# FILED May 14, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9612- CR-00529 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDAL L WYATT, JR. JAMIL B UTLER, ) JUDGE ) Appe llant. ) (Aggravated Robbery)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY FOR THE APPELLANT : FOR THE APPELLEE : ROBERT J. MENDES JOHN KNOX WALKUP 209 T enth Av enue S outh Attorney Generaland Reporter Nashvill e, TN 37203 DEB ORA H A. T ULLIS Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attorney General PAUL DEWITT Assistant Distri ct Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashvill e, TN 37201-1649
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defe ndan t, Jam il Butler, a ppea ls as of ri ght pursuant t o Rule 3 of the Ten nes see Rules of Appell ate Procedure. He was convicted by a Davidson Coun ty jury of

one count of aggr

avated robber

y and sentenced as a standard, Ra nge I offender

to twelve years impri sonment. He appeals hi s convict ion, raisingthe foll owing issues f or ourrevi ew: (1) That the trialcourt err ed in denying the Defendant’s moti on to suppress t he identi ficati on of him from a photo graph ic lineup; (2) that

the tri al court erred in allow ing the State’s witnesses who v iewed the imperm issibly sugg estive pho tograph ic lineup to testify at tr ial; (3) that the tri al court erred in allowing the jury to view surveillance ph otos from an other robbery; (4) that the t rial court e rred in d enying the De fenda nt’s motion to dismiss because the audiotape of

the preli minary heari ng was lost; (5) that the evidence was insuff i cientto support a verdict of guil t; and (6)that trial counselrendered ineffective a ssistanc e. W e affirm the judgm ent of the tria l court.

On the evening of

November 10, 1994, Jason Lee McCawley, La vell McElra th and B arry Ste wart w ere wo rking th e even ing sh ift at the L ittle Cae sar’s pizza restaurant on McGavock Pike in Nashvill e, Tennessee. The rest aura nt was a take-out facility so that the front co unter was six to eight feet from the fr

ont doors. T here were two benches for persons t o wait, and shelving andthe preparati on area were behind t he cas h register at the fr

ont. The fr

ont of the business was well-l it fr om six fluo rescent l ights i n the cei l ing. McC awley’s w ife was also present

in the restaurant, but was n ear the back and d id not observe t he incident in questio n. During the even ing, a blackmale entered t he establi shment-3-

and walked straight to the front counter. This person was l ater ident ified as the D efenda nt. McCawley was worki ng the register that night. The Defendant approached him, put a dol lar bil l on the counter, and asked for change for a pay phone that was located acrossthe street. When McCawley opened the register to get the change, the Defendant began r eaching for bills

with his

left hand
. McCawley gra bbed the Defendant’ s hand, pushed it aside, and started aski ng the Defendant what he was doing. The Defendantpulled a g un from his right po cket. McCawley saw the Defendant’ s face and descri bed h im as bein g in his late twenties, having high cheekbones, rough shav en and with b loodsh ot eyes. He was wearinga ba seba ll capand some type of football jacket. McCawley noticed small scars on t he Defendant’s l eft hand.
McCawley rai sed hi s hand s and b riefly looked tothe l eft

whereMc E lrath was standing taking a pho ne o rder at approximately an arm’s length distance awa y . McCawley grabbed McElr ath and pushed him towar d the back of t he store. The Defen dant cont inue d to g rab t he money fro m the r

egister . He appeared to be sli ghtly hur ried, but also appear ed calm. McCawley act ivated a silent alarm when he got to the b ack of the st ore. He esti mated that he had contac t with the D efenda nt for app roximate ly twenty to thirty s econd s.

