         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs December 10, 2002

             CHICO LOPEZ CHIGANO v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                         No. 37812     Richard Baumgartner, Judge



                                  No. E2002-00536-CCA-R3-PC
                                          April 2, 2003

The petitioner, Chico Lopez Chigano, appeals the trial court's denial of his petition for post-
conviction relief. In this appeal, he asserts that he was denied the effective assistance of counsel at
trial. The judgment of the trial court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT, JR., JJ., joined.

Mark E. Stephens, District Public Defender (on appeal); and Timothy M. McLaughlin (on appeal)
and John Halstead (at trial), Assistant Public Defenders, for the appellant, Chico Lopez Chigano.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, the State of
Tennessee.

                                             OPINION

         In January 1980, the petitioner was convicted of aggravated robbery, robbery, and aggravated
assault. On direct appeal, this court affirmed the convictions. See State v. Chico Lopez Chigano,
Nos. 674, 861 (Tenn. Crim. App., at Knoxville, Oct. 25, 1982). In July of 1989, the petitioner filed
a petition for post-conviction relief, which was dismissed as barred by the statute of limitations. See
Chico Lopez Chigano v. State, No. 03C01-9405-CR-00166 (Tenn. Crim. App., at Knoxville, Jan.
9, 1995). The petitioner appealed the dismissal and this court reversed, finding that the petition was
not time-barred. See id. Upon remand, the trial court conducted an evidentiary hearing and
concluded that the petitioner was not entitled to relief. The petitioner's motion for rehearing was
denied.

        The petitioner's convictions arose from the 1979 robbery of Doris' Deli in Knoxville. This
court summarized the facts as follows:
                On June 11, 1979, at approximately 7:00 to 7:30 p.m., two men came into a
        deli and robbed the owner by taking over four hundred dollars ($400.00) from the
        cash register. One of the men, who was later identified as the defendant, took the
        purse of a woman customer, which contained two hundred dollars ($200.00). A male
        customer refused to surrender his wallet, and the defendant beat him with a pistol.
        The other man hit the customer with a stool causing the customer to lose
        consciousness.

               The owner of the delicatessen and the two customers identified the defendant
        as one of the men who committed the crimes.

                 The defendant testified that he was not at the deli at the time stated by the
        state's witnesses and denied he committed these crimes. The defendant called other
        witnesses to support his alibi defense.

Chigano, Nos. 674, 861, slip op. at 1.

         At the evidentiary hearing, the petitioner claimed that his trial counsel failed to adequately
investigate the crime and failed to adequately communicate with him prior to trial. He contended
that trial counsel spent no more than fifteen minutes discussing the case with him. The petitioner
specifically alleged that trial counsel was ineffective by failing to file a motion to suppress Doris
Johnson's identification of him, which, he claims, was conducted in violation of his right to counsel.
He insisted that he had asked to speak with an attorney before the lineup took place and was tricked
into signing a waiver of his right to counsel. The petitioner testified that the lineup was composed
of individuals who were much taller, heavier, and with lighter complexions and more facial hair.
He claimed that the trial court failed to provide an instruction on eyewitness identification and his
trial counsel failed to make a special request for the instruction.

         The petitioner also contended that trial counsel was ineffective for failing to seek suppression
of Ollie Ruggles and Lowell Drummer's identification of him, which took place at the preliminary
hearing. According to the petitioner, the identification procedure was "highly suggestive" because
he was wearing prison attire. The petitioner claimed that his trial counsel deprived him of the right
to testify by interrupting his statement about a prior altercation with Sherry Netherton, a witness for
the state. He testified that approximately one month before the robbery, Ms. Netherton had accused
him of stealing a large bag of dog food from a grocery store where she worked. The petitioner stated
that Ms. Netherton had used racial slurs during the argument. It was his contention that the earlier
altercation motivated both Ms. Netherton and her co-worker Donna Stout, another state witness, to
testify against him at trial.

       During cross-examination, the petitioner acknowledged that trial counsel thoroughly cross-
examined Ms. Johnson regarding her pretrial identification. He admitted that it was trial counsel
who first emphasized the differences in the height and weight of other members of the lineup and



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conceded that trial counsel had pointed out that Ms. Ruggles and Drummer could not identify him
from a photographic array.

