        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 27, 2015


            ZACHERIAH L. HOLDEN v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Warren County
                     No. F11837    Larry B. Stanley, Jr., Judge




              No. M2015-00433-CCA-R3-PC – Filed December 29, 2015
                        _____________________________

The petitioner, Zacheriah L. Holden, appeals the denial of his petition for post-conviction
relief. He contends that he received the ineffective assistance of counsel and that his
right to due process was violated. Following our review, we affirm the judgment of the
post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

Russell S. Mainord, Altamont, Tennessee, for the Appellant, Zacheriah L. Holden.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; and Lisa S. Zavogiannis, District Attorney General, for the Appellee,
State of Tennessee.


                                       OPINION

                      FACTS AND PROCEDURAL HISTORY


       Based on his role in an accident that killed two victims, the petitioner was
convicted of two counts of vehicular homicide; two counts of reckless homicide; five
counts of reckless endangerment; two counts of driving under the influence, third
offense; leaving the scene of an accident involving death or personal injury; failure to
obey any required traffic-control device; violation of the financial responsibility law; and
six counts of aggravated vehicular homicide. State v. Zacheriah Holden, No. M2010-
00811-CCA-R3-CD, 2013 WL 871326, at *5 (Tenn. Crim. App. Mar. 8, 2013), perm.
app. denied (Tenn. Aug. 26, 2013). After drinking alcohol all day, the petitioner was
driving his vehicle on the evening of July 7, 2008, with his son, his girlfriend, and his
girlfriend‟s son as passengers. Id. at *1-2. The petitioner drove through an intersection,
striking a vehicle driven by Rayford and Vada Elam, killing Mr. and Mrs. Elam. Id. at
*2-3. Witnesses to the crash observed that the petitioner‟s vehicle was traveling at a high
rate of speed and that it went through an intersection when a stoplight was red. Id. The
petitioner fled the scene on foot and flagged down June Jones. Id. Shortly thereafter,
officers pulled Ms. Jones over and removed the petitioner from the vehicle. Id. at *3.
Noticing that the petitioner appeared to be intoxicated, Deputy Brad Myers handcuffed
the petitioner and placed him in the back of a patrol car. Id. at *4. While in handcuffs,
the petitioner ran away from the patrol car, and Deputy Myers and other officers pursued
the petitioner across a field. Id. Deputy Myers apprehended the petitioner after chasing
him for about 200 yards. Id.

       The petitioner was extremely combative when he was apprehended. Id. An
officer informed the petitioner that he had killed two people in the traffic accident, and
the petitioner responded that he “didn‟t give a f**k.” Id. Officers returned the petitioner
to the patrol car and informed him of his Miranda rights, and the petitioner replied,
“F**k you.” Id. Officers returned the petitioner to the scene of the accident, and Trooper
Marty Taylor interviewed the petitioner. Id. Trooper Taylor asked the petitioner how
much he had to drink, and the petitioner answered that he had consumed three to five
beers. Id. When asked to take field sobriety tests, the petitioner stated that he would not
be able to complete them. The tests were administered, and the petitioner failed to
successfully complete them. Id. Trooper Randy Maynard then transported the petitioner
to River Park Hospital. Id. at *5. He explained the implied consent form to the
petitioner, and the petitioner appeared to understand the form. He also agreed to submit
to a blood test. Id. On direct appeal, this court affirmed the petitioner‟s conviction and
sentence. Id. at *1.

       The petitioner subsequently filed a pro se petition for post-conviction relief. He
raised numerous issues, including a claim that trial counsel was ineffective at trial and on
appeal for failing “to submit all relevant circumstances to be considered in pre-trial”
motions to suppress his statements and blood sample. He contended that that he was
subjected to police coercion and intimidation because he was told that he could not see
his son until the interrogation was concluded. The post-conviction court appointed
counsel, and counsel filed an amended petition.


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        At the post-conviction hearing, the petitioner and trial counsel testified.1 Trial
counsel testified that he had been licensed to practice law for thirteen years at the time of
the hearing. Trial counsel testified that he filed a motion to suppress the petitioner‟s
“pretrial and/or pre-Miranda and post-Miranda statements” and a motion to suppress the
results of the petitioner‟s blood test, both of which were denied after hearings. Trial
counsel agreed that he raised these issues on the petitioner‟s direct appeal. Trial counsel
testified that the evidence against the petitioner was “overwhelming.”

        The post-conviction court made oral findings at the conclusion of the hearing and
denied the petition. The court found that the issues relating to the petitioner‟s motion to
suppress his statements and blood test were preserved and addressed by this court on
direct appeal. The court did not “find any fault on behalf of the trial counsel.” In regards
to the petitioner‟s claim that trial counsel failed to raise objections to the petitioner‟s pre-
Miranda statements at the time of trial, the court stated, “All I can say to that is that the
issue was raised and the court ruled on it and it was preserved and I don‟t think there was
any obligation on the defendant‟s counsel to re-raise that issue at any other time.” In a
written order denying the petition, the court reaffirmed its finding that the petitioner‟s
issues regarding his motion to suppress his statements and the seizure of his blood were
preserved and addressed by this court. The court also found that “[p]retrial motions were
heard and denied by the court in regard to the pre-Miranda statements. There is no proof
trial counsel was ineffective.”

       The petitioner filed a timely notice of appeal, and we proceed to consider his
claims.

                                               ANALYSIS

        On appeal, the petitioner argues that trial counsel was ineffective for failing to
raise objections regarding the petitioner‟s statement and blood test throughout trial. He
contends that this failure “gave weight to the evidence, arguably leading a jury to believe
that all sides were in agreement as to the nature and extent of the evidence.” He argues
that objections during the trial may have resulted in the evidence being excluded. He also
again raises the issue of his pre-Miranda statement, arguing that he was in custody at the
time. He also contends that the blood draw procedure violated his Fourth Amendment
rights.



