                                                                                        09/13/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 15, 2017

                    BILLY TATE v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Hamilton County
                  Nos. 282341, 272364      Don W. Poole, Judge
                     ___________________________________

                            No. E2016-01554-CCA-R3-PC
                       ___________________________________


The Petitioner filed for post-conviction relief, arguing that he received ineffective
assistance of counsel. The post-conviction court denied relief. On appeal, the Petitioner
argues that trial counsel’s failure to discover evidence of the investigating detective’s
DUI arrest, subsequent reckless driving conviction, and internal affairs investigation to
use to impeach the detective’s reputation for honesty was deficient and prejudicial. After
a thorough review of the facts and applicable case law, we affirm the denial of post-
conviction relief.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Billy Tate.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Neal Pinkston, District Attorney General; and Charlie Minor, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                        OPINION

                        I. Factual and Procedural Background

       Billy Tate, the Petitioner, was convicted of burglary of a business and theft of
property valued between $1,000 and $10,000. State v. Billy Tate, No. E2010-01336-
CCA-R3-CD, 2011 WL 3841962, at *1 (Tenn. Crim. App. Aug. 30, 2011), perm. app.
denied (Tenn. Nov. 15, 2011). He received an effective sentence of twelve years. Id. On
direct appeal, this court concluded that “[b]ecause [the Petitioner] . . . failed to provide an
adequate record for review on appeal, these issues [were] waived, and the judgments of
the trial court [were] affirmed.” Id. After filing a petition for post-conviction relief, the
Petitioner was granted a delayed direct appeal.

                                          Jury Trial

       In our opinion affirming the Petitioner’s convictions on delayed direct appeal, this
court summarized the evidence presented at the Petitioner’s trial as the following:

               At trial, Barbara Sue Vaughn testified that she and her husband,
       Kenny Vaughn, owned Vaughn Equipment Repair in Chattanooga,
       Tennessee.       On March 30, 2009, she arrived at the business at
       approximately 10:00 a.m. and noticed that someone had been inside the
       business. Items that she had left “sitting just inside the door” the previous
       Friday were missing, and in the office, “[her] desk drawers were pulled out,
       some stuff was just turned upside down, [and] some was in the floor . . . .”
       Mrs. Vaughn testified that the thief had entered by pulling away the siding
       from the back of the building. She and her husband made a list of all of the
       items taken, some of which were new and others used, and they estimated
       that the total value of the items taken was $3,350.

              On cross-examination, Mrs. Vaughn testified that she was the last
       person to leave the business on Friday, and she locked the doors. The
       business was closed over the weekend, and no one should have been inside.
       She said that the property is surrounded by a seven to eight-foot tall chain-
       link fence. Mrs. Vaughn further said that a person could get in through a
       place where “the fence doesn’t go all the way together.”

              Detective Early testified that he was assigned to the property crimes
       division. On March 30, 2009, he responded to a burglary at Vaughn
       Equipment Repair. He noticed several footprints inside and outside of the
       building, so he requested that a crime scene investigator photograph the
       prints. Detective Early went to a residence in the same neighborhood of
       Vaughn Equipment Repair. [The Petitioner] was at the residence, and
       Detective Early had the opportunity to see the bottom of [the Petitioner]’s
       shoes. Detective Early testified that based on his observations, [the
       Petitioner]’s shoes matched the shoe prints at the scene. Detective Early
       said that he transported [the Petitioner] to the scene so that the crime scene
       investigator could photograph his shoes. While there, Napoleon Dunson
       approached him and Mr. Vaughn to ask whether Mr. Vaughn was missing a
                                             -2-
      chainsaw. Mr. Vaughn confirmed that his chainsaw was missing, and Mr.
      Dunson advised Detective Early that he had seen a person walking away
      from the business with a chainsaw during the weekend. Mr. Dunson told
      Detective Early that he would be able to identify the person, so Detective
      Early asked him if the person with the chainsaw was the person ([the
      Petitioner]) sitting in the front seat of Detective Early’s vehicle. Mr.
      Dunson said that he was “absolutely positive” that he was the same person.

