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Hicks v. State

Court of Criminal Appeals of Tennessee, Knoxville

February 28, 2017

BILLY RICHARD HICKS
v.
STATE OF TENNESSEE

          Assigned on Briefs December 20, 2016

         Appeal from the Criminal Court for Knox County No. 106730, 105064, 106729, 106731 Steven Wayne Sword, Judge

          The Petitioner, Billy Richard Hicks, appeals the post-conviction court's denial of his petition for post-conviction relief in which he challenged his convictions for driving under the influence ("DUI"), tenth offense; violation of the motor vehicle habitual offender ("MVHO") statute; driving on a revoked license, second or subsequent conviction; and criminal impersonation. On appeal, the Petitioner contends that trial counsel was ineffective in failing to show the video of the Petitioner's performance on the field sobriety tests to the Petitioner prior to trial. We affirm the judgment of the post-conviction court.

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

          J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Billy R. Hicks.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Charme P. Allen, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J. and James Curwood Witt, Jr., J., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         TRIAL COURT PROCEEDINGS

         After an officer stopped him for driving without a seatbelt on November 6, 2008, the Petitioner was convicted of DUI, tenth offense; violation of the MVHO statute; driving on a revoked license, second or subsequent conviction; and criminal impersonation. See State v. William Richard Hicks, No. E2012-00063-CCA-R3-CD, 2013 WL 5677351, at *1 (Tenn. Crim. App. Oct. 18, 2013), perm. app. denied (Tenn. Apr. 9, 2014). The evidence presented at trial as summarized by this court on direct appeal was as follows:

The events resulting in these convictions occurred on the early morning of November 6, 2008, when the defendant was stopped for driving without a seatbelt and was unable to produce a driver's license. He provided to the officer a false name, date of birth, and social security number. Detecting an odor of alcohol on the defendant's breath, the officer directed that the defendant perform three different field sobriety tests, two of which the defendant, who had refused to submit to a blood alcohol test, failed. Subsequently, it was determined that the defendant's driver's license had been revoked and that on November 13, 2001, he had been declared a habitual motor vehicle offender.

Id.

         Prior to the beginning of the trial, the Petitioner stated that he had not yet viewed the video of the stop, and trial counsel acknowledged that he had been unable to show the video to the Petitioner because his computer equipment malfunctioned. The Petitioner stated that trial counsel briefly reviewed the State's discovery with him for approximately forty-five minutes. Trial counsel stated that he had reviewed the State's discovery and was prepared to proceed with the trial.

         A portion of the video of the Petitioner's stop depicting his performance on the field sobriety tests was presented at trial during the testimony of the arresting officer. Following the arresting officer's testimony, trial counsel announced that the Petitioner wished to view the video recording and said that trial counsel was unable to play the video recording for the Petitioner at the jail. The trial court recessed for lunch to allow the Petitioner the opportunity to view the video. Following the recess, the trial court ...


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