        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                            MARCH SESSION , 1998          May 14, 1998

                                                     Cecil W. Crowson
STATE OF TENNESSEE,            )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9612-CR-00529
                               )
      Appellee,                )
                               )
                               )    DAVIDSON COUNTY
VS.                            )
                               )    HON. J. RANDALL WYATT, JR.
JAMIL BUTLER,                  )    JUDGE
                               )
      Appe llant.              )    (Aggravated Robbery)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT J. MENDES                    JOHN KNOX WALKUP
209 T enth Av enue S outh           Attorney General and Reporter
Nashville, TN 37203
                                    DEB ORA H A. T ULLIS
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    PAUL DEWITT
                                    Assistant District Attorney General
                                    Washington Square, Suite 500
                                    222 Se cond A venue N orth
                                    Nashville, TN 37201-1649



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION

       The Defe ndan t, Jam il Butler, a ppea ls as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. He was convicted by a Davidson

County jury of one count of aggravated robbery and sentenced as a standard,

Range I offender to twelve years imprisonment. He appeals his conviction,

raising the following issues for our review: (1) That the trial court erred in denying

the Defendant’s motion to suppress the identification of him from a photo graph ic

lineup; (2) that the trial court erred in allow ing the State’s witnesses who viewed

the imperm issibly sugg estive pho tograph ic lineup to testify at tr ial; (3) that the trial

court erred in allowing the jury to view surveillance ph otos from an other robbery;

(4) that the trial court e rred in d enying the De fenda nt’s motion to dismiss because

the audiotape of the preliminary hearing was lost; (5) that the evidence was

insufficient to support a verdict of guilt; and (6) that trial counsel rendered

ineffective a ssistanc e. W e affirm the judgm ent of the tria l court.



       On the evening of November 10, 1994, Jason Lee McCawley, La vell

McElra th and B arry Ste wart w ere wo rking th e even ing sh ift at the L ittle Cae sar’s

pizza restaurant on McGavock Pike in Nashville, Tennessee. The restaurant was

a take-out facility so that the front co unter was six to eight feet from the front

doors.    There were two benches for persons to wait, and shelving and the

preparation area were behind the cash register at the front. The front of the

business was well-lit from six fluorescent lights in the ceiling. McC awley’s w ife

was also present in the restaurant, but was n ear the back and d id not observe the

incident in questio n. During the even ing, a black male entered the establishment



                                             -2-
and walked straight to the front counter. This person was later identified as the

Defenda nt. McCawley was working the register that night. The Defendant

approached him, put a dollar bill on the counter, and asked for change for a pay

phone that was located across the street. When McCawley opened the register

to get the change, the Defendant began reaching for bills with his left hand.

McCawley grabbed the Defendant’s hand, pushed it aside, and started asking the

Defendant what he was doing. The Defendant pulled a g un from his right po cket.

McCawley saw the Defendant’s face and described him as being in his late

twenties, having high cheekbones, rough shaven and with b loodsh ot eyes. He

was wearing a baseball cap and some type of football jacket. McCawley noticed

small scars on the Defendant’s left hand.



      McCawley raised his hands and briefly looked to the left where McElrath

was standing taking a phone order at approximately an arm’s length distance

away. McCawley grabbed McElrath and pushed him toward the back of the

store. The Defendant continued to grab the money from the register.                He

appeared to be slightly hurried, but also appeared calm. McCawley activated a

silent alarm when he got to the back of the store. He estimated that he had

contac t with the D efenda nt for app roximate ly twenty to thirty s econd s.



      Lavell McElrath was answering the telephone when the Defendant walked

into the restaurant. He was located a bout three feet from the cash reg ister.

McElra th saw the Defendant ask for cha nge, re ach in the ca sh reg ister, the n pull

a gun when McCawley tried to push his hand away. McElrath also saw the

Defe ndan t’s face and described him as somewhat rough shaven with a

mustache, and that he was wearing a cap and a winter ja cket. T he De fenda nt’s

                                          -3-
eyes were brown and he had bump s aroun d his mu stache . He estimated that he

saw the Defendant for twenty to thirty seconds. McElrath dropped the telephone

and McCawley pushed him to the back. McCawley was yelling “We’re getting

robbed! W e’re getting robbe d!”