Lavell McElrath was answering the te lephone when the Defendant walked into the restaura nt. He was located a bout three feet from the cash reg ister. McElra th saw the Defendant ask for cha nge, re ach in the ca sh reg ister, the n pull a gun when McCawley tri ed to push his hand away. McElrat h also saw the Defe ndan t’s face anddes cri bed h im as somewh at rough shaven with a mustache, and that he was wear ing a cap and a winter ja cket. T he De fenda nt’s-4-

eyes were brown and he had bump s aroun d his mu stache
. He estimated that he saw the Defendantfor twent y to thi rty seconds. McElrath dro pped the tel ephone an d McCawley pushed him to t he back. McCawley was yelling“We’re get tin g robbed! W e’re getting robbe d!”
Barry Stewa r t, the st

ore manager, was at t he “make stati on” assembling a pizza, when the De fe ndan t cam e in. Th e ma ke sta tion wa s locat ed dire ctly behind the telephones. Stewart gl anced up when he heard the Defendant come into the store, then ret urned to his work. He then saw McCawley runni ng toward him, yelli ng that they

were being ro bbed. Stew art looked at t he front and s aw the Defendant with a gun, taki ng money out of thecash register. Stewart described him as six feet tall, wearing a blue ba seball cap an d dark clothing. His eyes w ere bloodshot and he had high cheekbones. He estimated that the Defendant was in viewfor thi rty seconds t o a minute and that

he was fifteen to twe nty feet away. Stewart saidthat

noth ing b locked hi s vi ew of the Defendan t. S tewart and t he Defendant briefly made eye contact. The Defendant then t urned and l e ft the restaura nt.

On November 11th, Detect ive Danny Coll ins wen t to the L ittle Cae sar’s restaurant

and show ed McE lrath and McC awley a se ries of survei llance photographs. Stillphotos had been taken fr om a video camera duri ng a robbery at a Speedway convenience store one day bef ore the Lit

tle C aesar’s ro bbery. The suspect in t hat robbe ry resem bled th e pers on de scribe d by the Little Cae sar’s victims. Collins was sh owing the ph otos to McC awley, who stated t hat he thought they

looked li ke the Littl e Caesar’s robber . As McCawley was l ooking,-5-

McElra th walked up behind McCawley, looked over his sho ulder and sai d thatthe photo loo ked like the Little Caes ar’s robb er. McCawley saw the De fendant app roximately two we eks after the robb ery walki ng on Riverside D rive, which is three block s from Little Cae sar’ s . Appr oxima tely five days later, McElrath w as leaving for w ork and s aw the Defendant walking t hrough some bushes t wo house s down fro m his h ome. He estimated that the Defen dant was thirty to forty feet aw ay. McElrath steppe d into his yard to get

a better v iew. He tol d his mother, who reported i t to the pol ice. Stewart al so saw the Defendant walking down t he street i n the area near t he store within a week after the robbery. Stewart called the pol ice to report what he saw.

The Defenda nt was even tually located and a rrested. On N ovembe r 2 9 , 1994, Detective Collinswent to Lit tle Caesar’ s and showed McElrath an d Stewart a photo li neup. It consi sted of photographs of si x subjects , incl uding that of the Defendant
. McElra th looked at the lineu p first and ide ntified the D efenda nt. Stewart then viewed t he photos and ident ified t he Def endan t. M cElrath and Stewart were ke pt apart a nd viewe d the lineu p indep enden tly. Detective Collins r e turned to Litt le Caesar’s on December 1, 1994, and showed McCawley the photo line up. McC awley also identified the Defen dant.

The Defendantwas indicted on one count of aggr avated robber

y. After a jury trial, he was fo und g uilty on Decem ber 12, 1995 , and the trial court sentenced him to twelve years as a stan dard, R ange I offend er. He now a ppea ls his convi ction.-6- I.

The Defenda nt argues that the tri al cou rt erred in de nying his m otion to suppress the in cour

t identificati on of him by witnessesbecause their testimony was based on a photographi c lineup. On a motion to supp ress, d eferen ce is given to the trial court to assess the credibility of the wit nesses and determine issues of fact and the prevai ling part y is entitled to t he strongest legiti mate view of the evide nce. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996 ). The fi ndings of fact of

the tri al court at

a suppression hearing willnot be dist urbed on appeal unless th e eviden ce in the re cord pre ponde rates oth erwise. Id.

