        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 6, 2015

                MARQUON GREEN v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Madison County
                     No. C14265     Roy B. Morgan, Jr., Judge


                 No. W2015-00162-CCA-R3-PC - Filed May 4, 2016
                        _____________________________

Petitioner, Marquon L. Green, appeals the dismissal of his petition for post-conviction
relief in which he alleged ineffective assistance of counsel at trial. More specifically he
contends that trial counsel (1) failed to adequately communicate with him; (2) failed to
file a motion to suppress his confession; (3) failed to prepare him to testify at trial; and
(4) failed to adequately question and impeach the State‟s witnesses. Petitioner also
argues that appellate counsel failed to address whether Petitioner‟s statement was the
result of a coerced confession. After a thorough review of the record, we conclude that
Petitioner has failed to show that his trial counsel or appellate counsel rendered
ineffective assistance of counsel, and we accordingly affirm the judgment of the post-
conviction court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Christie Hopper, Jackson, Tennessee, for the Appellant, Marquon L. Green.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General, James G. (Jerry) Woodall, District Attorney General; and Al Earls,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

Background

       A Madison County grand jury returned an indictment against Petitioner charging
him with aggravated robbery. Following a jury trial, he was convicted of the offense.
Petitioner was sentenced to ten years as a Range I offender to be served at 85%. This
Court affirmed the conviction on appeal. State v. Marquon L. Green, No. W2012-01652-
CCA-R3-CD, slip op. at 1 (Tenn. Crim. App. April 29, 2014).

      The following facts were set forth by this Court on direct appeal:

       At trial, Courtney Echols, the victim, testified that in February 2011, she
       was a student at Lane College and lived in a dormitory on campus.
       About 11:00 a.m. on Saturday, February 5, the victim walked from her
       dormitory to the library. The library was closed, so the victim walked to
       her car in order to leave campus. While the victim was walking, she was
       talking on her BlackBerry telephone. However, by the time she got to
       her car, she had stopped talking on her phone. The victim said that she
       “checked her surroundings” and that a man walked up to her, pointed a
       gun at her chest, and demanded her purse. She described the weapon as
       “[a] little black gun” and said that “[t]he front part . . . was like a silver
       “round.” The victim stated that she was scared and that the man told her,
       “I‟m not going to shoot you. Just give me your purse.” The victim gave
       him her Coach purse, which contained a pink Nano iPod, a Kodak digital
       camera, personal identification, a computer USB cord, and “sentimental
       items.” She said that she tried to walk back to her dorm but that he told
       her to get into her car. She said that before she could get into her car, he
       told her, “I know you have a phone. Give me your phone.” The victim
       took her phone out of her right jacket pocket, gave it to him, and tried to
       walk back to her dorm again. However, he told her to get into her car
       and walked away. The victim said that she had never seen the man prior
       to February 5, 2011, and that the incident lasted three to four minutes.

       The victim testified that she got into her car and drove off campus to a
       friend‟s home in the Hermitage Apartments. She telephoned her mother,
       the police, and the college. The victim described the robber to police as
       five feet, three inches tall with a small build and a dark-skinned
       complexion. She told them he was wearing a white skull cap, a navy
       blue jacket with gray lining, dark pants, and white tennis shoes. She
       testified that the robber was standing about two feet away from her
       during the robbery and that “[t]he main detail that I knew it was him was
       his eyebrows.” A couple of days after the robbery, the victim viewed a
       photograph array at the police department, selected the appellant‟s
       photograph, and indentified him as the robber. The victim also identified
       the appellant at trial as the robber.


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On cross-examination, the victim identified the photograph array and
acknowledged that only three of the six photographs showed dark-
skinned men. She also acknowledged that she told police the robber had
a medium, not small, build and weighed one hundred seventy-five
pounds. She said that after the robbery, the appellant walked toward
Middleton Street. On redirect examination, the victim testified that she
had [n]o doubt” the appellant was the robber.

Officer George Massey of the Jackson Police Department (JPD) testified
that on the morning of February 7, 2011, he encountered the appellant,
stopped his patrol car, and got out to talk with the appellant about a
matter unrelated to this case. After speaking with the appellant, Officer
Massey arrested him and transported him to the Madison County
Criminal Justice Center. Officer Massey notified other officers that they
should speak with the appellant about this case.

