IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 4, 2007

MARIO MERRITT v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 02-05448 James M. Lammey, Jr., Judge

No. W2007-00534-CCA-R3-PC - Filed January 22, 2008

A Shelby County jury convicted the Petitioner, Mario Merritt, of especially aggravated robbery, and

the trial court sentenced him to twenty-five years in prison. The Petitioner filed a petition for postconviction relief claiming he was not afforded the effective assistance of counsel. After a hearing,

the post-conviction court denied the petition, finding the Petitioner failed to prove that trial counsel

was deficient and that any alleged errors caused prejudice. After a thorough review of the record and

applicable law, we affirm the judgment of the post-conviction court. 

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J.,

and DAVID G. HAYES, J., joined.

Juni S. Ganguli, Memphis, Tennessee, for the Appellant, Mario Merritt.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel

E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; Greg Gilbert,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

On direct appeal, we described the facts underlying the Petitioner’s conviction as follows:

On the afternoon of June 21, 2001, Anterius Harden, a “Loss Prevention Security”

employee at Goldsmith’s Department Store, was on duty at the Southland Mall in

Memphis. Around 5:00 p.m., Harden was monitoring the store from a control panel

located in the men’s department, when he noticed two men and a woman enter the

men’s department through the north doors. According to Harden, the three shoppers
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caught his attention because they began selecting clothing without checking the size

or price of the items. As Harden watched the trio, he observed one of the men, later

identified as the appellant, take several items of clothing, walk past the cash register,

and proceed toward the north doors.

Harden immediately intercepted the appellant and identified himself as a “Loss

Prevention” employee. Harden was wearing “plain clothes” and a badge around his

neck. Upon being confronted, the appellant pulled out a pistol and ordered Harden

“to get back, get on the ground.” Harden remained standing but stepped aside to

allow the appellant to “go out the door.” Instead, the appellant ran toward Harden

and pointed the gun in his face. Harden stated that when he attempted to grab the

gun, he and the appellant “tussled” and the appellant fell back. The appellant, with

the gun and merchandise in hand, began backing out of the store. Harden explained

that as soon as the appellant pulled out the gun, the second man dropped the

merchandise he was holding and ran from the store.

As the appellant was backing out of the store, Gary Sparks, another loss prevention

employee, arrived at the north doors. Sparks held the doors to prevent the appellant

from leaving. Thereupon, the appellant reached over his shoulder and shot Sparks,

striking him in the left shoulder. Afterward, the appellant ran into the parking lot and

fled in a vehicle.

Harden took Sparks inside the store and called police, paramedics, and the fire

department. Sparks was transported by ambulance to the hospital. Harden spoke with

police at the scene and provided them with two videotapes of the incident. One

videotape was taken from the podium where he had been standing, and one was from

a camera in the security office. At trial, Harden conceded that the videotape from the

security office was unclear and difficult to see.

Several days later, an officer returned to the store and spoke with Harden and Sparks.

Harden and Sparks were asked to identify the perpetrator from a photographic lineup

prepared by police. Harden selected the appellant’s photograph from the lineup

which showed six individuals. Sparks was unable to identify the appellant from the

lineup, explaining that he saw only the back of the appellant’s head and the left side

of his face. However, both Harden and Sparks identified the appellant at a pretrial

hearing and at trial.

At trial, Harden testified that he came face-to-face with the appellant and was able

to identify the appellant because of his close proximity to the appellant when the

appellant pointed the gun at him. On cross-examination, Harden conceded that his

prior testimony regarding the appellant’s height was not accurate. However, he

stated that the appellant appeared larger at trial, surmising that the appellant had

“probably gained a little . . . weight or whatnot.”
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Sparks testified at trial regarding his injuries and showed the jury the scar and

disfigurement resulting from the gunshot wound. He related that he continues to

have pain and problems with his shoulder, explaining that “[e]very once in awhile it

swells up and hurts like when the weather starts acting up.” Sparks admitted that he

had initially estimated that the perpetrator was five feet, five inches tall, but he

explained that the estimate may have been inaccurate because the hat worn by the

perpetrator made him appear shorter.

State v. Mario Merritt, No. W2003-02868-CCA-R3-CD, 2004 WL 2726030, at *1-2 (Tenn. Crim.

App., at Jackson, Nov. 30, 2004) (footnote omitted), perm. app. denied (Tenn. Feb. 28, 2005). 

The following evidence was presented at the post-conviction hearing: the Petitioner’s trial

counsel (“Counsel”) testified that, at the time of his representation, the Petitioner had three pending

cases: the robbery of a Rite-Aid, the rape of two women, and the especially aggravated robbery at

Goldsmiths. Counsel represented the Petitioner on the rape charges and the Goldsmith’s robbery

charge. 

