        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs at Knoxville December 9, 2014

                DAVID LEE LEGGS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2010-D-3048    Cheryl A. Blackburn, Judge




             No. M2014-00866-CCA-R3-PC         - Filed January 27, 2015



Petitioner, David Lee Leggs, appeals the denial of his petition for post-conviction relief.
He claims that he received ineffective assistance of counsel during trial and on appeal.
After thorough review, we affirm the decision of the post-conviction court.

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

T IMOTHY L. E ASTER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J., and A LAN E. G LENN, J., joined.

Elaine Heard, Nashville, Tennessee, for the petitioner, David Lee Leggs.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Glenn R. Funk, District Attorney General; Bret T. Gunn, Assistant District Attorney
General, for the respondent, State of Tennessee.

                                        OPINION

                           Factual and Procedural Background

       On July 27, 2010, Petitioner was indicted by the Davidson County Grand Jury of
four counts of aggravated robbery, one count of attempted first degree murder, one count
of possession of a firearm during the commission of a dangerous felony, and one count of
being a convicted felon in possession of a firearm. Those charges arose from Petitioner’s
participation in an armed robbery of three individuals outside of a Korean restaurant in
West Nashville.
       After a jury trial, Petitioner was convicted of three counts of aggravated robbery.
The jury acquitted Petitioner of the other aggravated robbery charge and could not reach a
verdict on the remaining counts, which were later dismissed. Petitioner received an
effective sentence of fifty years’ imprisonment to be served at 100% because he was
determined to be a persistent offender. Petitioner’s sentence, the propriety of which was
the only issue raised on direct appeal, was affirmed by this Court. State v. David Lee
Leggs, No. M2012-00136-CCA-R3-CD, 2012 WL 6097274, at *1 (Tenn. Crim. App.
Dec. 7, 2012), perm. app. denied (Tenn. Mar. 20, 2013).

        On August 19, 2013, Petitioner filed a pro se petition for post-conviction relief,
and counsel was appointed to assist Petitioner. An amended petition was filed on October
30, 2013, in which Petitioner argued that he received ineffective assistance of counsel at
trial. Specifically, Petitioner complained that trial counsel: (1) failed to consult with him
during critical stages of the trial process; (2) failed to adequately advise him about his
decision to testify; (3) improperly questioned him during the direct examination of his
testimony; (4) failed to diligently pursue a motion to suppress his statement to police; and
(5) failed to properly investigate witnesses.

       The post-conviction court held an evidentiary hearing on December 11, 2013,
during which Petitioner and trial counsel offered the only testimony. Petitioner testified
that he was unhappy with trial counsel’s representation, although it was “all right” in the
beginning. Trial counsel would not file pre-trial motions as requested by Petitioner,
would not communicate with Petitioner at court appearances, and engaged in “several
altercations” with Petitioner on the occasions when they actually met. These altercations
entailed raised voices, “harsh language, jackets pulled off, [and] a lot of that stuff.”
Petitioner clarified that by “altercation” he meant “an argument that almost led into a
fight” with trial counsel. On one occasion, trial counsel laughed at Petitioner and refused
to file “motions for misidentification, photo lineup, and certain motions like that.”
Petitioner felt that his identification was a significant issue in his case. Trial counsel also
refused to file a motion for a bond reduction because it would be denied by the trial court.
The only motion that Petitioner recalled trial counsel filing was a motion to dismiss,
which was denied by the trial court.

      Petitioner asked trial counsel to withdraw his representation, but trial counsel
never filed a formal motion to do so with the court. Eventually, Petitioner personally
asked the court to remove trial counsel because the attorney-client relationship “went
downhill” and was “bad.” However, that request was denied.

       At trial, Petitioner testified in his defense. Petitioner admitted that trial counsel
discussed this decision with him. Petitioner initially intended not to testify because trial
counsel warned him that the prosecution would cross examine him on his criminal

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history. Ultimately, however, Petitioner decided to testify because trial counsel explained
to him that it might “look bad” to the jury if he did not and that it also might help if he
explained to the jury “what happened with the situation.” During the direct examination
of Petitioner, trial counsel inquired about his criminal history, which Petitioner felt was
“real weird.”

        During cross-examination, Petitioner said that he could not recall trial counsel
filing a motion to suppress Petitioner’s statement to police. However, the post-conviction
judge affirmed that a suppression hearing was held on October 3, 2011, a transcript of
which was included in the court file. Petitioner acknowledged that the statement at issue
contained his admission that he “had gotten into it with the owner of the restaurant and
had . . . a fight with him and took his wallet and money.” When the State questioned
Petitioner about the kind of motion that he wanted trial counsel to file, Petitioner stated
that he wanted a motion “to suppress [their] misidentification,” referring to “when [a
victim] got on the stand and said [he or she] couldn’t see the person who robbed [him or
her].” Petitioner admitted that identification by photographic lineup had not occurred in
his case. Petitioner could not articulate a legal basis “to stop [the victims] from coming in
and saying what they saw and whether or not they thought it was [Petitioner] that robbed
them” other than “because they identified the wrong person.”