      Barry Stewart, the store manager, was at the “make station” assembling

a pizza, when the De fendan t cam e in. Th e ma ke sta tion wa s locat ed dire ctly

behind the telephones. Stewart glanced up when he heard the Defendant come

into the store, then returned to his work. He then saw McCawley running toward

him, yelling that they were being ro bbed. Stew art looked at the front and saw the

Defendant with a gun, taking money out of the cash register. Stewart described

him as six feet tall, wearing a blue ba seball cap an d dark clothing. His eyes w ere

bloodshot and he had high cheekbones. He estimated that the Defendant was

in view for thirty seconds to a minute and that he was fifteen to twe nty feet away.

Stewart said that nothing blocked his view of the Defendan t. Stewart and the

Defendant briefly made eye contact.       The Defendant then turned and left the

restaura nt.



       On November 11th, Detective Danny Collins went to the L ittle Cae sar’s

restaurant and show ed McE lrath and McC awley a series of surveillance

photographs. Still photos had been taken from a video camera during a robbery

at a Speedway convenience store one day before the Little Caesar’s robbery.

The suspect in that robbery resem bled th e pers on de scribe d by the Little

Cae sar’s victims. Collins was sh owing the ph otos to McC awley, who stated that

he thought they looked like the Little Caesar’s robber. As McCawley was looking,




                                         -4-
McElra th walked up behind McCawley, looked over his shoulder and said that the

photo loo ked like the Little Caes ar’s robb er.



       McCawley saw the De fendant app roximately two we eks after the robb ery

walking on Riverside D rive, which is three block s from Little Cae sar’s.

Appr oxima tely five days later, McElrath w as leaving for work and saw the

Defendant walking through some bushes two houses down from his home. He

estimated that the Defen dant was thirty to forty feet aw ay. McElrath steppe d into

his yard to get a better view. He told his mother, who reported it to the police.

Stewart also saw the Defendant walking down the street in the area near the

store within a week after the robbery. Stewart called the police to report what he

saw.



       The Defenda nt was even tually located and a rrested. On N ovembe r 29,

1994, Detective Collins went to Little Caesar’s and showed McElrath an d Stewart

a photo lineup. It consisted of photographs of six subjects, including that of the

Defendant. McElra th looked at the lineu p first and ide ntified the D efenda nt.

Stewart then viewed the photos and identified the Defendan t. McElrath and

Stewart were ke pt apart a nd viewe d the lineu p indep enden tly. Detective Collins

returned to Little Caesar’s on December 1, 1994, and showed McCawley the

photo line up. McC awley also identified the Defen dant.



       The Defendant was indicted on one count of aggravated robbery. After a

jury trial, he was found guilty on Decem ber 12, 1995 , and the trial court

sentenced him to twelve years as a stan dard, R ange I offend er. He now a ppea ls

his conviction.

                                          -5-
                                            I.



       The Defenda nt argues that the trial court erred in de nying his m otion to

suppress the in court identification of him by witnesses because their testimony

was based on a photographic lineup.          On a motion to supp ress, d eferen ce is

given to the trial court to assess the credibility of the witnesses and determine

issues of fact and the prevailing party is entitled to the strongest legitimate view

of the evide nce. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The findings

of fact of the trial court at a suppression hearing will not be disturbed on appeal

unless th e eviden ce in the re cord pre ponde rates oth erwise. Id.



       "Convictions based on eyewitness identification at trial following a pretrial

identification by photo graph w ill be set aside on that gro und on ly if the photo

identification was so imperm issibly suggestive as to give rise to a very substantial

likelihood of irrepara ble misid entification." Simm ons v. United States, 390 U.S.

377, 384, 88 S.Ct. 96 7, 971, 19 L.Ed.2d 1247 (1 968). A p retrial confro ntation

procedure may be unlaw ful if it is unnece ssarily sug gestive an d cond ucive to

irrepa rable mistake n identificatio n unde r the totality of the circums tances . Stova ll

v. Denno, 388 U.S. 293, 302, 87 S.C t. 1967, 1972, 1 8 L.Ed.2d 1 199 (1967 );

Moo re v. Illinois , 434 U.S. 22 0, 227, 98 S.C t. 458, 464, 54 L.E d.2d 424 (19 77).



       Although it may be suggestive, an identification may sa tisfy due process

as reliable and ad missible when considering the totality of the circumstances.

