         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 7, 2006

                    MELVIN COFER v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Hardeman County
                             No. 6542 J. Weber McCraw, Judge



                  No. W2006-00631-CCA-R3-PC - Filed September 25, 2007


The petitioner, Melvin Cofer, was convicted of aggravated vehicular homicide and vehicular assault.
As a result, the petitioner received concurrent sentences of twenty-one years and three years. The
petitioner’s convictions and sentences were affirmed on direct appeal. See State v. Melvin Cofer,
No. W2002-01984-CCA-R3-CD, 2003 WL 21729450, at *1 (Tenn. Crim. App., at Jackson, Jul. 25,
2003), perm. app. denied, (Tenn. Nov. 24, 2003). Subsequently, the supreme court denied
permission to appeal. The petitioner filed a pro se petition for post-conviction relief alleging, on
numerous grounds, ineffective assistance of counsel. Counsel was appointed and several amended
petitions were filed. The petition was denied by the post-conviction court after a hearing. This
appeal followed. Because the post-conviction court properly denied the petition, we affirm the
judgment of the post-conviction court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
ROBERT W. WEDEMEYER , JJ., joined.

Gary Antrican, District Public Defender, Covington, Tennessee, for the appellant, Melvin Cofer.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
Elizabeth Rice, District Attorney General; and Joe Van Dyke, Assistant District Attorney General,for
the appellee, State of Tennessee.



                                             OPINION

        The facts underlying the petitioner’s conviction were presented on direct appeal by this Court
as follows:
        At approximately 2:15 a.m. on March 12, 2001, Trooper Tim Scott was
dispatched to the scene of a single-vehicle accident on Carlins Road in Hardeman
County. When he arrived some thirty-five minutes after the accident, he observed
that emergency medical personnel were preparing to transport the female victim, later
identified as Candice Main, by helicopter to a hospital in Jackson. The male victim,
Jeff Taylor, was being transported by ambulance to Jackson General Hospital. A
green Honda lay upside down on the edge of the roadway. According to Trooper
Scott, the vehicle had “crossed over the center line, and the center of the roadway,
and had rolled over into oncoming traffic.” The defendant, who was the owner of the
Honda, acknowledged that he had been driving when the accident occurred. Trooper
Scott described the defendant’s speech as slurred, his eyes as watery, and his gait as
unsteady, and observed that one of his pupils was dilated. Trooper Scott also smelled
alcohol on his breath. There was an unopened can of beer beside the defendant’s
vehicle.

        After photographing the vehicle, Trooper Scott questioned the defendant, who
admitted that he had been drinking earlier in the evening and had taken Xanax, and
then placed him under arrest for DUI. The officer transported the defendant to
Bolivar General Hospital for a blood alcohol test, which the defendant refused.
Because of injuries he suffered in the accident, the defendant was hospitalized and
was later taken to Jackson General Hospital. Trooper Scott was not present when the
defendant’s blood was drawn. It was his opinion that the defendant was intoxicated
when the accident occurred.

         Trooper Scott, who had only three months’ experience at the time of the
accident, had previously investigated approximately twenty accidents. This was the
first accident he had investigated which involved a fatality. Trooper Scott conceded
that he did not interview any of the bystanders who were at the scene that night and
acknowledged that the defendant’s slurred speech, watery eyes, dilated pupil, and
unsteady gait could have been caused by injuries he received in the accident.

        Denise Walder, the victim Taylor’s fianceé, testified that she had last seen
him at approximately midnight on the night of accident and did not see him again
until he was taken to the hospital. Upon her arrival at the hospital, she learned that
Taylor had been in a car accident and had died.

        Candice Main, who had attended a cookout at a neighbor’s house on the day
before the accident, testified that both the defendant and Taylor were there. Both
were drinking. During the course of the evening, Ms. Main and Taylor decided to
persuade the defendant to leave the cookout in order to avoid an altercation. She
recalled that when they left in the defendant’s car, each of them was drinking beer.
According to Ms. Main, Taylor drove initially but the defendant eventually took the
wheel. When the defendant began driving at an excessive rate of speed and


                                         -2-
swerving, she “begged [the defendant] to stop or let us out, or let somebody else
drive.” Ms. Main testified that she was pinned underneath the car when the
defendant crashed. She recalled hearing Taylor talking but could not see him. The
defendant ran for help. Just after a man and a woman pulled her from the car, she
lost consciousness.