"Convicti ons based on eyewit ness identi ficati on at tri al followi ng a pretri al identif icatio n by photo graph w ill be set a side o n that gro und on ly if the photo identif icatio n was so imperm issibly suggestive as to give rise to a very substantial likel ihood of irrepara ble misid entification." Simm ons v. United States , 390 U. S. 377, 384, 88 S.Ct. 96 7, 971, 19 L.Ed.2d 1247 (1 968). A p retrial confro nta ti on procedure may b e unlaw ful if it is unnece ssarily sug gestive an d cond ucive to irrepa rable mistake n identificatio n unde r the totality of the circums tances
. Stova ll
v. Denno , 388 U.S. 293 , 302, 87 S.C t. 1967, 1972, 1 8 L.Ed.2d 1 199 (1967 ); Moo re v. Illinois , 434 U.S. 22 0, 227, 98 S.C t. 458, 464, 54 L.E d.2d 424 (19 77).
Although it

may be suggestive, an identification may sa tisfy due process as reliabl e a nd ad mis sible when considering the totality of the circumstances. See State v . Brown , 79 5 S. W.2d 6 89, 694 (Ten n. C ri m. App. 1990). Five factors are to be considered when evaluating the propri ety of the identif ication process. Neil v. Bigge rs , 409 U.S. 18 8, 199, 93 S.C t. 375, 382, 34 L.E d.2d 401 (19 72);-7-

Benn ett v. State , 530 S.W .2d 511 , 514 (T enn.), reh’g. d enied (Ten n. 1975). These are the opport unity t he wit ness had to v iew

thecri mina l at

theti me of the cr im e, the witnes s’ degree of attenti on, the accur acy of the witnesses’ prior descripti on of the crim inal, the leve l of certainty of the wit ness at theconfrontat ion and the time bet

ween the crime and t he conf rontati on. Brown , 795 S.W.2d at 694.

The Defendant contends that thepho to li neup was tai nted by t wo witnesses’ prior v iewing of the Speedway survei llance photos. He clai ms that the surve ill ance photos looked like him an d when the witnes ses view ed the p hoto arrayseveral weeks later, the earli er photo suggested that the Defendant was the robber. The trial court conducted a ful l suppressi on hearing regardin g the ph oto lineup on December 1st and 4th, 1995. The trialjudge fi rst concl uded that the witness Barry Stewa rt would be permitted to testify regardi ng his ident ificat ion of the Defendant in t he photo lineup. The trialjudge found t hat Stewart had never viewed the Speedway photos a nd was expos ed to no pote ntially suggestive influences. The D efenda nt had argued that Stewart and McElrat h viewed the photo array together, howeve r, Detective Collins an d both witnesses testifi ed that theywere not together no r did they discuss the photos. Th e trial court obviou sly resolved this i ssue in favor of the State. We cannot conclude that the evidence preponderatesagainst the trial court’s findings re garding this witness. Thus, having concluded that no sugge stive procedure occurred for Ste wart, no applicat ion of the Biggers factors wa s indicate d.

The trialcourt then evaluat ed the suggestiven ess of the Speedway surveillancephotos on the ident ificat ion of theDefendant in t he photo li neup as-8-

was made by McCawley and McElrat h. The tri al court noted that McCawl ey testif ied that alt hough he thou ght the Speed way photos looked like the rob ber, he base d his identifi cation of the Defendant on his face-to-face conta ct with h im at the Little Caesar’s rob bery. The trialcourt als o considered t hat the Speedway photos were viewed several weeks before the phot o lineup was pr

