        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                August 9, 2016 Session

      CHARLES BRADFORD STEWART v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                  No. 40700425       John H. Gasaway, III, Judge
                      ___________________________________

                No. M2015-02449-CCA-R3-PC – Filed June 20, 2017
                     ___________________________________


The State appeals from the post-conviction court’s grant of post-conviction relief to
Petitioner, Charles Bradford Stewart. Petitioner was convicted of vehicular assault and
originally sentenced to serve twelve years as a career offender, with split confinement of
one year in jail and eleven years in community corrections. The State appealed the
sentence on the basis that community corrections was erroneously granted. This court
reversed and remanded. State v. Charles B. Stewart, No. M2010-01948-CCA-R3-CD,
2011 WL 4794942, at *1 and *3 (Tenn. Crim. App. Oct. 11, 2011). Upon remand the
trial court sentenced Petitioner to serve the entirety of the twelve-year sentence by
incarceration. This Court affirmed. State v. Stewart, 439 S.W.3d 906, 907-08 (Tenn.
Crim. App. 2013). Petitioner timely filed, pro se, a petition for post-conviction relief.
Counsel was appointed, and Petitioner subsequently filed a “corrected” petition.
Following an evidentiary hearing, the post-conviction court granted relief. After review,
we reverse the judgment of the post-conviction court and reinstate the judgment of
conviction.

                     Tenn. R. App. P. 3 Appeal as of Right;
             Judgment of the Criminal Court Reversed and Remanded

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; John Wesley Carney, Jr., District Attorney General; and Arthur Bieber,
Assistant District Attorney General, for the appellant, State of Tennessee.

B. Nathan Hunt, Clarksville, Tennessee, for the appellee, Charles Bradford Stewart.
                                        OPINION

       At the outset we address the unusual procedure utilized by the post-conviction
court in reaching its ruling on the post-conviction petition in this case. Only two
witnesses testified at the post-conviction hearing – Petitioner and his trial counsel. Trial
counsel represented Petitioner pre-trial, during the trial, through Petitioner’s first direct
appeal, and through a motion for new trial hearing following disposition of the first
appeal. The sole issue in the first appeal was the State’s challenge to the sentence of split
confinement, with community corrections after one year of incarceration. See State v.
Charles B. Stewart, 2011 WL 4794942. No exhibits were introduced at the post-
conviction hearing. It appears that the post-conviction court declined to accept the
State’s and Petitioner’s requests for the Court to take the transcripts and copies of
motions from the trial which were tendered at the conclusion of the post-conviction
hearing.

      Specifically, the following transpired after Petitioner rested his case in the post-
conviction hearing:

        [PETITIONER’S COUNSEL]: . . . We have that [trial] transcript. The
        initial sentencing hearing on August 10th of 2010, we have that transcript
        for the court as well as pro se motions including his motion for new trial.
        If we could pass those forward, Your Honor.

        THE COURT:                        You can but - - but wait just a minute.

        [PETITIONER’S COUNSEL]: Yes, sir.

        [PROSECUTOR]:                     Okay.

        THE COURT:                        Go ahead.

        [PROSECUTOR]:                     State joins in the motion to pass these
        transcripts up.

        THE COURT:                        Okay. But I - - is there anything else
        you want to say?

        [PROSECUTOR]:                     I think the only thing the State would
        want to say is it looks like the blood alcohol motion is in here. I think
        we do not have the transcript of the new trial motion on the merits. And

                                             2
we’re going to have to check on that. We may be missing just one
transcript here.

THE COURT:                        Okay. But before you - - okay, just
hold on. Anything else?

[PROSECUTOR]:                     The State does not wish to introduce
anything other than the transcripts.

THE COURT:                         All right. But the reason that I’m
hesitating taking that right now is because, [Petitioner’s Counsel], using
that I want you to draft me an order that is in the form of a finding of fact
and a conclusion of law, and draft it as if I’m granting you relief. I don’t
know whether I’m going to grant relief or not. But if you present me
with an order that’s drafted in that way I will be able to refer to what you
say in your order, and X out what I disagree with or . . . you see what
I’m saying?

[PETITIONER’S COUNSEL]: I do, Your Honor.

[PROSECUTOR]:                     Makes sense, Your Honor. It’s - - it’s
really rather complex.

THE COURT:                            This case - - well, do that. And I know
that’s a lot of work, but - - but . . .

[PROSECUTOR]:                     The only thing - -

THE COURT:                         I’m thinking very seriously about this,
and I want you to draft that as if I’m going to grant it but then I’m going
to take out my pen and I’m going to - - I’m going to reform it in my own
way, and the outcome may be granted and the outcome may be denied.

...

[PROSECUTOR]:                     I would just ask to - -

THE COURT:                        Yeah, you copy - -

[PROSECUTOR]:                     For a copy.

                                     3
        THE COURT:                        You copy [Prosecutor] now, because - -

        [PETITIONER’S COUNSEL]: Sure.

        THE COURT:                        He wants to take out his pen too, so.

        [PETITIONER’S COUNSEL]: I understand.

        [PROSECUTOR]:                    Well, it’s - - it’s the Court’s red pen
        that counts. In case something comes up.

        THE COURT:                       I know it is, but that doesn’t mean you
        don’t get to use your blue pen to cull - - to bring it to my attention, what
        you think about it.

        [PROSECUTOR]:                     The only thing we would ask, Your
        Honor, is if there’s missing pages in a transcript or - - we think it’s
        correct and complete; if there’s some sort of problem, if the Court would
        please let Counsel know.

        THE COURT:                        Oh, I will, I will.

        [PETITIONER’S COUNSEL]: Your Honor, can I retain - - should I
        retain these for now?

        THE COURT:                        Yes. And then based on what you said
        this original petition is really - - it’s - - it’s super[s]eded by this
        [“corrected” petition for post-conviction relief].

        [PETITIONER’S COUNSEL]: I believe that’s accurate, Your Honor.

        THE COURT:                        Okay.

        [PETITIONER’S COUNSEL]: I believe that’s accurate.

        THE COURT:                        And then you do that, and submit that
        to me, and - - and we’ll go from there.

      Subsequently, Petitioner’s counsel submitted a proposed findings of fact and
conclusions of law, but later filed an amended proposed findings of fact and conclusions
of law. The appellate record indicates that the State filed no objections to Petitioner’s
                                             4
findings of fact and conclusions of law, in its original form or as amended.
Approximately three weeks later, the post-conviction court filed the order granting post-
conviction relief. The language in the order as to the court’s findings of fact and
conclusions of law are identical (it appears to be word for word) to Petitioner’s amended
proposed findings of fact and conclusions of law. The order granting relief is set forth
herein:

       The Court hereby finds as follows:

                                      FINDINGS OF
                                         FACT

        1.     On July 19, 2004, Petitioner was involved in a traffic accident.

        2.     On February 28, 2005, warrants were issued for Petitioner’s arrest,

 charging him with vehicular assault and violation of the financial responsibility law

 and said warrants were served on Petitioner on May 17, 2005.

        3.     On December 5, 2005, the Montgomery County Grand Jury returned

 an indictment charging Petitioner with reckless endangerment, vehicular assault, and

 violation of the financial responsibility law.

        4.     On March 6, 2007, the Montgomery County Grand Jury returned a

 superseding indictment charging Petitioner with reckless endangerment, vehicular

 assault, violation of the financial responsibility law, aggravated assault by use of a

 deadly weapon (the vehicle Petitioner was operating), and aggravated assault by

 causing serious bodily injury.

        5.     On August 10, 2007, the State filed notice seeking to have Petitioner

 sentenced as a career offender, if convicted.