        Ms. Main remained in the hospital for three weeks with injuries to her colon,
pancreas and kidneys. All of her ribs were broken. She testified that “[i]t’s not all
[the defendant’s] fault. He didn’t want me to get in that car . . . I believe the pain [the
defendant has] been through is enough.”

         Laura Kitchen, a medical laboratory technician at Bolivar General Hospital
at the time of the accident, testified that the defendant’s blood was drawn at the
direction of the emergency room physician to test for blood alcohol content.
Although she could not specifically recall taking the defendant’s blood, Ms. Kitchen
testified that it is her practice to clean the area with water rather than alcohol before
drawing the sample. Testing established that the defendant’s blood alcohol content
was .217 milligrams per deciliter.

         Robert Marshall, a forensic scientist with the Tennessee Bureau of
Investigation testified that the defendant’s medical records established that a serum
blood alcohol test, rather than a whole blood alcohol test, was performed. Using a
standard formula, Marshall determined that the defendant’s whole blood alcohol
level would have been .177 percent. Marshall testified that while alcohol in the body
generally dissipates at a rate of .01 to.02 grams percent per hour, the alcohol content
of blood kept in a sealed container would likely remain the same. The defendant’s
medical records indicated that he had taken the prescription medication Xanax,
which, according to Marshall, should not be combined with alcohol. Marshall
testified that the medical records established that the defendant refused blood alcohol
testing by law enforcement and that the testing was conducted for medical purposes.

         Billy Irvin, a volunteer with the rescue squad that responded to the accident,
testified that while he is not a certified emergency medical technician, he was
certified to render medical assistance at accident scenes with few limitations. Irvin,
who arrived at the accident scene at 2:20 a.m., testified that it took approximately
twenty minutes to extricate Taylor, who was pinned between the ground and the rear
window, with the full weight of the vehicle on his back.

        Mechanic Roger Province, who examined the vehicle several months after the
accident, determined that “the right rear tire was flat. The right rear wheel is turned
under, and . . . the left front fender and the left front wheel has damage where it hit
the tree.” Province stated that he observed asphalt inside the rim of the right rear tire,



                                           -3-
        indicating that it had dug into the roadway. He found that the tire had broken loose
        from the rim and the right rear suspension of the car was bent.


                 John Weaver, a paramedic with the Hardeman County Ambulance Service,
        testified that when he arrived at the scene of the accident, a number of bystanders
        were rocking the car in an attempt to lift it off of Taylor. According to Weaver,
        Taylor was lying on his stomach and was pinned under the car from his waist down.
        After directing the bystanders to step away from the vehicle, Weaver performed an
        assessment of Taylor’s condition. Weaver noted that Taylor, who was conscious and
        able to speak, had a strong odor of alcohol on his breath. Initially, he did not detect
        any life-threatening injuries. After Taylor was removed from the vehicle, Weaver
        observed that “[i]n the lumbar area over the kidneys[,] which would be just above his
        belt line, there were two indent [a]tions in the back of the skin. They were
        approximately half an inch deep, guessing probably the size of a cigarette, one over
        each kidney.” Although Taylor’s skin was not broken, it was Weaver’s opinion that
        the injuries were of a type that “could cause a lot of damage to the internal organs.”

                Although a helicopter was called to transport Taylor to Jackson General
        Hospital or to The Med in Memphis, a major weather front between Hardeman and
        Shelby Counties prevented air travel so that only one helicopter was available. When
        the helicopter arrived, Taylor was pinned under the vehicle and Ms. Main’s condition
        had worsened so the decision was made to transport Ms. Main by air and Taylor by
        ambulance. Although the pilot of the helicopter agreed to return and meet the
        ambulance after dropping off Ms. Main, weather conditions would not permit him
        to do so. Taylor’s condition deteriorated during the trip to Jackson General Hospital,
        which took approximately an hour.

Melvin Cofer, 2003 WL 21729450, at *1-3 (footnote omitted).