       Regarding his decision to testify, Petitioner admitted that trial counsel had
discussed the decision with him. Petitioner explained, “He told me I had a choice not to
do it or to do it.” Trial counsel advised Petitioner that, by testifying, he could give the
jury an alternative to the victims’ version of the incident. Petitioner was aware that “it
was ultimately [his] choice” to testify.

        The post-conviction court then questioned Petitioner about his testimony at trial.
Petitioner affirmed that he told the truth when he testified. Petitioner acknowledged that
he testified to being involved in the crime, but he stressed that he did not know that his
co-defendant had a gun and did not “testify that [he] was the one who aggravated robbed
[sic] them with [a] weapon.” Petitioner specifically admitted that he had been present at
the crime with his co-defendant. Petitioner stated that he and trial counsel discussed the
nature of his testimony before he took the stand, and trial counsel was aware that
Petitioner’s narrative would be, “I was there, but I’m [sic] not the one with the gun.”
Additionally, after the post-conviction court refreshed Petitioner’s memory about the
suppression hearing, Petitioner eventually admitted that he remembered the motion to
suppress and the hearing.

       Trial counsel testified that he has been licensed as an attorney for over ten years,
and at the time of Petitioner’s trial, around ninety percent of his legal work was criminal
defense. In addition to the motion to suppress, trial counsel filed a notice of alibi that was

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explained in a letter to Petitioner. However, after an investigation, trial counsel took no
further action on that notice.

       Trial counsel described Petitioner as “aggressive.” Because Petitioner “spoke in a
crude manner,” trial counsel “resorted to communicating through letter[s].” Trial counsel
explained:

       The first letter started in January, and it was a three or four page letter
       explaining the charges for every case. Incorporated in that letter was a plea
       offer from the State. I went to jail and actually handed that to him and gave
       him the discovery at the same time. And then I received a [Board of
       Professional Responsibility] notice in June of 2011. I responded to that. I
       responded to [Petitioner]. And then there were maybe two other letters
       after that. But he was held here in town, so he was brought to court quite a
       bit, and I saw him there.

        Trial counsel confirmed that Petitioner directly asked the court for a new attorney
prior to the trial. Trial counsel explained that this request happened “immediately after
[Petitioner] tried to attack me in the back.” Trial counsel opined that Petitioner had acted
this way “just showing off for the other inmates in the back.” Petitioner’s request for new
counsel was “maybe a week” before the trial.

       Regarding, Petitioner’s decision to testify, trial counsel explained:

       [W]e talked about the pros and cons. Obviously, it’s really important, when
       you have a criminal history as lengthy as his, to let him know it’s going to
       come out. You’re going to get impeached, it’s just part of our process. He
       can do it. I can do it. I feel like, as an attorney, if I don’t do it the jury
       thinks I’m hiding something from them. So I tend to do that before the
       district attorney does it.

Trial counsel believed that Petitioner “did well on the stand” but “didn’t like the result.”
Trial counsel acknowledged that he was of the opinion that it was “important” for
Petitioner to present his version of the incident as an attempt to minimize his role in the
incident.

       I tried to explain beforehand that [Petitioner’s version] still doesn’t alleviate
       the criminal responsibility component of this crime. Maybe the jury will go
       for it with the jury nullification. But at the end of the day, he had put
       himself there, he had admitted to being there, he admitted to taking property
       that wasn’t his. That is per se robbery.

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       As to his overall performance, trial counsel reasoned, “I think the result was good
from a legal perspective. [Petitioner] was charged with six counts. He was convicted of
three. One of those was attempted first degree. You know, I hung the jury.” Trial
counsel did not “feel like there’s anything that [he] would have done differently or argued
differently in retrospect.”

        During cross-examination, trial counsel provided more details about the altercation
that he had with Petitioner preceding Petitioner’s request for new counsel. Trial counsel
denied that he had been aggressive with Petitioner but admitted that he had removed his
suit jacket during the encounter in an attempt to avoid having it soiled.

       [Trial Counsel]: If I remember the discourse between us, he called me a
       “punk-ass bitch.” I took off my jacket and said jump.

       [Post-Conviction Counsel]: So you invited him to hit you basically?

       [Trial Counsel]: If he’s going to jump at me, act aggressively towards me, I
       have every right to defend myself. This is a true man state.

       [Post-Conviction Counsel]: And so, is that how you feel an attorney should
       handle situations like that?

