# FILED
March 2, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1999 SESSION

STATE OF TENN ESSEE, * No. W1999-02031-CCA-R3-CD Appellee * SHELBY COU NTY VS. * Hon. John P. Colt on, Jr., Judge ERNEST PURYEAR, * (Aggravate d Robbery) Appellant. *
For Appellant Dane N. Blue 4127 Call ie Powell Co ve Memphis, TN 38135-1645 (At Trial) Craig V. Morton II 200 Jefferson Avenue, Ste. 725 Memphis, TN 38103 (On Appeal) For Appellee Paul G. Summers Attorney General and Repor ter Clinton J. Morgan Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 William L. Gibbons District Attorney General James J. Challen III Assistant

DistrictAttorney

General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103-1947

OPINION FILED:

AFFIRMED
NORMA MCGEE OGLE, JUDGE2 OPINION

A Shelby County jury found defendant g uilty of aggravated robbery, a Class B felony. Defendant received an eight-year sentence. I n this appeal as of right, defendant claims (1) the evidenc e was not sufficient to sustai n the conviction for aggravatedrobb ery, a nd (2) he received ineffective assistance of trial counsel. Upon our review of the recor d, we conclude the evidence was sufficient to sustain defendant's conviction, and defendant recei ved effec ti ve assistance of counsel. Thus, we AFFIRM the judg ment of the trial court.

I. Factual Background

On July 15, 1996, N orma Fowler exited First Tennessee Bank with approximately $500. The defendantapproached her and asked her for a ride. She offered him money for a cab, but he refused. As Fowler sat in her vehic le, th e defendant approached her window with a briefcase and a gun. Another man was on the passenger side. While the defendant held a g un on Fowler, the second man collected the victim’s money and jewelry. The men fled across the parking

lot, and the victim called the pol ice.

On October 5, 1996, Fowler saw the defendant in a local grocery s tore. She exited the store and waited for defendant. When defend ant got in to his car, she followed him to the First Tennessee Bank parking lot. Subsequently, F owler flagged down a passing police car and identified the defendant to the off icer as the man who robbed her on July 15, 1996. Fowler also identified the defendant in the courtroom as the person wh o robbed her on July 15, 1996.

T he only other person to testify at trial was J erome Corley, who s tated h e was a “professional con artist.” He testified that he “runs cons” with the defendant, and the defendant never used a weapon. Howev er, on the day defendant robbed Fowler, Corley

was incarcerated in another state.

Based on this evidence, the jur y convicted the defendan t of aggravated robbery.3 Subsequent

to his conviction, defendant retained another attorney and filed a motion for new trial ass erting insufficiency of the e vide nce and ineffe ctive assistance of counsel. At the evidentiar y hearing, the trial

court hea rd testimony from defendant and trial counsel. The def endant testified that he did not use fo rce to obtain the stolen property. It was his asserti on that he and his partner initiated a "con game" designed to trick the victim into giv ing them her money and jewelry. He claimed d efense counsel failed to effectively r

epresent him

.
Trial counsel testified that he met w ith the defendant eleven times and discussed various trial str ategies. He testified that he c onducted discovery and prepared the witnesses for trial.

The trial court determined the evidence was sufficient to support defendant’s conviction, and the defendant failed to prove his allegations of ineffective assistance of counsel. The trial court deni ed the motion for new trial.

II. Sufficiency

of the Evidence

In determining the sufficiency of the evidence, th is Court does not re weigh or reevaluate the evidenc e. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A j ury verdict approved by the trial judge accredits the stat e's witnesses and resolves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 80 3 (Tenn. 1994). On appeal, the state is entitled to thestrongest legitimate view of the evidence and all legitimate or r easonable inferences whi ch m ay be drawn therefrom. Id. This Court will not disturb a verdict of g uilt due to the sufficiency of the evidence unless the defendant demonst rates that the facts contained in the record and the inferences which may be drawn theref rom are insufficient, as a matter of law, for a rational tri er of fact to find the accused g ui lty beyond a reasonable doubt. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it i s the appellate court's duty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rat ional trier of fact to have found the essential elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed.2d 560 (1979); State v. Cazes , 875 S.W.2d 253, 25 9 (Tenn. 1994).4 Defendant alleges the evidence i s insufficient to susta in his conviction for aggravatedrobbery because the state fai led to prove the pr opert y was taken by force. At trial the vi ctim testified that the defendant came up to her car, put a gun in her face and forced her to giv e up her money and jewelr y. The defense offered onlythe testimony

of Jerome Corley. Corl ey testified that he “runs scams” with the defendant, and the defendant never used a w eapon. However, Corl ey admitted that he was not present on July 15, 1996, when the victi m was robbed.