Although Counsel was not present at the Petitioner’s preliminary hearing, Counsel reviewed

a tape of that hearing; however, he did not get the tape transcribed due to time constraints. Counsel

stated that he traditionally used the testimony at the preliminary hearing to impeach witnesses at trial,

but, in this case, he did not obtain the tape until just prior to trial. Counsel believed, however, that

he successfully impeached the witnesses at the Petitioner’s trial because he reviewed “pretty

complete” discovery. 

Counsel testified that he did not specifically instruct his investigator to work on the

Goldsmith’s robbery case because there was nothing for an investigator to investigate. Counsel

recalled that the Petitioner’s concern was not that he did not commit the crime but that he only

wished to be charged with shoplifting and aggravated assault. 

After a discussion with the Petitioner’s counsel on the Rite-Aid robbery, Counsel proposed

to the Petitioner the possibility of a plea agreement to address all three cases, but the Petitioner

refused to plead guilty to the rape charges. Counsel stated that he wished to try the rape case first,

as he believed that case was the Petitioner’s strongest, but the especially aggravated robbery case

trial was set first because the witnesses were from out-of-state. Although he spent much of his time

preparing for the rape cases because the Petitioner was adamant about not pleading guilty to those

charges, Counsel claimed he was prepared for the Goldsmiths robbery trial. Ultimately, the

Petitioner pled guilty to the Rite-Aid robbery, a conviction for which he received twelve years

incarceration. The Petitioner then decided to also plead guilty to the rape charges, and he received

a fifteen-year sentence for those offenses.

Counsel stated that he met with the Petitioner a number of times, and at the meetings they

usually discussed the rape and Goldsmith’s robbery charges. Counsel testified that he learned of a
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videotape of the incident and attempted to view it, but the tape was grainy in his VCR because of

a speed problem. Prior to trial, he “brought it up into court . . .” where the Petitioner also viewed

the tape. When questioned about whether he filed a motion to suppress the photo identification,

Counsel admitted that he did not file such a motion because he did not feel the identification

procedures were inappropriate. Counsel stated, however, that he argued at trial the witnesses’

identifications of the perpetrator were inconsistent with the appearance of the Petitioner. 

On cross-examination, Counsel reiterated that the Petitioner admitted committing the

robbery, but he wished for Counsel to focus on reducing the especially aggravated robbery charge

into separate charges of shoplifting and aggravated assault. Ultimately, Counsel said that the

Petitioner’s main problem was that he did not initially wish to settle all his charges simultaneously.

Counsel opined that the piecemeal process resulted in a higher total sentence. 

The Petitioner testified that he was serving an effective sentence of thirty-seven years.

Initially, he received an offer of twenty-seven years, which he declined. The Petitioner stated that

Counsel explained the possible sentences he would face if he were convicted of all the charges, and

that number was “extraordinarily high.” The Petitioner stated that Counsel visited him “a couple of

times” while he was housed at the ShelbyCounty jail, and he and Counsel mainly discussed the rape

case. He said that, while little time was spent discussing the especially aggravated robbery case, he

did tell Counsel that he did not shoot the security guard on purpose but that the gun discharged

during a scuffle. The Petitioner stated he was unhappy with Counsel’s representation, and he wrote

the Board of Professional Responsibility “a couple of times,” partly because Counsel did not show

him any witness statements until just prior to trial. However, the Petitioner did admit that Counsel

cross-examined the witnesses about the identity of the shooter. 

On cross-examination, the Petitioner admitted that he wanted to take his case to trial. The

State made a “good offer,” which Counsel suggested accepting, but the Petitioner refused. The

Petitioner stated that he never saw the videotape prior to trial, and, if he had, he would have taken

the plea agreement. Counsel described the tape as “blurry,” so the Petitioner took his chances at

trial. 

The post-conviction court then noted that one of the discovery pages explained that the

Petitioner viewed the video tape in 2001. The court read, “[The Petitioner] advised [that] the male

depicted was not him. He said he was not at the Goldsmiths at the time it was filmed.” The

Petitioner then stated the investigators were lying in their above referenced statement. 

The post-conviction court found the Petitioner’s testimony unbelievable and concluded that

the Petitioner did not prove Counsel was deficient or that he, the Petitioner, was prejudiced. The

court stated that it found the Petitioner to be untruthful when he claimed he had not seen the

videotape prior to trial. The post-conviction court denied the petition for post-conviction relief, and

it is from this order that the Petitioner now appeals.
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II. Analysis

On appeal, the Petitioner claims that he did not receive the effective assistance of counsel.

Specifically, he points to the following instances: (1) Counsel made few and unsubstantial visits, and

he did not discuss the facts with the Petitioner; (2) Counsel failed to view the videotape; (3) Counsel

failed to file a motion to suppress a photo spread identification; and (4) Counsel failed to obtain a

transcript of the preliminary hearing.

