         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 16, 2003

                  THOMAS D. SMITH v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Robertson County
                         No. 97-0290   John H. Gasaway, III, Judge



                    No. M2002-02181-CCA-R3-CD - Filed August 12, 2003


The state appeals the Robertson County Circuit Court’s granting of post-conviction relief to the
petitioner, Thomas D. Smith. The state contends the post-conviction court erred in granting relief
based upon the original trial court’s failure to reduce to writing its answer to a jury question posed
during deliberations at the petitioner’s trial. Upon review of the record and the applicable law, we
reverse the judgment of the post-conviction court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and ALAN E.
GLENN, JJ., joined.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and B. Dent Morriss, Assistant District Attorney
General, for the appellant, State of Tennessee.

Gregory D. Smith, Clarksville, Tennessee, for the appellee, Thomas D. Smith.

                                             OPINION

       The petitioner was convicted of simple possession of marijuana and possession of 0.5 grams
or more of cocaine with the intent to sell in a Drug-Free School Zone. See Tenn. Code Ann. §§ 39-
17-417(a)(4) (possession with intent to sell), -418(a) (simple possession), -432(b) (Drug-Free School
Zone Act). The petitioner received an effective sentence of sixty years incarceration as a career
offender. His convictions and sentences were affirmed on direct appeal. See State v. Smith, 48
S.W.3d 159 (Tenn. Crim. App. 2000).

       The facts as presented at trial according to this court’s opinion on direct appeal are as
follows:
               On February 10, 1997, at approximately 8:00 pm., Sergeant Ricky Morris of
       the Springfield Police Department apprehended the [petitioner] in possession of
       approximately one point four (1.4) grams of crack cocaine and one point nine (1.9)
       grams of marijuana. The [petitioner] confessed to the police that he intended to sell
       the crack cocaine in order to pay his electric bill. At the time of his encounter with
       the police, the [petitioner] was seated in a car in the parking lot of a public housing
       project situated within one thousand (1,000) feet of a local elementary school.

Id. at 161-62.

                           I. POST-CONVICTION PROCEEDINGS

        The crucial issue presented by the petitioner at his post-conviction hearing was whether trial
counsel was ineffective in failing to file a motion to suppress the seizure of the drugs. Because the
resolution of this issue is relevant to the ultimate disposition of this appeal, we briefly summarize
the testimony relating to this issue.

        At the post-conviction relief hearing, Sergeant Ricky Morris testified that on February 10,
1997, at approximately 7:58 p.m., he and another officer approached a vehicle which was blocking
the entrance to a parking lot, and he observed the petitioner, a passenger, holding an open container
of beer in violation of a city ordinance. The officer stated he requested the petitioner to exit the
vehicle intending to issue him a citation for violating the open container ordinance. He further stated
this was at night in a “very dangerous” neighborhood, and the defendant consented to a pat-down
search.

        Sergeant Morris stated he then conducted a pat-down search of the petitioner’s person for
safety purposes. The officer stated that although he did not feel any weapons, he felt “lumpy rocks
contained in . . . plastic feeling material” in the petitioner’s front shirt pocket. When Sergeant Morris
asked the petitioner if the substance was crack cocaine, the petitioner nodded his head in the
affirmative. The officer then retrieved the substance from the petitioner’s front shirt pocket.
Sergeant Morris denied the petitioner was wearing a bulky winter coat which he had to unzip to
retrieve the cocaine.

        The petitioner testified that when he was searched, he was wearing a “pullover bomb jacket
stuffed with goose feathers,” which was zipped. He stated that during the search, the officer touched
an item underneath the petitioner’s coat and asked him whether the substance was crack cocaine;
however, the petitioner did not respond. Sergeant Morris then unzipped his coat, reached inside, and
retrieved the substance from his pocket. The petitioner denied indicating the substance was crack
cocaine, giving the officer permission to reach inside his coat, or making any movements indicating
he possessed a weapon.

       The petitioner testified he met with trial counsel on three occasions, and each meeting
continued for approximately twenty to thirty minutes. He stated that although he never discussed


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the pat-down search with trial counsel, he informed trial counsel of the events. He maintained that
if trial counsel had filed a motion to suppress, the outcome would have been different.

       Trial counsel testified that although he did not file a motion to suppress, he discussed the
issue with the petitioner. He stated that based on this discussion, he believed the petitioner
voluntarily consented to the search. Trial counsel further stated that at the time, he believed the
search was lawful. He opined that although the motion to suppress would not have been frivolous,
it would have been denied by the trial court.

        Trial counsel testified the petitioner did not request that he file a motion to suppress. In
addition, the petitioner never informed him that he was wearing a coat when the officer conducted
the pat-down search.

        During final argument, the petitioner’s counsel contended there was no basis for the frisk,
and the seizure was in violation of the “plain feel” doctrine. See Minnesota v. Dickerson, 508 U.S.
366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993).