The weight and credibil ity of the witnesses’ testimony is entrusted exclusively to the jury a s t he trier of fact. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer , 932 S.W.2d 1, 19 (Te nn. Cr im. App. 1996). The jury ac credite d the testimony of the victi m and could reasonably concl ude that the robberywas “accomplished w ith a deadly weapon.” See Tenn. Code Ann. 39-13- 402(a)(1).

This issue is without merit.

III. Ineffective A

ssistance of Counsel

This Court rev

iews a cl aim of ineffective assistance of counsel under the standards o f Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance w as deficient, and (2) the deficient performance resulted in prejudice to the defendant s o as to dep rive him of a fair trial. Strickland , 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). If the petitioner does not establish the p rejudice prong, it is unnecessary for the Court to examine the deficiency prong. Goad , 938 S.W.2d at 370.

The test in Te nnessee to determ ine wheth er counse l provided effect ive assistance is whether his performance was within the ra nge of competence dem anded of attorneys in criminal cases. Baxter , 523 S.W.2d at 936. Th e petitioner

must overcome the presumption that counsel’s con duct falls within the5

wide range of acceptable professional assistance. Strickland , 466 U.S. at 689, 104 S.Ct. at 2065; Hicks v. State , 983 S.W.2d 240, 246 (Tenn. Cr im. App. 1998); Alley
v. State , 958 S.W.2d 138, 149 (T enn. Crim. App. 1997). Therefore, i n order to prove a deficiency, a

petitioner must show that “counsel’s acts or omissions were so serious as to fall below an objective standard of reas onableness under

prevailing professional norms.” Goad , 938 S.W .2d at 369 (citin g Strickland , 466 U.S. at 688, 104 S.Ct. at 2065).

In order to establish preju dice, the petitioner must de monstrate 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, 104 S.Ct. at 2068

.

Defend ant lists the following allegations as evidence of trial counsel’ s ineffective representation: (1) Trial counsel f ailed to file a motion to suppress a photo

identification; (2) Trial counsel did not investig ate potential witnesses an d subpoena critical evi dence; (3) Trial counsel failed to exercise his pe remptory challenges during voir dire

to excludejurors who had relatives w orking for the police department, were victims of violent crime, or k n ew someone who had been a victi m of violent crime; (4) Trial counsel failed to req uest Jencks material; (5) Trial counsel failed to a dequately

cross-ex

amine the vi ctim; (6) Trial counsel failed to call the defendant as a witness; (7) Trial counsel failed to seek judgment of acqui ttal at the end of the State’s proof; and (8) Trial counsel failed to req uest a proper jury instr uction on the lesser inc luded of fenses to aggravat ed robbe ry.

(1) Due to the victim’s mi sidentification of the suspected accomplice, defendant claims trial counsel had sufficient g rounds to file a motion to suppress the victim’s photo identification.

The victim admitted she mistakenly identified Jerome Corl eyas the defendant’s accomplice. Howev er, she made an uncontested in-court identi fication6

of the defendant. There was no basi s to suppress the photo identification. This allegation is without merit.
(2) Defenda nt a sserts trial counsel fai led to adequately inv estigate potential witnesses

and solicit discovery. He argues trial counsel should have interviewed the arresting officer and obtained the police report and the victim’s incident report. Defendant claims there are inconsi stencies between t h e reports and the victim’s testimo ny. In add ition, defendant argues trial counsel should have called Mary Henderson to testif y that t he day defendant was arrested, he and an accomplice were in the process of “running a con” on her in whic h defendant did n ot use a weapon. Defendant furthe r assert s trial counsel should hav e subpoenaed the bank’s surveillance tapes. He argues the tapes wo uld have shown he did not have a gun.