        At the conclusion of the jury trial, the petitioner was convicted of aggravated vehicular
homicide and vehicular assault. The trial court sentenced the petitioner to twenty-one years for the
aggravated vehicular homicide conviction and three years for the vehicular assault conviction. The
sentences were ordered to run concurrently. On direct appeal, the petitioner argued: (1) that the trial
court erred by refusing to suppress the results of the blood alcohol test; (2) that the trial court erred
by limiting defense counsel’s questioning of potential jurors; (3) that the evidence was insufficient
to support the aggravated vehicular homicide conviction; (4) that the trial court erred by refusing to
qualify a defense witness as an expert; (5) that the state failed to establish a proper chain of custody
prior to the admission of the results of the blood alcohol test; and (6) that the trial court erred by
denying his request for special jury instructions. This Court upheld both the petitioner’s convictions
and sentences. Id. The petitioner’s application for permission to appeal was denied on November
24, 2003.



                                                  -4-
                                    Post-Conviction Proceedings

         The petitioner filed a pro se petition for post-conviction relief on June 29, 2004. The
petitioner amended the pro se petition once to include more specific grounds for post-conviction
relief. After counsel was appointed, the petition was again amended, narrowing the grounds on
which the petitioner sought relief. The petitioner claimed that trial counsel was ineffective for: (1)
failing to pursue a change of venue; (2) failing to interview witnesses; (3) failing to properly
investigate the case; (4) failing to arrange for an expert witness concerning the cause of the accident;
(5) failing to adequately investigate and pursue issues relating to the petitioner’s blood sample; and
(6) failing to zealously represent the petitioner during different phases of the trial.


                              Evidence at the Post-Conviction Hearing

          At the post-conviction hearing, the petitioner claimed that there was no testimony introduced
at trial as to Mr. Taylor’s cause of death. The petitioner stated that immediately after the wreck, he
ran to two houses to get help and have someone call for emergency assistance. The petitioner
testified that he asked trial counsel to meet with and interview these people as potential witnesses.
According to the petitioner, trial counsel informed him that “they [the witnesses] didn’t have nothing
[sic] good to say about [him].” Further, the petitioner complained that trial counsel did not obtain
an expert in accident reconstruction or blood analysis. The petitioner admitted that trial counsel
secured a wrecker driver to testify, but complained because the trial court would not permit the driver
to testify as an expert in accident reconstruction. The petitioner was also unhappy because trial
counsel did not obtain a change of venue even after pre-trial publicity about the case.

        The petitioner further testified that Trooper Scott was permitted to testify as an expert. The
petitioner complained that trial counsel failed to object to Trooper Scott’s categorization as an expert
and that the trial court did not properly determine that Trooper Scott was an expert prior to allowing
him to testify.

        The petitioner was also dissatisfied with trial counsel’s representation in that trial counsel
did not attempt to argue at trial that the petitioner was not intoxicated.

        On cross-examination, the petitioner agreed and admitted that the State introduced evidence
of his intoxication at the time of the wreck. Further, the petitioner admitted that trial counsel
questioned Trooper Scott with regard to how the typical characteristics of intoxication might mirror
the typical characteristics or a person with a head injury. The petitioner also agreed that there was
no testimony that any of the tires were deflated, as the petitioner suggested to trial counsel.

        Trial counsel took the stand to rebut the petitioner’s claims. According to trial counsel, she
did not intend to have the wrecker driver testify as an expert regarding how the accident occurred.
Trial counsel sent materials to an accident reconstructionist, who reported that he would not be able


                                                  -5-
to assist the petitioner because he believed that the Tennessee Highway Patrol had done an
“excellent” job.

        Trial counsel stated that she spoke with several paramedics and medical personnel in
preparation for trial, who gave “alternative theories” of how Mr. Taylor sustained his fatal injuries.
In the end, trial counsel relied on the testimony of the paramedics to support the theory that several
of Mr. Taylor’s injuries resulted from the rescue effort. By utilizing paramedics, trial counsel hoped
to have the paramedics suggest alternative theories regarding the cause of death in the hope of raising
a reasonable doubt in the minds of the jury.

        Trial counsel also testified that she considered requesting a change in venue, but chose not
to pursue it as she determined that it would not be successful. According to trial counsel, the
petitioner agreed to this strategy.

        As to Trooper Scott’s testimony, trial counsel stated that she did not object to the testimony
about the cause of the accident because there were details, specifically the testimony about the gouge
marks in the road, that were helpful to the defense. Moreover, trial counsel remembered cross-
examining Trooper Scott extensively on his observations and assessment of the scene. Trial counsel
did not feel that Trooper Scott actually gave an opinion as to the cause of the accident, but that he
reported the circumstances that he observed at the scene.