In order to obtain post-conviction relief, a petitioner must show that his or her conviction or

sentence is void or voidable because of the abridgment of a constitutional right. T.C.A. § 40-30-103

(2006). The petitioner bears the burden of proving factual allegations in the petition for postconviction relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). Upon review,

this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the

credibility of witnesses, the weight and value to be given their testimony and the factual issues raised

by the evidence are to be resolved by the trial judge, not the appellate courts. Momon v. State, 18

S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A postconviction court’s factual findings are subject to a de novo review by this Court; however, we must

accord these factual findings a presumption of correctness, which can be overcome only when a

preponderance of the evidence is contrary to the post-conviction court’s factual findings. Fields v.

State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are

subject to a purely de novo review by this Court, with no presumption of correctness. Id. at 457. 

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee Constitution.

State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following two-prong test directs a court’s

evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the [petitioner] by the Sixth Amendment.

Second, the [petitioner] must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive the

[petitioner] of a fair trial, a trial whose result is reliable. Unless a [petitioner] makes

both showings, it cannot be said that the conviction or death sentence resulted from

a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419 (Tenn.

1989). 

In reviewing a claim of ineffective assistance of counsel, this Court must determine whether

the advice given or services rendered by the attorney are within the range of competence demanded

of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective
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assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective

standard of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland,

466 U.S. at 688 (1984)).

When evaluating an ineffective assistance of counsel claim, the reviewing court should judge

the attorney’s performance within the context of the case as a whole, taking into account all relevant

circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.

App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s

perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

In doing so, the reviewing court must be highly deferential and “should indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6

S.W.3d at 462. Finally, we note that a defendant in a criminal case is not entitled to perfect

representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796

(Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective assistance of counsel,

‘we address not what is prudent or appropriate, but only what is constitutionally compelled.’”

Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38

(1984)). Counsel should not be deemed to have been ineffective merely because a different

procedure or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276,

279-80 (Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the

defense does not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515

(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). However, deference to matters of strategy

and tactical choices applies only if the choices are informed ones based upon adequate preparation.

House, 44 S.W.3d at 515.

If the petitioner shows that counsel’s representation fell below a reasonable standard, then

the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d 576, 587

(Tenn. 2002). This reasonable probability must be “sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994). 

1. Few and Unsubstantial Visits

First, the Petitioner complains that Counsel did not visit with him enough and that he did not

discuss the facts of the case with the Petitioner. The post-conviction court found that the testimony

from the hearing directly contradicts this. Counsel visited with the Petitioner several times,

discussing both the rape and especially aggravated robbery charges. The Petitioner admitted

committing the especially aggravated robbery, and he only requested that Counsel attempt to reduce

the offense to shoplifting and aggravated assault. As a result of this request, Counsel focused the

majority of his attention on the Petitioner’s rape charges. As the post-conviction court found, the

testimony at the post-conviction hearing simply does not support the Petitioner’s argument. The

evidence does not preponderate against those findings. The Petitioner has not proven that Counsel

was deficient, and he is, therefore, not entitled to relief on this issue.
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2. Videotape

The Petitioner next contends that Counsel failed to view the videotape of the robbery and

failed to show the Petitioner the videotape. The post-conviction court found that Counsel viewed

the videotape twice. Both times, the images were somewhat blurry. Further, the post-conviction

court determined that the Petitioner viewed the videotape and was untruthful in his assertions that

he did not do so. Thus, his claim that he would have pled guilty had he seen the tape is

unsubstantiated by the evidence. The Petitioner has not proven that Counsel was deficient. The

Petitioner is not entitled to relief on this issue.

3. Motion to Suppress

Next, the Petitioner argues that Counsel failed to file a motion to suppress the witnesses’

photo identification of the Petitioner. In order to find Counsel deficient, we would need to conclude

that the Petitioner would have won a motion to suppress. As the post-conviction court found, the

Petitioner has not presented evidence, and there is no evidence in the record to support such a

conclusion. The Petitioner has failed to prove Counsel was deficient in declining to file such a

motion, and, therefore, the Petitioner is not entitled to relief on this issue. 

4. Transcript of the Preliminary Hearing

Finally, the Petitioner complains that Counsel failed to obtain a transcript of the preliminary

hearing. This transcript would have presumably been used to impeach the State’s witnesses at trial.

We conclude that Counsel was not deficient in failing to obtain a transcript. The post-conviction

court found that Counsel listened to a tape of the hearing and cross-examined the State’s witnesses

at trial after a review of evidence received through discovery. The witnesses were cross-examined

on the issues the Petitioner raises. The evidence does not preponderate against those findings. The

Petitioner is not entitled to relief on this issue.

III. Conclusion

We conclude that the Petitioner is not entitled to post-conviction relief because he has not

proven that Counsel was deficient. Accordingly, we affirm the judgment of the post-conviction

court.

________________________________

ROBERT W. WEDEMEYER, JUDGE