Best v. State, 708 S.W.2d 421 (Tenn. Crim. App. 1985). · Go Syfert
Best v. State, 708 S.W.2d 421 (Tenn. Crim. App. 1985). Cases Citing This Book View Copy Cite
92 citation events (34 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
cited Cited as authority (rule) State of Tennessee v. John F. Curran, III
Tenn. Crim. App. · 2025 · confidence medium
App. 2000); Best v. State, 708 S.W.2d 421, 423 (Tenn. Crim.
cited Cited as authority (rule) Brian Brawner v. State of Tennessee
Tenn. Crim. App. · 2015 · confidence medium
Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Perley Winkler, Jr. v. State of Tennessee
Tenn. Crim. App. · 2014 · confidence medium
This court has previously held that an “original trial attorney is not an adverse party in a post-conviction proceeding.” Best v. State, 708 S.W.2d 421, 423 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Sean Leifer
Tenn. Crim. App. · 2013 · confidence medium
App. May 15, 2009) (quoting Best v. State, 708 S.W.2d 421, 423 (Tenn. Crim.
discussed Cited as authority (rule) Robert Lamont Moss, Jr. v. State of Tennessee
Tenn. Crim. App. · 2013 · confidence medium
As this court has previously stated, “This Court is, of course, not the proper place to introduce evidence, and appendices to briefs do not constitute evidence to be considered in the review of a case.” Best v. State, 708 S.W.2d 421, 423 (Tenn. Crim.
cited Cited as authority (rule) State v. Fredrick Sledge
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68 , 80 L.Ed.2d 674 (19 84); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Miles v. State
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. Johnny Smith
Tenn. Crim. App. · 2010 · confidence medium
See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. King
Tenn. Crim. App. · 2010 · confidence medium
See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68 , 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Robert Crowson v. State
Tenn. Crim. App. · 2010 · confidence medium
See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. Charles Crenshaw
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Burke v. State
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) James Sprague v. State
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. Ronald Collier
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Marty Purkey v. State
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) R. Brown v. State
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Kelvin Taylor v. State
Tenn. Crim. App. · 2010 · confidence medium
Ed. 2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Vernon Beard v. State
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692 , 69 4 (1984 ); Best v. Sta te, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Kenneth Lee Pipkin v. State
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68 , 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. Mary Caruthers
Tenn. Crim. App. · 2010 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Devon Wiggins
Tenn. Crim. App. · 2009 · confidence medium
However, “appendices to briefs do not constitute evidence to be considered in the review of a case.” Best v. State, 708 S.W.2d 421, 423 (Tenn. Crim.
cited Cited as authority (rule) Edmund Zagorski v. State of Tennessee
Tenn. Crim. App. · 2007 · confidence medium
Id. at 694 , 104 S.Ct. at 2068 ; Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Terry L. Baker v. State of Tennessee
Tenn. Crim. App. · 2003 · confidence medium
Ed. 2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Jeffery Bowers
Tenn. Crim. App. · 2002 · confidence medium
App. 1986); Best v. State, 708 S.W.2d 421, 423 (Tenn. Crim.
cited Cited as authority (rule) Derrick Williams v. State of Tennessee
Tenn. Crim. App. · 2002 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68 , 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Willie Lee Benford v. State
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. Erskine Johnson
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 694 , 104 S.Ct. 2052, 2068 , 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Luther Fowler v. State
Tenn. Crim. App. · 1999 · confidence medium
Apparently, this juror had difficulty in agreeing with anyone. 18 2052, 2064, 80 L.Ed.2d 674 , reh’g denied, 467 U.S. 1267 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. Antonio Chaney
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88 , 2 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. Russell Overby
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Nicholas Todd Sutton v. State
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. at 694 , 104 S.Ct. at 2068 ; Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Harold L. Fitts v. State
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Derrick Sawyers v. State
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Major Richardson, Jr. v. State
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68 , 80 L.Ed.2d 674 (19 84); Best v. Sta te, 708 S.W.2d 421, 422 (Tenn. Crim .
cited Cited as authority (rule) State v. Eric Shaw
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. John Robinson
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. Issac Williams
Tenn. Crim. App. · 1999 · confidence medium
See id. at 687-88, 692, 694 ; Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Larry E. Davis v. State
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Charles Haynes v. State
Tenn. Crim. App. · 1999 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Dwight Mayton v. State
Tenn. Crim. App. · 1998 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Danny Meeks v. State
Tenn. Crim. App. · 1998 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Billy Joe Bourff v. State of Tennessee
Tenn. Crim. App. · 1998 · confidence medium
See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68 , 80 L.Ed. 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) James Jackson v. State
Tenn. Crim. App. · 1998 · confidence medium
See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68 , 80 L.Ed. 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. Mario Boyd
Tenn. Crim. App. · 1998 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) State v. Robert Howell
Tenn. Crim. App. · 1998 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Peck v. State
Tenn. Crim. App. · 1998 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064 , 2067-6 8, 80 L.E d.2d 67 4 (1984 ); Best v. Sta te, 708 S.W.2d 421, 422 (Ten n.
cited Cited as authority (rule) Daryl Turner v. State of Tennessee
Tenn. Crim. App. · 1998 · confidence medium
See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68 , 80 L.Ed. 2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Daryl Turner v. State of Tennessee
Tenn. Crim. App. · 1998 · confidence medium
See Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68 , 80 L.Ed. 2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Gary Dotson v. State of Tennessee
Tenn. Crim. App. · 1998 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
cited Cited as authority (rule) Acuff v. State
Tenn. Crim. App. · 1997 · confidence medium
Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68 , 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim.
Retrieving the full opinion text from the archive…
Garland BEST, Appellant,
v.
STATE of Tennessee, Appellee
Court of Criminal Appeals of Tennessee.
Dec 12, 1985.
708 S.W.2d 421
Jon Chalmers Thompson, Madisonville, for appellant., W.J. Michael Cody, State Atty. Gen. & Reporter, Albert L. Partee, III, Asst. State Atty. Gen., Nashville, Carroll L. Ross, Asst. Dist. Atty. Gen., Madisonville, for appellee.
Byers, O'Brien, Cornelius.
Cited by 83 opinions  |  Published