                                             5
       6.      Counts 2 (vehicular assault) and 4 (aggravated assault by use of a deadly

weapon) were tried by a jury on May 17-18, 2010. Following trial, Petitioner was

found guilty by a jury of both counts as charged.

       7.      On August 10, 2010, a sentencing hearing was conducted and the trial

court took the matter under advisement.

       8.      On August 12, 2010, the trial court merged count 4 into count 2 and

imposed a twelve-year sentence with one year to be served in the Montgomery County

Jail and the balance of the sentence of eleven (11) years to be served on community

corrections.

       9.      The State appealed the Court’s sentencing of Petitioner and on October

11, 2011, the Court of Criminal Appeals rendered its opinion and judgment

reversing the trial court’s sentence and remanding the case for further proceedings.

       10.     On December 7, 2011, the trial court resentenced Petitioner to twelve

(12) years in the Tennessee Department of Correction[ ].

       11.     Following resentencing, Petitioner appealed and the Court of Criminal

Appeals upheld the trial court’s sentencing of Petitioner as set forth above.

       12.     On July 7, 2014, Petitioner filed a timely petition for post-conviction

relief with this court and on November 25, 2014, attorney B. Nathan Hunt was

appointed to represent Petitioner regarding his petition for post-conviction relief.

       13.     On March 30, 2015, the Petitioner filed a “corrected” petition for post-

conviction relief.
                                            6
       14.         On May 13, 2015, an evidentiary hearing was conducted regarding the

petition and “corrected” [petition] for post-conviction relief.

       15.         At the evidentiary hearing, Petitioner testified as follows: (emphasis
                   added)

     (a)     That his trial counsel, [         ], only met with Petitioner 4-5 times prior to
             his jury trial.

     (b)     That his conviction was based on use of evidence gained pursuant to an
             unconstitutional search and seizure.

             i.        Officer Michael Caver did not show reasonable grounds to
                       believe that Petitioner was operating a motor vehicle while under
                       the influence. However, Petitioner’s trial counsel failed to file a
                       motion to suppress the evidence gained pursuant to the
                       unconstitutional search and seizure.

     (c)     That the Tennessee Bureau of Investigation’s (“TBI’’) official toxicology
             report was illegal evidence because the State failed to preserve the
             blood sample or provide a valid chain of custody.

             i.        Petitioner’s blood sample was destroyed before Petitioner’s
                       preliminary hearing, indictment, and arraignment. This was done
                       without notice to Petitioner, leaving him unable to obtain
                       comparable evidence from said sample and leaving Petitioner no
                       other means to obtain evidence that could have possessed
                       exculpatory value.

             ii.       Petitioner passed the field sobriety tests administered by Officer
                       Caver at the scene and was not arrested and was allowed to
                       leave without any citations issued.

             iii.      The blood sample was compromised due to an invalid chain of
                       custody.

     (d)     That he received ineffective assistance of counsel at the trial and appellate
             stages.

             i.        Trial counsel failed to file a pre-trial motion requesting that
                                                7
          Petitioner’s blood sample taken on July 19, 2004 be made
          available to Petitioner for comparative testing at Petitioner’s
          expense.

ii.       Trial counsel failed to investigate and present to the court all the
          grounds why the TBI toxicology report should have been excluded.

iii.      Trial counsel failed to file a motion to dismiss the indictment of
          aggravated assault.

iv.       Trial counsel failed to adequately use exculpatory evidence at trial.

  v.       Trial counsel prejudiced the Petitioner with statements to the
           jury in counsel’s closing arguments by misquoting Officer Caver.

  vi.      Trial counsel failed to cross-examine the paramedic at trial
           regarding the effects cocaine has on a person’s pupils when a
           person is intoxicated by the drug.

  vii.     Trial counsel failed to cross-examine Cynthia Mallard, who was
           also involved in the accident at issue, and would have testified
           regarding her actions and contributions to the accident and would
           have also refuted the testimony of the State’s other witnesses.

  viii.    Trial counsel failed to investigate and present evidence to
           impeach the State’s statements and challenge the proof of reckless
           aggravated assault.

  ix.      Trial counsel failed to present an expert witness to impeach
           toxicologist’s testimony introduced by the State.

  x.       Trial counsel failed to introduce evidence that Petitioner
           suffered from bipolar disorder and to show how Petitioner’s
           bipolar disorder would have affected his behavior on the day in
           question.

  xi.      Trial counsel failed to protect Petitioner’s due process rights
           when he advised Petitioner to withdraw his motion for a new trial.

  xii.     Petitioner’s counsel on appeal, Roger E. Nell, failed to protect
           Petitioner’s 14th Amendment due process rights when he
                                  8
                    conceded on the second appeal that Petitioner was likely
                    procedurally barred from raising certain issues in the second
                    appeal by failing to raise said issues in the first appeal, which
                    was initiated by the State, but requested the Court to consider
                    Petitioner’s claims anyway.

                            CONCLUSIONS OF LAW


16.          For a petitioner to prevail on an ineffective assistance of counsel claim,

a petitioner must show two (2) components as set forth by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668, 690 (1984). A petitioner

must meet the requirements of showing that counsel’s performance was deficient

and in order to satisfy this requirement a petitioner must show that counsel made

errors serious enough to result in a deprivation of petitioner’s Sixth Amendment

right to counsel. Id. at 691. A petitioner must also show that there is a reasonable

probability that but for counsel’s error the result of the proceeding would have been

different. Id. at 694. In other words, a petitioner must show a “reasonable

probability sufficient to undermine confidence in the outcome”.

      17.    In Baxter v. Rose, 523 S.W. 2d 930 (Tenn. 1975), the Tennessee

Supreme Court held that “[d]efense counsel must perform at least as well as lawyers

with ordinary training and skill in criminal law and must conscientiously protect his

client’s interests, undeflected by conflicting considerations. Defense counsel must

investigate all apparently substantial defenses available to the Defendant and must

assert them in a timely and proper manner.”

                                          9
      18.     The Court finds that Petitioner has met his burden under Strickland to

prevail on an ineffective assistance of counsel claim for the following reasons:

       (a)    Trial counsel failed to file a pre-trial motion requesting that the blood
              sample taken from Petitioner on July 19, 2004 be made available to
              Petitioner for comparative testing at a State approved laboratory at the
              defense’s expense, to establish the sample’s identity through DNA
              testing and to challenge the alleged contents recorded on the TBI’s
              Official Toxicology Report. Had trial counsel filed the appropriate
              motions the State would not have been able to produce the blood
              sample because it was destroyed before Petitioner was notified of its
              existence making the Official Toxicology Report invalid as evidence
              for use to support the indictment of vehicular assault and that
              indictment would have been dismissed because the report would have
              been excluded or suppressed under State v. Ferguson, 2 S.W.3d 912
              (Tenn. 1999).

      In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court spoke of the
      need for discovery in the adversary system, holding:

              We have elected to employ an adversary system of criminal justice in
              which the parties contest all issues before a court of law. The need to
              develop all relevant facts in the adversary system is both fundamental
              and comprehensive. The ends of criminal justice would be defeated if
              judgments were to be founded on a partial or speculative presentation of
              the facts. The very integrity of the judicial system and public confidence
              in the system depend on full disclosure of all the facts within the
              framework of the rules of evidence.