See State v. Brown, 795 S.W.2d 689, 694 (Tenn. Crim. App. 1990). Five factors

are to be considered when evaluating the propriety of the identification process.

Neil v. Biggers, 409 U.S. 18 8, 199, 93 S.C t. 375, 382, 34 L.E d.2d 401 (19 72);

                                            -6-
Benn ett v. State, 530 S.W .2d 511 , 514 (T enn.), reh’g. denied (Tenn. 1975).

These are the opportunity the witness had to view the criminal at the time of the

crime, the witness’ degree of attention, the accuracy of the witnesses’ prior

description of the crim inal, the leve l of certainty of the witness at the confrontation

and the time between the crime and the confrontation. Brown, 795 S.W.2d at

694.



       The Defendant contends that the photo lineup was tainted by two

witnesses’ prior viewing of the Speedway surveillance photos. He claims that the

surve illance photos looked like him an d when the witnes ses view ed the p hoto

array several weeks later, the earlier photo suggested that the Defendant was the

robber. The trial court conducted a full suppression hearing regardin g the ph oto

lineup on December 1st and 4th, 1995. The trial judge first concluded that the

witness Barry Stewa rt would be permitted to testify regarding his identification of

the Defendant in the photo lineup. The trial judge found that Stewart had never

viewed the Speedway photos and was expos ed to no pote ntially suggestive

influences. The D efenda nt had argued that Stewart and McElrath viewed the

photo array together, howeve r, Detective Collins an d both witnesses testified that

they were not together no r did they discuss the photos. Th e trial court obviou sly

resolved this issue in favor of the State. We cannot conclude that the evidence

preponderates against the trial court’s findings regarding this witness. Thus,

having concluded that no sugge stive procedure occurred for Stewart, no

application of the Biggers factors wa s indicate d.



       The trial court then evaluated the suggestiveness of the Speedway

surveillance photos on the identification of the Defendant in the photo lineup as

                                           -7-
was made by McCawley and McElrath. The trial court noted that McCawley

testified that although he thought the Speed way photos looked like the rob ber,

he base d his identification of the Defendant on his face-to-face conta ct with h im

at the Little Caesar’s rob bery. The trial court also considered that the Speedway

photos were viewed several weeks before the photo lineup was produced. The

trial court also noted that McElrath testified that he viewed the Speedway photos

and thought they look ed like the perpe trator of the Little Caesar’s robb ery.

Howeve r, he sta ted tha t he sa w the D efend ant wa lking in his neighborhood

shortly after the robbery. McElrath also based his identification of the Defendant

in the lineu p on his p ersona l encoun ters with him .



       Finally, the trial court stated that the Speedway surveillance photos were

unclear, taken from a distance, and revealed merely a similar figure wearing a

base ball cap. The trial judge found the photos would be difficult to use to ide ntify

a suspect. Moreover, the trial court noted that the Defendant never acknowledged

that he was the pers on in the Spe edway ph otos and tha t there was no real issue

of the identification of him. The trial court concluded that the Speedway photos

were not the basis for the later identification of the Defendant. Furthermore, even

if considering that the photos were suggestive, the trial court found that under

Biggers, the witnesses had the opportunity to view the Defendant during the

crime, their atte ntion w as foc used on him , there was very little doubt about the

witnesse s’ certainty, a nd the ide ntification wa s close in tim e to the rob bery.



       W e have reviewed the testimony at the suppression hearing, the

argum ents of counsel an d the findings of the trial cou rt. From the reco rd before

us, we cannot conclude that the evidence preponderates against the trial c ourt’s

                                          -8-
findings.   There fore, we c onclud e that the tria l court properly denied the

Defe ndan t’s motion to suppress the witnesses’ identification testimo ny. Th is

issue is w ithout me rit.



                                           II.



       The Defen dant ne xt asserts that the trial court erred by denying his motion

to exclude witness testimony from those who viewed the Speedway photos, thus

denying him a fair trial. He contends that Rule 403 of the Tennessee Rules of

Evidence applies a nd that the testimon y should have be en exclu ded be cause “its

probative value [was] s ubsta ntially ou tweigh ed by th e dan ger of u nfair prejudice .”

