mental health” to have an effective motion
to suppress. Counsel reiterated that it was a tactical decision to not file a motion to suppress
“in the sense that [he] didn’t feel that [they] had enough information to prevail on it[.]”

       Counsel was aware of the petitioner’s complaint that he should have withdrawn from

                                              -5-
the case because the petitioner had planned to kill people at Vanderbilt, where counsel’s wife
happened to work. However, counsel explained that the petitioner was in error because his
wife did not work at Vanderbilt. He said that her practice was at Baptist Hospital and that,
although some of the incidents happened in the parking garage there, she actually parked in
a lot for physicians. He “did not feel morally conflicted” by his representation of the
petitioner and, if anything, “felt somewhat advantaged because at least [he] knew the layout
of the building.”

       Counsel said that, had he requested a mental health evaluation to determine the
petitioner’s state of mind at the time of the offenses, it would have required the petitioner to
waive the 180-day limit which the petitioner was not willing to do.

       On cross-examination, counsel agreed that any delay past the 180 days was a non-
negotiable issue with the petitioner. He said that there were “promising avenues or areas,”
particularly the petitioner’s mental health situation, that he and the petitioner “wanted to
explore [that] were terminated by the short time frame.” Counsel could have gotten the
petitioner evaluated for competency to stand trial and insanity at the time of the offenses
within the thirty-two days, but he did not feel that either “of those two things were at issue.”
 However, he thought it would have been “promising” to explore the petitioner’s intent at the
time of the commission of the crimes. Counsel noted that the petitioner “demonstrated a
strong knowledge of many aspects of the law,” particularly in the area of the Interstate
Compact on Detainers, and he did not think the petitioner was confused about the
proceedings. In counsel’s opinion, the petitioner “was clearly competent, angry, but
competent.

       Counsel did not think that a “standard evaluation” would have been helpful but that
a more in-depth evaluation, involving “some prodigious record collection” and obtaining
funds to employ a private mental health professional, could have been advantageous to the
defense. He would have had such professional explore the petitioner’s waiver of rights.
Counsel knew that the petitioner had claimed “heavy drug use” during the time period of the
offenses and when he gave his statement. He spoke with the petitioner’s federal habeas
counsel before the petitioner’s state trial about mental health defenses and learned that she
intended to employ an addictionologist. After the trial, federal habeas counsel sent counsel
a copy of the addictionologist’s report. Counsel agreed that the information in the report
could have been helpful, and he “certainly could have considered it” had it been available
before trial.

       Counsel agreed that trying to negate the mens rea for the offenses would have been
the best, if not only, avenue of defense. However, counsel noted that the mens rea for
carjacking was intentional or knowing, and he “thought it would have been a tremendous

                                              -6-
leap to be able to show to a jury that [the petitioner]’s conduct that day was not knowing.”
Counsel agreed that the petitioner’s statement to the police was unfavorable and that with
some of this additional information he would have potentially had a good faith basis for
filing a motion to suppress.

       Counsel testified that he and the petitioner had a somewhat contentious relationship
and that the petitioner decided “very quickly” that he did not want counsel as his lawyer and
asked him to withdraw. Counsel did not recall telling the petitioner it was a waste of time
and resources to represent him, and he noted that “it doesn’t sound at all like me.” Counsel
said that he probably would have told the petitioner that the fact he confessed made it
difficult to prepare an effective defense.

        Counsel agreed that he would have liked to have taken additional steps to investigate
the petitioner’s mental health but for the petitioner’s insistence on being tried within the 180-
day time frame. He told the petitioner that he could “do more” if he had more time and
maintained that they “definitely had a conversation about that.” He said that the petitioner
told him about a couple of physicians who “had critical information,” but counsel could not
find them after a thorough search. Counsel maintained that the fact that his wife worked in
the vicinity of the petitioner’s crime spree did not affect his representation.

       On redirect examination, counsel testified that, at the time he represented the
petitioner, he had “very few cases” and was able to “devote significant amounts of time to
the case.” His records reflected that over ninety-nine hours of attorney time and twenty-six
hours of staff time were spent on the petitioner’s case.

      After the hearing, the post-conviction court entered a written order concluding that
none of the petitioner’s allegations had merit.

                                         ANALYSIS

                            I. Ineffective Assistance of Counsel

        On appeal, the petitioner raises three allegations of ineffective assistance of counsel.
He asserts that counsel was ineffective for failing to have him evaluated for competency,
failing to file a motion to suppress his statement, and failing to withdraw due to a potential
ethical conflict.

        The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive

                                               -7-
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 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 post-convictions 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 issue of ineffective assistance of counsel, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       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 defendant 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 defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant 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)).
Moreover, 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.

