IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 19, 2002

EDDIE L. COLEY, JR. v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Williamson County

No. 201-63 Donald P. Harris, Judge

No. M2001-03130-CCA-R3-PC - Filed September 4, 2002

The petitioner, Eddie L. Coley, Jr., was convicted of aggravated robbery in 1996 and sentenced to

confinement for twelve years. Following an unsuccessful appeal of his conviction, he filed a petition

for post-conviction relief, alleging that his trial counsel was ineffective for not filing a motion to

suppress a photographic lineup and not allowing him to testify at his trial. The post-conviction court

denied the petition; and, following our review, we affirm that denial.

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

ALAN E. GLENN,J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.

WEDEMEYER, JJ., joined.

J. Britt Phillips, Franklin, Tennessee, for the appellant, Eddie L. Coley, Jr.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney

General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The petitioner was indicted for the July 15, 1995, aggravated robbery of two Baskin-Robbins

ice cream shop employees in Brentwood. His first trial resulted in a mistrial. However, he was

convicted in the second, the facts of which were set out in State v. Coley, 32 S.W.3d 831, 832-33

(Tenn. 2000):

Coley does not challenge the sufficiency of the evidence upon

which he was convicted; thus, only those facts necessary to this

appeal are provided. On July 15, 1995, Sarah Blumberg and Jennifer

McMillen were working at an ice cream shop in Brentwood. At

approximately 1 p.m., a male entered the store. After placing an

order, the male brandished a gun and instructed one of the employees
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to put the store's money into a bag. The male then forced both

employees into the store's walk-in freezer where they remained until

they heard a customer enter the store. After exiting the freezer, they

called the police.

The police uncovered no physical evidence at the crime scene.

Both employees, however,separately described the robber as an obese

"Black" man around 5' 9" tall and about twenty years old. The

employees then helped the police prepare separate composite pictures

of the robber. Nine days after the robbery, Blumberg observed a

photographic line-up which included Coley's picture. She identified

him as the robber. Five months after the robbery, McMillen saw the

same photographic line-up. She too identified Coley.

At trial, the critical issue was identification. The State's case

relied heavily on Blumberg's and McMillen's pre-trial and in-court

identifications of Coley. Coley, on the other hand, offered an alibi

defense, maintaining that another person had committed the robbery.

Coley desired to adduce the testimony of Michael G. Johnson, Ph.D.,

J.D., an expert in the field of eyewitness identification. The State

objected to Johnson's testimony on the ground that it would not assist

the jury in deciding the identification issue. The trial court agreed

and refused to admit Johnson's testimony.

The trial court, nevertheless, allowed Johnson to make a

proffer of his testimony for the record. The proffered testimony

included information covering the following topics:

1. the process of eyewitness identification;

2. the relationship between stress and memory of an event;

3. cross-racial identification;

4. the confidence the witnesses have in the accuracy of their

identifications and the actual accuracy of their identifications;

5. the effect of time on the accuracy of memory; and

6. the suggestibility of the photographic line-up used in this

case.
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Following his unsuccessful appeal, the petitioner filed a petition for post-conviction relief,

presenting a number of claims as to ineffectiveness of trial counsel. After the appointment of

counsel, and the filing of amended petitions, the post-conviction court limited the hearing to the

claims that trial counsel was ineffective by not filing a motion to suppress the photographic lineup

and not allowing the petitioner to testify at his trial. The hearing subsequently was held on

November 21, 2001.

At the hearing, the petitioner’s trial attorney testified that he had been licensed to practice law

since 1976, including as an assistant district attorney for six years and as an assistant public defender

for ten years, and had participated in seventy to seventy-five trials. He said that the hearing exhibit

from which the two victims identified the petitioner had the petitioner’s photograph placed in the

middle of the top row. We note that this exhibit consists of six photographs of young men of the

same race, and of approximately the same age and facial shape. Three of the men, including the

petitioner, were wearing black, or very dark, T-shirts. The petitioner’s T-shirt bears a design of some

sort, only the upper portion of which is shown in the photograph, consisting of a blue background

with lighter blue vertical random stripes and small patches of yellow, reddish-orange, and black. No

writing appears on the visible portion of the petitioner’s shirt. Trial counsel testified that the victims

had said, both at the preliminary hearing and at the trial, that the robber wore a black T-shirt bearing

the slogan “sight for sore eyes,” and that the shirt did not have a design. Trial counsel said that he

had considered filing a motion to suppress the photo lineup as being overly suggestive and had sent

letters to five to ten psychologists soliciting their opinions as to the fairness of the lineup. He made

several trips to Knoxville to meet with Dr. Michael G. Johnson, a clinical psychologist, who said that

the lineup was not as suggestive as others he had seen. Because of Dr. Johnson’s opinion and trial

counsel’s recognition of the similarities of the men in the photo lineup, he concluded that he did not

have a basis for seeking to suppress it. 