                   II. FINDINGS REGARDING MOTION TO SUPPRESS

        The post-conviction court found that if a motion to suppress had been filed, the credibility
of the petitioner and Sergeant Morris would have been at issue. The court further found the credibility
issue would have been resolved in favor of the officer, and the motion to suppress would have been
denied.

        In view of the officer’s testimony that the pat-down was consensual, which trial counsel
stated was also his understanding, and the officer’s testimony that the defendant acknowledged that
the object was cocaine, the evidence does not preponderate against the findings of the post-
conviction court. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999) (holding the post-conviction
judge’s findings are conclusive unless the evidence preponderates otherwise). Therefore, although
the ruling of the post-conviction court was not challenged in the petitioner’s brief, we conclude the
petitioner is not entitled to relief on this issue.

                                      III. JURY QUESTION

        During jury deliberations at the petitioner’s original trial, the jury wrote a note to the trial
court indicating that “[a] juror has a question or concern over the matter of did or did not. Juror is
not comfortable with the law and the officer not knowing the law concerning the thousand foot law.”
The trial court gave a lengthy oral response which, in essence, clarified the original charge and
explained that possession of cocaine over 0.5 grams with intent to sell is enhanced if the jury also
finds beyond a reasonable doubt that it was within one thousand feet of a school.

        After the trial court gave a portion of its response, an “off-the-record” bench conference
transpired. The content of this conference is not available for review. Thereafter, the trial court


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explained to the jury that it would not be proper for it to comment on the question as it related to a
juror not being “comfortable with the law and the officer not knowing the law.” The jury then
resumed its deliberations. At that point, the trial court asked counsel if they were in agreement with
the trial court’s response. The assistant district attorney general stated he had “no problem.”
Defense counsel stated, “We don’t have, I agree with - - .” There is no indication the trial court’s
response was ever reduced to writing.

         The petitioner’s post-conviction counsel determined this issue was frivolous and did not
pursue it as a basis for post-conviction relief. The only mention of this issue in the post-conviction
testimony was the testimony of the petitioner who, when asked if there was “anything else you want
to tell the Court,” opined trial counsel should have objected to the failure to reduce the response to
writing. Furthermore, because this was not perceived by either counsel to be an issue, there were
no questions asked of, nor testimony by, trial counsel concerning this matter.

        The post-conviction court, sua sponte, expressed concern about this issue during final argument.
The petitioner’s counsel stated this issue was not raised because of his obligation to raise only
“nonfrivolous issues.” After a lengthy discussion about the issue, the petitioner’s counsel based his
final argument strictly upon the failure to file a motion to suppress. The state did likewise.

        During its oral ruling, the post-conviction court first determined the petitioner’s suppression
issue was without merit. Then the post-conviction court, sua sponte, noted trial counsel did not
object to the original trial judge’s oral response and failed to preserve the issue in the motion for new
trial. However, the post-conviction court appeared to conclude that the failure of the trial court to
reduce the response to writing justified post-conviction relief, not ineffective assistance of counsel.
Although the post-conviction court acknowledged it had “no idea” whether it affected the jury’s
verdict and “no idea” whether an appellate court would find error, it found the verdict was
“undermined [by] the failure of the trial court to instruct the jury in writing” as to its question. The
written order of the post-conviction court setting aside the conviction was based upon the “Trial
Judge[’s] fail[ing] to provide the jury with all jury charges in written form and fail[ing] to fully
explain the law pursuant to a jury question request.” The order made no reference to ineffective
assistance of trial counsel.

                                            IV. WAIVER

        The state first contends the issue regarding the trial court’s failure to reduce the supplemental
instruction to writing is a “free-standing claim” unrelated to ineffective assistance of trial counsel
and is, therefore, waived for failure to object at trial and preserve the issue for direct appeal. In
response, the petitioner asserts the issue involves ineffective assistance of trial counsel based upon
trial counsel’s failure to object at trial. We agree with the state.




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A. Petition for Post-Conviction Relief

        The petitioner originally filed a pro se petition for post-conviction relief in which he did not
specify grounds for relief but referred to an attached memorandum of law. In this memorandum, the
petitioner asserted the trial court’s failure to reduce the supplemental jury instruction to writing was
plain error and an abuse of discretion. Upon appointment of post-conviction counsel, the petition
was amended to include an unspecified claim of “ineffective assistance of counsel” in one paragraph
and specifically referred to ineffective assistance of counsel relating to the suppression issue in the
next paragraph. It made no reference to the jury question issue.

B. Analysis

        The Post-Conviction Procedure Act of 1995 provides 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:
        (1) The claim for relief is based upon a constitutional right not recognized as existing
        at the time of trial if either the federal or state constitution requires retroactive
        application of that right; or
        (2) The failure to present the ground was the result of state action in violation of the
        federal or state constitution.

