             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                                JANUARY 1998 SESSION
                                                              FILED
                                                                   March 26, 1998

                                                              Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
LARRY MORRIS,                     )
                                  )     No. 02-C-01-9701-CR-00008
            APPELLANT,            )
                                  )     Shelby County
v.                                )
                                  )     Honorable Joseph B. Dailey, Judge
STATE OF TENNESSEE,               )
                                  )     (Post-Conviction Relief)
            APPELLEE.             )




FOR THE APPELLANT:                      FOR THE APPELLEE:

Daniel A. Seward                        John Knox Walkup
Attorney at Law                         Attorney General & Reporter
P. O. Box 11207                         425 Fifth Avenue, North
Memphis, TN 38111-0207                  Nashville, TN 37243-0497

                                        Georgia B. Felner
                                        Counsel for the State
                                        425 Fifth Avenue, North
                                        Nashville, TN 37243-0497

                                        William L. Gibbons
                                        District Attorney General
                                        201 Poplar Avenue, Suite 3-01
                                        Memphis, TN 38103

                                        James M. Lamey
                                        Assistant District Attorney General
                                        201 Poplar Avenue, Suite 3-01
                                        Memphis, TN 38103




OPINION FILED: ____________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                         OPINION

       The appellant, Larry Morris (petitioner), appeals as of right from a judgment of the

trial court dismissing his post-conviction action following an evidentiary hearing. The trial

court found the petitioner received the effective assistance of counsel guaranteed by the

United States and Tennessee Constitutions. In this court, the petitioner presents one issue

for review, namely, “[w]hether the trial court properly dismissed the petition for post-

conviction in finding that the petitioner was afforded the effective assistance of counsel.”

After a thorough review of the record, the briefs submitted by counsel, and the law

governing the issue presented for review, it is the opinion of this court that the judgment

of the trial court should be affirmed.

                                                I.

                                  PRIOR PROCEEDINGS

       The petitioner was convicted of aggravated robbery on March 30, 1994. The trial

court sentenced the petitioner to confinement for ten (10) years in the Department of

Correction. The petitioner appealed his conviction to this court. On August 16, 1995, this

court affirmed the petitioner’s conviction. State v. Larry Morris, Shelby County No. 02-C-

01-9409-CR-00192, 1995 WL 480604 (Tenn. Crim. App., Jackson, August 16, 1995). The

petitioner did not seek review in the supreme court.

       The petitioner instituted this post-conviction action on September 28, 1995. The trial

court conducted an evidentiary hearing on March 29, 1996. The trial court took the matter

under advisement. On July 11, 1996, the trial court entered an order dismissing the

petitioner’s post-conviction action.



                                               II.

                                 STANDARD OF REVIEW

       When the trial court has conducted an evidentiary hearing to permit a petitioner to

ventilate the grounds raised in support of an action for post-conviction relief, the trial court’s

findings of fact are afforded the weight of a jury verdict. Dixon v. State, 934 S.W.2d 69,

71-72 (Tenn. Crim. App. 1996); Teague v. State, 772 S.W.2d 932, 933-34 (Tenn. Crim.



                                                2
App. 1988), cert. denied, 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989).

Consequently, this court is bound by the trial court’s findings of fact unless the evidence

contained in the record preponderates against the trial court’s findings. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 337 (Tenn. Crim. App.

1994), per. app. denied (Tenn. 1995).

       There are several well-established rules which govern appellate review of post-

conviction actions. As this court said in Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990):


               First, this Court cannot reweigh or reevaluate the evidence; nor
               can we substitute our inferences for those drawn by the trial
               judge. Second, questions concerning the credibility of the
               witnesses, the weight and value to be given their testimony,
               and the factual issues raised by the evidence are resolved by
               the trial judge, not this Court. Third, the appellant has the
               burden in this Court of illustrating why the evidence contained
               in the record preponderates against the judgment entered by
               the trial judge.


       This court will now proceed to consider the merits of the petitioner’s contentions.

In doing so, this court will apply the aforementioned principles governing appellate review

in post-conviction actions to determine whether the evidence adduced at the hearing

preponderates against the trial court’s findings of fact. See Clenny v. State, 576 S.W.2d

12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d

1050 (1979).



                                             III.

                     INEFFECTIVE ASSISTANCE OF COUNSEL

       The petitioner contends he was denied his constitutional right to the effective

assistance of counsel. U.S. Const. amend. VI; Tenn. Const. art. 1, § 9; Powell v. Alabama,

287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). He argues trial counsel was deficient

because counsel (a) failed to file a motion for discovery, (b) failed to file a motion to

suppress the victim’s identification, and (c) failed to find and subpoena an alibi witness.



                                             A.


                                              3
       When the petitioner seeks to vitiate a conviction on the ground the attorney

representing him denied his constitutional right to the effective assistance of counsel, the

petitioner must establish by clear and convincing evidence (a) the services rendered or the

advice given by counsel fell below “the range of competence demanded of attorneys in

criminal cases,” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and (b) the

unprofessional conduct of counsel enured to the prejudice of the petitioner. Williams v.

State, 599 S.W.2d 276, 279 (Tenn. Crim. App.), per. app. denied (Tenn. 1980). The

United States Supreme Court subsequently adopted this two-prong test in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Tennessee

appellate court decisions following Strickland are legion.

       This court’s review of ineffective assistance claims is guided by certain well-

established standards. First, the standard created in Baxter does not require perfect

representation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Second, it is not the

function of an appellate court to “second guess” trial counsel’s tactical and strategic

choices pertaining to matters of defense unless these choices were made without

knowledge of the relevant facts or the law applicable to the issue. Hellard, 629 S.W.2d at

9; McBee v. State, 655 S.W.2d 191, 193 (Tenn. Crim. App.), per. app. denied (Tenn.