OPINION

BYERS, Judge.

The appellant appeals from the dismissal of a petition for post-conviction relief after an evidentiary hearing.

The appellant says he was represented by incompetent counsel in the convicting trial, and says in the hearing he should have been able to call his trial attorney as a hostile witness under the adverse party rule in Tenn.R.Civ.P. 43.02.

The judgment is affirmed.

The appellant claims his original trial attorney was incompetent because he did not ask for a continuance when a witness not listed on the indictment was allowed to testify.

The appellant says had the attorney asked for a continuance he could have found evidence to attack the credibility of this witness or to otherwise counter the testimony.

We are of the view this allegation does not entitle the appellant to relief for two reasons.

First, the appellant did not demonstrate, in the hearing on the post-conviction proceeding, that such evidence existed or that a continuance would have produced or been likely to produce anything of benefit to him. Even if the attorney’s failure to ask for a continuance was negligent, and in this record it is not, the appellant has failed to show he was prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Additionally, the original attorney testified that he and the appellant, in consultation, determined that the jury which was empaneled appeared to be reasonably favorable to the defense, and they concluded it would be preferable to try the case to that panel rather than risk a different panel at a later time. [1] The record demon[*423] strates this was a reasonable tactical decision by counsel. When such decisions are informed and clearly reasonable, the court will not hold counsel to be incompetent. Hellard v. State, 629 S.W.2d 4 (Tenn.1982).

The appellant raised several other issues about the failure of the original trial attorney to call witnesses. The record shows that some of these witnesses could have given no beneficial testimony for the appellant and that appellant’s counsel chose not to call character witnesses because they could have been questioned about some matters which were detrimental to the appellant.

The record fully supports the finding of the trial court that the original trial counsel was competent.

The appellant asks this Court to hold the Rules of Civil Procedure apply in post-conviction proceedings. Specifically, he asks that we hold that Rule 43.02 of those rules be applied.

This assertion is brought about because the appellant, at the hearing on the post-conviction petition, announced that he was going to call the original trial attorney as an adverse witness under the rule and cross-examine him.

The trial judge ruled he could not call the original attorney as a hostile witness. The appellant insists this was error.

We need not reach the question of the application of the civil rules, specifically or generally, in considering this issue. Whether Rule 43.02 of the Tennessee Rules of Civil Procedure is applicable to a post-conviction proceeding is irrelevant simply because the original trial attorney is not an adverse party in a post-conviction proceeding.

If a petitioner wishes to call an original trial attorney as a witness, he may do so. However, he is not entitled to a presumptive ruling of hostility which permits cross-examination. Under the general rule applicable to such determination, the petitioner must first demonstrate to the trial judge that the attorney is in fact a hostile witness.

In this case, the need for such application of the general rule is evidenced by the fact that the original trial attorney fully answered all questions asked of him. He demonstrated no hostility toward the appellant, and the appellant never made any claim that the witness was withholding any evidence or was evasive, or that he was unable to introduce any evidence because of the ruling of the trial court.

The appellant further says trial counsel should have objected to the conduct of the trial judge in the original trial and that he should have preserved this and raised it on appeal.

The appellant did not introduce any evidence at the hearing on the post-conviction petition to show what conduct he complained of, other than to ask the original trial counsel if the judge’s conduct had an effect on the proceedings. The attorney testified he could not say that it did.

The appellant attempts to bring these matters before us by attaching to his brief an appendix which sets out remarks made by the trial judge during trial. This Court is, of course, not the proper place to introduce evidence, and appendices to briefs do not constitute evidence to be considered in the review of a case.

O’BRIEN and CORNELIUS, JJ., concur.
1

. The attorney received notice of the witness during jury selection, and before the panel was[*423] sworn. He also interviewed the witness before the testimony was offered.