### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J une 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 petit ioner, Ed die L . Coley , Jr., was c onvicted of agg ravate d robber

y in 1996 and s entence d to confinement

for twelve y ears. Following an unsuccessful appe al of his conviction, he filed a petition for post-conviction relief, al leging that his tr ial couns el was ine

ffectiv e for not

filing a motion to suppressa photographic lineup and not allowing him to testify at his trial. The post-conviction court denied th e petition ; and, following our revie w, we af firm that denial. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and R OBER T W. W EDEMEYER , JJ., joined. J. Britt Phillips, Franklin, Tennessee, for the appellant, Eddie L . Coley, Jr.
Paul G. Summers, Attorney Gene ral andReporter; Helena Walton Yarbrough, Assistant Attorney Genera l; Ronald L . Davis, D istrict At torney Genera l; and Der

ek K. Smi th, Assista

nt District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION
The petitioner was indicted for the July 15, 1995, agg

ravated robbery of

two Baskin-Robbins ice cream shop employ ees in Brentwood. Hi s f irst trial resulted in a mistrial. However, he was convictedin 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 con victed; thus, only those fa cts nece ssary

to this appeal are provided. On July 15, 1995, Sarah Blumberg and Jennifer McMi llen wer e working at an ice crea m shop in Brentwood. At appr oxi mately 1 p.m., a male entered the store. After placing an order, the male brandished a gun and instructed one of the employees-2- to p ut the store 's money into a bag . The male

then for ced both employees into the st ore's walk-in freezer where th ey remaine d until they heard a customer enter the store. After exiting the freezer, they called the police.
The police uncovered no phy sical evidence at the crime scene. Both employees, ho wever, separatel y de scribed the robbe r as an ob ese "Black" man around 5' 9" tall and about twenty years old. The employees then helped the police prepare separa te composite pictures of the robbe r. Nine days af ter the robbery , Blumberg observed a photogr aphic line-up which included Coley' s picture. She identified him as the robber. Five months after the robbery , McMillen saw the sa me ph ot og ra ph ic li ne -u p. Sh e t oo id en ti fi ed Co le y.
At trial, the critica l issue wa s identifi cation. T he State' s case reliedheavily on Blumber g's and M cMillen 's pre-trial and in-court identifications of Coley. Coley , on the other hand, off ered an al ibi defense, maintaining that another person ha d c om mi tt ed th e r ob be ry. Coley desired to adduce the testimony of Michael G. Johnson, Ph.D., J.D., an expert in the field of ey ewitness identification. The S tat e objectedto Johnson's testimony on the gro und that it would not a ssist the jury in decidi ng the id

entif icat ion issue. The trial court agreed an d r ef us ed to ad mi t J oh ns on 's te st im on y.
The trial court, nevertheless, allowed Johnson to make a proffer of his testimony for the r ecord. The proffered testimony included informat ion cover ing the f ollowing topics: 1. the process of eyewitness identification;
2. the relationship

betwee n stress a nd memory

of an eve nt; 3. cross-racial identification;
4. the confidence the

witnesse s have in

the accuracy

of their identific ations an d the act ual accuracy

of their i dentific ations;
5. the effect of time on the accuracy of memory ; and
6. the sugg estibility

of the pho tograp

hic line- up used in t

his case.-3-

Following his unsuccessful appeal, thepetitioner filed a petition for post-conviction relief, presenting a number of claims as to ineffectiveness of trial counse l. After the a

ppoi ntment of counsel, and the filing of amended petitions, the post-convi ct ion 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 a t his trial. The hearing subs equ ently 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 y ears, a

nd had pa rticipat ed in seve nty to sevent y- five tria ls. He said that t

he hear ing exhibit from which the

two victi ms ident ified the petitioner had the petitioner’s photograph place d in the middle of the top row. We note that this exhibit consists of six phot og ra ph s o f yo ung men of the samerace, and of approximately the same age and f

acial shape. Three of the men, including the petitioner, were wearing black, or very dar k, T-shirts. The petitioner’s T-shirt bears a design of some sort, only the

upper portion of whichis shown in the photograph, consisting of a blue backg round withlighter blue vertical random stripes and small patches of y ellow, reddish-orange, and black. N o writing appears on the visible portion of the petitioner’s shirt. Trial counsel testified that the victim s had said, both at the preliminary he aring and at the trial, that the robber wore a black T-shirt bearing the slogan “sight for sore ey es,” and that the shirt did not have a design. Trial counsel sai d that he had consi dered filin g a

motion to suppress the photo lineup as being overly suggestive and had sent letters to five to ten psycholog ists 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 psy cholog ist, who said that the lineup was not as suggestive as others he had see n. Because of Dr. Johnson’s opinion and trial counsel’s recognitionof 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 a t the trial, counsel said that the petitioner hadprevious 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 wh et he r t o t es ti fy, but counsel’s recommendation was that he not do so. He said that certa in of the petitioner’s robbery