As to the petitioner’s not testifying at the trial, counsel said that the petitioner had previous

armed robbery convictions and had not asked to testify, telling counsel that he would do whatever

they thought in that regard. Counsel said he told the petitioner that he had to make the decision as

to whether to testify, but counsel’s recommendation was that he not do so. He said that certain of

the petitioner’s robbery convictions involved his using “very similar” techniques to that for which

he was being tried, resulting in danger in the petitioner’s testifying. Trial counsel said that he had

alibi witnesses whom he thought would be convincing and did not see how the petitioner’s testimony

would help the defense. Also, he was concerned that the petitioner might say something during his

testimony which would harm the case. 

The petitioner said he told counsel that he wanted to testify and that counsel then moved to

prevent the prior convictions from being utilized at the trial, but the trial court denied the motion.

He wanted a motion to suppress filed “to let [the judge] make the decision” as to it.
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ANALYSIS

Ineffective Assistance of Counsel

In order to determine the competence of counsel, Tennessee courts have applied standards

developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)

(noting that the same standard for determining ineffective assistance of counsel that is applied in

federal cases also applies in Tennessee). The United States Supreme Court articulated the standard

in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is

widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s

assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that

is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at

2063. The Strickland standard is a two-prong test:

First, the defendant 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

defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient

performance” in the first prong of the test in the following way:

In any case presenting an ineffectiveness claim, the performance

inquiry must be whether counsel’s assistance was reasonable

considering all the circumstances. . . . No particular set of detailed

rules for counsel’s conduct can satisfactorily take account of the

variety of circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a criminal

defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell

below an objective standard of reasonableness under prevailing professional norms.” House v. State,

44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

 As for the prejudice prong of the test, theStrickland Court stated: “The defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.

State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
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reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been

different”).

Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,

104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency

or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of

proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-

210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for relief,

therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-

206(d) (1997). 

We note that when post-conviction proceedings have included a full evidentiary hearing, as

in this case, the trial judge’s findings of fact and conclusions of law are given the effect and weight

of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we conclude that

the evidence contained in the record preponderates against the judgment entered in the cause.” Black

v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must indulge a strong

presumption that the conduct of counsel falls within the range of reasonable professional assistance,

see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-guess the tactical and

strategic choices made by trial counsel unless those choices were uninformed because of inadequate

preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a strategy or tactic

failed or hurt the defense does not alone support the claim of ineffective assistance of counsel. See

Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). Finally, a person charged with

a criminal offense is not entitled to perfect representation. See Denton v. State, 945 S.W.2d 793, 796

(Tenn. Crim. App. 1996). As explained in State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999),

“[c]onduct that is unreasonable under the facts of one case may be perfectly reasonable under the

facts of another.”

We now will consider the two claims of ineffective assistance of counsel for which proof was

presented at the hearing.

A. Failure to File Motion to Suppress Photographic Lineup

The petitioner argues on appeal that his trial counsel was ineffective for not filing a motion

to suppress the photographic lineup identification. The State responds that counsel was not

ineffective in declining to file a meritless motion. As to this issue, we agree with the State.

First, we note that, according to the opinion of our supreme court in this matter, the two

victims identified the petitioner as the robber, both upon viewing the photographic lineup and at the

second trial. Additionally, during the post-conviction hearing, trial counsel testified that the victims

also had identified the petitioner at the preliminary hearing and at the first trial of the matter, which
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had resulted in a hung jury. It was following that first trial that the petitioner had written trial

counsel requesting the filing of a motion to suppress. Given this array of identifications of the

petitioner by the victims, we have difficulty in concluding that the defense would have been

strengthened by suppression of the photographic lineup unless the defense also could have

established that the victims’ subsequent identifications of the petitioner were so tainted by their

viewing the photographs that those identifications, too, must be suppressed. In his testimony, the

petitioner did not recognize this additional requirement before the victims’ in-court identifications

also could be suppressed.