1983); see People v. Corona, 80 Cal. App. 3d 684, 145 Cal. Rptr. 894 (1978). As the

supreme court said in Hellard: “[T]he defense attorney’s representation, when questioned,

is not to be measured by ‘20-20 hindsight.’” 629 S.W.2d at 9. Third, an accused is not

deprived of the effective assistance of counsel because a different procedure or strategy

might have produced a different result. Williams, 599 S.W.2d at 279-80; Long v. State,

510 S.W.2d 83, 88 (Tenn. Crim. App.), cert. denied (Tenn. 1974).

       This court will now address the specific grounds asserted by the petitioner. In doing

so, this court will apply the aforementioned standards.



                                            B.

       The petitioner asserts he wanted counsel to file a motion for discovery. He argues

counsel failed to file such a motion.

       Trial counsel testified a motion for discovery was filed in the cause. Counsel also


                                             4
obtained discovery from the assistant district attorney general.

       This court is of the opinion the petitioner failed to establish this ground by “clear and

convincing” evidence. Tenn. Code Ann. § 40-30-210(f). Moreover, the evidence adduced

at the evidentiary hearing does not preponderate against the trial court’s findings of fact.



                                              C.

       The petitioner contends his trial counsel failed to file a motion to suppress

identification. He opined this enured to his prejudice. However, the petitioner failed to

establish by “clear and convincing” evidence why the failure fell below the “range of

competence demanded of attorneys in criminal cases,” Baxter, 523 S.W.2d at 936, or how

this enured to his prejudice, Williams, 599 S.W.2d at 279.

       Trial counsel testified a motion to suppress identification evidence was not filed.

Counsel said the motion was not filed because there was no factual basis for the

suppression of this evidence. This court agrees.

       The record of the trial proceedings reflects the victim rode a Greyhound bus from

Birmingham, Alabama on July 1, 1993 to Memphis. Upon arrival in Memphis, he was

approached by a white woman, later identified as Nina Policht who had been staying with

the petitioner in a motel. Policht said she would accompany the victim to a nearby bar. As

they walked together on the west side of the bus station, two African American men came

from behind a motor vehicle. The petitioner held a large knife to the victim’s throat and

demanded his money. The victim gave him approximately $200. Policht went through the

victim’s wallet, but she did not find any more money.

       A Memphis police officer who patrolled the area surrounding the bus station also

served as a security officer at the station when he was off duty. He spoke to the victim the

next morning in his capacity as a police officer. When the victim described the unique

clothing worn by one of the perpetrators and described the woman, the officer remembered

seeing these two people in the area of the bus station for several days prior to the robbery.

The clothing each wore was unique and readily recognizable. The officer asked cab

drivers parked near the bus station if they had seen these individuals. The cab drivers

stated they had seen them, and they advised the officer the individuals were living at the


                                               5
King’s Court motel which is located close to the bus station. This officer, along with

robbery squad officers and uniform patrol officers, went to the motel. The manager told

officers the room number occupied by the individuals they described. The officers arrested

Policht and seized clothing described by the victim and several photographs sitting on a

coffee table. The defendant was arrested in the room twenty minutes later.

       When the victim entered the robbery squad office, there were seven or eight African

American men sitting on a bench. The victim saw the defendant sitting on the bench and

advised an officer this was one of the men who robbed him.

       The officers never showed the victim the seized photographs before the

identification. Nor did the officers ask the victim to look at these men to see if he could

identify the perpetrator. His identification was a spontaneous statement made by the victim

as he was walking through the robbery squad office.

       The victim made a courtroom identification of the defendant. He also identified the

clothing worn by the petitioner when the petitioner robbed the victim.

       As can be seen from the foregoing summary of the evidence, there was nothing

suggestive about the victim’s identification. This court is of the opinion the petitioner failed

to prove this ground by “clear and convincing” evidence. Tenn. Code Ann. § 40-30-210(f).

Furthermore, the evidence contained in the record on this ground does not preponderate

against the trial court’s findings of fact. Clenny, supra.



                                              D.

       The defendant contends counsel was ineffective because counsel failed to

investigate his alibi defense and failed to investigate the fact he had received a personal

injury settlement a few days prior to the date in question.

       The defendant was represented by the Shelby County Public Defender and

members of his staff. He told an assistant public defender before the preliminary hearing

was scheduled in the General Sessions Court he went to sleep on the evening of July 1,

1993 between 9:00 p.m. and 10:00 p.m. in the motel room. Prior to trial, the petitioner told

trial counsel on July 2, 1993 he and Nina Policht stopped and talked with the manager of

the King’s Court motel. They then went to a BP service station at Linden Avenue and


                                               6
Danny Thomas Boulevard to get breakfast. An investigator went to the service station. It

was a Mapco station, not a BP station. The manager could not tell the investigator who

was working on the morning in question. However, the manager stated a Caucasian

female in the company of an African American male was a common sight at the station.

       When the defendant testified in support of his defense, he changed his alibi. He

testified he came to Memphis to obtain a personal injury settlement. He came with Nina

Policht. When the robbery occurred, the defendant testified he was with Policht and a

white male who occupied an adjoining room. In short, trial counsel was not aware of this

particular alibi prior to trial, and, as a result, could not be expected to investigate the alibi

and locate the alibi witness.

       The petitioner failed to prove this ground by clear and convincing evidence. Tenn.

Code Ann. § 40-30-210(f). Furthermore, the evidence contained in the record does not

preponderate against the trial court’s findings of fact.




                                            ________________________________________
                                                JOE B. JONES, PRESIDING JUDGE


CONCUR:



___________________________________
     PAUL G. SUMMERS, JUDGE



___________________________________
     DAVID G. HAYES, JUDGE




                                               7