oduced. The trialcourt als o noted that McElrath testifi ed that he vi ewed the Speedway photos and thought they look ed like the perpe tra tor of t he Little Caesar’s robb ery. Howeve r, he sta ted tha t he sa w the D efend ant wa lk ing in his neighbor hood shortly after the robbery. McElrath also based his ident ificat ion of the Defendant in the lineu p on his p ersona l encoun ters with him
. Finally, the tri al court stated that the Speedway surveil lance photoswere unclear, taken from a di stanc e, and revealed merely a simil ar figur e wearing a base ball cap. The tri al judge found the photos woul d be difficult to use to ide ntify a suspect . Moreover, the tri al court noted that the Defendant never ackno wledge d thathe was the pers on in the Spe edway ph otos and tha t there was no real i ssue of theide nti fi cat ion of h im. The trialcourt concl uded that the Speedway photos were not the basis for the later identificati on of the Defendant. Furthermore, even if consideri ng that the p ho tos were suggest ive, t he trialcourt found that under Biggers , the witn esses had the opport unity to view the Defendant during t he crime, their atte ntion w as foc used on him , there was ver y lit tle doubt about the witnesse s’ certainty, a nd the ide ntification wa s close in tim e to the rob bery.

We have reviewed the testimony a t the suppres sion heari ng, the argum ents of counsel an d the findings of the trial cou rt. From the reco rd before us, we cannot conclude that the evidencepreponderates againstthe trial c ourt’s-9-

findings. There fore, we c onclud e that the tria l court pr operly deni ed the Defe ndan t’s motion to suppr ess the wit nesses’ ident ificat ion t e stimo ny. Th is issue is w ithout me rit.

II.

The Defen dant ne xt asserts that thetrialcourt err ed by denying hi s motion to exclude wit ness testi mony from those who viewed the Speedway photos, thus denying him a fair

trial . He contends t hat Rule 40 3 of t he Tennessee Rules of Evidence applies a nd that the testimon y should have be en exclu ded be cause “its probative value [was] s ubsta ntially ou tweigh ed by th e dan ger of u nfair prejudice .” He also asserts that he was deprived of hi s right t o c onfront th e witnesses against him full y as provi ded by the Six th Amendment to the United Stat es Constitut ion and Articl e 1, Secti on 9 of the Tennessee Const ituti on. The confrontat ion clause of the Six th Amendment pr

ovides t wo types of protect ion for criminal def enda nts : t he r igh t t o phy sically f ace tho se wh o te stify agai nst him , and the right to cros s-exam ine witnes ses. Pennsylvan ia v. Ritchie , 480 U.S. 39, 51, 107 S.C t. 989, 998 , 94 L.Ed .2 d 40, 53 (1 987); State v. Middlebrooks , 840 S.W .2d 317 , 332 (T enn. 19 92).

The Defendant contends that in or der to cross -examine the witn esses fully, he would be required to explor e the effectof the Speedway photos, putti ng him at risk of

great prej udice. He argues that the only prope r remedy w ould have been to exclude any tes timony from M cElrath and M cCawley. T he trial court had already deter mined in its deni al of the Defendant’s moti on to suppress t he identif icatio n testimony, that the Speedway surveil lanc e photo s had no salient-10-

effecton the witn esses identificatio n of him in t he photo li neup. Defense counsel conducted a full cros s-exa mina tion of th e witne sses regard ing the ir identificatio n of the Defe ndant. In these ci rcumstances, given the mini mal infl uence of the photos on the witnesse s’ iden tifi cation of the Defendant, fail ure to rai se the Spe edway issue would not have necessari ly prevented an effect ive cros s examination implicating constitutional concerns. It was a tacticaldecision on the part of the defense to choose to r aise the Speedway

issue at trial a s a me ans to impeach the State’ s witne sses. Ther efore, we cannot con clude that the trial court erred in denying the Defendant’ s motion to prevent t he witnesses f rom testif ying at trial.

