           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  Assigned on Briefs August 9, 2005

                   JIMMY M. MILLICAN v. STATE OF TENNESSEE

                         Appeal from the Criminal Court for Davidson County
                           No. 2000-T-181    J. Randall Wyatt, Jr., Judge



                        No. M2004-02252-CCA-R3-PC - Filed October 19, 2005


The Appellant, Jimmy M. Millican, appeals the Davidson County Criminal Court’s denial of his
petition for post-conviction relief. On appeal, Millican argues that he was denied his Sixth
Amendment right to the effective assistance of counsel. After review, the judgment of the post-
conviction court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT , JR., JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the Appellant, Jimmy M. Millican.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. Johnson III, District Attorney General; and James Sledge, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                     OPINION

                                            Procedural Background

       In April of 2000, a Davidson County jury found the Appellant guilty of vehicular homicide
and driving on a revoked license. During the second phase of a bifurcated trial, the jury enhanced
the Appellant’s vehicular homicide conviction to aggravated vehicular homicide based on his prior
conviction for driving under the influence of an intoxicant and having a blood alcohol level of .20%
or more at the time of the offense at issue in this case.1 See Tenn. Code Ann. § 39-13-218(a)(3)(A)
(2003). The trial court imposed a twenty-five year sentence for aggravated vehicular homicide to
be served concurrently with a six month sentence for driving on a revoked license. On direct appeal,



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           Blood tests indicated that the Appellant’s blood alcohol level was .34 %.
the Appellant’s conviction and sentence for aggravated vehicular homicide were affirmed. State v.
Jimmy M. Millican, No. M2000-02298-CCA-R3-CD (Tenn. Crim. App. at Nashville, Jan. 31, 2002).

       The relevant facts, as summarized by this court on direct appeal, established:

       According to the state's proof, on the evening of March 3, 1999, a van driven by the
       severely inebriated defendant crashed into victim Alex Haught's car at the
       intersection of 20th Avenue and West End Avenue in Nashville and then plowed into
       Amerigo's Restaurant. Haught died shortly after the accident.

       Kym Murphy, a business executive visiting in Nashville, was walking on West End
       toward Amerigo's Restaurant. As he prepared to cross the street at the intersection,
       he heard a vehicle accelerate. He testified he believed the van was traveling on 20th
       Avenue, and further testified the van was traveling at a high rate of speed as it
       approached the intersection. He stated Haught's car was traveling on West End
       toward the intersection. Murphy testified he was positive Haught's car had the green
       light. He said he saw the van cross through the intersection, swerve slightly, and
       strike the car on the driver's side before the van ricocheted toward the restaurant.
       Murphy testified he did not see anyone flee the van, and he saw the valet and others
       approach the van. Murphy stated he first went to assist the victim. After the
       paramedics arrived, he walked past the van where he observed the defendant sitting
       in the driver's seat, leaning forward.

       Patrick Winningham, the valet at Amerigo's Restaurant, testified he was standing
       outside the restaurant when he heard a loud crash and saw the vehicles collide. . . .
       Winningham testified he opened the van's passenger door and saw two Caucasian
       men inside the van. He stated the van's other doors were not open at that time.
       According to Winningham, the defendant was in the driver's seat, leaned over the
       van's console, with his feet underneath the steering wheel. . . . Winningham denied
       seeing a third person running from the scene.

       David Conn, regional manager for Amerigo's Restaurant, testified he was standing
       near the front door of the restaurant when he heard a loud explosion. Conn said he
       was outside the restaurant in less than a minute, where he was one of the first people
       to reach the van. Conn said a liquor bottle fell out of the van when the passenger
       door was opened. He saw two Caucasian men inside of the van; the defendant, who
       was in the area of the driver's seat, and the passenger, who was bleeding from the
       forehead. He testified that a short time later, an apparently "homeless" African
       American man approached the van from the rear. Conn said the man may have been
       trying to get in the van, but disappeared after someone asked him to step away. The
       man did not appear to have been injured.

       ....


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Michael Parish was eating at Amerigo's Restaurant when he heard a crash and then
heard heavy plate glass breaking. He immediately arose from his table and, within
ten seconds, walked out the front door of the restaurant to the van. He saw the
defendant in the driver's seat area. Parish said the defendant's feet were in the area
of the pedals and his buttocks were not completely on the driver's seat. He testified
the defendant babbled and smelled of alcohol. According to Parish, the defendant
repeatedly said, "I've done something terribly wrong. I've got to get out of here."
Parish described the defendant as belligerent. He stated the defendant fought an
EMT and cursed.

Jeff Boggs, a former EMT, was in the restaurant when he heard the crash and made
his way out to the van. After others removed the passenger from the van, he entered
it through the passenger door to tend to the defendant, whom Boggs said was on the
floor between the seats. He stated the defendant smelled of alcohol. Boggs said he
heard the defendant say, "I've made a big mistake. I'm really sorry." . . .