convictions involved his using “very similar”techniques to that for which he was be ing trie d, result

ing in dange r in the petitioner’s testifying . Trial counsel said that he had alibi witnesse s whom he thought wo uldbe 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 h is testimony which would harm the ca se.
The petitione

r said he told couns el that he

wanted to

testify and that c ounsel the

n moved to prevent the prior convictions from being utilized at the trial, but thetrial court denied the motion. He wante d a motion to

suppressfiled “to

let [the jud

ge] make the deci sion” as t

o it.-4- ANALYSIS
Ineffective Assistance of Counsel
In or der to determine the competence of counsel, Tennessee courts have applied standa rds developed

in federal case law. See State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the same stand ard for determin ing inef fective assistanc e of coun sel that is applied i n federal cases also applies in Tennessee). The United States Supreme Court articulated the standard in Str i ckland v. Washington , 466 U.S. 6 68, 104 S. Ct. 2052, 80 L . Ed. 2d 674 (1984), w

hich is widely accept ed as the appropr iate stan dard for all claim s of a con

victed pe tit ioner that counsel’s assistance was def

ective. The stand ard is fir mly g rounded in the belie

f that counsel pla

ys a role that is “critical to the ability of the a dversarial sy stem to produce just results.” Id. at 685, 104 S. Ct. at 2063. The Strickland standar d is a two- prong te st: First, the defendant must show that counsel’s performance was deficie nt. This requires showing that counsel made errors so serious that c ouns el was not functioning as the “counsel” g uaranteed the defendant by t he Sixth Amendment. Sec ond, the d efenda nt mus t show that the d

eficien t perfor mance pr ejudice d the def

ense. Th is requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose r esult is reliable.
Id. at 687 , 104 S. Ct . at 2064. The Strickland Court further explained the meaning of “deficient pe rf or ma nc e” in th e f

ir st pr on g o f t he te st in th e fol lo wi ng wa y:
In any ca se presenting an ineffectivene ss claim, the performance inquir y must be whether couns el’s assi stance w as reas onable considering all the circumstances. . . . No part icular set of detailed rules for counsel’s conduct can satisfactorily tak e acc ount of the variety of circ umstance s faced

by d efense counsel o

r the ran ge of legitima te decis ions regarding how best to repr esent a criminal defenda nt.
Id. at 688-89, 104 S. Ct. at 2065 . The pet itioner mu st establi sh “that c ounsel’s repres entation fell below an objective standard of reasonableness under pre vailing professional norms.” House v. St ate , 44 S. W.3d 508, 5 15 (Te nn. 20 01) (ci ting Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996)). As for the prejudice prong of the test, the Strickland 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 hav e been d iffere nt. A rea sonable p

robabilit y is a probabi lity

sufficie nt to undermine confidence in the o utc ome.” 466 U.S. a t 694, 104 S. Ct. at 2068 ; see also Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1 994) (co ncluding that petit ioner fa iled to est ablish tha t “there is a-5-

reasona ble probability that, but for counsel’s e rrors, the outcome of the proceedi ngs would have been different”).
Courts need not approach the Strickland test in a sp ecific o rder or even “a ddress bo th componen

ts of the inquir

y if the defe ndant mak

es an insufficien

t 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 cla im”). 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. C ode Ann. § 40-30- 210(f) (1997). A

petition ba sed on ineffectiv e assista nce of c ounsel is a

single grou nd for relief, therefo re all factual allegations must be presented in one cla im. See Tenn. Code Ann. § 40-30- 206(d) (1997).
We note t hat wh en pos t-con victi on pro ceedin gs have included a full evidentiary hearing, as in this case, the trial judge’s findings of fact and c onclusions of law are given the effect and weight of a jury verdict, a

nd this court is “bound by the trial judge’s findings of fact unless we conclude that the evidence contained in the record pre ponderates against the judgment enter ed 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 r easonable professional assistance, see Strickland , 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-g uess the tactica

l a nd strategic choices made by t rial counsel unle ss those c hoices w ere unin formed b ecause

of inade quate preparation. See Hellard

v. State , 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a strat egyor tactic failedor 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 pe rson charg ed with a criminal offense is not entit

led to perfect representation. See Denton v. State , 945 S.W.2d 793, 796 ( Tenn. Crim. Ap p. 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 ca se may be pe rfectly r easonable under the facts of another.”
We now will consider the two claims of ineffective assistance of counsel for which proof was presen ted at the he aring.

