IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MARCH SESSION , 1998 May 14, 1998
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9612-CR-00529 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT, JR. JAMIL BUTLER, ) JUDGE ) Appe llant. ) (Aggravated Robbery)
ON APPEAL 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 General and Reporter Nashville, TN 37203 DEB ORA H A. T ULLIS Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243
VICTOR S. JOHNSON District Attorney General
PAUL DEWITT Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION
The Defe ndan t, Jam il Butler, a ppea ls as of right pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure. He was convicted by a Davidson
County jury of one count of aggravated robbery and sentenced as a standard,
Range I offender to twelve years imprisonment. He appeals his conviction,
raising the following issues for our review: (1) That the trial court erred in denying
the Defendant’s motion to suppress the identification of him from a photo graph ic
lineup; (2) that the trial court erred in allow ing the State’s witnesses who viewed
the imperm issibly sugg estive pho tograph ic lineup to testify at tr ial; (3) that the trial
court erred in allowing the jury to view surveillance ph otos from an other robbery;
(4) that the trial court e rred in d enying the De fenda nt’s motion to dismiss because
the audiotape of the preliminary hearing was lost; (5) that the evidence was
insufficient to support a verdict of guilt; and (6) that trial counsel rendered
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 Nashville, Tennessee. The restaurant was
a take-out facility so that the front co unter was six to eight feet from the front
doors. There were two benches for persons to wait, and shelving and the
preparation area were behind the cash register at the front. The front of the
business was well-lit from six fluorescent lights in the ceiling. McC awley’s w ife
was also present in the restaurant, but was n ear the back and d id not observe the
incident in questio n. During the even ing, a black male entered the establishment
-2- and walked straight to the front counter. This person was later identified as the
Defenda nt. McCawley was working the register that night. The Defendant
approached him, put a dollar bill on the counter, and asked for change for a pay
phone that was located across the street. When McCawley opened the register
to get the change, the Defendant began reaching for bills with his left hand.
McCawley grabbed the Defendant’s hand, pushed it aside, and started asking the
Defendant what he was doing. The Defendant pulled a g un from his right po cket.
McCawley saw the Defendant’s face and described him as being in his late
twenties, having high cheekbones, rough shaven and with b loodsh ot eyes. He
was wearing a baseball cap and some type of football jacket. McCawley noticed
small scars on the Defendant’s left hand.
McCawley raised his hands and briefly looked to the left where McElrath
was standing taking a phone order at approximately an arm’s length distance
away. McCawley grabbed McElrath and pushed him toward the back of the
store. The Defendant continued to grab the money from the register. He
appeared to be slightly hurried, but also appeared calm. McCawley activated a
silent alarm when he got to the back of the store. He estimated 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 telephone when the Defendant walked
into the restaurant. 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 tried to push his hand away. McElrath also saw the
Defe ndan t’s face and described him as somewhat rough shaven with a
mustache, and that he was wearing a cap and a winter ja cket. T he De fenda nt’s
-3- eyes were brown and he had bump s aroun d his mu stache . He estimated that he
saw the Defendant for twenty to thirty seconds. McElrath dropped the telephone
and McCawley pushed him to the back. McCawley was yelling “We’re getting
robbed! W e’re getting robbe d!”
Barry Stewart, the store manager, was at the “make station” assembling
a pizza, when the De fendan t cam e in. Th e ma ke sta tion wa s locat ed dire ctly
behind the telephones. Stewart glanced up when he heard the Defendant come
into the store, then returned to his work. He then saw McCawley running toward
him, yelling that they were being ro bbed. Stew art looked at the front and saw the
Defendant with a gun, taking money out of the cash 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 view for thirty seconds to a minute and that he was fifteen to twe nty feet away.
Stewart said that nothing blocked his view of the Defendan t. Stewart and the
Defendant briefly made eye contact. The Defendant then turned and left the
restaura nt.
On November 11th, Detective Danny Collins went to the L ittle Cae sar’s
restaurant and show ed McE lrath and McC awley a series of surveillance
photographs. Still photos had been taken from a video camera during a robbery
at a Speedway convenience store one day before the Little Caesar’s robbery.
The suspect in that robbery 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 that
he thought they looked like the Little Caesar’s robber. As McCawley was looking,
-4- McElra th walked up behind McCawley, looked over his shoulder and said that the
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
walking 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 work and saw the
Defendant walking through some bushes two houses down from his home. He
estimated that the Defen dant was thirty to forty feet aw ay. McElrath steppe d into
his yard to get a better view. He told his mother, who reported it to the police.