In his letter to the petitioner of January 2, 1996, explaining why he was not pursuing a motion

to suppress, trial defense counsel demonstrated that he had given substantial thought as to how to

best deal with the victims’ identification of the petitioner. Explaining the holdings of a number of

lineup identification cases, including Bolton v. State, 617 S.W.2d 909 (Tenn. Crim. App. 1981), and

State v. Beal, 614 S.W.2d 77 (Tenn. Crim. App. 1981), counsel opined in his letter that “there was

nothing done by the Brentwood Police Department which remotely [could] be defined as something

that would be so suggestive as to give rise to a very substantial likelihood of irreparable

misidentification.” Having viewed the photographs comprising the lineup shown to the victims, we

agree with counsel’s assessment that the photographs are not so suggestive as to give rise to a

successful suppression motion. There is no basis for our concluding that simply because the robber

was wearing a black T-shirt with a slogan, the victims both then identified the petitioner because,

in his photograph, he was wearing a black T-shirt with some sort of design.

Trial counsel decided to deal with the victims’ identifications of the petitioner by attempting

to present expert testimony as to unreliability of eyewitness identifications. The reasonableness of

this effort is demonstrated by the fact that, in the opinions of this court and of our supreme court

affirming the conviction, one member of our panel and two members of the supreme court concluded

that the trial court should have conducted a hearing, pursuant to the holding of our supreme court

in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn.1997), as to whether Dr. Johnson

should have been allowed to testify as to eyewitness identification. See State v. Coley, 32 S.W.3d

831, 839-40 (Tenn. 2000); State v. Eddie L. Coley, Jr., No. 01C01-9707-CC-00270, 1998 Tenn.

Crim. App. LEXIS 1082, at *21-*24 (Tenn. Crim. App. Oct. 13, 1998), perm. to appeal granted

(Tenn. Apr. 19, 1999). 

As to this issue, the post-conviction court found as follows:

1. [Petitioner’s] attorney at trial . . . was not ineffective for failing to

file a motion to suppress a photographic lineup that included

[petitioner], as there was no basis for such motion. Moreover,

[petitioner] showed no prejudice with respect to the issue. The

Court would not have granted the motion to suppress, had it been

filed.
1

The trial, upon which these allegations are based, occurred in 1996, before our supreme court had set out in

Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999), the procedure to be followed when a defendant elects not to testify.

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The record fully supports this finding. 

B. Denying the Petitioner His Right to Testify at Trial 

As his second issue, the petitioner argues that he was denied his right to testify at the trial.

The State responds that, trial defense counsel having testified that it was the petitioner’s decision not

to testify, this issue is as to credibility, which the trial court resolved in favor of trial defense

counsel.1

As we have previously stated, the record reflects that, at the time of this trial, the petitioner

had other aggravated robbery convictions, which the trial court had determined could be utilized if

the petitioner testified. Additionally, trial defense counsel testified that there were sufficient

similarities in certain of the other robberies with the instant offense that counsel was concerned other

convictions could be utilized not only for impeachment as to credibility but also to establish the

identity of the petitioner as the robber of the Baskin-Robbins. Trial defense counsel also said that

he believed his alibi witnesses who testified at the second trial were credible, as evidenced by the

hung jury at the first trial during which they had testified. Although the petitioner honestly may

believe that his testimony at the second trial, professing that he was elsewhere at the time of the

aggravated robbery, would have underscored the similar testimony of his alibi witnesses, we believe

that there would be virtual unanimity among defense lawyers that his credibility would have been

substantially blunted by his prior aggravated robbery convictions, and even more so if the

prosecution had presented proof as to the similarities between the previous robberies and that for

which the petitioner was being tried.

As to this claim, the post-conviction court determined both that the petitioner’s trial attorney

would have allowed him to testify, had he advised counsel that he wished to do so, and that he failed

to show that he was prejudiced by not testifying. The record fully supports these conclusions as well.

CONCLUSION

Based upon the foregoing authorities and reasoning, we conclude that the petitioner has failed

to establish either that trial counsel was ineffective or that he was prejudiced by counsel’s alleged

inactions. We affirm the denial of post-conviction relief. 

___________________________________ 

ALAN E. GLENN, JUDGE