He also asserts that he was deprived of his right to confront th e witnesses

against him fully as provided by the Sixth Amendment to the United States

Constitution and Article 1, Secti on 9 of the Tennessee Constitution. The

confrontation clause of the Sixth Amendment provides two types of protection for

criminal defendants: the right to physically face those who testify against him,

and the right to cros s-exam ine witnes ses. Pennsylvan ia v. Ritchie , 480 U.S. 39,

51, 107 S.C t. 989, 998 , 94 L.Ed .2d 40, 53 (1 987); State v. Middlebrooks, 840

S.W .2d 317 , 332 (T enn. 19 92).



       The Defendant contends that in order to cross-examine the witnesses fully,

he would be required to explore the effect of the Speedway photos, putting him

at risk of great prejudice. He argues that the only prope r remedy w ould have

been to exclude any tes timony from M cElrath and M cCawley. T he trial court had

already determined in its denial of the Defendant’s motion to suppress the

identification testimony, that the Speedway surveillance photo s had no salient

                                           -9-
effect on the witnesses identification of him in the photo lineup. Defense counsel

conducted a full cros s-exa mina tion of th e witne sses regard ing the ir identification

of the Defe ndant.    In these circumstances, given the minimal influence of the

photos on the witnesses’ identification of the Defendant, failure to raise the

Speedway issue would not have necessarily prevented an effective cross-

examination implicating constitutional concerns. It was a tactical decision on the

part of the defense to choose to raise the Speedway issue at trial a s a me ans to

impeach the State’s witnesses. Therefore, we cannot con clude that the trial court

erred in denying the Defendant’s motion to prevent the witnesses from testifying

at trial.



                                           III.



        Next, the Defendant contends that the trial court erred by denying his oral

motion to prevent the jury from viewing the Speedway photos. Evidence must be

relevant and probative to some issue at trial; the evidence must "make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence." Tenn.

R. Evid. 4 01. Ad ditiona lly, Rule 403 provides that even if relevant, "evidence may

be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice , confusio n of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidenc e."     Tenn . R. Evid. 40 3; see State v. McC ary, 922 S.W.2d

511, 515 (Tenn. 1996). Whether to adm it eviden ce is within the discretion of the

trial court and will not be reversed absent a clear showing of an abuse of that




                                          -10-
discretion. State v. DuBose, 953 S.W .2d 649 , 654 (T enn. 19 97); McCary , 922

S.W.2d at 515.



       Here, the trial judge prohibited the State from introducing the Speedway

photos or examining witnesses reg arding the photos in its case in chief. The

Defendant requested that he be allowed to cross-examine the State’s witnesses

regarding the Speedway photos without showing the photos to the jury. The trial

court ruled that if the Defendant chose to cross-examine the witnesses regarding

the photos, the jury would be e ntitled to view the photo s and that the trial cou rt

would issue a curative instruction. The Defendant chose to cross-examine the

witnesses regarding their identification of him and the possible influence from

viewing the Speedway photos. The trial judge issued the following instruction to

the jury:



   You are further instructed that the black and white photogra phs which w ere
   admitted as Exhib it 2, were no t intended to indicate to you crim inal activity
   on the part of anyon e, and m ore particu larly, were n ot intende d to indicate
   the defendant being involved in any crimin al activity. T hey we re only
   offered as what influenc e they had, if any, on the later identification made
   by the witnesses in this case.


       The Defendant argues that it was neces sary to cross -exam ine the State’s

witnesses regarding the photos to insure him a fair trial. Defense counsel

conducted an extensive cross-examination of the witnesses abo ut their

identification of him. Once the Defendant raised the Speed way pho tos issue with

the witnesses, the photos became relevant to the issue of the potential influence

they had upon the witnesses’ identification of him. The Defendant argues that the

photos were highly prejudicial because they were too fuzzy for a positive

identification, yet they we re asso ciated with him. Ho wever, in o rder to co nstitute

                                         -11-
error, we m ust co nclud e that th e pho tos’ pro bative v alue was substa ntially

outweighed by the da nger of u nfair prejud ice. This w e cann ot do. The photos,

by their am biguity rega rding the identity of the p erson in them, a lthough relevant,

were not highly significant in terms of impeaching the witnesses’ identification of

the Defendant. As a result, although associating the Defendant with another

poss ible crime is clearly prejudicial, we do not find that any prejudicial effect of

the Speedway photos in this case substantially outweighed their probative value.