Sergeant Albert Colon of the JPD testified that he investigated the
robbery. Based on the victim‟s description of the robber, a BOLO, be-
on-the-lookout, was issued. On February 7, Sergeant Colon learned that
Officer Massey had arrested the appellant. Sergeant Colon prepared a
photograph array containing the appellant‟s photograph and showed it to
the victim. She identified the appellant as the robber and signed the back
of his photograph. Sergeant Colon spoke with the appellant and wrote
out his statement. In the statement, the appellant said he was “hanging
out” at his sister‟s house all day on February 5, that he did not know why
the victim had selected his photograph, and that “I guess I fit the
description of [the] dude that robbed her.” Sergeant Colon gave the
appellant the opportunity to read and correct his statement, and the
appellant signed the statement.

On cross-examination, defense counsel questioned Sergeant Colon about
his using only three photographs of dark-skinned men in the photograph
array. Sergeant Colon stated, “That‟s because of the lighting . . . It‟s
three of each. That‟s six. We can do the photo lineups that way . . . as
far as complexion . . . We go by facial features.” On redirect
examination, Sergeant Colon testified that on February 5, he showed the
victim a “mug book” but she did not identify anyone. However, the
victim identified the appellant‟s photograph in the array on February 7.

Investigator Aubrey Richardson of the JPD testified that on February 8,
2011, he spoke with the appellant about the robbery and took the
                                    3
appellant‟s statement. Officer Richardson read the statement to the jury
in which the appellant said the following:

    Saturday I took a phone Black Berry and a camera - - a Kodak
    camera. Saturday I had a black and gray 22 pistol and I
    approached her. She was talking on the phone and standing by
    her car. I robbed her for her phone and the camera and I ran off.

    I sold the camera to a female in Lincoln Courts. I sold the gun
    right after the robbery. And I sold the Black Berry to the Arab‟s
    on Hays Street at the store. I robbed the girl Saturday.

The appellant signed the statement.

On cross-examination, Investigator Richardson testified that he tried to
convince the appellant to cooperate. Investigator Richardson said he told
the appellant that by giving the statement, “the Courts would look at his
cooperation in it.” However, Investigator Richardson did not tell the
appellant that the appellant would be charged with a lesser offense for
his cooperation. At the conclusion of Investigator Richardson‟s
testimony, the State rested its case.

The appellant testified that on February 5, 2011, he went to a barber shop
to get his hair cut. After he left the barber shop, he walked through the
Lane College campus. As he was walking on Lane Street to his sister‟s
house, he saw the victim in a parking lot. The victim was standing by
her car and was talking on a telephone. The appellant said that the
victim was holding her purse in her hand and that he “snatched it.” He
said he also “got her phone from her” and ran toward Middleton Street.
He said that he did not use a gun and that he did not say anything to the
victim. The appellant denied telling Investigator Richardson that he had
a gun and said that he signed his statement because Investigator
Richardson told him that signing the statement “would be the difference
between [him] getting charged with theft of property and [him] getting
charged with aggravated robbery.”

On cross-examination, the appellant acknowledged that he did not
always tell the truth and said that he would lie to help himself,
“[d]epending on how serious it is.” He acknowledged that aggravated
robbery was a serious charge and said that “[a] gun makes the situation
serious.” He acknowledged that he lied to Sergeant Colon about being at
                                      4
        his sister‟s house on February 5. He said he told Investigator Richardson
        that he took the victim‟s purse but did not tell the officer that he took the
        victim‟s Blackberry and Kodak camera. He said that most of the
        contents of the victim‟s purse “went into the garbage” but that he kept
        her telephone, camera, and money to buy some “weed.” The appellant
        said he signed his statement to Investigator Richardson because the
        officer told him that was the only was he could get charged with theft of
        property. The appellant said that he would lie to “[a] bunch of people”
        but that he was not lying to the jurors because they had his life in their
        hands. The appellant said he stole from the victim but did not rob her.
        At the conclusion of the appellant‟s testimony, the jury convicted him as
        charged of aggravated robbery.

State v. Marquon L. Green, No. W2012-01652-CCA-R3-CD, slip op. at 1-3 (Tenn. Crim.
App. April 29, 2014).