Tenn. Code Ann. § 40-30-206(g). Further, a petition for post-conviction relief should “specify facts
supporting [any] claim for relief” and describe how the petitioner was prejudiced. Tenn. Sup. Ct.
R. 28 § 5(E)(3), (4); see Tenn. Code Ann. § 40-30-204(e).

         In the case at bar, the original trial court’s failure to reduce a supplemental instruction to
writing was not framed as an ineffective assistance of counsel issue in the petitioner’s original post-
conviction relief petition nor in counsel’s amended petition. No pleading alleged trial counsel was
deficient in failing to preserve this issue. Furthermore, during the post-conviction relief hearing,
defense counsel stated his argument focused on the claim of ineffective assistance of counsel based
upon trial counsel’s failure to file a motion to suppress. Defense counsel further stated he believed
the issue regarding the jury charge to be “without merit.” Thus, the failure to allege this as a basis
for relief was a deliberate choice.1 It further appears the post-conviction court’s grant of relief was
not based on ineffective assistance of counsel but rather the failure of the trial court to reduce the
response to writing.

       Based upon the circumstances, we conclude the issue regarding the jury charge was not
included as a ground for ineffective assistance of counsel. We further conclude this issue was
waived by the failure to pursue the objection at trial and preserve the issue for the direct appeal.


       1
           W e also conclude it was a reasonable choice not to pursue this issue.

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                       V. INEFFECTIVE ASSISTANCE OF COUNSEL

        Regardless of waiver, we conclude that even if the claim had been based upon ineffective
assistance of trial counsel, the petitioner is not entitled to relief.

A. Ineffective Assistance of Counsel - Standard of Review

        When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
burden is upon the complaining party to show (1) that counsel’s performance was deficient, and (2)
the deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. See Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). In Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975), our supreme court required that the services be rendered within the range of
competence demanded of attorneys in criminal cases. In reviewing counsel’s conduct, a “fair
assessment of attorney 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, 104 S.
Ct. at 2065; see Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

         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.’” Burns, 6 S.W.3d at 463 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068)
(citations omitted). The petitioner bears the burden of proving the factual allegations that would
entitle the petitioner to relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f).

B. Analysis

        In the case at bar, the trial court failed to reduce to writing its response to a jury question.
Trial counsel failed to object at trial and failed to raise it as an issue in the motion for new trial.
However, we note the following. There was an “off-the-record” bench conference at trial concerning
this matter to which neither we nor the post-conviction court was privy. At the post-conviction
hearing, trial counsel was never asked why he voiced no objection to the oral response. Based upon
our review of the transcript, it is reasonable to assume that one of the attorneys suggested that the
trial court further instruct the jury that it could not comment on the jury’s question about the
propriety of the one-thousand-foot law. The trial court did exactly that. Further, it would appear the
trial court’s oral response did not misstate the law and was accurate. Although it certainly was not
a verbatim re-reading of the original charge, it appears to accurately clarify the law concerning the
Drug-Free School Zone Act. It is further apparent from the trial transcript that trial counsel voiced
no objection and was satisfied with the trial court’s instructions. Again, we note there was no
testimony by trial counsel at the post-conviction hearing that addressed this issue.


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        In order to secure post-conviction relief, the petitioner must show prejudice. Strickland, 466
U.S. at 687. In the context of this case, the petitioner must establish that there was a reasonable
probability that the result of the trial would have been different or that he would have received a new
trial had trial counsel objected and preserved this issue. However, if trial counsel had objected, the
trial court may well have submitted a written instruction. Furthermore, even though it may be
subject to debate whether a supplemental jury instruction in response to a jury question is subject
to the writing requirement of Rule 30(c) of the Tennessee Rules of Criminal Procedure, see State v.
Thomas J. Faulkner, Jr., No. E2000-00309-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 293, at *39
(Tenn. Crim. App. Apr. 17, 2001, at Knoxville),2 perm. to app. denied (Tenn. 2001), any deficiency
is subject to harmless error analysis, see State v. Barnard, 899 S.W.2d 617, 623 (Tenn. Crim. App.
1994); Thomas J. Faulkner, Jr., 2001 Tenn. Crim. App. LEXIS 293, at **39-40. In this case, the
post-conviction court did not find, nor has there been a showing, that the jury verdict was likely
affected. We further conclude that had trial counsel objected and preserved the issue for direct
appeal, it likely would have been deemed harmless error. The petitioner has failed to establish the
prejudice prong of an ineffective assistance of counsel claim.

         Accordingly, we reverse the judgment of the post-conviction court.




                                                                   JOE G. RILEY, JUDGE




         2
          The Faulkner court deemed it unnecessary to determine this issue because any erro r would b e harmless.
Thomas J. Faulkner, Jr., 2001 T enn. Crim. App. LEX IS 293, at *39. However, we agree with Judge Tipton’s concurring
opinion indicating “supplemental post-trial instructions” should be reduced to writing. Id., at *49 (Tipton, J., concurring).

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