Stewart also saw the Defendant walking down the street in the area near the
store within a week after the robbery. Stewart called the police to report what he
saw.
The Defenda nt was even tually located and a rrested. On N ovembe r 29,
1994, Detective Collins went to Little Caesar’s and showed McElrath an d Stewart
a photo lineup. It consisted of photographs of six subjects, including that of the
Defendant. McElra th looked at the lineu p first and ide ntified the D efenda nt.
Stewart then viewed the photos and identified the Defendan t. McElrath and
Stewart were ke pt apart a nd viewe d the lineu p indep enden tly. Detective Collins
returned to Little Caesar’s on December 1, 1994, and showed McCawley the
photo line up. McC awley also identified the Defen dant.
The Defendant was indicted on one count of aggravated robbery. After a
jury trial, he was found guilty 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 conviction.
-5- I.
The Defenda nt argues that the trial court erred in de nying his m otion to
suppress the in court identification of him by witnesses because their testimony
was based on a photographic lineup. On a motion to supp ress, d eferen ce is
given to the trial court to assess the credibility of the witnesses and determine
issues of fact and the prevailing party is entitled to the strongest legitimate view
of the evide nce. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The findings
of fact of the trial court at a suppression hearing will not be disturbed on appeal
unless th e eviden ce in the re cord pre ponde rates oth erwise. Id.
"Convictions based on eyewitness identification at trial following a pretrial
identification by photo graph w ill be set aside on that gro und on ly if the photo
identification was so imperm issibly suggestive as to give rise to a very substantial
likelihood 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 ntation
procedure may be 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 reliable and ad missible when considering the totality of the circumstances.
See State v. Brown, 795 S.W.2d 689, 694 (Tenn. Crim. App. 1990). Five factors
are to be considered when evaluating the propriety of the identification process.
Neil v. Biggers, 409 U.S. 18 8, 199, 93 S.C t. 375, 382, 34 L.E d.2d 401 (19 72);
-6- Benn ett v. State, 530 S.W .2d 511 , 514 (T enn.), reh’g. denied (Tenn. 1975).
These are the opportunity the witness had to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of the witnesses’ prior
description of the crim inal, the leve l of certainty of the witness at the confrontation
and the time between the crime and the confrontation. Brown, 795 S.W.2d at
694.
The Defendant contends that the photo lineup was tainted by two
witnesses’ prior viewing of the Speedway surveillance photos. He claims that the
surve illance photos looked like him an d when the witnes ses view ed the p hoto
array several weeks later, the earlier photo suggested that the Defendant was the
robber. The trial court conducted a full suppression hearing regardin g the ph oto
lineup on December 1st and 4th, 1995. The trial judge first concluded that the
witness Barry Stewa rt would be permitted to testify regarding his identification of
the Defendant in the photo lineup. The trial judge found that Stewart had never
viewed the Speedway photos and was expos ed to no pote ntially suggestive
influences. The D efenda nt had argued that Stewart and McElrath viewed the
photo array together, howeve r, Detective Collins an d both witnesses testified that
they were not together no r did they discuss the photos. Th e trial court obviou sly
resolved this issue in favor of the State. We cannot conclude that the evidence
preponderates against the trial court’s findings regarding this witness. Thus,
having concluded that no sugge stive procedure occurred for Stewart, no
application of the Biggers factors wa s indicate d.
The trial court then evaluated the suggestiveness of the Speedway
surveillance photos on the identification of the Defendant in the photo lineup as
-7- was made by McCawley and McElrath. The trial court noted that McCawley
testified that although he thought the Speed way photos looked like the rob ber,
he base d his identification of the Defendant on his face-to-face conta ct with h im
at the Little Caesar’s rob bery. The trial court also considered that the Speedway
photos were viewed several weeks before the photo lineup was produced. The
trial court also noted that McElrath testified that he viewed the Speedway photos
and thought they look ed like the perpe trator of the Little Caesar’s robb ery.
Howeve r, he sta ted tha t he sa w the D efend ant wa lking in his neighborhood
shortly after the robbery. McElrath also based his identification of the Defendant
in the lineu p on his p ersona l encoun ters with him .
Finally, the trial court stated that the Speedway surveillance photos were
unclear, taken from a distance, and revealed merely a similar figure wearing a
base ball cap. The trial judge found the photos would be difficult to use to ide ntify
a suspect. Moreover, the trial court noted that the Defendant never acknowledged
that he was the pers on in the Spe edway ph otos and tha t there was no real issue
of the identification of him. The trial court concluded that the Speedway photos
were not the basis for the later identification of the Defendant. Furthermore, even
if considering that the photos were suggestive, the trial court found that under
Biggers, the witnesses had the opportunity to view the Defendant during the
crime, their atte ntion w as foc used on him , there was very little doubt about the
witnesse s’ certainty, a nd the ide ntification wa s close in tim e to the rob bery.