Post-Conviction Hearing

        Petitioner testified that trial counsel “barely” communicated with him prior to trial,
and she did not review the evidence against him. He said that trial counsel advised him
to accept the State‟s plea offer because a trial might result in “more time.” Petitioner
testified that he asked trial counsel to file certain motions, but she would not file them
because they were frivolous. He did not recall which motions that he wanted her to file.
Petitioner testified that he wrote letters to trial counsel, and he wrote a letter to the Board
of Professional Responsibility because he felt that trial counsel was not doing her job.
Petitioner testified that trial counsel responded to one of his letters after he wrote to the
board, and it contained the following:

        In your case scheduled for trial on January 31, 2012, the police have a
        written confession from you and a photo lineup ID from the victim.
        There are no motions and no defenses that I can present to the Court.
        You have received an offer from the District Attorney for the minimum
        sentence possible. As an attorney acting in your best interest, I
        encourage you to take the offer.

       Petitioner testified that he told trial counsel that “when the investigator was going
through the little statement, he told me that the statement would make the difference
between me being charged with aggravated robbery and me being charged with theft of
property.” Petitioner claimed that he only signed the statement because of what the
investigator told him. He said that trial counsel did not give him any advice concerning
the statement and that she “just kept telling [him] to take the plea bargain.” Petitioner
                                              5
testified that trial counsel did not mention a motion to suppress his statement, and he did
not ask her about one because he did not know what it was called. The statement was
used against Petitioner at trial.

       Petitioner testified that he and trial counsel did not talk about him testifying at
trial. He said that trial counsel told him that she did not think he should testify.
However, Petitioner felt that was the only way to “get [his] side of the story out[.]” He
did not have any concerns about testifying at trial. When asked how trial counsel failed
to properly advise concerning his testimony, Petitioner said:

        Because, I mean, I felt, you know, that she would have helped me, she
        would have let me know, like, “Man, it‟s on them. They got to prove it,”
        but if they saying all this, then I ain‟t - - she could have helped me better,
        you know, help me prepare for it, you know, „cause, man, when I got on
        the stand, the D.A., man, - - man, he bombarded me, man. I didn‟t know
        what I was - - you know, like if I tried to explain something, he stop me,
        you know. I‟m trying to tell what happened, but it didn‟t really work,
        you know, „cause he still heard - - you know, basically heard, you know,
        not the whole thing, you know, so I didn‟t know - -

Petitioner testified that trial counsel did nothing to prepare him to testify.

       Petitioner testified that trial counsel failed to thoroughly cross-examine one of the
investigating officers about the victim‟s identification because the discovery materials
indicated that the victim initially could not indentify Petitioner by looking through the
“mug shot” book but the materials also stated that the victim positively identified
Petitioner from the book. Petitioner testified that trial counsel only questioned the
investigator about the discrepancy to a “certain extent.” Petitioner testified that he filed a
“Motion for ineffective counseling” prior to trial, which was denied by the trial court. He
and appellate counsel “somewhat” discussed his appeal.

       On cross-examination, Petitioner admitted that he was at the scene and committed
a theft. He also admitted that he initially lied to police and told them that he did not
commit the offense. Petitioner testified the investigator wrote the second statement
indicating that Petitioner committed the robbery. Petitioner then read the statement and
signed it after the investigator told him to. He claimed that a portion of the second
statement, indicating that Petitioner had a gun, was also a lie. Petitioner reiterated that he
only signed the statement because the investigator told him that it would make “the
difference between [him] [being] charged with theft of property and [him] being charged
with aggravated robbery.” Petitioner said that his testimony at trial was true and that his

                                               6
statement was untrue. He claimed that he committed a theft rather than a robbery
because he did not have a gun.

        Petitioner agreed that a Momon hearing was held prior to his testimony. The trial
judge asked Petitioner if he wanted to testify, and he advised Petitioner that it was his
right to testify even if trial counsel advised him not to. Petitioner admitted that it was his
sole decision to testify.

       Trial counsel testified that she has been practicing law since 1997. She was
appointed to represent Petitioner on his robbery charge, and she filed a motion for
discovery. Trial counsel received the entire case file from the State which included
statements by Petitioner, statements of the officers and investigator, and statements of the
victim.