       In Ferguson, 2 S.W.3d at 912, the Tennessee Supreme Court adopted a
       balancing approach for courts to use to determine when the loss or
       destruction of evidence has deprived a defendant of his fundamental right to
       a fair trial. Id. at 917. Under this approach, the first step is to determine
       whether the State had a duty to preserve the evidence. As a general rule,
       [ “ ] the State has a duty to preserve all evidence subject to discovery and
       inspection under Tenn. R. Crim, P. 16, or other applicable law.” Id. If the
       proof shows that the State had a duty to preserve the evidence, and that the
       State failed in its duty, the court must then consider the following factors
       which bear upon the consequences of the State’s breach of its duty: (1) the
       degree of negligence involved; (2) the significance of the destroyed
       evidence, considered in light of the probative value and reliability of

                                           10
  secondary or substitute evidence that remains available; and, (3) the
  sufficiency of the other evidence used to support the conviction. Id. If
  the court concludes, after consideration of all the factors, that a trial
  without the missing evidence would not be fundamentally fair, the court
  has the option, of dismissing the charges against the defendant, issuing a
  special jury instruction on the significance of the missing evidence, or taking
  any other steps necessary to ensure a fair trial. Id.

(b)   Trial counsel failed to investigate and present to the court all the legal
      grounds why the TBI Official Toxicology Report should be excluded
      or suppressed in his pre-trial suppression motion and had trial counsel
      done so the court would have excluded or suppressed the TBI
      Toxicology Report and the indictment for vehicular assault would have
      been dismissed.

(c)   Trial counsel failed to cross-examine Paramedic Hightower to question
      her regarding the effects cocaine has on a person’s pupils when a
      person is intoxicated by the drug. Had trial counsel adequately cross-
      examined Paramedic Hightower counsel would have inquired about
      the effects of cocaine on an individual’s pupils and her testimony
      would have raised reasonable doubt as to Petitioner’s alleged
      intoxication and the outcome of the trial would have been different.

(d)   Trial counsel failed to adequately use exculpatory evidence at trial. Trial
      counsel should have made the Tennessee Uniform Traffic Crash Report
      an exhibit at trial for impeachment purposes.          Trial counsel had
      possession of said report at trial, but failed to make it an exhibit. The
      report was identified by Officer Caver at trial and in the report Officer
      Caver had marked “no contributing actions for Driver 1 (Petitioner).” At
      trial, counsel asked Officer Caver if he remembered marking Petitioner’s
      driving actions in the report and Officer Caver testified that he marked in
      the report that Petitioner was following improperly and careless or erratic
      driving, which was not consistent with the report and trial counsel’s
      failure to use the report to impeach Officer Caver was ineffective
      assistance of counsel pursuant to Strickland. Had trial counsel used the
      report to impeach the testimony of Officer Caver it would have raised
      reasonable doubt that Petitioner acted recklessly or was intoxicated and
      the outcome of the trial would have been different.

(e)   Trial counsel prejudiced the Petitioner with his statements to the jury in
                                    11
      counsel’s closing arguments by misquoting Officer Caver.

(f)   Trial counsel failed to investigate and present evidence to impeach the
      State’s statements and challenge the alleged proof of reckless
      aggravated assault.        Officer Caver’s testimony regarding the
      circumstances of the accident was conflicting and inconsistent. However,
      trial counsel failed to present facts to impeach Officer Caver’s
      testimony and also present facts that would have raised reasonable doubt
      that the Petitioner acted recklessly and had trial counsel done so the
      outcome of the trial would have been different.

(g)   Trial counsel failed to present an expert witness to impeach the
      toxicologist’s testimony at trial. The toxicologist testified that finding
      cocaine in the blood sample means that a person’s [ s i c ] used cocaine
      within the last three hours. Specifically, “well, the two hours work to
      the benefit of the subject, so it’s reasonable to assume that the cocaine
      was used within an hour before that accident”. This testimony was
      misleading and prejudicial and was designed to persuade the jury into
      believing the Petitioner was intoxicated at the time of the accident and
      was not based on facts.

      There was no specific type of cocaine metabolites recorded on the
      toxicology report and nothing in the record indicating how much cocaine
      the Petitioner allegedly used. Additionally, there was no evidence or
      facts to support the toxicologist’s opinion. Had trial counsel provided an
      expert witness, the witness’ testimony would have impeached the
      toxicologist’s testimony and given the jury an alternative to consider and
      the outcome of the trial would have been different. This failure by trial
      counsel constituted ineffective [ ] assistance of counsel pursuant to
      Strickland.

(h)   Trial counsel failed to investigate, obtain, and present evidence that
      Petitioner suffers from bipolar manic depression, which he was diagnosed
      with in 1988 and was taking medication for at the time of the accident.
      Additionally, Petitioner had been examined by and was receiving
      benefits from both the Social Security Administration and the Veterans
      Administration for this disorder since 1997. Had trial counsel presented
      said evidence it would have assisted in explaining any erratic behavior
      the Petitioner exhibited following the accident and provided the jury with
      a logical explanation of Petitioner’s actions following the accident. This

                                    12
      failure by trial counsel to introduce said evidence constituted ineffective []
      assistance of counsel pursuant to Strickland.

(i)   Trial counsel also failed to offer an expert witness to explain how bipolar
      manic depression effects a person’s behavior, attitude, and ability to take
      directions and perform specific tasks. The expert’s testimony would
      have explained the Petitioner’s demeanor at the time of the accident,
      why he performed the field sobriety tests quickly, and why he seemed
      excited. Had trial counsel presented offered [ s i c ] an expert witness for
      testimony, it would have given the jury an alternative to consider
      regarding Petitioner’s actions at the accident scene and would have
      raised reasonable doubt as to Petitioner’s alleged intoxication and the
      outcome of trial would have been different.
(j)   Trial counsel failed to protect Petitioner’s due process rights when
      counsel advised Petitioner to withdraw his pro se motion for a new
      trial and notice of appeal. At the motions hearings on September 29,
      2010, trial counsel advised the court “we’ll withdraw that” and trial
      counsel withdrew Petitioner’s pro se motion for a new trial. This
      constituted ineffective assistance of counsel because this was not a
      “tactical” or “strategic” decision based on a reasonable investigation
      into the matter. Additionally, the motion was not without merit and
      should have been heard by the court as it contained non-frivolous
      issues. It was also in Petitioner’s best interest to have these issues
      addressed and by withdrawing the motion, trial counsel violated
      Petitioner’s 14th Amendment right to due process of law and
      Petitioner’s 6th Amendment right to the effective assistance of counsel.
      Had trial counsel left the motion for new trial on the docket to be
      heard, it would have protected Petitioner’s right to due process and
      allowed Petitioner to address the merits of his conviction on direct
      appeal.

(k)   Counsel failed to communicate with Petitioner when preparing and filing
      the reply brief to the State’s appeal. Trial counsel did not consult with
      Petitioner about the said brief nor did counsel allow Petitioner to
      review the brief before it was filed. This action was inappropriate
      because Petitioner had the right to review the brief his attorney had
      prepared on his behalf before it was filed. This allows the Petitioner to
      actively participate in his own defense by allowing a criminal defendant
      to agree with what is being filed on his behalf. It is not a strategic or

                                     13
tactical decision to file a reply brief without consulting with the
Petitioner first and it is not feasible to believe that there was any reason
trial counsel could not have allowed Petitioner to review the reply brief
before it was filed. Trial counsel had Petitioner’s contact information at
all times during the course of his representation of Petitioner. Had trial
counsel communicated with Petitioner and allowed Petitioner to review
the reply brief before it was filed Petitioner would have requested that
counsel amend the brief prior to its filing. However, trial counsel failed
to do so. Petitioner never consented to what counsel filed and wanted the
merits of his conviction addressed in the reply brief. Trial counsel’s
failure to communicate with Petitioner allowed Petitioner’s due process
rights to be violated and was ineffective assistance of counsel according
to Evitts v. Lucey, 469 U.S. 387 (1985). Trial counsel’s ineffectiveness
prejudiced the Petitioner by causing him to be procedurally barred from
raising any issues concerning the merits of Petitioner’s conviction.