Moreover, the trial court instructed the jury that the photos were not to be

associated with the com miss ion of a ny crim e. It is the duty of trial courts to give

limiting jury instructions when evidence is being admitted for only a limited

purpose. State v. Dutton, 896 S.W.2d 114, 116 (Tenn. 1995). It is also a

well-established rule in Te nness ee that a ju ry is presum ed to have followed the

instructions of the trial court. State v. Lawson, 695 S.W.2d 202, 204 (Tenn.

1985).     The trial co urt’s instruction also helped to neutralize the potential

prejudicial effect of the photos. Therefore, we conclude that the trial judge did not

abuse his discretion in introducing the photos once the Defendant raised the

Spee dway iss ue. This issue ha s no m erit.



                                          IV.



         The Defendant contends that the trial court erred by failing to dismiss the

indictment becau se the au dio taped transcript of the preliminary hearing had

been lost. The Defendant alleges that McCaw ley’s testimony at the p reliminary

hearing was inconsistent from that at trial, specifically on the issue of the amount

of money taken and the identification of the Defendant. The Defendant contends




                                         -12-
that he wa s una ble to con front the witnes ses a gains t him fully and that this was

prejudicial to his case.



           Rule 5.1(a) of the Tennessee Rules of Criminal Procedure requires that

preliminary hearing proceedings “shall be preserved by electronic recording or

its equiva lent an d whe n the d efend ant is su bseq uently indicted such recording

shall be made available for listening to by the defendant or defendant’s counsel

to the end that they may be apprised of the evidence introduced upon the

preliminary examination.” However, when the evidence contained in the record

is so compelling on the qu estion of th e defen dant's gu ilt, the lack of a recording

of the preliminary hearing may be considered harmless e rror if it would not have

signific antly aided the defens e. State v. Bohanan, 745 S.W.2d 892, 896 (Tenn.

Crim. App. 19 87); State v. Butts, 640 S.W .2d 37, 38 (T enn. Crim. A pp. 1982).



      In the case at bar, in lieu of the preliminary hearing tape, the trial court

afforded the Defendant's attorneys an opportunity for an expanded suppression

hearing to cross-examine the State’s witnesses fully regarding their identification

of the Defendant.          Additionally, defense counsel interviewed all of the

eyewitnesses prior to tr ial. The Defe ndan t has fa iled to demonstrate how he

might have been prejudiced by the loss of the preliminary hearing audiotape. He

alleges that the testimony regarding one witness’ identification of him was

inconsis tent, but did not provide specifics. He also alleges that the witness’

testimony regarding the a mount of m oney taken was different, yet, an

inconsistency in that regard is not material to proving the elements of aggravated

robbery.     In a strong case ag ainst him , all three eyewitnesses identified the

Defendant as the robber with certainty. Therefore, we must conclude that the

                                         -13-
loss or misplacement of the audio recording in this instance constituted harmless

error.



                                         V.



         The Defenda nt next argues th at the evidence was insufficient to sup port

the guilty verdict. When an accused challenges the sufficiency of the convicting

evidence, the standard is whether, after reviewing the evidence in the light most

favora ble to the p rosec ution, any rational trier of fact could have found the

essential elements of the crime beyond a reaso nable d oubt. Jack son v. V irginia,

443 U.S. 307, 31 9 (1979 ). Questions concerning the credibility of the witnesses,

the weight an d value to be given the evidence, as well as all factual issues raised

by the evidence, are resolved by the trier of fact, not this co urt. State v. Pappas,

754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevalua te the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 197 8).



         A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Ten n. 197 3). On appe al, the State is entitled to th e strong est legitim ate

view of the evide nce an d all inferen ces there from. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982 ); Grace, 493

S.W.2d at 476.




                                         -14-
      Aggra vated rob bery as it ap plies to the De fenda nt in this case is robbe ry

as defined in Tennessee Code Annotated section 39-13-401: “the intentional or

knowing theft of property from the person of another by violence or putting the

person in fear.” The act must also be “ [a]ccomplished with a deadly weapon or

by display of any article used or fashioned to lea d the victim to reaso nably believe

it to be a deadly weapon.” Tenn. Code Ann. § 39-13-402.



      In the case sub judice, the Defendant walked into a Little Caesar’s pizza

place and asked for change for a dollar as a pretext to get the cash register open.