         Trial counsel stated that she consulted a person trained in blood testing and intoxication prior
to trial. Trial counsel admitted that she did not consult directly with anyone at the hospital where
the petitioner’s blood was drawn in preparation for cross-examination. However, trial counsel felt
that the lab technician who drew the petitioner’s blood testified clearly regarding the exact protocol
that she employed.

        Trial counsel remembered meeting with and discussing the case with the petitioner numerous
times. During one of those meetings, the petitioner told trial counsel that he had taken Xanax on the
day of the accident. Trial counsel could not remember what amount of the drug the petitioner took.
Trial counsel also believed that her investigator spoke to all of the potential witnesses that were
provided to her by the petitioner. Trial counsel recalled that all of the potential witnesses described
the petitioner as intoxicated and she made a decision not to call any of those witnesses on the
petitioner’s behalf. Trial counsel did not recall the petitioner having a theory about an alternative
cause of the accident, like one of the passenger’s legs, causing the steering wheel to stick and
become the ultimate cause of the wreck.

        Trial counsel testified that she did not attack the indictment. After examining the indictment
at the post-conviction hearing, trial counsel admitted that it alleged only a violation of Tennessee
Code Annotated section 39-13-213, the vehicular homicide statute, but that the petitioner was
convicted of aggravated vehicular homicide under Tennessee Code Annotated section 39-13-218.




                                                  -6-
         Tony McMahan, a life-long friend of the petitioner, testified that the petitioner came to his
trailer after the wreck to tell him about the accident and to get help for the injured passengers. Mr.
McMahan claimed that he was the first witness on the scene. According to Mr. McMahan, no one
ever talked to him about his observations at the scene, including trial counsel. Mr. McMahan stated
that, in his opinion, the petitioner did not appear intoxicated.

       At the conclusion of the hearing, the post-conviction court took the matter under advisement.
In a written order, the post-conviction court denied the petition for post-conviction relief,
determining that trial counsel was not ineffective. In that order, the post-conviction court made the
following findings of fact and conclusions of law:

             The petitioner was indicted on DUI Per Se, Prior DUI, Aggravated Vehicular
       homicide: Intoxication and Vehicular Assault.

              On January 17, 2002, after a trial by jury, the defendant was found guilty of
       DUI, Aggravated Vehicular Homicide as a result of intoxication and Vehicular
       Assault.

               The facts of the case established that the defendant was the driver of a vehicle
       involved in a single vehicle accident which involved a fatality as well as critical
       injuries. While driving the vehicle, the defendant was intoxicated.

               The petitioner filed a petition for post-conviction relief, alleging ineffective
       assistance of counsel . . . .

              Hearing: At the hearing on January 24, 2006, the petitioner presented the
       testimony of the defendant/petitioner, . . . and [trial counsel].

               Ineffective Assistance of Counsel:

                       ....

               Petitioner’s main complaints appears [sic] to be that his attorney did not
       pursue or secure expert witnesses, did not permit the defendant to testify, did not
       pursue venue changes as well as other pretrial and trial strategies. In presenting his
       testimony at this hearing, the Court did not find the defendant to be credible. The
       defendant’s recollection of the facts differed from those presented by [trial counsel],
       and those evidenced by the record. With regard to securing expert witnesses, [trial
       counsel] testified that an accident reconstructionist was consulted, but after
       investigation, the reconstructionist found that his investigative results would not
       support the theory presented by the defendant; therefore, expert testimony by an
       accident reconstructionist was not presented, and counsel determined that any
       testimony by such an expert would not be helpful.


                                                 -7-
       With regard to the change of venue complaint, the testimony revealed that the
accident was covered by the local media. However, the proof did not reveal that a
change of venue could be sustained. Regardless, the proof indicates that the
defendant, after consultation with counsel, agreed to proceed to trial in Hardeman
County.