             At this point in the trial, the State asked Detective Early what
      happened next, and Detective Early testified that [the Petitioner] refused to
      make a statement. [Trial] counsel moved for a mistrial, but the trial court
      issued a curative instruction instead, ruling that there was not a manifest
      necessity to declare a mistrial. The trial court instructed the jury that
      Detective Early’s statement was nonresponsive and inappropriate and
      should not be considered during deliberations.

             On cross-examination, Detective Early testified that he had no
      specialized training in “footprint analysis,” and he did not send the shoe
      print photographs or [the Petitioner]’s shoes to the Tennessee Bureau of
      Investigation for analysis. He said, “[It was] clear [that] it was the same
      print.” Detective Early testified that he did not do any research about how
      common [the Petitioner]’s shoes were or what stores in the area sold them.

              Chattanooga Police Investigator Brian Russell testified that he
      photographed the crime scene, including the various shoe prints, and [the
      Petitioner]’s shoes. He also collected [the Petitioner]’s shoes as evidence.
      Investigator Russell processed the scene for fingerprints but was unable to
      lift any prints.

             Napoleon Dunson testified that he saw a person inside the fence of
      Vaughn Equipment Repair during the weekend prior to March 30, 2009.
      On the same day, he saw a person walking down the street carrying a
      chainsaw. He did not know if it was the same person. He said that he came
      very close to the person carrying the chainsaw and got a “real good” look at
      him. Mr. Dunson identified [the Petitioner] in the courtroom as the person
      with the chainsaw. He testified that he also identified [the Petitioner] at the
      crime scene while [the Petitioner] was sitting in the police detective’s
      vehicle.

State v. Billy Tate, No. E2012-02576-CCA-R3-CD, 2013 WL 5436533, at *1-4 (Tenn.
Crim. App. Sept. 27, 2013), no perm. app. filed. This court affirmed the trial court’s
                                           -3-
judgments. Id. at *8. The Petitioner did not seek further review from the Tennessee
Supreme Court.

                                  Post-Conviction Proceedings1

        In his Amended Petition for Post-Conviction Relief, the Petitioner argued, in part,
that “[t]rial counsel was ineffective in that trial counsel failed to investigate Officer
Early’s pending charges for which he was under investigation.” At the post-conviction
hearing, Detective Mike Early testified that he was employed by the Chattanooga Police
Department in the property crimes division. Detective Early stated that in 2009, he
responded to the scene of a burglary of a business on Linburg Avenue. Detective Early
testified that, while he was investigating this case and during the pendency of trial, he
was not being investigated by internal affairs. On cross-examination, Detective Early
agreed that he was previously charged with driving under the influence in March 2008
and that he pled guilty to reckless driving. Detective Early stated that the internal affairs
investigation had concluded by the time he investigated the Petitioner’s case.

       The Petitioner testified that trial counsel failed to properly investigate Detective
Early, who had been investigated by internal affairs. More specifically, he testified that
“[Detective Early] was under investigation, you know, at that time, because, you know,
dude was out there in the workhouse with [the Petitioner], he had, you know, we got the
paperwork that he was under investigation, you know.”

      Regarding trial counsel’s failure to investigate Detective Early, the following
exchange occurred:

               [THE STATE]: And, now, the only basis for your belief that
        Detective Early was under investigation, or that there was some IA
        complaint, is something that you heard about while you were in the jail
        awaiting trial?

              [THE PETITIONER]: It wasn’t what I heard about it, I got the
        paperwork, I still got the paperwork at my house, I sent it to my house, you
        know.

               [THE STATE]: Now, do you have any clue what the internal
        investigation was regarding?


        1
          For purposes of conciseness, the testimony from the post-conviction hearing summarized in this
opinion is limited to testimony relevant to the Petitioner’s argument on appeal.
                                                 -4-
               [THE PETITIONER]: Yeah, they said he stopped on the side of the
       interstate and pulled his thing out and started pissing, you know, so
       highway patrol arrested him, you know.