The State initiated the first direct appeal in this case, but that did not
prevent the Petitioner from raising issue regarding sufficiency of the
evidence in his reply brief. See Tenn. R. App. P. 27(h) (“‘if appellee
is also requesting relief from the judgment, the brief of the appellee
shall contain the issues and arguments involved in his request for
relief as well as the answer to the brief of the appellant.[’][”]); see
also State v. Watkins, 804 S.[W].2d 884, 886 (Tenn. 1991) (deeming
the filing of a separate cross-appeal “unnecessary” to preserve an issue
for appeal when the issue was “properly ... raised in the ... reply
brief”). As the State observes, and Petitioner concedes, the Court of
Criminal Appeals has held that a defendant’s failure to raise issues in a
first appeal results in a waiver of those issues in a subsequent appeal. See
State v. Ronnie Henry, 2009 Tenn. Crim. App. LEXIS 825, *7 (Tenn.
Crim. App., Jackson, Sept. 28, 2009). The Court of Criminal Appeals
held in Petitioner’s second appeal as follows: “Because the defendant’s
challenge to the sufficiency of the convicting evidence is procedurally
barred and because the defendant does not challenge the propriety of the
sentence imposed on remand, we affirm the judgment of the trial
court.” See State v. Charles Bradford Stewart, 2013 Tenn. Crim. App.
LEXIS 994, Case No. M2013-00488[-]CCA-R3-CD (Tenn. Crim. App.
November 18, 2013). As previously set forth herein, this failure by trial
counsel to preserve Petitioner’s rights on appeal constituted ineffective
assistance of counsel pursuant to Strickland.

                              14
      (1)      Trial counsel failed to subpoena Ms. Leeman for trial or obtain a
               deposition from her to explain her role in the accident and her
               version of how the accident occurred. Ms. Leeman was in the process
               of turning when the left front of Petitioner’s vehicle made contact
               with the right rear bumper of Ms. Leeman’s vehicle. Ms. Pamela
               Jones-Sanders testified that Ms. Leeman’s vehicle was moving
               immediately before the accident occurred. Trial counsel[’s] failure to
               subpoena Ms. Leeman for trial to show her involvement in the
               accident was prejudicial to Petitioner’s defense and constituted
               ineffective assistance of counsel pursuant to Strickland.

       (m)     Trial counsel failed to cross-examine Cynthia Mallard. Trial counsel
               should have cross-examined Ms. Mallard to obtain facts regarding her
               actions and contributions to the accident and for impeachment purposes.
               Ms. Mallard testified that her vehicle was hit and that she did not see
               another vehicle in front of her before the accident occurred. Ms.
               Mallard’s testimony at trial essentially indicated that she really did not
               know what happened the day of the accident, except that she was in an
               accident. Had trial counsel properly investigated the case, examined
               the photos of the accident, and cross-examined Ms. Mallard at trial
               concerning these matters, it would have impeached her testimony and
               provided the jury an alternative to consider and the outcome of the
               trial would have been different.

19.            There was no evidence that the Petitioner was intoxicated and no

evidence establishing a connection between Petitioner’s alleged intoxication and the

injuries caused by the accident.     A detectable amount of cocaine or any other

substance that is found in a person’s blood does not establish that the person was

intoxicated.   See T.C.A. § 39-13-106. The presence of a substance in a person’s

system does not establish criminal liability and instead criminal liability is based

upon establishing that a person is intoxicated by a substance. The State presented

evidence that cocaine was detected in the Petitioner’s blood sample, but did not

                                           15
prove Petitioner was intoxicated at the time of the accident. There was no

evidence quantifying the alleged amount detected and the State presented no

evidence regarding the possible effects of cocaine on a person’s ability to operate

a motor vehicle.

       Officer Caver testified that Petitioner was excited, but also testified that

Petitioner passed all the field sobriety tests. Therefore, Officer Caver did not find

evidence to support probable cause to arrest the Petitioner for driving under the

influence. The statute requires the State to prove that intoxication was the

proximate cause of the accident, which the State clearly failed to do in the present

case. Accordingly, the convictions should be overturned and Petitioner awarded

a new trial.


       20.     There is no record of Petitioner driving in an intentionally hostile

manner. Petitioner was simply traveling in the turning lane preparing to turn left

onto Ringgold Road in Clarksville, Tennessee. The evidence failed to establish that

Petitioner[ ’ s ] manner of use of his vehicle made it a deadly weapon and the

record at trial does not indicate that Petitioner was speeding, veering violently, or

engaging in any reckless conduct or that Petitioner gave no thought to the safety of

his fellow motorist[]s during the period        leading up to the accident. Further,

Petitioner was not cited for violation of T.C.A. §§ 55-8-140(5)(B) or 55-8-140(5)(D)

because Petitioner    was using the left turn lane in accordance           with the

                                           16
aforementioned statutes. Petitioner was preparing to turn left and Petitioner was

within a safe distance from where he was going to turn. Accordingly, the record and

evidence introduced at trial did not support the guilty verdict in the present case and

had trial counsel presented these facts in Petitioner’s reply brief, then the outcome

of the State’s appeal would have been different.


       21.    Trial counsel’s errors should be examined in the cumulative error light.

When the cumulative effect of errors in a trial casts doubt on the reliability of a verdict,

relief is warranted. See Taylor v. Kentucky[,] 436 U.S. 478, 487-88[ ] (1978)

(holding that “the combination of the skeletal [jury] instructions, the possible harmful

inferences from the references to the indictment, and the repeated suggestions that

petitioner’s status as a defendant tended to establish his guilt created a genuine

danger that the jury would convict [him] on the basis of those extraneous

considerations, rather than on the evidence introduced at trial”); see also State v.

Zimmerman, 823 S.W.2d 220, 228 (Tenn. Crim. App. 1991). In the present case,

when the totality of trial counsel’s errors as previously set forth herein are examined in

the cumulative error light, relief is warranted.

       It is therefore ORDERED, ADJUDGED, and DECREED that Petitioner’s

convictions are hereby reversed and a new trial is ordered.

       ENTERED, this 20th day of November, 2015.




                                             17
                                                    John


       We now summarize the testimony elicited at the post-conviction hearing, which is
contained in fifty-four (54) pages of transcript.

       Petitioner testified that trial counsel represented Petitioner at a jury trial wherein
he was convicted of vehicular assault and reckless aggravated assault. The reckless
aggravated assault conviction was merged with the vehicular assault conviction.
Petitioner was sentenced to serve twelve years. Petitioner filed a motion for new trial and
a notice of appeal. Trial counsel advised Petitioner to withdraw the motion for new trial
because Petitioner’s issues on the merits of the case could be addressed in the reply brief
in the State’s appeal of the sentencing ruling. Petitioner appeared in open court and
withdrew the motion for new trial and the notice of appeal.

        Subsequently, Petitioner received a copy of the brief filed by trial counsel, and the
only issue argued regarded the State’s appeal of the sentence. The issues in the
withdrawn notice of appeal were not addressed. Petitioner stated that when asked by
Petitioner why the other issues were not raised, trial counsel said, “the only thing that
[trial counsel] could address was the type of sentencing because that’s all the State was
appealing.” The split confinement sentence with one year of incarceration and eleven
years of service in community corrections was reversed, and at a subsequent sentencing
hearing where he was represented by trial counsel, Petitioner received the sentence of
twelve years of incarceration.