        Trial counsel, who had practiced primarily criminal law for twelve years at the time of the
petitioner's trial, testified that he graduated first in his law school class, was a founding member of
the Tennessee Association of Criminal Trial Lawyer's Association, and had written several law
review articles relating to the criminal law. While unable to recall much of the petitioner's trial, trial
counsel stated that the focus of his investigation and defense was to discount the identification by
Ms. Johnson and to establish an alibi. He testified that he had talked with the petitioner many times
about trial strategy and was "absolutely" prepared for trial. He stated that he placed special emphasis
on the fact that no state witness had testified that the perpetrator had a gold tooth, as did the
petitioner.

        Trial counsel explained that he did not ask for an evidentiary hearing regarding the propriety
of the lineup prior to trial because he had been assured that he would be permitted to conduct his
own lineup during the course of the trial. Although he did not actually utilize a lineup during trial
and could not recall why he had chosen not to do so, trial counsel contended that a motion to
suppress the results of the lineup would not have been successful. It was his recollection that
because Ms. Johnson was so positive in her identification of the petitioner, he chose not to reinforce
her identification with an in-trial procedure. Trial counsel could not recall whether the petitioner
was identified by witnesses for the state at the preliminary hearing; in fact, he could not remember
whether a preliminary hearing had been held. He was also unable to recall whether the petitioner
had informed him about the prior altercation with Ms. Netherton.

        At the conclusion of the evidentiary hearing, the trial court observed as follows:

                [Trial counsel] further testified that while he was prepared to ask the court for
        another line-up before trial, that he abandoned this idea after having the opportunity
        to again talk with Ms. Johnson, the principle victim, on the morning of trial. He was
        afraid that any new line-up would further incriminate his client and felt that the best
        strategy was to defend on the basis that they had identified the wrong individual.
        After hearing this explanation, this court was of the opinion that this was sound trial
        strategy by [trial counsel]. He thoroughly cross-examined all the witnesses with
        respect to their identification of [the petitioner], including establishing that Ms.
        Lauderdale was subsequently employed by Ms. Johnson, and was able to display for
        the jury the Petitioner's gold tooth and scar. The jury, as was their prerogative,
        concluded that the testimony of the witnesses established that [the petitioner] was the
        person who had committed the robbery and assault. There is no merit to [the
        petitioner's] complaints as it regards the identification issues or use of the line-up
        evidence.

Although the trial court made no specific finding with regard to the petitioner's allegations that trial
counsel deprived him of the right to testify regarding the prior altercation with Ms. Netherton, it did


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find that trial counsel "performed admirably" in defending the petitioner. The trial court determined
that trial counsel had "fully investigated and prepared the case for trial, and presented a vigorous
defense at trial," performing "well above the standards established by applicable case law."

        In this appeal, the petitioner continues to assert that his trial counsel was ineffective by failing
to seek suppression of the identifications made by Ms. Johnson, Ms. Ruggles, and Drummer. In
addition, he asserts that trial counsel deprived him of the constitutional right to testify by preventing
him from testifying about a prior altercation with Ms. Netherton.

        Under our statutory law, the petitioner bears the burden of proving the allegations in his post-
conviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f).
Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy
of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). Claims of ineffective assistance of counsel are regarded as mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). On appeal, the findings of fact made by the post-conviction court are conclusive and will not
be disturbed unless the evidence contained in the record preponderates against them. Brooks v.
State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that
the evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.
App. 1978). The credibility of the witnesses and the weight and value to be afforded their testimony
are questions to be resolved by the trial court. Bates v. State, 973 S.W.2d 615 (Tenn. Crim. App.
1997). When reviewing the application of law to those factual findings, however, our review is de
novo, and the trial court's conclusions of law are given no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. England, 19 S.W.3d 762, 766 (Tenn.
2000).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below "the range
of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the
defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, he is not entitled to relief. Our supreme court described the standard of review
as follows:

                Because a petitioner must establish both prongs of the test, 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 defendant makes an insufficient showing
        of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).




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        On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

         The trial court fully accepted the explanation of trial counsel as to the lack of a pretrial
challenge to the identification made by Ms. Johnson. To choose not to risk the reinforcement of an
earlier identification with an in-trial lineup does, in our view, qualify as a legitimate tactical decision.
The evidence does not preponderate against the finding of the trial court that trial counsel's
performance in that regard was not deficient.