III.
Next, the Defendant contends thatthe tri al court erred by denyi ng his oral motion to prevent t he jury f rom viewing t he Speedway photos. Ev idence must be re levant and probative to some issue at trial; the evi dence must "make th e existen ce o f any fact

that is of consequence to t he determinati on of the act ion more probable or less probable than it woul d be without the evidence. " Tenn. R. Evid. 4 01. Ad ditiona lly, Rule 403 provides t hat even if rel evant, " evidence may be excluded if it

s probative value i s su bstant ially outweighed by t he danger of unfair prejudice , confusio n of th e issues , or misl eading the j ury, or by considerati ons of undue delay, waste of ti me, or needless pr esentation of cumulat i ve evidenc e." Tenn . R. Evid. 40 3; see State v. McC ary , 922 S.W.2d 511, 515 (Tenn. 1996). Whether to adm it eviden ce is within t he discret ion of the trialcourt and will n ot be rever sed absent a clear

showing of an abuse of that-11-

discreti on. Statev. DuBo se , 953 S.W .2d 649 , 654 (T enn. 19 97); McCary , 922 S.W.2d at 515.
Here, the tri al judge pr ohibited the State f rom introduci ng the S peedwa y photos or examining witnesses reg ard ing th e photos in i ts case in chi ef. The Defendant requested that he be al lowed to cros s-examine theState’s wi tnesses regarding the Speedway photos without showin g the photos to the jury. The trial court ruled that

if the Defendant chose to cross-examine t he witnessesregarding the photos , the jury would be e ntitled to view the photo s and that the trial cou rt would issue a curat ive inst ruction. The Def end ant chose to cr oss-examine the witnessesregarding the ir ident ificat ion of hi m and the possible influence from viewing the Speedway photos. The trialjudge issued t he followi ng instruc tion to the jury:

You are furt her instructed that the black and white photogra phs which w ere admitted as Exhib it 2, were no t intended to indicate to you crim inal activity on the part of anyon e, and m ore particu larly, were n ot intende d to indicate the defendant bei ng involved in anycrimin al activity. T hey we re only offered as what influenc e they had, if any, on the later identificatio n made by the wit nesses in thi s case. The Defendant argues t hat it was neces sary to cross -exam ine the State’s witnessesregarding the photos to insu re him a fai r tri al. Defense coun sel conducted an extensiv e cross-examinat ion of thewitnes se s abo ut their identif icatio n of him. Once theDefendant rai sed the Speed way pho tos issue with the witnesses, the photos became rel evant to the issue of t he potential inf luence theyhad upon the wit nesses’ ident ification of hi m. The Defendantargues that the photos were highly

prejudic ial because t hey were t oo fuzzy for a positive identif icatio n, yet they we re asso ciated with him. Ho wever, in o rder to co nstitute-12-

error, we m ust co nclud e that th e pho tos’ pro bative v alu e was s ubsta ntially outweighed by the da nger of u nfair prejud ice. This w e cann ot do. The phot os, by their am biguity rega rding the identity of the p erson in them, a lthough relevant, were not highl y signif icant i n terms of i mpeaching the witnesses’identificatio n of t he D efendant. As a result, although associ ating the Defendant wit h another poss ib le crime is clearl y prejudicial , we do not find that any prejudicialeffecto f the Speedway photos in t his case substantially outweighed t heir probat ive val ue. Moreover, the tri al court i nstructed t he jury t hat the photos were not to be associated with the com miss ion of a ny crim e. It is the duty of trial courts to give limiti ng jury instructions when evidence is being admitted for only a li mited purpose. State v. Dutton , 896 S.W.2d 114, 116 (Tenn. 19 95). It is also a well-established rule in Te nness ee that a ju ry is presum ed to have foll owed the instruct ions of th e trialcou rt. State v. Lawson , 695 S.W.2d 202, 204 (Tenn. 1985). The trial co urt’s instructi on also helped to neut ralize t he potential prejudici al effect of

the photos. Therefor

e, we conclude that

the tri al judge di d not abuse his discr

etion in introduci ng the photos once t he Defendant rai sed the Spee dway iss ue. This issue ha s no m erit.

IV.