       Courts need not approach the Strickland test in a specific order or even “address both

                                                -8-
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

                                   A. Mental Evaluation

       The petitioner argues that counsel was ineffective for failing to have a mental health
professional evaluate him “for competency to stand trial and/or other mental health analysis
that could help in [his] defense.” He asserts that there were “red flags” in his behavior and
history that should have put counsel on notice that a further investigation into his mental
health was warranted.

        At the evidentiary hearing, counsel testified that, had he requested a mental health
evaluation to determine the petitioner’s state of mind at the time of the offenses, it would
have required the petitioner to waive the 180-day limit which the petitioner was not willing
to do. Counsel could have gotten the petitioner evaluated for competency to stand trial and
insanity at the time of the offenses within the time period remaining, but he did not feel that
either “of those two things were at issue.” Counsel noted that the petitioner “demonstrated
a strong knowledge of many aspects of the law,” particularly in the area of the Interstate
Compact on Detainers, and he did not think the petitioner was confused about the
proceedings. In counsel’s opinion, the petitioner “was clearly competent, angry, but
competent.”

       Counsel did not think that a “standard evaluation” would have been helpful but that
a more in-depth evaluation, involving “some prodigious record collection” and obtaining
funds to employ a private mental health professional, could have been advantageous to the
defense. However, any area counsel thought worth exploring was foreclosed by the
petitioner’s insistence on not delaying the trial past the 180 days, which was a non-negotiable
issue with the petitioner.

       The petitioner testified that he did not recall counsel’s ever saying that there were
other things he could do if he had more time, and he denied telling counsel that he wanted
to have a trial rather than ask for more time to prepare. He acknowledged that a mental
evaluation would have taken time and required that he agree to being tried outside of the 180-
day period, and he could not remember whether he was willing to waive the 180-day period.

       In ruling on this issue, the post-conviction court accredited counsel’s testimony in
finding that, “in proceeding to trial without a mental health evaluation, [counsel] was
following the [p]etitioner’s adamant and explicit instructions.” The petitioner has not shown
that counsel performed deficiently, and the record supports the post-conviction court’s

                                              -9-
determination.

                                  B. Motion to Suppress

       The petitioner argues that counsel was ineffective for failing to file a motion to
suppress his statement in light of his “serious drug use around the time of the offenses and
his potential mental health issues.”

        Counsel testified that the petitioner wanted him to file a motion to suppress the
statement due to “his profound intoxication by use of drugs and his distraught emotional
state.” However, the petitioner told counsel that he was the only possible witness to those
matters. Counsel also reviewed the petitioner’s statement and thought that the petitioner
responded coherently to the detective’s questions and “d[id]n’t sound crazy.” Counsel did
not think the statement had a “[]gross indicia of invalidity” and said they “would have
need[ed] to have had a lot more information about [the petitioner]’s mental health” to have
an effective motion to suppress. The petitioner’s federal trial and habeas counsel offered to
provide counsel with the petitioner’s federal presentence report, which counsel thought might
contain “critical” information about the petitioner’s social and treatment history, but the
petitioner would not sign a release for counsel to obtain the document. Counsel stated that
it was a tactical decision to not file a motion to suppress “in the sense that [he] didn’t feel
that [they] had enough information to prevail on it[.]”

        In ruling on this issue, the post-conviction court found that counsel’s determination
to not file a motion to suppress “was entirely reasonable.” Moreover, the post-conviction
court noted that there was “a substantial amount of evidence” against the petitioner,
supporting the court’s conclusion that the petitioner did not demonstrate that there is a
reasonable probability that the result of the proceeding would have been different had the
statement been suppressed.

                          C. Withdrawal from Representation

       The petitioner lastly argues that counsel was ineffective for failing to withdraw due
to an “ethical conflict” based on the petitioner’s having told counsel that he had intended to
commit mass murder at Vanderbilt, where the petitioner believed counsel’s wife worked.

       Counsel testified that his wife did not work at Vanderbilt; her practice was at Baptist
Hospital. He said that some of the incidents happened in the parking garage at Baptist, but
his wife parked in a lot for physicians. Counsel stated that he “did not feel morally
conflicted” about representing the petitioner and, if anything, “felt somewhat advantaged
because at least [he] knew the layout of the building.” Counsel maintained that the fact that

                                             -10-
his wife worked in the vicinity of the petitioner’s crime spree did not affect his
representation.

        The court found that the petitioner was mistaken in his facts and that, even though
some of the conduct occurred in the parking garage at Baptist Hospital, “there was no
substantial connection between this conduct and [counsel]’s wife.” The court concluded that
counsel “had no conflict of interest that would impede his ability to represent the
[p]etitioner.” The petitioner has not shown that counsel performed deficiently, and the record
supports the post-conviction court’s determination.

                                      CONCLUSION

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




                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




                                             -11-