W e have reviewed the testimony at the suppression hearing, 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 evidence preponderates against the trial c ourt’s
-8- findings. There fore, we c onclud e that the tria l court properly denied the
Defe ndan t’s motion to suppress the witnesses’ identification testimo ny. Th is
issue is w ithout me rit.
II.
The Defen dant ne xt asserts that the trial court erred by denying his motion
to exclude witness testimony from those who viewed the Speedway photos, thus
denying him a fair trial. He contends that Rule 403 of the 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 his right to confront th e witnesses
against him fully as provided by the Sixth Amendment to the United States
Constitution and Article 1, Secti on 9 of the Tennessee Constitution. The
confrontation clause of the Sixth Amendment provides two types of protection for
criminal defendants: the right to physically face those who testify against 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 .2d 40, 53 (1 987); State v. Middlebrooks, 840
S.W .2d 317 , 332 (T enn. 19 92).
The Defendant contends that in order to cross-examine the witnesses fully,
he would be required to explore the effect of the Speedway photos, putting him
at risk of great prejudice. 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 determined in its denial of the Defendant’s motion to suppress the
identification testimony, that the Speedway surveillance photo s had no salient
-9- effect on the witnesses identification of him in the photo lineup. Defense counsel
conducted a full cros s-exa mina tion of th e witne sses regard ing the ir identification
of the Defe ndant. In these circumstances, given the minimal influence of the
photos on the witnesses’ identification of the Defendant, failure to raise the
Speedway issue would not have necessarily prevented an effective cross-
examination implicating constitutional concerns. It was a tactical decision on the
part of the defense to choose to raise the Speedway issue at trial a s a me ans to
impeach the State’s witnesses. Therefore, we cannot con clude that the trial court
erred in denying the Defendant’s motion to prevent the witnesses from testifying
at trial.
III.
Next, the Defendant contends that the trial court erred by denying his oral
motion to prevent the jury from viewing the Speedway photos. Evidence must be
relevant and probative to some issue at trial; the evidence must "make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence." Tenn.
R. Evid. 4 01. Ad ditiona lly, Rule 403 provides that even if relevant, "evidence may
be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice , confusio n of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative 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 the discretion of the
trial court and will not be reversed absent a clear showing of an abuse of that
-10- discretion. State v. DuBose, 953 S.W .2d 649 , 654 (T enn. 19 97); McCary , 922
S.W.2d at 515.
Here, the trial judge prohibited the State from introducing the Speedway
photos or examining witnesses reg arding the photos in its case in chief. The
Defendant requested that he be allowed to cross-examine the State’s witnesses
regarding the Speedway photos without showing the photos to the jury. The trial
court ruled that if the Defendant chose to cross-examine the witnesses regarding
the photos, the jury would be e ntitled to view the photo s and that the trial cou rt
would issue a curative instruction. The Defendant chose to cross-examine the
witnesses regarding their identification of him and the possible influence from
viewing the Speedway photos. The trial judge issued the following instruction to
the jury:
You are further 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 being involved in any crimin al activity. T hey we re only offered as what influenc e they had, if any, on the later identification made by the witnesses in this case.
The Defendant argues that it was neces sary to cross -exam ine the State’s
witnesses regarding the photos to insure him a fair trial. Defense counsel
conducted an extensive cross-examination of the witnesses abo ut their
identification of him. Once the Defendant raised the Speed way pho tos issue with
the witnesses, the photos became relevant to the issue of the potential influence
they had upon the witnesses’ identification of him. The Defendant argues that the
photos were highly prejudicial because they were too fuzzy for a positive
identification, yet they we re asso ciated with him. Ho wever, in o rder to co nstitute
-11- error, we m ust co nclud e that th e pho tos’ pro bative v alue was substa ntially
outweighed by the da nger of u nfair prejud ice. This w e cann ot do. The photos,
by their am biguity rega rding the identity of the p erson in them, a lthough relevant,
were not highly significant in terms of impeaching the witnesses’ identification of
the Defendant. As a result, although associating the Defendant with another
poss ible crime is clearly prejudicial, we do not find that any prejudicial effect of
the Speedway photos in this case substantially outweighed their probative value.