The Defendant contends that the t rial cour t erred by

faili ng to dismiss t he indict ment becau se the au dio taped tr anscr ipt of t he prelimi nary heari ng had been lost. The Defendant all eges thatMcCaw ley’s testimony at the p reliminary hearing was inconsistent from that at tri al, speci fically on the iss ue of the amount of money taken and the i dentifi cation of the Defendant. The Defendant contends-13-

thathe wa s una ble to con front the witnes ses a gains t him fully and that th is was prejudici al to hi s case.

Rule 5.1(a) of

the Tennessee Rules of Cri minal Procedure r equires that preliminary hearing proceed ings “shal l be preserv ed by electr

onic recordi ng or its equiva lent an d whe n the d efend ant is su bseq uently indicted such recordi ng shall be made availabl e for li stening to by the def endant or defendant’ s counsel to the end that

they may be appri sed of the evi de nce intr oduced upon the preliminary examination. ” However, when t he evidence contained in t he record is so compellingon the qu estion of th e defen dant's gu ilt, the lack of a recording of the prelimina ry heari ng may be considered harmless e rror if it would not have signific antly aided the defens e. State v. Bohanan , 745 S.W.2d 892, 896 (Tenn. Cri m. App. 19 87); State v. But ts , 640 S.W .2d 37, 38 (T enn. Crim. A pp. 1982).

In the case at bar , in l ieu of theprelimina ry he aring tape, the trial court afforded the Defendant' s attorney s an opportuni ty for an expanded suppressi on hearing to cross-ex

amine the State’ s witnesses f ully r egarding thei r identi ficati on of the Defendant. Addition all y, defense cou nsel interviewed al l of the eyewitnesses

prior to tr ial. The Defe ndan t has fa ile d to demonstrate h ow he might have been prejudi ced by the loss of t he prelimi nary heari ng audi otap e. He allegesthat the testimony regar ding on e witness’identificatio n of him was inconsis tent, but did not provide speci fics. He also all eges th at the witness’ testimony

regarding the a mount of m oney t ak en was different, yet, an inconsistency

in that regard is not

material to provi ng the elements of aggr avated robbery. In a strong case ag ainst him , all thr ee eyewitnesses identif ied the Defendan t as the robber wit h certaint y. Therefor

e, we must conclude t hat the-14-

loss ormisplacement of t he audio recording in thi s instance constituted harmless error.

V.

The Defenda nt next argues th at the evidence was insufficient to sup port the guilty

verdict . When an accused chall enges the suff iciency of the convic ting evidence, the standard is whether, after reviewing the evi dence in the light most favora ble to the p rosec utio n, any rati onal tri er of fact could have found the essentialelements of t he crime beyond a reaso nable d oubt. Jack son v. V irginia , 443 U.S. 307, 31 9 (1979 ). Questions concerning the credibil ity of t he witnesses, the weight an d value to be given the evidence, as well as al l factua l issues r aised by the evidence, are resolved by the trier of fact, not this co urt. State v. Pappas , 754 S.W.2d 620, 623 (Tenn . Cr im. App. 1987). Nor may this cour t reweigh or reevalua te the evide nce. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 197 8).

A jury verdict approved by t he trialjudge accredi ts the State’s witn esses and resolves all conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474, 476 (Ten n. 197 3). On appe al, the State is entitled to th e strong est legitim ate viewof the evide nce an d all inferen ces there from. Cabbage , 571 S.W.2d at 835. Because a verdict

of guil t removes the pr esumption of

innocence and repl aces it with a presu mption of gui lt, t he accused has the bur den in thiscou rt of illustrati ng why the evidence i s insuff icient to support t he verdict returned by

the trier of fact. State v. Tug gle , 639 S.W.2d 913, 91 4 (Ten n. 1982 ); Grace , 493 S.W.2d at 476.-15- Aggra vated rob bery as it ap plies to the De fenda nt in this case is robbe ry as defined i n Tennessee Code Annotated sect ion 39-13-401: “the intentional or knowing the f t of proper ty from t he person of anot her by vi olence or put ting the person in fear.” The act must also be “ [a]ccomplished with a deadly weapon or by display

of any art icle used or fashioned to lea d the victim to reaso nably believe it to be a deadly weapon.” Tenn. Code Ann. § 39-13-402.