        Moreover, the petitioner has failed to establish that a motion to suppress would have been
successful, a prerequisite for the grant of relief. In Neil v Biggers, the United States Supreme Court
established a two-part analysis to assess the validity of a pre-trial identification. 409 U.S. 188,
198-99 (1972). First, the court must determine whether the procedure used to obtain the
identification was unduly suggestive. Id. at 198. A violation of due process has occurred if the
identification procedure is so suggestive as to give rise to a very substantial likelihood of irreparable
misidentification. Id. If the court finds that the identification procedure was unduly suggestive, the
court must determine whether, under the totality of the circumstances, the identification is
nevertheless reliable. Id. at 199; State v. Brown, 795 S.W.2d 689, 694 (Tenn. Crim. App. 1990).
This standard was adopted by our supreme court in Bennett v. State, 530 S.W.2d 511, 512-15 (Tenn.
1975). A finding that the pre-trial identification was unreliable will also require the exclusion of a
subsequent in-court identification by the same witness. State v. Philpott, 882 S.W.2d 394, 400
(Tenn. Crim. App. 1994). Factors to be considered in determining whether a violation of due
process has occurred are

        (1) the opportunity of the witness to view the criminal at the time of the crime;
        (2) the witness' degree of attention at the time of the crime;
        (3) the accuracy of the witness' prior description of the criminal;
        (4) the level of certainty demonstrated at the confrontation; and
        (5) the time elapsed between the crime and the confrontation.

Neil, 409 U.S. at 199; see also Philpott, 882 S.W.2d at 400.

        The record establishes that Ms. Johnson, Ms. Ruggles, and Drummer each testified at trial
that they had a good opportunity to observe the petitioner during the robbery in good lighting and
at close range. Ms. Johnson testified that the perpetrators were inside the deli for approximately ten
minutes. She also stated that she recognized the defendant as one of the perpetrators because he had
been a customer at the deli prior to the robbery. Each of the three witnesses testified that their
attention was focused on the perpetrators during the entire course of the robbery. Despite vigorous
cross-examination by trial counsel, each professed certainty that the petitioner was one of the two


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perpetrators. Under these circumstances, it is our view that a motion to suppress the pretrial
identifications would not likely have been successful. In consequence, the petitioner has failed to
demonstrate that he was prejudiced by trial counsel's failure to seek suppression.

        The petitioner next contends that trial counsel deprived him of the right to testify by
interrupting his testimony regarding the prior altercation with Ms. Netherton. The state asserts that
the claim is without merit because the petitioner did, in fact, testify on his own behalf.

         It is well established that a criminal defendant has a constitutional right to give testimony
under both the state and federal constitutions. Momon v. State, 18 S.W.3d 152, 157 (Tenn. 1999).
Article I, section 9 of the Tennessee Constitution has been interpreted to require that “in all criminal
prosecutions the accused has the right to testify as a witness in his own behalf and to be represented
by counsel.” Id. (citing State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976)). In Rock v. Arkansas,
483 U.S. 44, 50 (1987), the United States Supreme Court declared that the right of a criminal
defendant to testify in his own behalf was essential to the due process of law. Because the right to
testify is fundamental, it may only be waived by the defendant. Momon, 18 S.W.3d at 161 (citing
Jones v. Barnes, 463 U.S. 745 (1983); State v. Blackmon, 984 S.W.2d 589, 591 (Tenn. 1998);
Vermilye v. State, 754 S.W.2d 82, 88 (Tenn. Crim. App. 1987)).

        The following exchange took place during the petitioner's direct examination:
        [Defense Counsel]: And then were there any other occasions, before the police came
        over to your job on July the 11th, that anybody mentioned [the robbery] to you?
        [Petitioner]: Well, to my knowledge, I don't really think--I'm just talking for myself,
        I don't think this had anything to do with this, but all of this must have happened out
        in the IGA Store, which I told you about.
        [Defense Counsel]: Well, we will get to that in a second. No one else had--after you
        saw the two gentlemen, one of them you worked with, down at the fish market on
        McCalla, you didn't hear anymore from anybody until the officers came over to your
        job on July the 11th?
        [Petitioner]: No, sir.

At the evidentiary hearing, the petitioner testified that he would have fully described the altercation
with Ms. Netherton had he been permitted to continue. He contends that this testimony would have
established a motive for Ms. Netherton and, by implication, Ms. Stout to testify against him.
Initially, the petitioner has failed to establish how the actions of his trial counsel unilaterally deprived
him of the right to testify. See Gregory Morgan v. State, No. 03C01-9611-CR-00404 (Tenn. Crim.
App., at Knoxville, Jan. 15, 1999). Further, the petitioner was unable to persuade the trial court that
had he been able to explain his past relationship with Ms. Netherton, the verdict would have been
different. Again, the proof presented at the evidentiary hearing does not preponderate against the
finding by the trial court that the petitioner is not entitled to relief.

        Accordingly, the judgment of the trial court is affirmed.



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      ___________________________________
      GARY R. WADE, PRESIDING JUDGE




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