               [THE STATE]: But even if that, I’m not aware of that, but even if
       that did happen, how would that have affected your case, how do you feel
       like that would affect your case?

               [THE PETITIONER]: Show, you know, if a man called himself
       upholding the law, stopped on the side of the freeway and started urinating,
       ain’t [sic] no telling what you’re liable to do, you know.

              [THE STATE]: Okay. But how would that affect your case if that
       were true?

              [THE PETITIONER]: How it would affect my case? Because it
       make sure kind of, honestly, you know, how can a person be honest when
       he do something like that, you know.

              [THE STATE]: Use the restroom on the side of the road, that makes
       you a dishonest individual?

              ....

              [THE STATE]: Okay.         So you thought that should have been
       investigated?

              [THE PETITIONER]: Yeah, I think they should have -- yeah.

        Trial counsel testified that she had practiced law since 1999 and that she was
appointed to represent the Petitioner. Trial counsel stated that she met with the
Petitioner, reviewed discovery with him, negotiated plea offers with the State, filed
pretrial motions, and spoke with Detective Early, Mr. Dunson, and the Vaughns. She
explained that the Petitioner rejected the State’s plea offers and proceeded to trial. Trial
counsel testified that she did not receive any information regarding internal affairs
investigation of Detective Early while she represented the Petitioner. Trial counsel also
stated that she was not aware of Detective Early’s reckless driving conviction during her
representation of the Petitioner, but she did not “see how that would make a difference[]”
in the Petitioner’s case.



                                           -5-
       In its order, the post-conviction court found that trial counsel spoke with Detective
Early and thoroughly cross-examined Detective Early at the suppression hearing.2 The
post-conviction court found that there was no “impeachment evidence or other material
information that [trial] counsel did not discover as a result of any omission in this respect,
except for Det[ective] Early’s arrest for driving under the influence and conviction for
reckless driving.” The post-conviction court concluded that trial counsel’s failure to
discover this evidence did not prejudice the Petitioner because the “minor traffic offenses
would have had minimal, if any, effect on the detective’s credibility[]” without additional
evidence of that Detective Early’s criminal behavior extended to the crime scene. The
post-conviction court denied relief to the Petitioner. The Petitioner timely appealed.3

                                             II. Analysis

        On appeal, the Petitioner argues that, because he testified at the post-conviction
hearing that he received some “paperwork” while he was in jail that discussed Detective
Early’s internal affairs investigation, trial counsel had notice of the investigation and
should have further investigated the charges against Detective Early and used the
information to impeach his reputation for honesty at trial. The State responds that
Detective Early’s DUI arrest and reckless driving conviction were not admissible for
impeachment purposes under Tennessee Rule of Evidence 609(a)(2) because the reckless
driving conviction was not “‘punishable by death or imprisonment in excess of one year
and does not involve ‘dishonesty or false statement.’” Additionally, the State contends
that “[t]he fact that trial counsel did not know about an internal affairs investigation did
not affect the outcome of the trial.” We agree with the State.

                                         Standard of Review

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing

        2
          The post-conviction court made numerous other findings of fact and conclusions of law relating
to the Petitioner’s other allegations. However, for purposes of conciseness, we have limited the summary
of the post-conviction court’s order to the grounds of ineffective assistance of counsel raised on appeal.
        3
           We note that the post-conviction court’s order denying relief was filed on May 31, 2016, and
that the Petitioner filed his Notice of Appeal on July 28, 2016. However, the Petitioner filed a motion
asking this court to waive timely filing of his notice of appeal, and this court concluded that waiving of
timely filing was required in this case in the interests of justice. See Tenn. R. App. P. 4(a).
                                                  -6-
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“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
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s conclusions of law
and application of the law to factual findings are reviewed de novo with no presumption
of correctness. Kendrick, 454 S.W.3d at 457.

                             Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.



