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State v. Barber10/16/2001
t must meet both prongs of the test in order to succeed on this claim, failure to show either deficient performance or resulting prejudice will result in a failure to establish his claim. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997); Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
In denying the defendant's motion for a new trial, the trial court found that counsel should have investigated the breathalyzer results and filed a motion to suppress the evidence, but that the defendant had not been prejudiced by counsel's failure in that regard.
We concur, although for different reasons, that the claim of ineffective trial counsel must fail. The defendant had the burden of proving, by clear and convincing evidence, his allegations that trial counsel was ineffective. See Tenn. Code Ann. § 40-30-210(f). For this court to conclude that trial counsel was ineffective because he did not file a motion in limine, we would have to indulge in the assumption that he could have had no basis for this alleged inaction. That we cannot do. "Allegations of ineffective assistance of counsel relating to matters of trial strategy or tactics do not provide a basis for post- conviction relief." Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991). Not filing a motion in limine may have been a reasonable strategy of trial counsel, or it may have been an oversight. However, the defendant had the burden of demonstrating it was the latter. Since no proof was presented at the motion for new trial in this regard, it would be rank speculation for us to conclude that trial counsel was ineffective on this basis. Accordingly, this assignment is without merit.
CONCLUSION
Based on the foregoing reasoning and authorities, we affirm the judgment of the trial court. However, although not raised by the parties on appeal, we note that the judgment forms in this case reflect that the defendant's convictions resulted from guilty pleas, rather than jury verdicts. Accordingly, we remand to the trial court for entry of corrected judgments.
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