        Petitioner testified that trial counsel met with Petitioner four to five times prior to
trial during a span of approximately five years. Petitioner said trial counsel conveyed the
State’s offer to settle the case with a sentence of six years, but Petitioner declined to
accept it. Petitioner said trial counsel told him he would be sentenced to Range II.
Petitioner said he thought he was only facing eight years when he turned down a sentence
of six years.

       Petitioner testified that he never gave trial counsel the names of any witnesses that
Petitioner wanted called at trial. Petitioner said that he and trial counsel discussed
medications Petitioner was taking and that Petitioner’s blood sample was no longer
available.

       Petitioner testified that his blood sample was the result of an unconstitutional
search and seizure because Officer Caver did not have “reasonable grounds to believe
                                              18
that I was under the influence because I passed a field sobriety test that – that he [Officer
Caver] administered.” Petitioner further asserted that Officer Caver did not arrest
Petitioner the day of the wreck, and thus Officer Caver did not have reasonable grounds
to request Petitioner to submit to a blood test. Petitioner stated that trial counsel rendered
deficient representation by not moving to suppress the blood test results on this basis.

        Petitioner testified that according to the toxicology report issued by the Tennessee
Bureau of Investigation (TBI), the blood sample was destroyed before Petitioner was
arrested in May 2005. However, Petitioner testified later that “they said it was destroyed
August of 2005.” Petitioner claimed the toxicology report was “illegal evidence”
because he was unable to have an expert examine the blood sample and because the chain
of custody of the blood sample was questionable. Petitioner’s testimony about who
handled the sample and the problems associated with it can best be explained by quoting
his testimony.

             Q.      And describe the chain of custody as you understood it
        occurred in this case, Mr. Stewart.

              A.     Well, the blood sample goes to the lab; it’s - - it’s issued a
        travel number and a chain of evidence custody report that goes along
        with it. Everybody that handles that evidence looks at it, takes tests on
        it, and they have to put it on that report where it’s gone, who has it and
        who handles it.

              All right. Now, this - - up and until Ms. Kirk - - I think it was
        Dabney Kirk to Ms. Swiney, who did the alcohol blood test of it, shows
        that she took it out of her - - from Ms. Kirk and she put it in her
        refrigerator, then she relinquish - - to her refrigerator, relinquished it to
        her, and she had it out. But she kept it for 32 days. And after those 32
        days we don’t know where the blood sample’s at. And 32 - - she said in
        her testimony that she kept it all - - kept it in her possession, but for 32
        days is highly unlikely to believe it was in her possession.

             And that’s very significant, because it was the next officer - - or the
        next person in the chain of custody who - - who found the alleged
        cocaine in the blood sample. So I think that during that time we can - -
        you know, we don’t know where the sample was and that’s a
        compromised sample.




                                             19
       As to the allegations of ineffective assistance of counsel, Petitioner discussed trial
counsel’s failure to file motions to suppress the results of the testing on his blood sample
and his failure to require the State to provide the sample for independent testing.

        Petitioner’s theories to suppress the results of the blood test were that the statutory
“implied consent” for taking blood samples was not followed because: Officer Caver did
not have reasonable grounds to believe Petitioner was under the influence of alcohol or
drugs; Petitioner was not in custody or under arrest; and Officer Caver was not the
arresting officer, he was only the investigating officer.

       Petitioner testified that trial counsel also rendered ineffective assistance of counsel
because he did not file a motion to dismiss the count of the indictment charging reckless
aggravated assault. Petitioner asserted that the motion would have merit because the
evidence of the distance he drove in the turn lane was wrong, and there was nothing in
the record that Petitioner acted recklessly or violently or was speeding or swerving.

        Petitioner claimed ineffective assistance of counsel by trial counsel’s failure to
cross-examine a paramedic regarding whether cocaine would dilate pupils. Petitioner
testified that his pupils were constricted according to the police officer, and since cocaine
causes pupils to dilate, it would prove he was not intoxicated if a qualified witness could
testify to this fact.

       Petitioner also testified that trial counsel failed to present exculpatory evidence at
trial. Specifically, trial counsel failed to request Officer Caver’s Uniform Traffic Crash
Report to be admitted into evidence. Petitioner testified that the report stated that
Petitioner appeared normal and there were no contributing actions by him in causing the
wreck. However, even though Petitioner testified that he received a copy of Officer
Caver’s report from trial counsel, the report was not submitted as evidence at the post-
conviction hearing, and Officer Caver was not called as a witness at the post-conviction
hearing.

       Petitioner also testified about some photographs that he claimed were exculpatory
evidence available to trial counsel, but not presented at trial. Again, it is best to quote
Petitioner’s testimony to explain his thoughts on why these photographs contained
exculpatory evidence:

              You know, and, you know, that - - the one - - and - - and some
        pictures of the front end of my vehicle showing me sitting in the - - if the
        turning lane, not over here to the right like they claimed where I’d hit
        her, knocked her into - - she was already in oncoming traffic, it proves - -

                                              20
        it - - it would - - it would impeach the testimony and the - - and the story
        of the officer of how things happened.

       Petitioner testified that trial counsel, in closing arguments to the jury, stated the
“things that Officer Caver talked about pointed to probable cause.” Petitioner asserted
that none of the things Officer Caver testified about “pointed to probable cause.”
Petitioner stated that trial counsel told the jury that Petitioner was “in the turning lane
from the bridge to where the accident happened,” but “it’s nowhere in the record that it
was said that way.” Petitioner testified that trial counsel’s closing argument “made me
look intoxicated or reckless.”

       Petitioner testified that trial counsel rendered ineffective assistance of counsel by
failing to investigate in order to present evidence to impeach and challenge the State’s
proof regarding the charge of reckless aggravated assault. In the words of Petitioner,

               Well, that’s what I was about before, there is nothing in the record
        about me being in the turning lane. I crossed the bridge, I come up the
        hill, I was going to turn left. I got in the turning lane to turn left and I lit
        a cigarette; I dropped the cigarette lighter, look back up, this vehicle was
        already turning when I looked back up she had stopped; I hit my brakes,
        I tried to miss her. The brake - - the skid marks will show it. That’s also
        something that was not shown to the jury, those.

              And there’s nothing in the record to prove any reckless act - - any
        recklessness. There’s nothing showing that I - - that I - - that I had
        disregarded any - - any - - anybody’s safety by - - to the wreck. It was
        just simply a car wreck.

       Petitioner testified that trial counsel failed to present the testimony of an expert
witness to challenge the testimony of the toxicologist who testified for the State that
cocaine can be detected in the blood for three hours. Petitioner testified of his own
knowledge that cocaine can be detected up to twelve hours, and that cocaine “only keeps
you high for roughly 15 to 20 minutes.”

        Petitioner stated that he is bipolar, manic depressive and ADHD. He testified that
the trial counsel rendered ineffective assistance because he failed to introduce evidence of
these conditions to explain his conduct, nervousness, statements, etc. at the wreck scene
to refute the inference that he was under the influence of cocaine.

       Petitioner’s testimony about trial counsel’s advice to withdraw his motion for new
trial was that he was procedurally barred from raising the issues in that motion for new
                                              21
trial after the State’s appeal was decided. The motion for new trial that was withdrawn
by Petitioner was not presented at the post-conviction hearing and the issues contained in
it were not specifically stated by Petitioner in his testimony. Petitioner did not indicate
that the procedurally late motion for new trial filed by trial counsel after the first appeal
brought up “some of the issues that I wanted brought up in the appellate brief.”