In the case sub judice , the Defendant walked into a Li ttle Caesar’s p izza place and asked for change for a dollar as a pretext

to get the cash register open. When opened, the Defendant started gr

abbing money from the regi ster. When an employ ee atte mpted to stop hi m, the Defendant pul led out a handgun and continue d. The employees ran to t he back of the st ore and acti vated an a larm.

All three em ployees in the store at that ti me, McCawley, McElrat h and Stewa rt, positively identified the Defen dant from a p hoto array. More over, a ll three saw the Defendant i n the vici nity of the restaur

ant after

the c rim e was committed. Two of them eve n called t he police to report t hat they saw t he Defen dant. After reviewing t he record, we can only concl ude that the evidence
w as overwh elming to prove th at the De fendan t comm itted the off ense. Th e positive identification by the vi ct ims in thi s case points unerringl y to the Defendant as the assa ilant an d was sufficie nt to en able any reasonable t rier of fact to find guilt beyon d a reas onable doubt.-16- VI.

Fin ally, the De fenda nt con tends that trial c ouns el rend ered in effectiv e assistance for his defense. I n determining whether counsel provided effective a ssis tance at tri al, the court must deci de whether counsel ’s performance was within the range of competence demanded of attorneys in cri minal cases. Baxter
v. Rose , 523 S .W .2d 93 0, 936 (Ten n. 197 5). To succe ed on a cla im th at his counsel was in effective at trial, a petiti oner bears the bur den of showing that his counsel m a de errors so se rious that he was not funct ioning as counse l as guaranteed under the Sixth Amendment and that the deficient represe ntat ion p rej udiced the petition er resulting in a failure to p roduce a reliable re sult. Strickl and v. Washington , 466 U.S . 668, 687 , reh’ g d enied , 467 U.S. 12 67 (1984); Cooper v. State , 849 S.W .2d 744 , 747 (T enn. 19 93); Butler v. Sta te , 789 S.W.2d 898, 899 (Ten n. 1990). To satisfy the second pro ng the pet iti oner must s how a reaso nable probability that , butfor counsel ’s unreasonabl e error, the fact finder would have ha d reaso nable d oubt reg arding p etitioner’s gu ilt. Strickla nd , 466 U.S. at 695. This reasonable probabi lity must be “suff icient

to undermine confidence in the outcom e.” Harris v. State , 875 S.W .2d 662, 665 (Tenn. 199 4).

When reviewi ng trialcounsel’s ac tions, t his court

should no t use the bene fit of hindsight

to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard
v. State , 629 S.W.2d 4, 9 (Tenn. 1982) . Counsel’s alleged erro rs should be judged at the ti me they were made i n lig ht of all f acts and circumstances. Strickl and , 466 U.S . at 690; see Cooper 849 S.W.2d at 746.-17- The Defendantalleged ineffective assistance of counsel in hi s motion for new trial, for whic h a he aring w as co nduc ted on July 26 , 1996 . David Baker and Steve Young represe nted the Defen dant at trial. In this appeal, the Defendant contends that couns el was in effective for several reasons. He claims that no investi gation was conducted between the preli minary heari ng and the indictm ent. He states

that counsel failed to interview w itnes ses untiltwo weeks beforethe trial. He als o argu es tha t coun sel’s performance was lacking because of the loss of the preliminary heari ng tapes and because of the numerous inconsist encies in the w itness es’ tes timon y at trial.