      Trial counsel testified that Petitioner‟s case was a simple one because he had
admitted to the offense. She said:

        The only difficulty I had in dealing with [Petitioner] is that he felt that
        the offers that were coming from the District Attorney‟s office were too
        harsh. He felt that they should be willing to reduce some of the charges.
        He thought that a probationary sentence or a sentence including
        diversion would be appropriate, and [Petitioner] and I had very - - well I
        had a very difficult time trying to get [Petitioner] to understand the
        severity of the situation that he was in.

Trial counsel testified that a plea negotiation in Petitioner‟s case was complex because he
also had a separate rape and kidnapping case. She said that the plea offer was a “package
deal.” Petitioner was not offered the opportunity to plead guilty solely to the aggravated
robbery.

       Trial counsel did not feel that it was necessary to file any motions in Petitioner‟s
case other than the discovery motion. She said that Petitioner asked her to file a motion
for a change of venue. Trial counsel testified that she researched the issue and did not
feel that there were any grounds to go before the Court and ask for the change of venue.
Concerning a motion to suppress, trial counsel testified:

        [Petitioner] never asked me to suppress his statement. He always - - He
        even admitted to me he did it. The first time I‟ve heard about
        suppressing a statement is in this hearing today. When he and I had
        conversations, - - In fact, one of these issues we had, [Petitioner] on
        numerous occasions when I would go to the jail to visit with him would
                                              7
        get up and walk out and demand to be taken back and put back in his
        cell. He - - I guess, you know, it was one of those situations, you don‟t
        like the message, so you want to shoot the messenger. He wrote me
        several letters indicating that I wasn‟t doing my job because I could not
        get him probation. One of them states that he‟ll serve two 11/29s, he‟ll
        pay restitution, he‟ll do 12 years intensive probation, drug rehab,
        participate in the A&D assessment, 300 hours of community service. He
        wanted in the other case, the aggravated kidnapping, aggravated rape, all
        of that dismissed, and when I couldn‟t accomplish those things for
        [Petitioner], he would become very angry and refused to cooperate with
        me.

Trial counsel admitted that she wrote the letter to Petitioner about accepting a plea offer.
However, she said that it was his choice as to what he wanted to do.

        Trial counsel testified that she met with Petitioner on numerous occasions and
attempted to discuss his case in detail with him. However, Petitioner “chose on 95
percent of those occasions to leave the room.” Trial counsel testified: “I can‟t force a
client to sit and listen. All I can do is make myself available.” Trial counsel testified that
she did not receive numerous letters from Petitioner. She received one letter and
responded to it. Trial counsel testified that Petitioner filed a complaint against her with
the Consumer Assistance Program, and she responded to the complaint.

       Trial counsel testified that the victim initially could not identify Petitioner but then
she was able to identify him. Although she did not specifically recall questioning the
investigator at trial about the identification, the record reflected that she did so. When
asked if it would have helped Petitioner‟s case to show that the investigator said that the
victim identified Petitioner at the first lineup when that wasn‟t the case, trial counsel said:

        What would have helped my case is if my client had exercised his
        constitutional right to not ma[k]e a statement to begin with. I was left in
        a position of trying to clean up the mess afterwards, and that‟s a very
        difficult thing to do as a defense attorney. Once a client has made a
        statement and signed a statement, your only option as the defense
        attorney at trial is to do one of two things, show that your client was
        extremely confused or at one point was lying. Once you point out to a
        jury that your client is a liar, then it becomes very difficult to convince
        them when he‟s telling the truth. So it wasn‟t so much what [the victim]
        said or what [the victim] identified, it was that he had made a statement
        and then wanted to retract it, and in the jury‟s mind, that leaves the
        question of, [w]hen do I believe him and when do I not? And I tried to
                                              8
        explain to him prior to trial that is exactly what was going to happen if
        he chose to take the stand.

Trial counsel testified that Petitioner told her that his statement was true. He told her that
he took that victim‟s property and what he did with it. Therefore, trial counsel testified
that she could not “ethically file a motion to suppress.”

Analysis

        Petitioner contends that his trial counsel provided ineffective assistance because
trial counsel (1) failed to adequately communicate with him; (2) failed to file a motion to
suppress his confession; (3) failed to prepare him to testify at trial; and (4) failed to
adequately question and impeach the State‟s witnesses. Petitioner also argues that
appellate counsel failed to address whether Petitioner‟s statement was the result of a
coerced confession. We disagree.