                                            -7-
        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is 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. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

        At the post-conviction hearing, Detective Early stated that he was previously
charged with driving under the influence in March 2008 and that he pled guilty to
reckless driving. Detective Early explained that the internal affairs investigation had
concluded by the time he investigated the Petitioner’s case. The Petitioner testified that
he received “paperwork” relating to Detective Early’s internal affairs investigation prior
to trial. The Petitioner stated that the internal affairs investigation related to an incident
of public urination and stated that trial counsel could have used that information to
impeach Detective Early’s reputation for honesty. Trial counsel testified that she was not
aware of Detective Early’s reckless driving conviction during her representation of the
Petitioner, but she did not “see how that would make a difference[]” in the Petitioner’s
case. The post-conviction court found that there was no “impeachment evidence or other
material information that [trial] counsel did not discover as a result of any omission in
this respect, except for Det[ective] Early’s arrest for driving under the influence and
conviction for reckless driving.” The post-conviction court concluded that trial counsel’s
failure to discover this evidence did not prejudice the Petitioner because the “minor
traffic offenses would have had minimal, if any, effect on the detective’s credibility[]”
without additional evidence that Detective Early’s criminal behavior extended to the
crime scene.

       We agree with the post-conviction court that trial counsel’s failure to discover
evidence of Detective Early’s reckless driving conviction and internal affairs
investigation and use of that information to impeach his testimony did not prejudice the
Petitioner. Under Tennessee Rule of Evidence 608(b), “[s]pecific instances of conduct of
a witness for the purpose of attacking or supporting the witness’s character for
truthfulness” must be “probative of truthfulness or untruthfulness[].” Tenn. R. Evid.
608(b). Whether the internal affairs investigation related to Detective Early’s DUI arrest
or the alleged public urination incident, neither of these instances of conduct are
probative of Detective Early’s reputation for honesty or dishonesty.

       Additionally, Tennessee Rule of Evidence 609(a)(2) allows the admission of
evidence that a witness has been convicted of a crime for the purpose of attacking the
credibility of that witness if the crime is “punishable by death or imprisonment in excess
of one year under the law under which the witness was convicted or, if not so punishable,
                                            -8-
the crime must have involved dishonesty or false statement.” Tenn. R. Evid. 609(a)(2).
A reckless driving conviction is not punishable by death or imprisonment in excess of
one year, see Tenn. Code Ann. § 55-10-205(d)(1) (reckless driving conviction is a Class
B misdemeanor); see also Tenn. Code Ann. § 40-35-302 (misdemeanor sentencing), nor
does a conviction of reckless driving involve dishonesty or false statement. See State v.
Jimmy Blanton, No. 01-C-01-9306-CR-00166, 1994 WL 115965, at *4 (Tenn. Crim.
App. Apr. 7, 1994), perm. app. denied (Tenn. July 18, 1994) (reckless driving conviction
does not involve “dishonesty or false statement[]”). Even if trial counsel had been aware
of Detective Early’s DUI arrest, reckless driving conviction, or the internal affairs
investigation, she would not have been able to use any of those instances of conduct or
the conviction to impeach Detective Early. Thus, we agree with the post-conviction court
that the Petitioner has not established that “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Goad, 938 S.W.2d at 370 (quoting Strickland, 466 U.S. at 694) (internal
quotation marks omitted); see Rickie Boyd v. State, No. W2005-01599-CCA-R3-PC,
2006 WL 1168843, at *4 (Tenn. Crim. App. May 1, 2006), perm. app. denied (Tenn.
Sept. 25, 2006) (holding that trial counsel’s failure to impeach the victim with her prior
driving convictions was neither deficient nor prejudicial because the victim’s “driving
record, however dreadful, was not relevant to the veracity of her testimony as it pertained
to her identification of the petitioner as the man who robbed the Mapco Express[]”).
Because we have determined that the Petitioner has failed to establish that he was
prejudiced by trial counsel’s representation, we will not address whether trial counsel’s
performance was deficient. See Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citing
Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). The Petitioner is not entitled to
relief.

                                      III. Conclusion

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

                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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