Moreover, the trial court instructed the jury that 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
limiting jury instructions when evidence is being admitted for only a limited
purpose. State v. Dutton, 896 S.W.2d 114, 116 (Tenn. 1995). It is also a
well-established rule in Te nness ee that a ju ry is presum ed to have followed the
instructions of the trial court. State v. Lawson, 695 S.W.2d 202, 204 (Tenn.
1985). The trial co urt’s instruction also helped to neutralize the potential
prejudicial effect of the photos. Therefore, we conclude that the trial judge did not
abuse his discretion in introducing the photos once the Defendant raised the
Spee dway iss ue. This issue ha s no m erit.
IV.
The Defendant contends that the trial court erred by failing to dismiss the
indictment becau se the au dio taped transcript of the preliminary hearing had
been lost. The Defendant alleges that McCaw ley’s testimony at the p reliminary
hearing was inconsistent from that at trial, specifically on the issue of the amount
of money taken and the identification of the Defendant. The Defendant contends
-12- that he wa s una ble to con front the witnes ses a gains t him fully and that this was
prejudicial to his case.
Rule 5.1(a) of the Tennessee Rules of Criminal Procedure requires that
preliminary hearing proceedings “shall be preserved by electronic recording or
its equiva lent an d whe n the d efend ant is su bseq uently indicted such recording
shall be made available for listening to by the defendant or defendant’s counsel
to the end that they may be apprised of the evidence introduced upon the
preliminary examination.” However, when the evidence contained in the record
is so compelling on the qu estion of th e defen dant's gu ilt, the lack of a recording
of the preliminary hearing 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.
Crim. App. 19 87); State v. Butts, 640 S.W .2d 37, 38 (T enn. Crim. A pp. 1982).
In the case at bar, in lieu of the preliminary hearing tape, the trial court
afforded the Defendant's attorneys an opportunity for an expanded suppression
hearing to cross-examine the State’s witnesses fully regarding their identification
of the Defendant. Additionally, defense counsel interviewed all of the
eyewitnesses prior to tr ial. The Defe ndan t has fa iled to demonstrate how he
might have been prejudiced by the loss of the preliminary hearing audiotape. He
alleges that the testimony regarding one witness’ identification of him was
inconsis tent, but did not provide specifics. He also alleges that the witness’
testimony regarding the a mount of m oney taken was different, yet, an
inconsistency in that regard is not material to proving the elements of aggravated
robbery. In a strong case ag ainst him , all three eyewitnesses identified the
Defendant as the robber with certainty. Therefore, we must conclude that the
-13- loss or misplacement of the audio recording in this 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 challenges the sufficiency of the convicting
evidence, the standard is whether, after reviewing the evidence in the light most
favora ble to the p rosec ution, any rational trier of fact could have found the
essential elements of the crime beyond a reaso nable d oubt. Jack son v. V irginia,
443 U.S. 307, 31 9 (1979 ). Questions concerning the credibility of the witnesses,
the weight an d value to be given the evidence, as well as all factual issues raised
by the evidence, are resolved by the trier of fact, not this co urt. State v. Pappas,
754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or
reevalua te the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 197 8).
A jury verdict approved by the trial judge accredits the State’s witnesses
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
view of the evide nce an d all inferen ces there from. Cabbage, 571 S.W.2d at 835.
Because a verdict of guilt removes the presumption of innocence and replaces
it with a presumption of guilt, the accused has the burden in this court of
illustrating why the evidence is insufficient to support the verdict returned by the
trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982 ); Grace, 493
S.W.2d at 476.
-14- Aggra vated rob bery as it ap plies to the De fenda nt in this case is robbe ry
as defined in Tennessee Code Annotated section 39-13-401: “the intentional or
knowing theft of property from the person of another by violence or putting the
person in fear.” The act must also be “ [a]ccomplished with a deadly weapon or
by display of any article 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 Little Caesar’s pizza
place and asked for change for a dollar as a pretext to get the cash register open.
When opened, the Defendant started grabbing money from the register. When
an employee atte mpted to stop him, the Defendant pulled out a handgun and
continue d. The employees ran to the back of the store and activated an alarm.
All three em ployees in the store at that time, McCawley, McElrath and
Stewa rt, positively identified the Defen dant from a p hoto array. More over, a ll
three saw the Defendant in the vicinity of the restaurant after the crime was
committed. Two of them even called the police to report that they saw the
Defen dant. After reviewing the record, we can only conclude that the evidence
was overwh elming to prove th at the De fendan t comm itted the offense. The
positive identification by the victims in this case points unerringly to the Defendant
as the assa ilant an d was sufficie nt to en able any reasonable trier of fact to find
guilt beyon d a reas onable doubt.