“When a petitioner contends that t rial coun sel faile d to disco ver, inter view, or present witnesses in support of his defense, these witnesses should be presented by the petitioner at the evidentiary hearing.” Blackv. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see al so Scott v. State , 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a g eneral rule, this is the only way

the petitioner

can establish that (1) a material witness existed who could ha ve been discovered but forcou nsel’s negligent inv estigation of the case; (2) a known witness w as not interviewed; (3) the failure to discover or interview the witness caused him prejudice; or (4) the failure to present a known witness or call the witness to the stand resulted in the denial of critical evidence which caused the petitioner prejudi ce. Black , 794 S.W.2d at 757. Neither the tr ial court nor this Cour t can speculate on what a witness’ testimony might have been if introduced by counsel. Id.

At the motion for new trial, defendant failed to p resent te stimony from the arresting officer, Ms. Hende rson, or any other potential w itness. In addition, defendant failed to present the alleged video surveillanc e tape. This Court cannot speculate about possible testimo ny or what th e tape wou ld show. As to discove ry, trial counsel testified he conducted adequat e discovery wi th the prosecutor. The trial court agr eed. Furthermore, defendant has failed to esta blish a reasonable7

probability

that the result of the trial would have been different if counsel had utilized the police report and vi ctim incident report.
These allegations are without merit.
(3) Defendant contends trial counsel fail ed t o adequately use his peremptory challengesto exclude jurors with relatives on the police force and jurors who were victims of viole nt crime o r had family members who w ere victims of viole nt crime.

Trial counsel asked each of the jurors who stated th ey were victi ms of violent crime, or knew someone who was a victim of violent crime, a series of questions to determine if they could be impartial . Through this process, he excluded one of

the potential jurors for cause and used some pe remptor y ch allenges. We find no deficiency by counsel, nor has defendantestablished prejudice. This allegation is without merit.
(4) Defendant alleges trial counsel should have requested “Jencks” mater ial before he cross-examined the victim. However, defendant has failed to establish prejudice. This allegation is without merit.
(5) Defendant chargestrial counsel did not effecti vely cr oss-exami ne the victim. He claims trial counsel di d not interview the victim before she testified. In addition, he claims trial counsel asked “open ended” questio ns whic h were “completely ineffective,” and failed to point o ut obvious inconsistenci es in her testimony.

The manner in which counsel phrases his questions is a tactical andstylistic choice. The record reflects trial counsel attempted to uncover any inconsistencies in the victim ’s testim ony. Furthermore, defendant failed to show he was prejudi ced bytrial counsel’s cros

s-examination of this witness, or by not interviewing

her prior to trial. This allegation is without merit.
(6)8 Defenda nt compl ains tria l counsel should ha ve called him to testify. This ground was not raised in the w ritten motion and was not add ressed by the trial court. Furthermore, defendant’s testimony is extremelylimited and unclear. When asked if he told his counsel he wanted to testify, defendant responded, “no, actually it was best for me to do, to testify or don’t take the stand.” Trial counsel testified that he discussed this matter w ith defendant, and they both decided he should not testify.

We consider the issue wai ved. Furthermore, the evidenc e shows defendant agreed not to testify after consultatio n with counsel. This allegation is w ithout merit.
(7) Defendant claims trial counsel should have moved for judgment of acquittal at the close of

the state’s proof. The victim testified the defendant took her property at gunpoint, and she made an in-cour t identification of the defendant. The motion would have been denied; thus, defendant has not shown prejudice. This allegation is without merit.
(8) Defendant contends trial counsel failed to request th e jury be instructed on the lesser inc luded of fenses of aggrava ted robb ery. The trial court charge d the jury on the offenses of a ggravated robbery, robbery and theft of property . Defendant contends he was only guil ty of theft; however, theft w as charged and rejected by the jury. Defendant has suggested no other lesser offenses. Therefore, defendant has failed to show counsel was deficientor that he was prejudiced by counsel’s actions. This allegation is patentl y without merit.

IV. Conclusion

The evidence is clearly sufficientto support the guilty verdict. The victim in this case unhesitatingly and positively identified the defendantas the person who committed this robbery with a weapon. Defendant faults counsel for not convincing the jury it was a th eft rath er than an aggravated robbery. Identification was not an issue. In ligh t of the victim’s testimony, defendant has not shown a reasonab le probability

that he would have been convicted of only theft had trial counsel done9

anything differently. A

ccordingly, w

e AFFIRM the judgment of the tr ial court.

___ ______________

__________

_ Norma McGee Ogle, Judge

CONCUR:

____________________________ John H. Peay, Jud ge

____________________________ Alan E. Glenn, J udge