         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 13, 2003

              JASON MICHAEL CRIM v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Montgomery County
                         No. 38020 John H. Gasaway, III, Judge



                   No. M2002-03013-CCA-R3-PC - Filed December 12, 2003


The petitioner, Jason Michael Crim, appeals the trial court's denial of his application for post-
conviction relief. The single issue presented for review is whether the petitioner was denied the
effective assistance of counsel. The judgment is affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH, JJ., joined.

Jeffry S. Grimes, Clarksville, Tennessee, for the appellant, Jason Michael Crim.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney
General; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        On November 21, 1997, the petitioner was tried and convicted of possession of more than
.5 grams of cocaine with intent to sell within 1,000 feet of a school, a Class A felony; possession of
less than one-half ounce of marijuana, a Class A misdemeanor; and possession of a firearm on school
grounds, a Class E felony. The trial court imposed Range I, concurrent sentences of 15 years, 11
months and 29 days, and one year, respectively. The sentences for the latter two convictions were
suspended. Upon direct appeal, this court affirmed. State v. Jason M. Crim, No. 01C01-9803-CC-
00101 (Tenn. Crim. App., at Nashville, Feb. 18, 2000). Application for permission to appeal to our
supreme court was denied on September 18, 2000.

       The opinion of this court provided a summary of the factual basis for the convictions:

              During a routine patrol of the grounds at a Clarksville High School football
       game, the School Resource Officer observed an illegally parked vehicle in the faculty
       parking lot. The officer also observed defendant staggering toward the vehicle.
       Once the defendant reached the vehicle, he had trouble getting the keys in the door
       and sitting in the driver's seat. The officer suspected the defendant was intoxicated
       and approached the vehicle. When defendant opened the car door, the officer
       smelled a strong odor of marijuana and saw an open bottle and a glass of beer on the
       front seat. The officer asked the defendant if he had any identification. The officer
       testified that defendant had trouble locating his identification; his speech was slurred;
       his eyes were bloodshot; and he had trouble standing. Due to the level of defendant's
       intoxication, the officer was unable to conduct a field sobriety test. The defendant
       was taken into custody.

              The vehicle was searched incident to the defendant's arrest. Officers found
       defendant's brown leather jacket on the backseat. In the pocket of the jacket, officers
       found a hand-rolled marijuana cigarette and a pill bottle containing several rocks of
       cocaine. Marijuana seeds were found in the ashtray of the car, and a roach clip was
       found on the floorboard. Officers also located a loaded .38 caliber pistol between the
       console and the passenger seat, and found two boxes of ammunition in the back of
       the vehicle.

        On May 31, 2002, the petitioner filed a petition for post-conviction relief seeking a new trial
on the basis that his counsel had been ineffective in a number of ways. The petition was amended,
counsel was appointed, and an evidentiary hearing ensued. The petitioner, an inmate in the
Hardeman County Correctional Facility, testified that he had no discussions with his trial counsel
about pretrial motions, particularly a motion to suppress, and had no recollection of whether there
had been a preliminary hearing. He complained that there were witnesses to the offense that his trial
counsel failed to produce at trial. The petitioner contended that he continued to use drugs while on
bail and was "on drugs" at the time of his trial. The petitioner implied that his trial counsel had
failed to interview state witnesses and contended that he did not go to the crime scene. On cross-
examination, the petitioner was unable to produce the name of any potential witness. He did claim,
however, that another person had actually driven the car to the school but had left by the time of his
arrest. The petitioner described that witness as "possibly hostile."

         Trial counsel testified at the hearing that he had been afforded full discovery by the state in
advance of trial and had acquired written reports from the investigating officer. He acknowledged
that he filed no motion to suppress the cocaine found in the vehicle of petitioner's car. According
to trial counsel, the offense occurred at Clarksville High School during a football game and was
discovered by officers who noticed the parked vehicle with its lights on, its motor running, and a
door open. Trial counsel recalled that the officers first observed the petitioner walking towards the
car. They described him as unstable on his feet and, when they approached, smelled alcohol and
marijuana. According to trial counsel, there was no basis to seek suppression of the evidence
ultimately found inside the petitioner's motor vehicle. Trial counsel recalled that the arresting officer
reportedly did not administer any field sobriety tests due to the petitioner's level of intoxication.




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        At the conclusion of the hearing, the post-conviction court found that there was no basis for
a motion to suppress and made reference to a portion of the officers's testimony from the trial
transcript:

        As I approached the vehicle . . . I noticed someone stumbling from the fence that
        outlined the field to the car. It was the [petitioner]. He was having some problem
        getting in the car.

               I pulled up along side his car, exited my vehicle, and he had already entered
        his vehicle. I tapped on the window and that's when he opened the door and there
        was an odor that smelled like burning marijuana . . . . Also, that's when I noticed an
        open container of beer . . . .
                                                ***
               [The petitioner] was very unstable . . . and . . . was having difficulty getting
        the key into the door lock and opening the door of the vehicle.