       In a post-conviction proceeding, the burden is on the Petitioner to prove his
grounds for relief by clear and convincing evidence. T.C.A. § 40-30-110(f); see
Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal, we are bound by
the trial court‟s findings of fact unless we conclude that the evidence in the record
preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001).
Additionally, “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 to be
resolved” by the post-conviction court. Id. Because they relate to mixed questions of
law and fact, we review the trial court‟s conclusions as to whether counsel‟s performance
was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer‟s performance was deficient and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 205, 280 L. Ed. 2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
“[A] failure to prove either deficiency or prejudice provides a sufficient basis to deny
relief on the ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the [petitioner] makes an
insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996) (citing Strickland, 466 U.S. at 697).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney‟s conduct fell below “an objective standard
of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland,
                                              9
466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated
once the petitioner establishes “„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.‟” Id. at 370 (quoting Strickland, 466 U.S. at 694).

       Following the evidentiary hearing, in a written order denying relief, the post-
conviction court concluded that Petitioner had failed to prove by clear and convincing
evidence that trial counsel‟s or appellate counsel‟s performance was deficient or that
Petitioner was prejudiced by any alleged deficiency. At the conclusion of the post-
conviction hearing, the court found, in part,

        Part of the Court‟s job is to determine the credibility of those witnesses
        that testified here today also and what weight to give their testimony,
        and, of course, [Petitioner] has testified and [trial counsel] testified, and
        there would be some issues raised as to [Petitioner‟s] credibility because
        of the prior statements made and given [that] he claims [are] not true and
        prior criminal record which is part of the criminal file, which some of the
        convictions go to truthfulness. But again, I emphasize credibility of
        those testifying are an issue for the Court to determine. I‟m weighing
        that credibility today of those witnesses as I make my determinations
        and final ruling.

        The attorney did as she‟s testified, filed her motion for discovery and
        explained how that policy works with our District Attorney General‟s
        office. The Defendant and Petitioner [ ] says he had asked for certain
        motions to be filed but was not specific really about any motions except
        the question raised on the motion to suppress his statement.

        I do note and clarify for the record, Petitioner today [sic] did file a
        written motion as far as the claims against counsel in this Court. It was
        filed on or about December the 19th of 2011, and I heard that motion in
        open court on January 9th, 2012. I do recall hearing from [Petitioner] as I
        always would, [Petitioner] and from counsel, and denied that written
        motion regarding counsel. I have again reviewed that written motion as
        part of my considerations today. No specifics that I can find in that
        handwritten motion about motions being filed, and any allegations that
        were raised we discussed, and after hearing from counsel and Petitioner,
        I denied the motion. So that was a matter of record and was ruled upon
        by the Court. Again, no other specific motions other than the motion to
        suppress.
                                             10
The attorney says in her sworn testimony, again where I have to give
credibility greater to her, is that there was no question by [Petitioner]
about filing a motion to suppress. He never raised that issue. And she‟s
testified from her professional perspective in representing the Petitioner
why she didn‟t file it.

I do note that [Petitioner] chose to testify at trial, and I questioned
[Petitioner] outside the presence of the jury and went over the litany of
questions that I always do regarding him testifying or not testifying and
his rights, and it was his decision, and if he chose to testify, no one could
prevent him from testifying, for example. And if he chose not to testify,
no one could make him testify. Went through the whole question list
with him, and he, of course, chose to testify. When he testified,
[Petitioner], that day before the jury, he took the position, “Yes, I was
there. I took her purse.” He was so specific, “I took her purse from her
hand.” He gave those details. He did indicate that he didn‟t have a gun,
he got her phone from her hand, but he claimed when he gave that
statement before the jury in his sworn testimony he didn‟t have a gun.
So he pointed out in his own testimony what he felt were the differences
in his statement and his live testimony as to what his position was on the
truth. He had that opportunity, it was heard by the jury. He even told
the jury that the only reason he gave that statement was it would be the
difference in theft of property versus aggravated robbery. He explained
that to the jury when he testified [. . .].