         Lastly, the defendant raises the issue that the code section cited in the
indictment was erroneous, and counsel was ineffective for not addressing this issue.
Counsel for the defendant in his argument on this post-conviction presented
statements as to the current codification of the vehicular homicide and aggravated
vehicular homicide; yet no proof was presented as to the codificaiton in 2001 which
was the year that the indictment was presented. Assuming arguendo for this post-
conviction hearing that the codification contained in this indictment was incorrect,
this Court considers this issue. Tennessee Code Annotated § 9-13-213, which is the
current citation for vehicular assault rather that [sic] for aggravated vehicle [sic]
homicide, was cited in the indictment. Although the indictment does give reference
to TCA 39-13-213, the indictment clearly gave appropriate and sufficient charging
words to support its charge of aggravated vehicular homicide. The defendant claims
that failure to properly identify the numerical code section by the State should inure
to his benefit. All of the parties proceeded with the charge of aggravated vehicular
homicide, the issue was never raised by the defendant, and the requirements to
sustain a conviction under aggravated vehicular homicide were met. This claim of
the defendant fails. In this case there is no showing that the defendant was misled by
this recitation. Furthermore, the alleged defect was ascertainable prior to trial, and
the defendant did not raise any objection to the indictment. In such case, the alleged
defect is waived. . . .

         Further, when words of a charging instrument show the offense for which a
person is charged, the erroneous recitation of a statute is mere surplusage and is not
fatal to the charging instrument. State v. Bowers, 673 S.W.2d 887. Further, since
there was no indication that the defendant was misled by the recitation of the wrong
statute in the indictment which contained sufficient and appropriate charging words
to allege aggravated vehicular homicide, such conviction should not be set aside.

        Unless substantial rights of the defendant are affected by the variance
between the indictment and the proof, the defendant suffers no harm, and variance
does not prejudice defendant’s substantial rights if [the] indictment sufficiently
informs him of the charges so that he may prepare [a] defense and not be misled or
surprised at trial. State v. Moss, 662 S.W.2d 590 (Tenn. 1984).

               ....

       The Court accredits the testimony of [trial counsel].


                                         -8-
               The Court finds that [trial counsel] provided adequate assistance; she met
        with the petitioner and discussed the case, including possible trial strategies.

                Petitioner failed to show any material deficient performance by [trial counsel]
        or that he was prejudiced by his representation.

               The Court finds that petitioner has failed to establish the factual allegations
        contained in his petition by clear and convincing evidence.

                                Post-Conviction Standard of Review

        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). The post-conviction court’ s findings
of fact are conclusive on appeal unless the evidence preponderates otherwise. See State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999). During our review of the issue raised, we will afford those
findings of fact the weight of a jury verdict, and this court is bound by the court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d 572,
578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may
not reweigh or re-evaluate the evidence, nor substitute its inferences for those drawn by the post-
conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). All questions
concerning the credibility of the witnesses, the weight and value to be given their testimony, and the
factual issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.
See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578-79. However, the post-conviction
court’s conclusions of law are reviewed under a purely de novo standard with no presumption of
correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

                                  Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley, 960 S.W.2d at 580.



                                                  -9-
        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This
Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief based on
a sound, but unsuccessful, tactical decision made during the course of the proceedings. See id.
However, such deference to the tactical decisions of counsel applies only if counsel makes those
decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

        On appeal, the petitioner argues that the post-conviction court improperly determined that
he received ineffective assistance of counsel at trial. Specifically, the petitioner argues that trial
counsel’s performance “not only fell below the norm expected of criminal defense lawyers, but
actually resulted in a conviction of an offense for which appellant was never indicted.” The State
contends that because trial counsel’s performance was not deficient and the petitioner failed to
demonstrate prejudice, the judgment of the post-conviction court should be affirmed.

                                       Failure to Hire Experts

         The petitioner argues that trial counsel should have hired an expert, rather than rely on the
testimony of the paramedic, to testify as to the cause of Mr. Taylor’s death and should have called
an accident reconstructionist to testify as to the cause of the wreck. Further, the petitioner claims
that trial counsel should have hired a blood expert to testify regarding the amount of Xanax he had
in his system, as well as how the amount of alcohol in his system would have physically affected
him. The petitioner suggests that Mr. Taylor’s injuries were sustained during the rescue effort rather
than during the wreck. However, the petitioner did not provide the post-conviction court with
evidence that he did not cause the accident, or that the crash was not the proximate cause of Mr.
Taylor’s death. Further, the petitioner failed to prove that even if Mr. Taylor’s injuries were
sustained during the rescue effort, as opposed to the wreck, the jury would have found him not
guilty. Neither did the petitioner produce a blood expert at the post-conviction hearing. There was
testimony at the post-conviction hearing that trial counsel spoke with an accident reconstructionist,
who was unable to conclude anything favorable to the defense. Consequently, there is no indication
that any potential experts would have benefitted the petitioner’s defense at trial. See Black v. State,
794 S.W.2d 752, 758-59 (Tenn. Crim. App. 1990) (determining that where a petitioner contends that
his or her trial counsel failed to present favorable witnesses in support of their defense, such
witnesses must be presented at an evidentiary hearing, otherwise the petitioner is not entitled to
relief). The record supports the post-conviction court’s conclusion that trial counsel was not