       [Trial Counsel]: At that point, I wasn’t an attorney. . . .

              ....

       [Post-Conviction Counsel]: Are you stating for the Court you were not his
       attorney at the time?

       [Trial Counsel]: I’m stating that I was being attacked, and I was defending
       myself.

Trial counsel also expressed his belief that Petitioner had been using the altercation as an
attempt to delay the impending trial because, after his request for new counsel was
denied, Petitioner began cooperating well with counsel.

       At the end of the hearing, the court made exhibits of the transcript of the trial and
the motion to suppress and took the matter under advisement. On April 23, 2014, the
post-conviction court entered an order denying post-conviction relief. Petitioner timely
appealed.

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                                                  Analysis

        On appeal, Petitioner contends that that the trial court erred in denying his petition
for post-conviction relief because of ineffective assistance of trial counsel. Specifically,
Petitioner contends (1) trial counsel’s poor performance resulted in a heated altercation,
after which Petitioner requested new counsel; (2) trial counsel refused to file a motion to
challenge the victim’s identification or a motion for bond reduction; and (3) trial counsel
failed to adequately advise Petitioner of the nature and consequences of testifying at trial.
Petitioner also claims that he received ineffective assistance of appellate counsel because
appellate counsel only raised one issue on direct appeal and omitted a challenge to the
sufficiency of the evidence. The State argues that the trial court properly denied the
petition because Petitioner has failed to satisfy either the deficiency or prejudice
requirements by clear and convincing evidence. The State further argues that Petitioner’s
claim of ineffective assistance by appellate counsel is waived because it was not raised in
the post-conviction court. We agree with the State. See State v. Smith, 436 S.W.3d 751,
775 n.16 (Tenn. 2014) (citing State v. Bishop, 431 S.W.3d 22, 43-44 (Tenn. 2014))
(observing that “issues are generally waived unless they were raised in or presented to the
trial court”).1

                                         A. Standard of Review

       Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, this Court
gives deference to the post-conviction court’s findings as to witness credibility, the
weight and value to be given to testimony, and the factual issues raised by the evidence.
Momon, 18 S.W.3d at 156 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)).
This Court will not re-weigh or re-evaluate the evidence presented below and is bound by
the findings of the post-conviction court unless the evidence preponderates otherwise.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). However, the post-conviction court’s
1


 We also note that, from our review of the record and the briefs, it appears that Petitioner does not raise on
appeal all issues that were identified in his petition and amended petition. Any issues that were raised in the
post-conviction court but that have not been pursued on appeal are deemed abandoned. See Ronnie Jackson,
Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. Oct. 26, 2009)
(“While the Petitioner raised additional issues in his petition for post-conviction relief, he has abandoned
those issues on appeal.”).
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conclusions of law and application of the law to the facts are subject to de novo review
with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

                            B. Ineffective Assistance of Counsel

       Both the Sixth Amendment to the Constitution of the United States and Article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. Burns, 6 S.W.3d at 461. In order to receive post-conviction relief
based on a claim of ineffective assistance of counsel, a petitioner must show that trial
counsel’s performance was deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Burnett v. State, 92 S.W.3d
403, 408 (Tenn. 2002). Because a petitioner must establish both elements in order to
prevail on a claim of ineffective assistance of counsel, “failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the claim.”
Henley, 960 S.W.2d at 580.

        To establish deficient performance, a petitioner must show that counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms. Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. Counsel’s
performance is considered reasonable “if the advice given or the services rendered [were]
within the range of competence demanded of attorneys in criminal cases.” Henley, 960
S.W.2d at 579 (citing Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). This Court
“should indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Burns, 6 S.W.3d at 462. A petitioner is not
entitled to the benefit of hindsight to second-guess a reasonably based trial strategy or a
sound, but unsuccessful, tactical decision. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). To establish prejudice, a petitioner must show that “there is 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.” Burns, 6 S.W.3d at 463 (quoting Strickland,
466 U.S. at 694).

       Although offered on appeal as a supporting basis for his ineffectiveness claim,
Petitioner does not articulate exactly how the physical altercation with trial counsel
constitutes ineffective assistance. Petitioner did not identify this occurrence in his initial
pro se petition or in his amended petition for post-conviction relief; however,
considerable attention was given to it during the post-conviction hearing. In its order, the
post-conviction court briefly mentioned the encounter for the effect it had on the
allegedly ineffective communication that trial counsel maintained with Petitioner



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throughout the trial process.2 The post-conviction court did not consider the altercation as
an independent basis for ineffective assistance. Because it was not presented to the post-
conviction court as an independent basis for ineffective assistance, we deem this
argument waived. Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2013).