When it came to the statement, of course, there is - - the witnesses
testified, Investigator Richardson, and he went through - - and Sergeant
Colon, and they went through the prior statements of [Petitioner] which
he later changed, they weren‟t true, and then he went through before the
jury the testimony of [Petitioner]. I think it was Exhibit 3 where he gave
a statement, where he admitted the taking of the property, admitted to the
use of the gun, I believe it was a .22 caliber pistol, and the Miranda form
was submitted. That was an exhibit. But the officer laid the foundation,
the groundwork. Again, it was a credibility issue for the jury, and
[Petitioner], now Petitioner‟s testimony, and those investigators and their
testimony, and the jury had to determine who was telling the truth.
That‟s a jury issue at that point in time when you‟re in the course of trial,
the credibility of the witnesses.


                                     11
        There are no missing witnesses. The Petitioner testified today there was
        no one else he would have brought into trial, that was quite clear,
        because he‟s admitted he was there and he took the property.

        I find in the record that it was very clear during the course of the trial
        that Sergeant Colon was cross-examined by [trial counsel], [. . .],
        regarding the color or darkness of the skin of individuals in the photo
        lineup; only three were dark-skinned. That was presented through cross-
        examination. She was also questioning Sergeant Colon about the
        possibility of this victim going to the law enforcement building and
        looking through a mug book on an earlier occasion and not identifying
        [Petitioner] [ ]. And then, of course, on Redirect it was very clear that
        there was no evidence or nobody was sure whether [Petitioner‟s] photo
        would have been in any mug book she would have looked at. So again,
        all these issues were brought out during the course of trial through the
        assistance of counsel, [trial counsel]. I remember the testimony.

        And [trial counsel] has testified that she had numerous, quote numerous,
        end quote, meetings with Petitioner. And Petitioner by his volition at
        some point during those meetings would not want to talk about his case
        with her and would get up and walk away.

        Petitioner did have some strategy decisions to make, one of which was to
        testify.

        The Court finds in reviewing the entire record and for the reasons stated,
        having reviewed each and every issue raised in the original petition filed
        and any amendments thereto, that the Petitioner has failed to carry the
        burden of proof by clear and convincing evidence on issues raised as to
        the ineffective assistance of counsel.

        We conclude that the evidence does not preponderate against the post-conviction
court‟s findings and conclusions. First, Petitioner has not demonstrated that trial counsel
failed to communicate with him. Trial counsel testified that she met with Petitioner on
numerous occasions and attempted to discuss Petitioner‟s case in detail with him. She
said that on “95 percent of those occasions” Petitioner chose to leave the room.
Therefore, any lack of communication was caused by Petitioner himself. Trial counsel
testified: “I can‟t force a client to sit and listen. All I can do is make myself available.”
We find that is exactly what trial counsel did in this case. She made herself available to
Petitioner, and he chose not to cooperate because he did not get what he wanted. Trial

                                             12
counsel also testified that she received one letter from Petitioner to which she responded.
Petitioner has failed to carry his burden of proof as to this claim.

        Next, Petitioner claims that trial counsel‟s performance was deficient because she
failed to file a motion to suppress his confession because it was coerced. We disagree.
Trial counsel testified that Petitioner never asked her to file a motion to suppress, and
Petitioner did not present any clear and convincing proof at the post-conviction hearing
that the statement was coerced other than his testimony that the investigator told
Petitioner that if he signed the statement it would make “the difference between
[Petitioner] [being] charged with theft of property and [Petitioner] being charged with
aggravated robbery.” On direct appeal, this Court noted that Investigator Aubrey
Richardson of the Jackson Police Department testified that he did not tell Petitioner that
Petitioner would be charged with a lesser offense for his cooperation. State v. Marquon
L. Green, No. W2012-01652-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App. April 29,
2014).

        Trial counsel testified that Petitioner admitted to her that he committed the offense
and that what he told police was the truth. The post-conviction court also noted that a
signed Miranda form was presented at trial. Trial counsel testified that she considered
filing a motion to suppress but she could not see any ethical way to file the motion. As
pointed out by the State, even if Investigator Richardson had promised Petitioner that he
would be charged with a lesser offense for his cooperation, “[p]romises of leniency by
state officers do not render subsequent confessions involuntary per se.” State v. Smith,
933 S.W.2d 450, 455 (Tenn. 1996). Petitioner has failed to carry his burden of proof as
to this claim.