                                                 -10-
deficient in this regard. Further, the petitioner has presented no proof that he was prejudiced by trial
counsel’s performance. This issue is without merit.

                                      Failure to Call Witnesses

         Next, the petitioner claims that trial counsel was ineffective for failing to interview or call
certain witnesses. In particular, the petitioner complains that trial counsel did not call Tony
McMahan, one of the first people to arrive on the scene, as a witness. The petitioner suggests that
Mr. McMahan could have testified that Mr. Taylor received his injuries as a result of the rescue
effort. The petitioner also argues that Mr. McMahan would have testified that the petitioner was not
drunk at the time of the accident. Ms. McMahan testified at the post-conviction hearing, but made
no mention of how he thought the victim received his injuries. Further, while Mr. McMahan
testified at the post-conviction hearing that the petitioner “didn’t seem drunk” in his opinion, the jury
was presented with overwhelming evidence of the petitioner’s intoxication at trial, including the
results of blood alcohol tests that showed the petitioner’s blood alcohol level to be .177 percent.

        The petitioner also complains that trial counsel failed to call a witness to testify as to the
proper procedure for drawing blood. Trial counsel testified that she consulted a person as to proper
procedure in preparation for cross-examination of the State’s witness at trial. The petitioner did not
present any witnesses at the post-conviction hearing that showed how such testimony at trial would
have been beneficial. Again, the record supports the post-conviction court’s conclusion that trial
counsel was not deficient in this regard. Further, the petitioner has presented no proof that he was
prejudiced by trial counsel’s performance. This issue is without merit.

                     Failure to Explore Alternate Theory as to Cause of Wreck

         The petitioner alleges that trial counsel’s performance was deficient because she did not
explore an alternate theory as to the cause of the fatal wreck. The petitioner suggested at the post-
conviction hearing that the wreck could have been caused by one of the passenger’s legs hitting the
steering wheel. Trial counsel testified that the petitioner never made her aware of this theory. In
denying the petition, the trial court gave credibility to the testimony of trial counsel and specifically
discredited the petitioner’s testimony. As stated above, “questions of credibility of the witnesses,
the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted
to the trial judge as the trier of fact” and the post-conviction court’s credibility determinations are
conclusive on appeal unless the evidence preponderates against them. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). The evidence does not preponderate against the post-conviction court’s
credibility determination herein. The petitioner has failed to prove by clear and convincing evidence
that trial counsel was ineffective in failing to explore a theory that was never disclosed to her. This
issue is without merit.




                                                  -11-
                           Failure to Object to Trooper Scott’s Testimony

         The petitioner complains that trial counsel failed to object to Trooper Scott’s testimony
regarding how the accident occurred because he was not qualified as an expert in accident
reconstruction. Trial counsel testified at the post-conviction hearing that she did not object to
Trooper Scott’s testimony because there were details, such as the gouge marks in the road, that were
helpful to the defense theory. Further, trial counsel testified that she chose to vigorously cross-
examine Trooper Scott rather than object to his testimony in its entirety. Trial counsel actually stated
that she did not believe Trooper Scott gave any opinions at all regarding how the accident occurred,
but that he merely reported the circumstances that he observed at the scene. Thus, trial counsel
testified that her decision was a tactical one. It is not this Court’s function to “‘second guess’ tactical
and strategic choices pertaining to defense matters or to measure a defense attorney’s representation
by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579 (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982)). The petitioner again failed to prove ineffective assistance of counsel by clear and convincing
evidence. This issue is without merit.