        Petitioner testified that trial counsel rendered ineffective assistance of counsel by
failing to subpoena Ms. Leeman, the driver of the pick-up truck hit by Petitioner, causing
Ms. Leeman’s vehicle to strike Ms. Mallard’s vehicle. Although Petitioner testified as to
what he thought Ms. Leeman could testify to, he admitted that he had never talked to Ms.
Leeman.

        Petitioner testified that trial counsel rendered ineffective assistance by not cross-
examining Ms. Mallard, the victim in the vehicular assault case.                   Petitioner
acknowledged that Ms. Mallard testified that she did not remember anything and did not
know anything except that she was in a wreck. Ms. Mallard was not called by Petitioner
to testify at the post-conviction hearing.

       Petitioner testified that his appellate counsel, who represented him in the second
appeal, rendered ineffective assistance of counsel because, as noted in the appellate
court’s opinion, appellate counsel conceded that the issue of insufficient evidence to
sustain the conviction was likely barred by the failure to raise it in the first direct appeal.
Petitioner testified that appellate counsel should have said, “the petitioner [sic] should be
heard due to the ineffective assistance of counsel while [sic] his merits [sic] were not
heard.” Petitioner testified that by just giving up, appellate counsel was ineffective.

       Petitioner closed out his direct testimony by asserting that trial counsel rendered
ineffective assistance of counsel as shown by all of trial counsel’s errors being considered
cumulatively.

        During cross-examination, Petitioner testified that after his trial, he had not
received his medications and he was “stressed.” As a result, he filed his pro se motion
for a new trial. Afterward, in Petitioner’s words, he “got medicated somewhat and knew
that the motion was not needed.” Petitioner acknowledged that he caused the wreck
which caused Ms. Mallard to be injured, that the trial court had given him a “fair and
impartial ruling” by granting a sentence of split confinement, and that the motion for new
trial was “not needed.” Petitioner admitted that it was his request for the motion for new
trial to be withdrawn, and that he was competent and sane when he did so. Petitioner
added that he withdrew the motion “on the behest of my attorney who told me to do so.”
Petitioner admitted that when his second motion for new trial, filed after he had been
resentenced as per directions of the appellate court, was heard, the trial court considered
                                              22
whether there was sufficient evidence to support the conviction and ultimately held
against Petitioner.

        Even though the trial court’s order granting post-conviction relief did not
summarize trial counsel’s testimony, we will summarize that testimony herein. Called by
Petitioner, trial counsel testified that he had been practicing law about forty-two years at
the time of the post-conviction hearing. Petitioner first came to see trial counsel in May
2005. Trial counsel stated that he met with Petitioner “a number of times” prior to the
trial in 2010. At the time of the post-conviction hearing in 2015, trial counsel could not
recall any details of an offer from the State for a negotiated plea agreement, nor could he
recall the details of discussions with Petitioner on his sentencing range exposure. Trial
counsel recalled that Petitioner had voluntarily agreed to have his blood sample drawn.
Trial counsel remembered filing a motion concerning the blood test, and it had been
denied. He did not recall any discussion with Petitioner about filing a motion to dismiss
the aggravated assault count of the indictment.

       Trial counsel could not recall the paramedic’s testimony. He also could not recall
any discussion with Petitioner about using exculpatory evidence from “an accident
report.” Trial counsel testified that he did not recall discussing Officer Caver’s testimony
during closing arguments nor discussing with Petitioner whether to call an expert witness
to impeach the toxicologist who testified for the State.

       Trial counsel did not recall having any discussions with Petitioner as to what
issues would be addressed in Petitioner’s brief in the first direct appeal. Trial counsel
agreed that strategy-wise, it was best to just argue against reversing the split-confinement
sentence and not to address any other issue.

        Trial counsel testified that he attempted to locate Ms. Leeman prior to trial, but
could not locate her. Trial counsel felt that he obtained at least one trial continuance
because of the inability to locate Ms. Leeman. When asked why he did not cross-
examine the victim, Ms. Mallard, trial counsel testified that it was “a real judgment call.”
Because she had been severely injured, limped to the witness stand, and there was no
certainty on what she might say, trial counsel felt that it was in Petitioner’s best interest
that Ms. Mallard not be cross-examined. Trial counsel concluded direct examination by
testifying that he had effectively represented Petitioner pre-trial, during the trial, and on
the first appeal.

        During cross-examination, trial counsel testified that he challenged the chain of
custody during trial. He also testified that he did not file a motion to suppress the blood
test results on the basis of an improper request by Officer Caver. Trial counsel stated that
there were some field sobriety tests, Petitioner was “wringing his hands,” his eyes were
                                             23
dilated, Petitioner was not handcuffed or arrested, and Petitioner was asked if he would
take a blood test and Petitioner said “yes.”

      The proof at the evidentiary hearing concluded after cross-examination of trial
counsel, without any exhibits entered into evidence.

ANALYSIS

       In a post-conviction proceeding, the burden is on the petitioner to prove his factual
allegations for relief by clear and convincing evidence. T.C.A. § 40-30-110(f); see
Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal, we are bound by
the trial court’s findings of fact unless we conclude that the evidence in the record
preponderates against those findings. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013).
Additionally, appellate courts generally defer to the post-conviction court’s findings
concerning the credibility of the witnesses, the weight and value to be given their
testimony, and the factual issues raised by the evidence. Id. Because they relate to
mixed questions of law and fact, we review the trial court’s conclusions as to whether
counsel’s performance was deficient and whether that deficiency was prejudicial under a
de novo standard with no presumption of correctness. Id.

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). “[A] failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim. Indeed, a court need not address the components in any particular order
or even address both if the [petitioner] makes an insufficient showing of one component.”
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697). A
petitioner successfully demonstrates deficient performance when the evidence proves that
his attorney’s conduct fell below “an objective standard of reasonableness under
prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at 688; Baxter,
523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the petitioner
establishes “‘a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting
Strickland, 466 U.S. at 694).

       Furthermore, this Court has stated,

        It is well settled that when a [p]etitioner in post-conviction proceedings
        asserts that counsel rendered ineffective assistance of counsel by failing
                                             24
        to call certain witnesses to testify, or by failing to interview certain
        witnesses, these witnesses should be called to testify at the post-
        conviction hearing; otherwise, [p]etitioner asks the Court to grant relief
        based upon mere speculation. Black v. State, 794 S.W.2d 752, 757
        (Tenn. 1990).

Terrance Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436, at *8
(Tenn. Crim. App. Sept. 12, 2011).

       The same standard is applicable whenever a petitioner asserts that trial counsel
rendered ineffective assistance of counsel by failing to file and present a pre-trial motion
to suppress evidence. It is a petitioner’s burden to submit evidence (and not just his
testimony surmising on the merits of a pre-trial suppression motion) that the suppression
motion would have been granted and that there is a reasonable probability that the trial
proceedings would have concluded differently if trial counsel had pursued a motion to
suppress evidence. Id.; citing Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006).

       “In essence, the petitioner should incorporate a motion to suppress within the
proof presented at the post-conviction hearing.” Terrance Cecil, 2011 WL 4012436, at
*8; See also Joe Travis Northern, Jr. v. State, No. W2016-01058-CCA-R3-PC, 2017 WL
1508185 at *8 (Tenn. Crim. App. Apr. 25, 2017); Willie C. Cole v. State, No. M2016-
00625-CCA-R3-PC, 2017 WL 809943 at *5 (Tenn. Crim. App. Mar. 1, 2017); Timothy
Richard Singleton v. State, No. M2015-02319-CCA-R3-PC, 2016 WL 6069231 at *9
(Tenn. Crim. App. Oct. 17, 2016) perm. app. denied (Tenn. Jan. 19, 2017); Willie
Gatewood v. State, No. 2015-02480-CCA-R3-PC, 2017 WL 696850 at *5-6 (Tenn. Crim.
App. Feb. 17, 2017).