A. Failur

e to Fil e Motion t

o Suppress P

hotographi c Lineup
The petitioner argues on appeal that his trial counsel wa s ineffective for not filing a motion to suppress the photog ra phic lineup identification. The State responds that counsel was not ineffective in declining to file a meritless motion. As to this issue, we agr ee with the State. First, we note that, according to the opinion o f our supreme court in this matter, the two victims identifie d the petitioner a s the robb er, both upon viewing the photographic lineup and at the secondtrial. Additionally, during the post-c onviction hearing, trial counsel testified that the victims also had identified the petitioner at the preliminary he aring and at the first trial of the matter, which-6-

had resulted in a hung jury . It was following that first trial that the pe titione r had w ritten trial counsel request

ing the f iling of a motion to s uppress. Given th is array of identifications of the petitioner by t he victims , we have

difficul ty in concludin g that t

he defense would have been strengthened

by suppression of the photog raphi c line up unless the defense also could have established that the victims’ subsequent identifications of the petitioner were so ta inted by their viewing the photographs that those identifications, too, must be suppressed. I n his testimony, the petitioner did not re cognize

this additi onal req

uiremen t before the victim s’ in-court identifications also could be suppressed.
In his letter to the petitioner of January 2, 1996, explaining why he wa s not pursuing a motion to suppress, trial defen se counsel d emonstra ted that he had g iven subst antial tho ught as t o how to best deal with the victims’ identification of the petitioner. Explaining the holdings of a number of lineup ident ifica tion cases, inclu ding Bolton v. State , 617 S.W.2d 909 (Tenn. Crim. App. 1981), and Statev. Beal , 614 S.W.2d 77 (Tenn. Crim. App. 1981), counsel opined in his letter that “there was nothing done by

the Bre ntwood Poli ce Depa

rtment wh

ich remo tely

[could] be defined as something that would be so suggestive as to give rise to a very substan

tial likeli h ood of irr

eparab le misidentification.” Having viewed the photographs comprisin g the lineup shown to the victims, we agree with counsel’s assessment that the photographs are not so sug ges tive a s to give rise to a successful suppress ion motion. There isno basis f or our co ncluding

that simply

because the robber was wearing

a black T -shirt wit

h a sloga n, the vic tims both the

n identi f ied 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 i s demonstr

ate d 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 heari ng, pu rsuant 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 identifica tion. 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. LEXI S 1082, at *21-*24 (Tenn. Crim. App. Oct. 13, 1998), perm. to appeal granted (Tenn. Apr. 19, 1999).
As to this iss ue, the po st-convi ction cou rt found a s follows:
1. [Petitioner ’s] attorney at trial . . . w as not ineffectiv e for fa iling to filea mo ti on to suppress a photographic lineup that included [peti tione r], as there

was no ba sis for suc

h mo t ion. Moreover, [pe titioner] showed no prejudice with respect to the issue. The Courtwould nothave granted the motion to suppress, had it been filed.1 The tri al, u pon which t hese al legat ions ar e based, occur red in 199 6, be fore o ur sup reme cour t had se t out in Momon v. State , 18 S.W.3d 152, 162 (Tenn. 1999), the procedur e to be fol lowed w hen a de fen dant elec ts not to testify. -7- 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 wa s denied h is right t o testify at the tri al. The State responds that, trial defense counsel having testified that it wasthe 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 state d, the record reflects that, at the time of this trial, the petitioner had other aggravate d robbery c onvictions, which the trial court had determined could be utilized if the petitione

r testi fied. Additionally, trial defense c ounsel testified that there were sufficient similarities in certain of the other robberies with the instant offense tha tcounsel was concerned other convictions could be utilized not only for impeachment as to cr edibility but also to e stablis h the identity of the petitioner as the robbe r of the B askin-Rob

bins. Trial defense counsel also said that he believe d his alibi witnesses w ho testifi ed at the

second tr ial wer e credible, as evidenced by the hung ju ry a t t he fi rs t t ri al du ri ng wh ic h t he y h ad testif ie d. Although the petitioner honestly may believe that his testimony at the s econd trial, p rofessing that he was elsewhere at the time of the aggravated

ro bb er y, would hav e unders cored th e similar testimony

of his alibi witnesses, we believe that there would be virtual unanimity a mong defense

lawyers that h

is credibility would have been substantia lly blunted by his prior ag gravated robbery co nv ictions, and even more so if the prosecution had presented proof as to the similari ties be tween 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, ha d he advised counsel that he wishedto do so, and that he failed to show t hat he was pr ejudi ced by not testi fying. The rec ord fully supports t hese con clusions a s well.
CONCLUSION
Based upon the foregoing authorities and r eason ing, we conc lude that the petitioner has failed to establish either that trial counsel was ineffective or that he was pre judiced by

counsel’s alleged inactions. We affirm the denial of post-conviction relief.

___________________________________ ALAN E. GL

ENN, JUDGE