        Third, Petitioner argues that trial counsel failed to “discuss his right to testify at
trial, the consequences of such testimony, and to adequately prepare the Petitioner for
testimony.” Trial counsel testified that she recommended that Petitioner not testify, but
he insisted on doing so. Petitioner acknowledged at the post-conviction hearing that the
trial court questioned him about his decision to testify, and the court advised him that it
was his right to testify even if trial counsel advised him not to. Petitioner admitted that it
was his sole decision to testify because he wanted to tell his side of the story. The post-
conviction court also found that Petitioner was properly advised of his rights pursuant to
a Momon hearing at trial. At the post-conviction hearing, Petitioner admitted that he was
at the scene and committed a theft. At trial, Petitioner testified that he took the victim‟s
purse and her phone, but he denied telling Investigator Richardson that he had a gun. On
cross-examination, Petitioner admitted that he did not always tell the truth and that he
would lie to help himself, “[d]epending on how serious it is.” He acknowledged that
aggravated robbery was a serious charge and that “[a] gun makes the situation serious.”
At trial, Petitioner also admitted that he lied to Sergeant Colon about being at his sister‟s
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house. State v. Marquon L. Green, slip op. at 2, 4. The jury chose to disbelieve
Petitioner‟s testimony about the gun.

        Petitioner has not alleged how trial counsel should have prepared him to testify at
trial or that his testimony at trial would have been any different and affected the outcome
of the trial. Petitioner had already signed a confession admitting to the offense, and the
jury was aware that Petitioner lied in the first statement that he gave to Sergeant Alberto
Colon. Petitioner insisted on testifying against trial counsel‟s advice, and he was fully
advised of his rights by the trial court. Petitioner failed to carry his burden of proof as to
this claim.

        Fourth, Petitioner argues that trial counsel failed to “adequately question and
impeach the State‟s witnesses.” He notes that the victim initially did not identify
Petitioner when she looked through the “mug book” and that there was later testimony
that she identified him the first time that she saw the picture. Petitioner also asserts that
trial counsel did not adequately question the investigator to show that the victim was not
initially able to identify Petitioner. Petitioner did not present the testimony of the
investigator at the post-conviction hearing. Also, as pointed out by the post-conviction
court, Petitioner did not present the book of mug shots at the post-conviction hearing to
show that it even contained Petitioner‟s photograph. At trial, trial counsel questioned the
victim about her identification of Petitioner, and trial counsel also questioned Sergeant
Colon about the identification. On redirect examination, Sergeant Colon testified that he
showed the victim a “mug book” and that she did not identify anyone. He later showed
her a photograph array, and she identified Petitioner. The victim ultimately testified that
she had no doubt that Petitioner was the person who robbed her. State v. Marquon L.
Green, slip op. at 2-3.

       Petitioner has not in any way shown that he was prejudiced by trial counsel‟s
performance as to this claim. It was brought out at trial that the victim did not initially
identify Petitioner from the book of mug shots. Moreover, as pointed out by the State,
there was no question that Petitioner was the perpetrator of the offense. Petitioner
admitted at trial that he was at the scene and took the victim‟s purse and phone. His only
point of contention was that the offense was a theft rather than a robbery because he
claimed that he did not have a gun. Petitioner has not demonstrated or even provided an
argument as to how any additional cross-examination of the state‟s witnesses by trial
counsel would have affected the trial in this case. Again, Petitioner failed to carry his
burden of proof as to this claim.

       Finally, Petitioner asserts that appellate counsel was ineffective for failing to raise
the issue of a coerced confession on appeal. The only evidence Petitioner presented on
this claim was that he told appellate counsel about his confession and that appellate
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counsel advised him that the issue needed to be raised in a post-conviction proceeding.
As noted by the State, it is well-settled that an objection to the admissibility of a
confession is waived if not challenged before trial. State v. Foust, 625 S.W.2d 287, 289
(Tenn. Crim. App. 1981); Tenn. R. Crim. P. 12(b)(2)(C), (f). Moreover, Petitioner has
not demonstrated that the outcome of his appeal would have been any different if the
issue had been raised. As we have previously discussed, Petitioner admitted to taking the
victim‟s purse and phone. The only difference in his testimony and his confession was
the use of a gun to commit the offense. Trial counsel testified that she considered filing a
motion to suppress but she did not see any ethical way to file the motion. Petitioner has
failed to prove this claim by clear and convincing evidence.

       Petitioner has failed to establish that trial counsel provided ineffective assistance.
For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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