                                               ***
        [H]e appeared to be intoxicated. I looked at [his] ID and it stated that he was under
        21.

        Because the search of the vehicle which yielded cocaine was incident to his arrest, the post-
conviction court determined that a motion to suppress would not have been successful. The court
also concluded that if trial counsel had not in fact interviewed the officers who testified at trial, that
the petitioner had failed to establish how he had been prejudiced by the omission. The post-
conviction court observed the petitioner had failed to produce or even identify, other than gender,
the witness he had hoped would testify that she had driven the vehicle to the school grounds. The
post-conviction court ruled that the testimony of that witness, if offered as claimed by the petitioner,
would not "make a bit of difference in the outcome of the conviction[s], . . . especially since [the
petitioner] said here today that he didn't expect that person to say that they owned the gun or it was
their drugs."

         In a post-conviction proceeding, the petitioner bears the burden of proving his allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). Claims of ineffective
assistance of counsel are regarded as mixed questions of law and fact. State v. Honeycutt, 54 S.W.3d
762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). On appeal, the findings
of fact made by the trial court are conclusive and will not be disturbed unless the evidence contained
in the record preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App.
1988). The burden is on the petitioner to show that the evidence preponderated against those
findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). The credibility of the
witnesses and the weight and value to be afforded their testimony are questions to be resolved by the
trial court. Bates v. State, 973 S.W.2d 615 (Tenn. Crim. App. 1997). When reviewing the
application of law to those factual findings, however, our review is de novo, and the trial court's



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conclusions of law are given no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457-58
(Tenn. 2001); see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below “the range
of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the
defense.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, he is not entitled to relief. Our supreme court described the standard of review
as follows:

                Because a petitioner must establish both prongs of the test, 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 defendant makes an insufficient showing
        of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        On claims of ineffective assistance of counsel, 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). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Initially, the post-conviction court accredited the testimony of trial counsel that he was
afforded full and open discovery materials and was adequately prepared for trial. Although it is
typically the far better practice to interview state witnesses in advance of trial, trial counsel, who had
years of experience as a public defender, had access to the state's file. The petitioner has been unable
to establish, as is his burden, that his defense was in any way compromised by any failure on the part
of his counsel to interview the state witnesses. Further, the petitioner failed to produce at the
evidentiary hearing the witness he had hoped would have provided helpful testimony at trial. It was
his obligation to do so. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Of
greater importance, there has been no showing that the testimony claimed would have in any way
affected the three verdicts at issue.

        Finally, the failure of trial counsel to seek suppression of the evidence seized in the
petitioner's vehicle is not a basis for relief. The petitioner was unable to establish at the evidentiary
hearing that his arrest was unlawful or that the seizure of the illegal drugs violated constitutional
principles. The facts, as set out at trial, provided the officers with specific, articulable grounds to
suspect that the petitioner was driving under the influence of an intoxicant. While both the state and
federal constitutions protect against unreasonable searches and seizures and there is a presumption


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that a warrantless search violates constitutional principles, an investigatory stop is among the
narrowly defined exceptions. See U.S. Const. Amend. IV; Tenn. Const. art. I, § 7; Terry v. Ohio,
392 U.S. 1, 27-28 (1968). In State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993), our supreme court
ruled that "the reasonableness of seizures less intrusive than a full-scale arrest is judged by weighing
the gravity of the public concern, the degree to which the seizure advances that concern, and the
severity of the intrusion into individual privacy." The reasonableness of the stop of a vehicle
depends on whether the officer had either probable cause or an "articulable and reasonable suspicion"
that the vehicle or its occupants were subject to seizure for violation of the law. See Delaware v.
Prouse, 440 U.S. 648, 663 (1979); State v. Garcia, ____ S.W.3d ____, No. M2000-01760-SC-R11-
CD (Tenn., Oct. 1, 2003); State v. Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. App. 1989).
Probable cause has been generally defined as a reasonable ground for suspicion, supported by
circumstances indicative of an illegal act. See Lea v. State, 181 Tenn. 378, 380-81, 181 S.W.2d 351,
352 (1944). While probable cause is not necessary for investigative stop, it is a requirement that the
officer's reasonable suspicion be supported by facts, taken together with rational inferences, which
reasonably warrant the intrusion. Terry, 391 U.S. at 21. In this instance, that the defendant staggered
towards a vehicle parked on school grounds, entered the vehicle and took the driver's seat warranted
the intrusion. The smell of marijuana and the presence of an open container of alcohol were facts
which established probable cause which merited a full scale investigation. Under these
circumstances, a motion to suppress the confiscation of the cocaine would not have been successful.

       Accordingly, the judgment is affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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