Officer Philip Vincion testified his reconstruction of the accident showed the van was
traveling east on West End as Haught turned left, or west, onto West End from
northbound 20th Avenue. Vincion opined the crash was caused when the van failed
to stop for a red light and struck Haught's car, which according to witnesses'
statements, had a green light. . . .

Vincion testified the van's passenger struck his head and cracked the van's windshield
on the passenger side, lacerating the passenger's forehead. A toxicologist testified
DNA tests showed the passenger's hair and blood were found in the cracks in the
windshield. Vincion stated he observed the defendant in the van after the passenger
was placed on a stretcher. He said the defendant was sitting upright on the floor
between the seats with his legs wedged between the driver's seat and the area below
the steering column. Vincion testified there was a strong odor of alcohol coming
from the defendant, who had bloodshot eyes and slurred speech. Vincion stated the
defendant told him, "F-ck you. I wasn't driving. Why don't you just go ahead and
whip my f-cking-ss. Get the light of out my face, you god-mn motherf-cker."
Vincion said the defendant had no visible injuries.

Officer Mack Peebles testified he was dispatched to the accident and observed the
defendant sitting in the driver's seat, leaning across the gap between the seats.
Officer Chris Hendry testified the defendant was laying between the front seats with
his feet between the van's console and the pedals.

. . . Paramedic Cary Arnes testified the defendant was sitting in the van's driver's seat,
slumped toward the console, with his legs on both sides of the console. Arnes said
the defendant, who smelled of alcohol, cursed and tried to strike his partner.



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       ....

       Lori Roberts, an R.N. who was dining at Amerigo's Restaurant at the time of the
       collision, testified for the defendant that when she exited the restaurant after the van
       struck the building, she asked the valet how many people were in the van. Roberts
       stated the valet replied there were three. Roberts said she then asked him where the
       third person was and he responded, "He took off." Roberts testified she observed the
       driver's door was slightly open. She stated she saw the defendant in the floor
       between the front and back seats with his legs stretched forward against the console.
       She said the defendant was belligerent, violent, and "very intoxicated." Roberts said
       the defendant admitted he had been drinking, but denied driving. Roberts testified
       that as she exited the van after checking the defendant, she said she found a man's
       slip-on brown loafer on the ground. Its mate was found on the other side of the van.
       Roberts stated the defendant and the passenger were wearing both of their shoes.

       Patrick Winningham, the valet, was recalled and testified he did not see a third
       person running away from the van. He explained he may have repeated what another
       person told him. Winningham stated he saw only two Caucasian men in the front of
       the van.

       Vivian French testified for the defendant that she was in the restaurant and saw two
       Caucasians in the van before it crashed into the restaurant. French said she was
       delayed from exiting the restaurant and when she reached the outside, she saw an
       African-American man wearing a ski cap and baggy clothes stepping out of the van
       as if he had been the driver. French stated the man looked over his shoulders and ran
       past her.

Id.

        In June of 2003, the Appellant filed a petition for post-conviction relief, alleging that he was
denied the effective assistance of counsel. An evidentiary hearing was held on July 7, 2004, and the
post-conviction court denied relief by written order on August 10, 2004. This appeal followed.

                                               Analysis

        On appeal, the Appellant asserts that trial counsel’s representation was deficient because
counsel failed to: (1) call witnesses who would testify that he was not driving the vehicle; (2)
investigate Officer Vincion’s statement to The Tennessean newspaper that three people had been
inside the vehicle; (3) investigate a statement by the restaurant’s valet to Jill Chambers and Lori
Roberts that the driver ran from the crash; (4) hire an accident reconstructionist; (5) investigate the
prior DUI conviction; and (6) convey a plea bargain. To succeed on a challenge of ineffective
assistance of counsel, the Appellant bears the burden of establishing the allegations set forth in his
petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003). The Appellant


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must demonstrate that counsel’s representation fell below the range of competence demanded of
attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish (1)
deficient performance and (2) prejudice resulting from the deficiency. The petitioner is not entitled
to the benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot
criticize a sound, but unsuccessful, tactical decision made during the course of the proceedings.
Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

        It is unnecessary for a court to address deficiency and prejudice in any particular order, or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish 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.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104
S. Ct. at 2068) (citations omitted)).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying a claim of
ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with
a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law are reviewed under a purely de novo
standard with no presumption that the post-conviction court’s findings are correct. Id.