                                  Failure to Object During Voir Dire

         In his brief, the petitioner claims that trial counsel should have objected when the prosecutor
allegedly read a list of Hardeman County DUI victims to potential jurors during voir dire. While the
trial record indicates that the prosecutor named several DUI victims during voir dire, it also indicates
that the prosecutor listed the names in order to establish if any of the potential jurors knew anyone
injured as a result of DUI. However, the petitioner failed to raise this allegation in any of his
petitions for post-conviction relief and failed to raise this issue at the post-conviction hearing.

         Ineffective assistance of counsel is a single claim for relief under the Post-Conviction
Procedure Act even though the violation may be proved by multiple acts or omissions on the part
of counsel. Erika Louise Bunkley Patrick v. State, No. W2004-02217-CCA-R3-PC, 2006 WL
211824, at *10 (Tenn. Crim. App., at Jackson, Jan. 24, 2006) (citing Thompson v. State, 958 S.W.2d
156, 161 (Tenn. Crim. App. 1997); Cone v. State, 927 S.W.2d 579, 581-82 (Tenn. Crim. App.
1995)). Thus, all factual allegations must be presented in one claim. See Tenn. Code Ann. §
40-30-106(d). A petitioner may not relitigate a claim of ineffective assistance of counsel “by
presenting new and different factual allegations” on appeal. Erika Louise Bunkley Patrick, 2006 WL
211824, at *10 (citing Thompson, 958 S.W.2d at 161; Roger Clayton Davis v. State, No.
03C01-9902-CR-00076, 2000 WL 21307 (Tenn. Crim. App., at Knoxville, Jan. 14, 2000), perm.
app. denied, (Tenn. Sept. 5, 2000)). It appears that the petitioner’s additional factual allegation
supporting his claim of ineffective assistance of counsel was not raised in his petition for
post-conviction relief and was not in response to testimony developed at the evidentiary hearing.
Furthermore, the post-conviction court did not make any findings of fact on the factual allegations
the petitioner now raises. Erika Louise Bunkley Patrick, 2006 WL 211824, at *10 (citing Tenn. R.
App. P. 36(a) (holding that no “relief may be granted in contravention of the province of the trier of
fact.”)). Consequently, this issue has been waived. See Cone, 747 S.W.2d at 357.



                                                   -12-
                                         Failure to Object to Indictment

        Finally, the petitioner complains that trial counsel failed to object to the indictment.
Specifically, the petitioner alleges that according to the statue sections cited in the indictment, the
indictment charged the petitioner with “DUI Per Se, Prior DUI, . . . Vehicular Homicide, and . . .
Vehicular Assault.” In other words, the petitioner argues that the indictment did not actually charge
the petitioner with aggravated vehicular homicide, for which he was ultimately convicted, and that
trial counsel was ineffective for failing to object to the indictment prior to trial.

       At the outset, we note that this issue was not raised in the petitioner’s petition for post-
conviction relief. However, the issue was addressed at the post-conviction hearing and the post-
conviction court made findings of fact and conclusions of law in regards to the issue, finding it to
be without merit.


        We have reviewed the indictment as it appears in the technical record from the petitioner’s
direct appeal.1 Count three of the indictment alleges that the petitioner “did unlawfully, feloniously
and recklessly kill Jeffrey Taylor by operation of an automobile, the killing of Jeffrey Taylor being
the proximate result of [the petitioner’s] intoxication as operator of said automobile, in violation of
T.C.A. 39-13-213, . . . .” Aggravated vehicular homicide is found at Tennessee Code Annotated
section 39-13-218 rather than -213. Tennessee Code Annotated section 39-13-218 states that
aggravated vehicular homicide is vehicular homicide as defined in Tennessee Code Annotated
section 39-13-213 where a defendant has two or more convictions for DUI. Tenn. Code Ann. § 39-
13-218(a)(1)(A). Vehicular homicide is defined as the “reckless killing of another by the operation
of an automobile . . . as the proximate result of the driver’s intoxication.” Tenn. Code Ann. § 39-13-
213. In order to be convicted of aggravated vehicular homicide, “the indictment, in a separate count,
shall specify, charge and give notice of the required prior conviction or convictions.” Tenn. Code
Ann. § 39-13-218(c). Count two of the indictment listed two prior DUI offenses committed by the
petitioner.