        On appeal, the State argues that the post-conviction court erred by granting relief
to Petitioner because (1) Petitioner failed to present evidence proving prejudice pursuant
to Strickland, and/or failed to present “competent evidence” in support of the grounds for
relief determined by the post-conviction court. Petitioner argues that the post-conviction
court did not err. Both parties argue the issue by examining each separate ground for
relief determined by the post-conviction court.

       We will examine each separate ground for relief determined by the post-
conviction court in the chronological order the grounds are set forth in the post-
conviction court’s order. Notwithstanding the post-conviction court’s designation
FINDINGS OF FACT for items 1 through 15, items 1 through 14 are more like a
procedural history statement of the case from the day of the conduct (wreck) through the
post-conviction evidentiary hearing.

                                            25
       It is necessary to point out, because it is crucial to our analysis of this case, that
item 15 states “At the evidentiary hearing, Petitioner testified as follows:” (emphasis
added). Sub-items (a) through (d), with three sub-parts to 15(c) and twelve sub-parts to
15(d), by the very language used by the post-conviction court, are merely a summary of
Petitioner’s testimony. The matters discussed in item 15 are not findings of facts by the
post-conviction court to support Petitioner’s claim on appeal that the post-conviction
court properly granted Petitioner relief. Only what is set forth in items 18 through 21 can
be considered as findings of fact relevant to the issue of ineffective assistance of counsel.
Accordingly, our analysis is limited to a review of items 18 through 21 to determine if
both prejudice and deficient performance occurred by trial counsel’s actions or inactions,
keeping in mind we must determine whether the evidence at the hearing preponderates
against the post-conviction court’s factual findings.

        Item 18(a) - The State argues that the post-conviction court erred by concluding
that trial counsel rendered ineffective assistance of counsel by failing to file a motion to
suppress evidence of the toxicology results of Petitioner’s blood showing that Petitioner
had cocaine in his blood. The post-conviction court concluded that under State v.
Ferguson, 2 S.W.3d 912 (Tenn. 1999), because the State’s T.B.I. lab ultimately destroyed
the blood, a suppression motion would have been granted, “and the indictment would
have been dismissed.” (emphasis added). The State asserts that in State v. Leath, 461
S.W.3d 73, 98 (Tenn. Crim. App. 2013) this Court held that the rule in Ferguson does not
apply to blood tests like the one in Petitioner’s case. Whether Leath applies or not, there
is absolutely no evidence in the record that trial counsel’s inaction resulted in prejudice to
Petitioner. There is no proof of what evidence could have been developed in a pre-trial
Ferguson hearing. See Black, 794 S.W.2d at 757; Terrance Cecil, 2011 WL 4012436, at
*8. As noted in the post-conviction court’s order granting relief, various factors must be
considered. Ferguson, 2 S.W.3d at 917. Petitioner was not entitled to post-conviction
relief under item 18(a).

       Item 18(b) - Again, Petitioner did not present proof of what would have been
developed in a motion to suppress evidence of the results of the toxicology test. The
post-conviction court made no findings of fact in support of this ground for relief.
Petitioner was not entitled to post-conviction relief under item 18(b).

       Item 18(c) - Petitioner did not present Paramedic Hightower at the post-conviction
evidentiary hearing to testify as to her opinion on the effects of cocaine on a user’s
pupils. Therefore, no prejudice to Petitioner could be established. Black, 794 S.W.2d at
757. Petitioner was not entitled to relief under item 18(c).

       Item 18(d) - For the same failures as above, where Petitioner did not submit the
Traffic Crash Report or call Officer Caver as a witness to explain information in the
                                             26
report, it is pure speculation to conclude, as did the post-conviction court, that “had trial
counsel used the report to impeach the testimony of Officer Caver it would have raised
reasonable doubt that Petitioner acted recklessly or was intoxicated.” Petitioner was not
entitled to relief in item 18(d) because there is no evidence of prejudice to Petitioner. Id.

       Item 18(e) - First, the post-conviction court made no explicit findings of fact in its
order as to the statement(s) made by trial counsel during closing arguments. We note that
in the post-conviction court’s summary of Petitioner’s testimony, the Court stated only
that Petitioner testified “[t]rial counsel prejudiced the Petitioner with statements to the
jury in counsel’s closing argument by misquoting Officer Caver.” See item 15(d)v, post-
conviction court’s order granting relief. In any event, we have reviewed trial counsel’s
entire closing argument, and found nothing to suggest ineffective assistance of counsel.
Petitioner was not entitled to relief under item 18(e).

       Item 18(f) - The post-conviction court granted relief on the basis of trial counsel’s
failure to investigate and present evidence to challenge proof of reckless aggravated
assault and to impeach the “State’s statements.” However, the post-conviction court cited
no facts that existed which trial counsel failed to present. There is absolutely nothing in
the findings of the post-conviction court to support granting post-conviction relief under
item 18(f).

        Item 18(g) - The post-conviction court erred by granting post-conviction relief
under item 18(g) on the basis that trial counsel failed to present an expert witness to
impeach the toxicologist called by the State. Petitioner did not present an expert witness
at the evidentiary hearing, and therefore failed to prove prejudice. Black, 794 S.W.2d at
757. Petitioner’s testimony on this precise issue could not show he was prejudiced
because Petitioner was not qualified as an expert witness on the matter at the evidentiary
hearing.

        Items 18(h) and (i) - Again, the post-conviction court erred by granting post-
conviction relief on the basis of trial counsel’s failure to present evidence of Petitioner’s
“bipolar manic depression,” when none of the medical records or testimony of a witness
to interpret the records was presented at the evidentiary hearing. No proof of prejudice to
Petitioner was established. Id. Likewise, it was error to grant post-conviction relief on
the basis that trial counsel failed to offer an expert witness at trial to testify and explain
how bipolar manic depression affects a person to rebut evidence presented by the State
that Petitioner was intoxicated. No evidence of prejudice was shown. Id.

        Item 18(j) - Petitioner failed to offer into evidence at the evidentiary hearing the
pro se motion for new trial that he withdrew before it could be heard. Petitioner did not
testify at the evidentiary hearing as to any of the grounds that were alleged in his pro se
                                             27
motion for new trial. He testified at the evidentiary hearing that he was sane and
competent and wanted the motion withdrawn. The post-conviction court found in its
order that the motion for new trial “was not without merit and should have been heard by
the court as it contained non-frivolous issues,” but made no finding of what the issues
were that led to the stated conclusion. Petitioner should not have been granted post-
conviction relief under item 18(j) because he failed to establish evidence of prejudice, id.
and the record contains no facts to support deficient performance by trial counsel in
advising Petitioner to withdraw his pro se motion for new trial.

        Item 18(k) - Assuming that the record establishes that trial counsel rendered
deficient performance by not consulting with Petitioner prior to filing the appellee brief
on behalf of Petitioner in the first direct appeal, prejudice could only be shown if
Petitioner would have been granted relief because the evidence was insufficient to
support the conviction of vehicular assault. As stated in the discussion on item 18(j),
Petitioner did not prove what issues were in his pro se motion for new trial, and therefore
prejudice cannot be shown because of trial counsel’s failure to raise issues which must be
raised in a motion for new trial for plenary review. See Tenn. R.App. P. 3(e) (“[I]n all
cases tried by a jury, no issue presented for review shall be predicated upon error in the
admission or exclusion of evidence, jury instructions granted or refused, misconduct of
jurors, parties or counsel, or other action committed or occurring during the trial of the
case, or other ground upon which a new trial is sought, unless the same was specifically
stated in a motion for a new trial; otherwise such issues will be treated as waived.”)