I. Additional Witnesses

         The Appellant asserts that trial counsel failed to call any witnesses to testify that he was not
driving the vehicle at the time of the collision. Specifically, he claims “trial counsel was ineffective
in that he had the ability to prove that a 3rd person was in the vehicle, but that the 3rd person was also
the driver; ultimately the person responsible for the death of the victim in this case.” Although the
Appellant claims that he was riding with the third person at the time of the collision, he offers no
clue as to the identity of this third person or where the person could be found. Indeed, at trial, the
Appellant defended upon grounds that he was not the driver, suggesting that the “homeless African
American man” seen near the van following the collision was in fact the driver. The jury rejected
this defense at trial. Five or more eyewitnesses at the scene testified that the Appellant was in the
driver’s seat of the van. Other corroborating evidence also supported the fact that the Appellant was
the driver.

        If a petitioner seeks to establish deficient performance based upon trial counsel’s failure to
call a witness, then it is incumbent upon the petitioner to call the witness at the post-conviction
hearing to establish that the witness testimony would have benefitted the Appellant and that
prejudice has resulted. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We are not
permitted to speculate as to what a witness might have testified to at trial. Id. Clearly, trial counsel


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may not be faulted for not calling a witness who does not exist or a witness whose testimony is of
no benefit to the defense. The record fails to demonstrate that either deficient representation or
prejudice resulted from trial counsel’s failure to call the mystery third person.

II. Statement to Newspaper

         The Appellant’s next allegation of ineffective assistance of counsel is that trial counsel failed
to fully investigate an article in The Tennessean newspaper which reported that Officer Vincion had
told a reporter that there were three people in the van at the time of the accident as opposed to two.
The following questions were propounded to trial counsel by post-conviction counsel at the
evidentiary hearing:

        Q:      [D]id you have occasion to read an article by Cathy Carlson, who is a staff
                writer for the Tennessean?
        A:      I don’t recall.
        Q:      Do you recall that article saying there were three people in the van?
        A:      No.
        Q:      You don’t recall that?
        A:      No.

Because the Appellant has failed to establish that the newspaper article made reference to three
people in the van, as suggested by post-conviction counsel, this issue is without merit.

III. Statement of Valet

          The Appellant argues that trial counsel failed to investigate a statement allegedly made by
the valet, Patrick Winningham, to two witnesses that he saw the driver of the van run away after the
collision. Our review of the record reveals that although Lori Roberts testified at trial that
Winningham told her three people had been inside the van and that the third person “took off,”
Winningham testified that immediately after the crash, he discovered the Appellant in the driver’s
seat along with an unconscious passenger. He denied having ever seen a third person who ran from
the scene and related that he may have repeated what another person told him. Regarding this
allegation, the trial court concluded, “Mrs. Roberts and Mr. Winningham testified at trial, and the
jury properly weighed their testimony of the events.” We agree. Trial counsel could have done
nothing to further investigate the statement as Winningham fully explained his version of the events
at trial.

IV. Accident Reconstructionist

       The Appellant also asserts that trial counsel was ineffective in failing to secure an accident
reconstructionist. At the post-conviction hearing, trial counsel testified, “in my experience with
reconstructionists, . . . my personally looking at the scene, I just didn’t see anything that a
reconstructionist could do that would help.” Again the Appellant fails to explain how the hiring of


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an accident reconstructionist would have been of benefit, especially in view of the fact that the
Appellant defended upon the grounds, and continues to assert, that he was not the driver of the van.
Moreover, the Appellant offers no suggestion as to how a reconstructionist would have been of
benefit. Because no accident reconstructionist was called by the Appellant at the post-conviction
hearing, we are not permitted to speculate that an accident reconstructionist’s testimony would have
been of benefit to the Appellant. Id. This claim is without merit.

V. Previous DUI Conviction

        The jury in this case enhanced the Appellant’s conviction from vehicular homicide to
aggravated vehicular homicide based in part upon his prior DUI judgment of conviction. The
Appellant contends, however, that because trial counsel did not personally go to Giles County to
investigate the validity of this conviction, trial counsel’s assistance in this case was ineffective.
After review of the record, we conclude that this court has previously determined that the
Appellant’s previous judgment of conviction for DUI was facially valid. State v. Jimmy M. Millican,
No. M2000-02298-CCA-R3-CD.

VI. Conveyance of Plea Agreement

        Lastly, the Appellant contends that trial counsel was ineffective in failing to convey to him
a seventeen-year plea agreement, which he claims that he would have accepted rather than going to
trial. Trial counsel’s testimony at the post-conviction hearing materially contradicted that of the
Appellant. Trial counsel testified that he did communicate the plea offer to the Appellant, and the
Appellant maintained his innocence. The post-conviction court accredited the testimony of trial
counsel, and we will not reweigh or reevaluate the factual issues resolved by the trial court. The
record does not preponderate against these findings. For these reasons, we find Appellant’s
allegation of deficient performance without merit.

                                         CONCLUSION

       Based on the foregoing, the judgment of the Davidson County Criminal Court is affirmed.



                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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