        As a general matter, “[t]he indictment must state the facts constituting the offense in ordinary
and concise language, without prolixity or repetition, in such a manner as to enable a person of
common understanding to know what is intended, and with that degree of certainty which will enable
the court, on conviction, to pronounce the proper judgment . . . .” Tenn. Code Ann. § 40-13-202.
It is well-settled that an indictment must provide sufficient information: “(1) to enable the accused
to know the accusation to which answer is required, (2) to furnish the court adequate basis for the
entry of a proper judgment, and (3) to protect the accused from double jeopardy.” State v. Hill, 954
S.W.2d 725, 727 (Tenn. 1997).



         1
          The State argues that the petitioner waived the issue for failure to prepare an adequate record by not including
copies of the indictment. W e have taken judicial notice of the technical record as presented on direct appeal in order
to review the indictment.

                                                          -13-
        Although the issue of whether counsel’s failure to raise on objection to the sufficiency of the
indictment is not alleged in the post-conviction petition, it was discussed by the post-conviction
court in its determination of the issue of the effectiveness of counsel. The entire evidentiary record
concerning this issue consists of the following colloquy at the post-conviction hearing between
petitioner’s post-conviction attorney and his trial counsel:

               Q.      39-13-213, what offense does that define?
               A.      Vehicular homicide.
               Q.      Now, turn to the pages over here to 39-13-218, what does that allege?
               A.      Aggravated vehicular homicide.
               Q.      Anywhere on Count Three of the indictment does it specifically
                       mention aggravated vehicular homicide or 39-13-218?
               A.      No, but this book is the most current and I don’t know–
               Q.      I understand.
               A.      – in 2001 – it would have been 2001, I don’t know if the
                       Codes are the same.
               Q.      Of course, we don’t have the notes so we don’t know
                       the year that –
               A.      Right.
               Q.      If the codes are the same, then it’s two different
                       offenses; is that correct:
               A.      If the Codes are the same.
               Q.      Okay.
               A.      Any I’d have to look in my book to see –
               Q.      And you agree according to what we have here today
                       that the indictment is for 39-13-213, vehicular
                       homicide, not for 39-13-218, aggravated homicide.
               A.      Yes.
               Q.      One other thing I’ll ask you. You read it. Does this
                       indictment allege that he had prior DUIs, as a separate
                       –
               A.      Yes. I think in Count Two, doesn’t it?
               Q.      No, I’m not talking about that. I’ll ask you when you look at it.
               A.      Okay.

Based on this extremely limited discussion of counsel’s understanding of the indictment, the reasons
for her action or inaction with respect to it, and the absence of any record before us as to what
transpired at the bifurcated portion of the proceedings wherein the status of the indictment might




                                                 -14-
have changed, we find that the petitioner has failed to carry his burden of proof that counsel was
ineffective in not objecting to the sufficiency of the indictment.2

         It does appear that the indictment in this case, as it appears in the record of the direct appeal
presently before this court, does not contain a count alleging aggravated vehicular homicide. A
valid indictment is an essential jurisdictional element to the procurement of a valid conviction.
Wyatt v. State, 24 S.W.3d 319, 323 (Tenn. 2000). In the absence of a complete record of what
transpired at trial we are unable to determine whether the indictment was ever amended either
explicitly or implicitly before proceeding to the portion of the proceeding wherein the conviction for
aggravated vehicular homicide occurred. See State v. Yorick, 133 S.W.3d 606, 613 (Tenn. 2004);
(holding in the absence of transcripts of all relevant portions of the record, plain error review of
validity of indictments was error because record unclear). Of course, the petitioner may be entitled
to relief on this issue in a properly pleaded and filed habeas corpus proceeding wherein the question
of the sufficiency of the indictment can be fully litigated. Id. Such a proceeding should be instituted
pursuant to T.C.A. § 29-21-101, et seq., and should be pled in accordance with the provisions of that
title and chapter, including attachments demonstrating that the petitioner’s conviction is void. See
Summers v. State, 212 S.W.3d 251, 261 (Tenn. 2007).



                                                      Conclusion


         For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




         2
          The briefs of the parties reference a bifurcated portion of the proceedings wherein apparently the question of
whether the petitioner’s vehicular homicide conviction should be elevated to aggravated status was determined.
However, there is no technical record or transcript of that portion of the proceeding in either the direct appeal record or
the post-conviction record.



                                                          -15-