       Yet, even if we did consider this argument on its merits, it would not entitle
Petitioner to relief. A dispute between a defendant and trial counsel may constitute
ineffective assistance where the altercation or disagreement creates an actual conflict of
interest. See, e.g., Thaddeus Johnson v. State, No. W2014-00053-CCA-R3-PC, 2014 WL
7401989, at *5 (Tenn. Crim. App. Dec. 19, 2014). However, the post-conviction court
expressly accredited trial counsel’s testimony, and trial counsel testified that the
altercation and any other personal disputes were the direct result of Petitioner’s own
inappropriate behavior toward trial counsel. Petitioner may not take advantage of a
“conflict of [his] own creation.” Id. at *8. This issue is without merit.

        Regarding trial counsel’s failure to file pre-trial motions as requested by Petitioner,
the post-conviction court credited trial counsel’s testimony that “there was no legal basis
to file any pre-trial motions other than the motion to suppress statement that he filed.”
We conclude that this issue is also without merit. Petitioner could not articulate any
reason or legal basis to suppress the testimonies of the victims who positively identified
him or the testimony of any victim who could not. Any disagreement with the testimony
of the victims was a matter to be pursued on cross-examination or closing argument, not
by pre-trial motion. Additionally, there was no photo lineup that could have been
challenged as unfairly suggestive. Moreover, as indicated by trial counsel, there was
considerable circumstantial evidence and Defendant’s own testimony3 that proved that
Petitioner was, in fact, present during and involved in the commission of the crimes for
which he was convicted.4 Trial counsel’s conduct was not deficient by refusing
Petitioner’s request to file a baseless motion.

2
 In his brief, Petitioner does not mention or discuss the post-conviction court’s finding that trial counsel
did not render ineffective assistance for lack of communication. Thus, we deem this argument abandoned
or waived.
3


 During the post-conviction hearing, trial counsel stated that he was “at a loss to come up with a defense
theory” given the substantial amount of incriminating evidence against Petitioner.
4


 It seems that Petitioner misunderstands the concept of criminal responsibility, on which the jury was
instructed by the trial court. See generally, State v. Dickson, 413 S.W.3d 735, 744 (Tenn. 2013) (“Criminal
responsibility is not a separate crime, but ‘a theory by which the State may prove the defendant’s guilt of the
alleged offense . . . based upon the conduct of another person.’” (quoting State v. Lemacks, 996 S.W.2d 166,
170 (Tenn. 1999))). “A separate indictment for criminal responsibility is unnecessary when a defendant has
been indicted for the primary offense.” State v. Sherman, 266 S.W.3d 395, 408 (Tenn. 2008) (citing Lemacks,
996 S.W.2d at 170; State v. Barnes, 954 S.W.2d 760, 763 (Tenn. Crim. App. 1997)).
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       As for trial counsel’s refusal to file a motion for bond reduction, Petitioner has not
offered any evidence or argument as to the probability that the outcome of the proceeding
would have been any different had trial counsel heeded Petitioner’s request on this matter.
Petitioner is not entitled to relief on this basis.

       Petitioner’s final argument is that trial counsel failed to adequately advise
Petitioner of the nature and consequences of his decision to testify at his trial.
Additionally, Petitioner asserts that he was unaware that trial counsel was going to
question him about his criminal history during direct examination. The post-conviction
court found that Petitioner failed to prove these claims by clear and convincing evidence.
We agree. The evidence in the record wholly fails to support Petitioner’s argument. At
the post-conviction hearing, Petitioner admitted, multiple times, that trial counsel
discussed this decision with him and that Petitioner knew it was his decision to make.
Petitioner also admitted that trial counsel informed him that he would be questioned about
his criminal history if he chose to testify. Petitioner also admitted that he made his
decision to testify after trial counsel informed him that it would be his opportunity to tell
the jury his side of the story and to explain why the State’s theory of the case was
inaccurate. Petitioner further admitted that trial counsel then helped him prepare for his
testimony, which was, in essence, “I was there, but I [was] not the one with the gun.”
Petitioner testified accordingly. We agree with trial counsel’s summation that Petitioner
simply “didn’t like the result” of the trial, despite only being convicted on three of seven
charges.

       Furthermore, we find no fault in trial counsel’s decision to question Petitioner
about his criminal history on direct examination, a common strategy for building
credibility and rapport with the jury. Even if Petitioner was not aware that trial counsel
was going to broach this subject matter, Petitioner has not shown any prejudice from his
doing so. Petitioner merely expected this questioning to come from the prosecution
instead.

                                        Conclusion

       After a careful review of the arguments and the record, we conclude that Petitioner
failed to prove his claim of ineffective assistance by clear and convincing evidence.
Therefore, the denial of post-conviction relief is affirmed.



                                                   _________________________________
                                                   TIMOTHY L. EASTER, JUDGE


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