-15- VI.
Finally, the De fenda nt con tends that trial c ouns el rend ered in effectiv e
assistance for his defense. In determining whether counsel provided effective
assistance at trial, the court must decide whether counsel’s performance was
within the range of competence demanded of attorneys in criminal cases. Baxter
v. Rose, 523 S .W .2d 93 0, 936 (Ten n. 197 5). To succe ed on a claim that his
counsel was in effective at trial, a petitioner bears the burden of showing that his
counsel made errors so serious that he was not functioning as counsel as
guaranteed under the Sixth Amendment and that the deficient representation
prejudiced the petition er resulting in a failure to p roduce a reliable re sult.
Strickland v. Washington, 466 U.S . 668, 687 , reh’g denied, 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 prong the petitioner must show a
reaso nable probability that, but for counsel’s unreasonable 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 probability must be “sufficient to undermine
confidence in the outcom e.” Harris v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).
When reviewing trial counsel’s actions, this court should not 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 errors should be
judged at the time they were made in light of all facts and circumstances.
Strickland, 466 U.S . at 690; see Cooper 849 S.W.2d at 746.
-16- The Defendant alleged ineffective assistance of counsel in his 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 counsel was ineffective for several reasons. He claims that no
investigation was conducted between the preliminary hearing and the indictm ent.
He states that counsel failed to interview witnesses until two weeks before the
trial. He als o argu es tha t coun sel’s performance was lacking because of the loss
of the preliminary hearing tapes and because of the numerous inconsistencies
in the w itness es’ tes timon y at trial.
The Defendant testified at the hearing that the preliminary hearing tapes
were lost and that he was concerned about identification issues and the amount
of money alleged to have been taken. The Defendant stated that McCawley’s
testimony was inconsistent, but did not elaborate on the specifics. The
Defendant testified that when he asked Mr. Baker, he said that the tape was lost
and that they could not find it. After the Defendant was bound over to the grand
jury, he learned that cou nsel who rep resented him in the preliminary hearing had
withdrawn and that Mr. Baker was appointed. The Defendant was concerned
about his belongings and wanted counsel to contact Reggie Brown. Coun sel told
him that this 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 counsel wanted him to take a plea bargain and
that they disagreed on that point. He did not feel counsel was pro perly
investigating the case regarding the witnesses. The Defendant felt that counsel
did not effectively cross-examine the witnesses on the identification issue. He
-17- also complained that an exhibit was placed between him and the jury, which
obscured their view of him . The D efend ant tes tified that he would have had
different 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 appear calm at trial and that 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 testified 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 regarding the hearing.
Counsel also filed for discovery and he had reviewed the State’s file. Counsel
first interviewed the witne sses in Nove mber, 199 6, before the trial in Dec ember.
He stated that they had attempted to contact 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 settle the case before trial and the De fenda nt had reque sted h im
to pursue a plea agreement. There was an attempt to get a split-confinement
sentence with a reduced charge of simple robbery. Negotiations failed 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. Counsel felt that the
Defendant wanted him to focus on trivial matters that would backfire at trial. 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 pretrial preparation
for the case. Th e trial court’s order reflects that counsel’s log sheet recorded
-18- forty-five hours of pretrial preparation, which included investigation time. Counsel
attempted to settle before trial and the Defendant never stated he did not want
a settlem ent. Counsel pursued an extended suppression hearing as a remedy
for the los t prelim inary hearing tape. Counsel also attempted to exclude any
witness testimony from those who viewed the Speedway photos. Counsel
interviewed the witnesses before the trial. He pursued a defense 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 representation was
within the range of competency demanded of criminal defense attorneys.
Counsel investigated the case, made numerous attempts to locate the
preliminary hearing tape, and submitted several motions to exclude evidence.
There is evidence that counsel aggressively pursued plea negotiations at the
behest of the Defend ant. The reco rd also reflects that counsel effectively cross-
examined witnes ses re gardin g their identification of the De fendan t. Because the
Defendant has failed to dem onstrate that counsel’s performance was not
comp etent, we do not reach the evaluation of any alleged prejudice. Therefore,
we con clude tha t this issue is w ithout me rit.
Accordingly, we affirm the judgment of the trial court in all respects.
____________________________________ DAVID H. WELLES, JUDGE
-19- CONCUR:
___________________________________ JOSEPH M. TIPTON, JUDGE
___________________________________ JOE G. RILEY, JUDGE
-20-