The Defen da nt testified at t he hearing that the preli minary heari ng tapes were lostand that he was conce rned about iden tifi cation i ssues and the amount of money a ll eged to havebeen taken. The Defendant stated th at McCawley ’s testimony

was inconsisten t, but did not elaborate on the specif ics. The Defendant testified that when he asked Mr. Baker, he said that the tape was lost and thatthey could not find i t. After the Defendant was bound over to t he grand jury, he learned that cou nsel who rep resented him in the preliminary hearing had withdr awn and thatMr. Baker was appoi nted. The Defendant was concerned about his belongi ngs and wanted counsel to contact Reggie Brown. Coun sel told him that thi s was unrelated to the crime and th at he n eede d to ha ndle th is himse lf. He stated that counsel never

helped him ga in acces s to a telep hone.

The Defendant stated that counselwanted him to take a plea bargai n and thatthey disagr

eed on that poi nt. He did not feel couns el w as pro perly investi gating the case regarding the witnesses. The Defendant fel t that cou nsel d i d not effe cti vel y cross- exami ne th e wit nesse s on t he id enti ficati on is sue. He-18-

also comp lai ned t hat an e xhi bit

was pla ced between him and the jur y, which obscured their view of him . The D efend ant tes tif ied that he would have had differ ent couns el or taken a plea if he had kn own tha t counse l was goin g to perform the way th ey had a t trial. The Defendant also complained that counsel told him to a ppea r ca lm a t tri al and t hat this made him appear to have a demeanor like that of th e Little C aesa r’s robb er. He com plaine d that th e suit provided by coun sel was to o sma ll and that h is shoes had a h ole in them
.
David Baker also test ified at the hearing. He admitted that the preliminary hearing tape h ad be en los t by the c ourt cle rk’s office and that he made numerous attemp ts to find it. He did ha ve pre vious c ouns el’s notes regardi ng the hearing. Counsel also fi led for di scovery and he had reviewed t he State’s f ile. Counsel first interviewed the witne sses in Nove mber, 199 6, before the trial in Dec ember. He stated th at they had at tempted to contac t the witn esse s all alon g but th eir investigator, Tim D ickerson , was un able to rea ch them
. Counsel made a number of attempts to settl e the case before trial and the De fenda nt had reque sted h im to pursue a p lea agre ement. There was an attempt to get a spl it-conf inement sentence with a reduced charge of simple robber

y. Negoti ationsfailed and the case was set for trial , however, settlement discussions continued. The Defendant “fired” counsel seve ral times before trial and he beca me ang ry when counsel would inform him about aspects of the case. Coun se l felt that the Defendant wanted him to focus on trivial matters that would backfire at tri al. The Defe ndan t “fired” c ouns el imm ediate ly after th e trial.

Counsel testified that he sp ent at le ast thirty hours in pretri al preparat ion forthe case. Th e trial court’s ord er reflects that counsel ’s log sheet recorded-19-

forty-five hours of pretrialpreparation, which included i nvestigat ion time. Counsel attempt ed to settl e before trial and t he Defendant never stated he di d not want a settlem ent. Counsel pursued an extended suppression hearing as a remedy forthe los t prelim ina ry heari ng tape. Counsel also attempted to exclu de any witness testimony f rom tho se who viewed the Speedway photos. Counsel interv iewed the wit nesses before t he trial . He pursued adefense based on the inconsis tencies in witnesse s’ identification of the De fendan t.

From the evidence b efore us, it appears that counsel’s r epresentati on was within the range of competency demanded of criminal defense attorneys. Counsel investi gated the case, made numerous attempts to l ocat e the preliminary hearing tape, and submitted sev eral motions

to exclud e ev idence. There is ev idence that counsel aggressively purs ued plea negoti ations at the behest of the Defend ant. The reco rd also reflects that counsel effect ively crossexamined witnes ses re gardin g their identification of the De fendan t. Because the Defendant has failed to dem onstrate that coun sel’s per formance was not comp etent, we do not reach t he evaluati on of any all eged prejudice. Therefore, we con clude tha t this issue is w ithout me rit.
Accordingly, we affi rm the judgment of the trialcourt in allrespects.

____________________________________ DAVID H. WELLES , JUD GE-20-

CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ JOE G. RILE Y, J UDGE