        However, a challenge to the sufficiency of the evidence can be raised on appeal
even if no motion for new trial is filed. State v. Boxley, 76 S.W.3d 381, 390 (Tenn. Crim.
App. 2001) (By failing to file a timely motion for new trial Defendant has waived his
right to appeal any of the issues he raised in his motion for new trial other than
sufficiency of the evidence and sentencing). We have reviewed the record of the trial
proceedings and agree with the State that there was sufficient evidence presented, taken
in the light most favorable to the State, to support the conviction for vehicular assault.
That conviction is the only one presently existing because the conviction for reckless
aggravated assault was merged with the vehicular assault conviction, and that is now a
final judgment.

       When an accused challenges the sufficiency of the evidence, this court must
review the record to determine if the evidence adduced during the trial was sufficient “to
support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R.
App. P. 13(e). The appellate court determines “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979). In determining the sufficiency of the evidence, this court does not

                                            28
reweigh or reevaluate the evidence. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004). Instead, this court affords the State the strongest legitimate view of the evidence
contained in the record, as well as all reasonable and legitimate inferences that may be
drawn from that evidence. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). “A guilty
verdict by the jury, approved by the trial court, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the prosecution’s theory.” State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). The conviction replaces the presumption of
innocence with a presumption of guilt, and the accused has the burden of illustrating why
the evidence is insufficient to support the verdict returned by the trier of fact. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       This court applies the same standard of review regardless of whether the
conviction was predicated on direct or circumstantial evidence. State v. Dorantes, 331
S.W.3d 370, 381 (Tenn. 2011). “Circumstantial evidence alone is sufficient to support a
conviction, and the circumstantial evidence need not exclude every reasonable hypothesis
except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

       “A person commits vehicular assault who, as the proximate result of the person’s
intoxication as set forth in § 55-10-401, recklessly causes serious bodily injury to another
person by the operation of a motor vehicle.” T.C.A. § 39-13-106 (2003). A person
commits reckless aggravated assault when he or she “[r]ecklessly commits an assault as
defined in § 39-13-101(a)(1), and the assault: (i) [r]esults in serious bodily injury to
another; (ii) [r]esults in the death of another; (iii) [i]nvolved the use or display of a deadly
weapon; . . .” T.C.A. § 39-13-102(a)(1)(B). Tennessee Code Annotated section 39-13-
101(a)(1) defines assault as when a person “[i]ntentionally, knowingly or recklessly
causes bodily injury to another.”

        As noted above, when determining the legal sufficiency of the evidence to support
a conviction, the proof introduced at trial must be viewed in the light most favorable to
the State. It cannot be viewed in the light most favorable to a defendant. A defendant’s
different conclusions and opinions of what the evidence showed is for consideration by
the trier of fact in the trial. Such opinions by a defendant are not a consideration for the
appellate court.

       After reviewing the evidence submitted at the trial, taken in the light most
favorable to the State, we conclude that the evidence was sufficient to sustain the
conviction of vehicular assault and the conviction of reckless aggravated assault, which
was ultimately merged with vehicular assault.

       Officer Caver’s testimony, including exhibits admitted into evidence, showed that
Petitioner drove his vehicle for approximately one-half mile in a turn lane prior to
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striking Ms. Leeman’s pick-up truck in its rear end. Skid marks from Petitioner’s tires
were less than ten feet long, indicating that Petitioner did not apply his brakes until just
before the collision. Petitioner hit Ms. Leeman’s truck with enough force to cause it to
go airborne and land directly in front of Ms. Mallard’s van, which was traveling in the
oncoming lane of traffic. Ms. Mallard suffered serious bodily injuries: a complete
fracture of her left femur, a broken ankle, and a fractured hip. At the time of the trial, she
had had four surgeries as a result of her injuries, and would have to have hip replacement
surgery in the future. A bone had been “sawed” resulting in her left leg being two inches
shorter than the right leg. She was unable to walk for one and one-half years after the
wreck.

      A witness to the wreck talked with Petitioner at the scene. Petitioner did not
understand what had happened. Petitioner appeared “like he was in another world” and
looked like “he was on something.”

       Officer Caver testified that at the scene Petitioner appeared “excited,” nervous,
and intoxicated. Petitioner asked Officer Caver multiple times: “Are we done?”; “Are
we done yet?”; “Can I go?”. During the times that Officer Caver was directly
communicating with Petitioner, Petitioner was constantly “balling” his hands up and
making fists. Petitioner could not find his vehicle registration or a document showing
that he had insurance and went to the trunk of his car to search for these documents. The
trunk contained what appeared to Officer Caver to be garbage: empty food bags, old
papers, and discolored papers. Petitioner searched the trunk for a while without having
found his vehicle registration or proof of insurance and looked back and asked Officer
Caver, “Are we done yet, can I go?” Petitioner never found the vehicle registration or
proof of insurance.

       Officer Caver could not detect alcohol on Petitioner, but, suspicious that
Petitioner’s conduct meant “there was something else going on,” he had Petitioner
perform field sobriety tests. In the walk and turn test, Petitioner exhibited two “clues”:
he could not maintain his balance during the instruction stage, and he did not make the
turn as he had been instructed and had to step to the side to maintain his balance in the
turn. Petitioner also counted quickly in the walking portion.

       In the one-leg stand test, Petitioner did not count as instructed, i.e., “one thousand
one, one thousand two,” etc., but instead counted “1, 2, 3, 4,” etc. This was also a “clue.”
Officer Caver testified that he often saw that people who count fast during the field
sobriety tests are under the influence of a stimulant. Petitioner agreed to submit to a
blood test. After being analyzed, the blood was found to contain cocaine. The forensic
toxicologist stated that cocaine has a short half-life in blood and that to detect it in the
blood meant that the cocaine was ingested within three hours. The wreck was at
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approximately 3:00 p.m., and the blood sample was taken from Petitioner at
approximately 5:00 p.m., meaning that Petitioner ingested the cocaine within one hour
before the wreck. The jury could reasonably conclude and find that Petitioner’s rather
bizarre behavior after the wreck, his driving in a turn lane for one-half mile, and his
failure to realize he was running up on Ms. Leeman’s vehicle until he was less than ten
feet away, was indicative of the fact he was under the influence of cocaine when he
caused the major traffic collision.

       The evidence clearly established Petitioner’s guilt of both offenses, and the post-
conviction court erred by granting relief to Petitioner based upon trial counsel’s failure to
challenge sufficiency of the evidence in the first appeal.

        Item 21 - The post-conviction court erred by granting post-conviction relief
because of “trial counsel’s errors” in the “cumulative error light.” We have examined the
allegations of ineffective assistance of counsel and found that Petitioner failed to submit
evidence of prejudice. Without any proof of prejudice, there is no “cumulative” error by
trial counsel that can entitle Petitioner to relief. Petitioner was not entitled to post-
conviction relief based on “cumulative errors” of trial counsel.

                                         CONCLUSION

       Having done an exhaustive review of the post-conviction record and the trial
record, we conclude that the post-conviction court erred by granting post-conviction
relief. Accordingly, the judgment of the post-conviction court is reversed, and the
judgment of conviction is reinstated.

                                         _______________________________________
                                         THOMAS T. WOODALL, PRESIDING JUDGE




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