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          The petitioner‟s testimony only addressed the issue of his decision not to testify at trial, an issue
that was not raised in his petition or raised on appeal. We limit our summary of the post-conviction
hearing to include only the testimony germane to the issues on appeal.
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       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2010). The
petitioner bears the burden of proving the allegations of fact giving rise to the claim by
clear and convincing evidence. Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
“„Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.‟” Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998)). This court generally defers “to a post-conviction court‟s findings
with respect to witness credibility, the weight and value of witness testimony, and the
resolution of factual issues presented by the evidence.” Mobley v. State, 397 S.W.3d 70,
80 (Tenn. 2013). Claims for post-conviction relief premised on ineffective assistance of
counsel present mixed questions of law and fact, which this court reviews de novo with
no presumption of correctness. Id.

       Both the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution guarantee the right to counsel. This right affords an
individual representation that is “within the range of competence demanded of attorneys
in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Counsel is
ineffective when “counsel‟s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984).

        In order to prevail on a claim of ineffective assistance of counsel, the petitioner
must prove that: (1) counsel‟s performance was deficient; and (2) the deficiency
prejudiced the petitioner to the degree that the petitioner did not receive a fair trial.
Strickland, 466 U.S. at 687. A petitioner satisfies the deficiency prong of the test by
showing that counsel‟s representation fell below an objective standard of reasonableness;
that is, “the services rendered or the advice given must have been below „the range of
competence demanded of attorneys in criminal cases.‟” Grindstaff, 297 S.W.3d at 216
(quoting Baxter, 523 S.W.2d at 936); see Strickland, 466 U.S. at 687. The petitioner
must demonstrate that “counsel made errors so serious that counsel was not functioning
as the „counsel‟ guaranteed the defendant by the Sixth Amendment.” Strickland, 466
U.S. at 687. Courts evaluating the performance of an attorney “should indulge a strong
presumption that counsel‟s conduct falls within the wide range of reasonable professional
assistance.” State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). In order to fairly assess
counsel‟s conduct, every effort must 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. “The fact that a particular strategy or tactic failed or hurt the defense, does not,

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standing alone, establish unreasonable representation.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996).

        Prejudice requires the petitioner to show “that there is a reasonable probability
that, but for counsel‟s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. If the petitioner fails to establish
either deficiency or prejudice, post-conviction relief is not appropriate, and this court
need not address both components if the petitioner makes an insufficient showing as to
one component. Grindstaff, 297 S.W.3d at 216 (citing Goad, 938 S.W.2d at 370).

        The petitioner argues that counsel was ineffective for failing to object at trial to the
admissibility of evidence relating to his statement and his blood test after his motions to
suppress this evidence were denied. Trial counsel testified that he filed motions to
suppress both the petitioner‟s statement and the results of his blood alcohol test. The
post-conviction court found that trial counsel had no obligation to raise the issue again at
trial after adequately preserving the issue for appeal by raising both of these issues in
pretrial motions that were denied. On direct appeal, this court concluded that both the
petitioner‟s statement and blood alcohol test were properly admitted. Zacheriah Holden,
2013 WL 871326, at *10-11. Because the evidence was admissible, any objection at trial
would have been unsuccessful, and it is not deficient performance for trial counsel to fail
to make a meritless objection. We conclude that the petitioner is not entitled to any
relief.

        The petitioner argues that he was interrogated by officers prior to being read his
Miranda rights and that the admission of these pre-Miranda statements violated his right
to due process. Trial counsel testified that he filed a pretrial motion to suppress the
petitioner‟s statements, and the post-conviction court found that a motion to suppress the
petitioner‟s pre-Miranda statements was heard and denied by the trial court. The
petitioner did not include a transcript of this hearing or the trial court‟s findings of fact in
the appellate record. It is the duty of the petitioner to prepare a record that conveys a
“fair, accurate, and complete account of what transpired with respect to those issues that
are the bases of appeal.” Tenn. R. App. P. 24(b). “In the absence of an adequate record
on appeal, this court must presume that the trial court‟s rulings were supported by
sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). As
nothing in the record preponderates against the post-conviction court‟s finding, we
conclude that the petitioner is not entitled to any relief.

        The petitioner also argues that because his consent for the blood draw was
coerced, the taking of his blood violated the Fourth Amendment. The petitioner raised
the issue of his consent on direct appeal, arguing that he was too intoxicated to consent.
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This court rejected that argument, affirming the trial court‟s finding that despite the
petitioner‟s intoxication, “he was able to understand his rights and knowingly and
voluntarily waive them.” Zacheriah Holden, 2013 WL 871326, at *11. To the extent that
the petitioner now advances a different theory as to why he did not consent to the blood
test, this argument could have been raised on direct appeal and was not. As a result, the
petitioner has waived this issue. T.C.A. § 40-30-106(g) (stating that “[a] ground for relief
is waived if the petitioner personally or through an attorney failed to present it for
determination in any proceeding before a court of competent jurisdiction in which the
ground could have been presented unless” the claim is premised on a retroactive
constitutional right that did not exist at the time of trial or the claim was not raised as a
result of state action that violated the Constitution). Further, to the extent that the
petitioner may be attempting to argue that trial counsel was ineffective for failing to raise
this theory, that argument is also waived. The petitioner did not pursue this argument at
the post-conviction hearing or in this appeal, and he did not present any evidence to
support his claim. We conclude that the petitioner is not entitled to any relief.

                                     CONCLUSION

       Based upon the foregoing, we affirm the judgment of the post-conviction court.

                                                  _________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




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