         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs February 20, 2001

                  ROBERT M. SNEED v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Sullivan County
                             No. C41, 834   R. Jerry Beck, Judge



                                   No. E2000-02213-CCA-R3-PC
                                          March 28, 2001

        The Defendant was convicted of DUI, second offense, and driving on a revoked license,
second offense. His convictions were affirmed on direct appeal, and he subsequently filed for post-
conviction relief, which was denied. In this appeal, the Defendant contends that the post-conviction
court erred in denying his request for post-conviction relief, arguing that he was denied the effective
assistance of counsel at trial; that he was denied a fair trial because the trial judge refused to recuse
himself; and that the post-conviction court erred in refusing to admit certain evidence. We affirm
the denial of the Defendant’s request for post-conviction relief.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
JOHN EVERETT WILLIAMS, JJ., joined.

Murray C. Groseclose, III, Kingsport, Tennessee, for the appellant, Robert M. Sneed.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kusmann, Assistant Attorney General;
Greeley Wells, District Attorney General; and James F. Goodwin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

        The Defendant, Robert M. Sneed, was convicted by a jury of driving under the influence of
an intoxicant (DUI), second offense, and driving on a revoked license (DORL), second offense. The
Defendant’s convictions were affirmed on direct appeal. See State v. Robert M. Sneed, No. 03C01-
9610-CR-00371, 1997 WL 600062, at *1 (Tenn. Crim. App., Knoxville, Sept. 30, 1997). The
Defendant subsequently filed for post-conviction relief, alleging that he had been denied the effective
assistance of counsel at trial and that he was denied a fair trial as a result of the trial judge’s refusal
to recuse himself and remove the prosecuting attorney. After a hearing, the post-conviction court
denied relief. This appeal followed, in which the Defendant reiterates his post-conviction claims and
also contends that the post-conviction court erred in refusing to admit certain evidence. Upon our
review of the record and relevant legal authority, we affirm the judgment of the post-conviction
court.

        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. Tenn. Code Ann. § 40-30-
210(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not
reweigh or reevaluate the evidence below; all questions concerning the credibility of 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. Momon, 18 S.W.3d at 156; Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-conviction
relief are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence
preponderates against those findings. Id.

         A brief review of the facts underlying the Defendant’s convictions will be helpful. In
October 1995, the Defendant was assisting his brother, Larry Sneed, in painting their mother’s house.
The men were using oil-based paint and paint-thinner, and had been painting together all day. At
approximately 8:30 that evening, the Defendant left to help a friend try to get his car started. At
approximately 11:15 that evening, Officer Brian Taylor pulled the Defendant over after he saw the
Defendant speeding and operating his car in “a jerky fashion.” When Officer Taylor approached the
Defendant, he “could smell the alcohol coming from the car.” When the Defendant stepped out of
the car, he used the door for balance, and Officer Taylor testified that he “noticed the odor of alcohol
about his person after he was out of the car.” The Defendant told Officer Taylor that he had not been
drinking; Officer Taylor described the Defendant’s speech as “somewhat slurred.”

        Officer Taylor requested the Defendant to perform two field sobriety tests: the thumb-to-
finger and the heel-to-toe. The Defendant performed both of these tests poorly and Officer Taylor
formed the conclusion that the Defendant’s “driving abilities were impaired.” Officer Taylor
arrested the Defendant, and the Defendant subsequently refused to take a test to determine his blood
alcohol concentration. Captain Wade Williams of the Tennessee Highway Patrol testified that the
Defendant’s driver’s license was on revoked status on the date of the Defendant’s arrest.

       The Defendant testified at trial, reiterating that he had not had anything to drink that day or
evening. He explained that he had been painting all day, and that he had been dizzy from his high
blood-pressure. He testified that he had told Officer Taylor about his dizziness, and he did not
dispute his poor performance on the field sobriety tests. Indeed, the Defendant testified, “If I’d a
been the officer, I’d a probably arrested me, too.” Larry Sneed also testified, stating that his brother
had had nothing to drink that day, although he admitted that he had not been with his brother after
the Defendant left at 8:30. Sneed also testified that the Defendant had been complaining about
dizziness while they were painting.

       The jury convicted the Defendant of DUI and DORL. Following this verdict, the jury was
provided with certified copies of the Defendant’s prior convictions of DUI and DORL, and
subsequently returned a verdict of DUI, second offense, and DORL, second offense.


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       The Defendant now contends that his trial counsel was ineffective in the following respects:
             1. He failed to adequately inform himself about the Defendant’s
             physical limitations and how they affected his ability to perform the
             field sobriety tests;

               2. He failed to move for a continuance in order to subpoena an out-
               of-state witness;

               3. He failed to adequately inform himself about the shortcomings of
               field sobriety tests, thereby limiting his ability to effectively cross-
               examine the arresting officers;

               4. He failed to object to the prosecuting attorney’s restatement of a
               witness’s testimony, and to the prosecutor’s question about how field
               sobriety tests are used;

               5. He failed to interview the police officers who were going to testify
               on behalf of the state;

               6. He failed to interview the Defendant’s witnesses prior to trial; and

               7. He failed to adequately argue for a continuance when a defense
               witness became unable to testify.

All of these contentions focus on the Defendant’s conclusion that he was convicted because his trial
lawyer failed to convince the jury that the Defendant’s arrest resulted from his physical problems
(obesity, diabetes and high-blood pressure) and his day-long inhalation of paint and paint-thinner
fumes, and not from alcohol consumption.

         Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the
Tennessee Constitution guarantee a defendant the right to representation by counsel. See State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This
right to counsel includes the right to effective counsel. See id.; Strickland v. Washington, 466 U.S.
668, 686 (1984). To determine whether counsel provided effective assistance at trial, the court must
decide whether counsel’s performance was within the range of competence demanded of attorneys
in criminal cases. Baxter, 523 S.W.2d at 936; Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears
the burden of showing that counsel made errors so serious that he or she was not functioning as
counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced
the defendant resulting in a failure to produce a reliable result. Strickland, 466 U.S. at 687; Burns,
6 S.W.3d at 461; Hicks, 983 S.W.2d at 245. To satisfy the second prong, the defendant must show
a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have had


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reasonable doubt regarding the defendant’s guilt. See Strickland, 466 U.S. at 694-95. This
reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see
also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State, 13 S.W.3d 742, 750 (Tenn.
Crim. App. 1999).

       When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to
second-guess trial strategy and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982); Owens, 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they
were made in light of all facts and circumstances. See Strickland, 466 U.S. at 690; Hicks, 983
S.W.2d at 246.

        Initially, we agree with the post-conviction court that the Defendant has failed to prove by
clear and convincing evidence that his trial lawyer’s representation fell below the required standard.
A review of the trial transcript makes clear that the Defendant’s trial attorney did an adequate job
of presenting the Defendant’s theory to the jury. Furthermore, even if the Defendant’s lawyer did
not do an adequate job in this respect, the Defendant has failed to demonstrate how additional proof
or more extensive cross-examination would have resulted in a different outcome. The Defendant
offered no medical testimony at the post-conviction hearing, and his allegations that his medical
conditions and/or paint inhalation were responsible for his arrest therefore remain no more than
allegations. Additionally, we note that even if defense counsel had more thoroughly pursued the
?paint fumes” issue, this was not likely to have helped the Defendant’s case. Larry Sneed, a
professional painter with twenty years of experience, testified at the post-conviction hearing that the
fumes of oil-based paint “will cause you to be intoxicated” and will interfere with thinking and
coordination.1 The Defendant’s contentions that his trial lawyer was ineffective in presenting his
defense are without merit.

         The Defendant also contends that his trial lawyer should have required the trial court to allow
the jury to sentence him, claiming that the Criminal Sentencing Reform Act of 1989, which requires
that the trial court rather than the jury sentence most convicted defendants,2 did not repeal the earlier
sentencing laws which allowed for jury sentencing. The Defendant does not support this claim with
any legal authority, and it is therefore waived. See Tenn. Ct. Crim. App. R. 10(b). Moreover, this
claim is without merit. See State v. Palmer, 902 S.W.2d 391, 392 (Tenn. 1995) (holding that the
Criminal Sentencing Reform Act of 1989 impliedly repealed prior sentencing statutes with respect
to offenses committed on or after November 1, 1989).



         1
             W e remind the Defendant that the DUI statute prohibits driving while under the influence o f “any intoxicant
. . . or drug pro ducing stimu lating effects on the central nervo us system.” T enn. Cod e Ann. § 5 5-10-40 1(a)(1) (e mphasis
added). See, e.g., State v. James Jr. Owen, 1988 WL 119375, at *1 (Tenn. Crim. App., Jackson, Nov. 9, 1988) (finding
the defendant’s conviction of DUI supported by sufficie nt evidence where the defendant had been inhaling a type of
paint-thinner).

         2
          See Tenn. C ode Ann . § 40-35 -203(a). O nly defendants convicted of capital crimes may be sentenced by the
jury under the Act. See id. § 40-35-203(c).

                                                             -4-
        The Defendant next contends that he was denied a fair trial because the trial judge and
prosecuting attorney refused to recuse themselves. Prior to his arrest, the Defendant had sued both
of these individuals on an unrelated matter. The lawsuit had been summarily dismissed, but the
Defendant had filed a motion to reconsider. The Defendant’s lawyer filed a motion to recuse, which
was denied. The Defendant has failed utterly to demonstrate how he was unfairly or improperly
prejudiced by either the trial judge or the prosecuting attorney. Accordingly, this issue is without
merit.

        The Defendant also contends that the post-conviction court erred in refusing to admit certain
evidence at his hearing. The Defendant attempted to introduce height and weight charts and certain
pages from a “DWI Detection Manual” in an attempt to further his claim that his lawyer could have
done more to convince the jury that his performance on the field sobriety tests was attributable to
factors other than alcohol consumption. The State objected, and the post-conviction court sustained
the objection on the ground that the charts were inadmissible hearsay. Cf. Tenn. R. Evid. 803(17).
Whether these documents should have been admitted was a matter within the sound discretion of the
post-conviction court, and we will not distub its ruling absent a clear showing of an abuse of that
discretion. See State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999). We find no such abuse here, and this
issue is therefore without merit.

        The Defendant also complains that the post-conviction court improperly limited the scope
of his cross-examination of the arresting officers. However, “the scope of cross-examination is
largely within the trial court’s discretion, and . . . such discretion will not be disturbed absent a
finding of abuse.” State v. Bragan, 920 S.W.2d 227, 244 (Tenn. Crim. App. 1995). We find no
abuse of discretion here, and this issue is therefore without merit.

        Finally, the Defendant contends that he pled guilty to DUI, second offense, and DORL,
second offense, and that his pleas were made in violation of his constitutional rights. Our review
of the transcript of the original trial in this matter reveals that, after the jury returned its initial
verdict, the Defendant pled guilty to second offense status on each conviction. Nevertheless, the trial
court sent the charges of second offense status to the jury. The jury subsequently returned a verdict
of guilty on each charge. The Defendant’s convictions for DUI, second offense, and DORL, second
offense, were therefore not the result of a guilty plea, and this issue is accordingly without merit.

       The judgment of the post-conviction court is affirmed.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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