State v. Johnny Smith

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 02C01-9806-CR-00193
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY 1999 SESSION FILED July 1, 1999

Cecil Crowson, Jr. Appellate Court Clerk JOHNNY L. SMITH, ) ) C.C.A. NO. 02C01-9806-CR-00193 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. L. T. LAFFERTY, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

ALICIA A. HOWARD PAUL G. SUMMERS 4299 Elvis Presley Blvd. Attorney General & Reporter Memphis, TN 38116 CLINTON J. MORGAN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493

WILLIAM L. GIBBONS District Attorney General

RHEA CLIFT Asst. District Attorney General 201 Poplar Ave., Suite 301 Memphis, TN 38103-1947

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY, Judge OPINION

Following a jury trial, the petitioner was convicted of aggravated sexual

battery, aggravated burglary, two counts of especially aggravated kidnapping, and two

counts of aggravated robbery and given an effective sentence of thirty-eight years in the

Department of Correction. On direct appeal, a panel of this Court affirmed the petitioner’s

convictions. See State v. Johnny L. Smith, No. 02C01-9602-CR-00061, Shelby County

(Tenn. Crim. App. filed May 15, 1997, at Jackson). In January 1998, the petitioner filed

a post-conviction relief petition and subsequently amendments, alleging that he was

denied effective assistance of counsel. After an evidentiary hearing, the post-conviction

court denied the petitioner relief. The petitioner now appeals, arguing that the post-

conviction court erred by failing to conclude his trial counsel was ineffective and that

newly discovered evidence entitled him to post-conviction relief. Finding no error, we

affirm the post-conviction court’s order denying relief.

The petitioner claims that his trial counsel, Lilah Kathleen Mitchell, was

ineffective for failing to impeach the victim’s trial testimony with a prior inconsistent

statement. According to the petitioner’s testimony at the post-conviction hearing, the

victim’s testimony at the preliminary hearing was different from her testimony at trial. The

record fails to contain an account of the proceedings at the preliminary hearing or at trial.

We recognize that the post-conviction court judge, who relied heavily on the trial

transcript in evaluating the petitioner’s factual allegations, specifically found that Ms.

Mitchell reviewed the preliminary hearing testimony, but at trial, did not cross-examine the

victim about her prior testimony. Because the record fails to contain an account of the

victim’s testimony at the preliminary hearing and at trial, however, we are unable to

evaluate whether the victim’s hearing testimony was in fact inconsistent with her trial

testimony in a material manner and if so, whether Ms. Mitchell’s failure to impeach the

2 victim with these inconsistencies prejudiced the petitioner. Where, as here, the appellant

fails to furnish a complete record for review, this Court is precluded from considering the

issues presented and must presume that the trial court’s ruling is correct. See, e.g., State

v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993); State v. Locust, 914 S.W.2d 554, 557

(Tenn. Crim. App. 1995).

The petitioner also claims that Ms. Mitchell failed to thoroughly investigate

the case and interview all possible witnesses. At the post-conviction hearing, the

petitioner testified that prior to trial, he was aware of potential defense witnesses other

than those who testified at trial. He admitted not knowing these potential witnesses’

addresses (and for some, even their last names), but he maintained he could have

learned that information had Ms. Mitchell asked. Ms. Mitchell testified that the petitioner

never told her about these other potential witnesses. She testified that the only witnesses

of whom she was aware were those who testified at trial. Even assuming that Ms.

Mitchell somehow performed deficiently, the petitioner has failed to prove prejudice

because he has not shown how any benefit would have come from interviewing these

supposed witnesses. Without showing prejudice, the petitioner is not entitled to post-

conviction relief. See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984);

Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).

Finally, we note that the petitioner has listed as an issue for review the

following: “Whether the trial court erred by not finding that appellant had new evidence

which was not available to him at the time of his trial.” Because the petitioner has failed

to provide any argument or citations to authority on this point, this issue is waived. Rules

of the Court of Criminal Appeals of Tennessee 10(b); State v. Killebrew, 760 S.W.2d 228,

231 (Tenn. Crim. App. 1988).

3 In sum, the petitioner has not carried his burden of showing entitlement to

post-conviction relief. Accordingly, the post-conviction court’s order denying relief is

affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOE G. RILEY, Judge

______________________________ THOMAS T. W OODALL, Judge