When opened, the Defendant started grabbing money from the register. When

an employee atte mpted to stop him, the Defendant pulled out a handgun and

continue d. The employees ran to the back of the store and activated an alarm.



      All three em ployees in the store at that time, McCawley, McElrath and

Stewa rt, positively identified the Defen dant from a p hoto array. More over, a ll

three saw the Defendant in the vicinity of the restaurant after the crime was

committed. Two of them even called the police to report that they saw the

Defen dant. After reviewing the record, we can only conclude that the evidence

was overwh elming to prove th at the De fendan t comm itted the offense. The

positive identification by the victims in this case points unerringly to the Defendant

as the assa ilant an d was sufficie nt to en able any reasonable trier of fact to find

guilt beyon d a reas onable doubt.




                                         -15-
                                          VI.



      Finally, the De fenda nt con tends that trial c ouns el rend ered in effectiv e

assistance for his defense. In determining whether counsel provided effective

assistance at trial, the court must decide whether counsel’s performance was

within the range of competence demanded of attorneys in criminal cases. Baxter

v. Rose, 523 S .W .2d 93 0, 936 (Ten n. 197 5). To succe ed on a claim that his

counsel was in effective at trial, a petitioner bears the burden of showing that his

counsel made errors so serious that he was not functioning as counsel as

guaranteed under the Sixth Amendment and that the deficient representation

prejudiced the petition er resulting in a failure to p roduce a reliable re sult.

Strickland v. Washington, 466 U.S . 668, 687 , reh’g denied, 467 U.S. 12 67 (1984);

Cooper v. State, 849 S.W .2d 744 , 747 (T enn. 19 93); Butler v. Sta te, 789 S.W.2d

898, 899 (Ten n. 1990). To satisfy the second prong the petitioner must show a

reaso nable probability that, but for counsel’s unreasonable error, the fact finder

would have ha d reaso nable d oubt reg arding p etitioner’s gu ilt. Strickla nd, 466

U.S. at 695.     This reasonable probability must be “sufficient to undermine

confidence in the outcom e.” Harris v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).



      When reviewing trial counsel’s actions, this court should not use the bene fit

of hindsight to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper 849 S.W.2d at 746.




                                         -16-
       The Defendant alleged ineffective assistance of counsel in his motion for

new trial, for whic h a he aring w as co nduc ted on July 26 , 1996 . David Baker and

Steve Young represe nted the Defen dant at trial. In this appeal , the Defendant

contends that counsel was ineffective for several reasons. He claims that no

investigation was conducted between the preliminary hearing and the indictm ent.

He states that counsel failed to interview witnesses until two weeks before the

trial. He als o argu es tha t coun sel’s performance was lacking because of the loss

of the preliminary hearing tapes and because of the numerous inconsistencies

in the w itness es’ tes timon y at trial.



       The Defendant testified at the hearing that the preliminary hearing tapes

were lost and that he was concerned about identification issues and the amount

of money alleged to have been taken. The Defendant stated that McCawley’s

testimony was inconsistent, but did not elaborate on the specifics.              The

Defendant testified that when he asked Mr. Baker, he said that the tape was lost

and that they could not find it. After the Defendant was bound over to the grand

jury, he learned that cou nsel who rep resented him in the preliminary hearing had

withdrawn and that Mr. Baker was appointed. The Defendant was concerned

about his belongings and wanted counsel to contact Reggie Brown. Coun sel told

him that this was unrelated to the crime and th at he n eede d to ha ndle th is

himse lf. He stated that counsel never helped him ga in acces s to a telep hone.



       The Defendant stated that counsel wanted him to take a plea bargain and

that they disagreed on that point.           He did not feel counsel was pro perly

investigating the case regarding the witnesses. The Defendant felt that counsel

did not effectively cross-examine the witnesses on the identification issue. He

                                            -17-
also complained that an exhibit was placed between him and the jury, which

obscured their view of him . The D efend ant tes tified that he would have had

different couns el or taken a plea if he had kn own tha t counse l was goin g to

perform the way th ey had a t trial. The Defendant also complained that counsel

told him to appear calm at trial and that this made him appear to have a

demeanor like that of th e Little C aesa r’s robb er. He com plaine d that th e suit

provided by coun sel was to o sma ll and that h is shoes had a h ole in them .



       David Baker also testified at the hearing. He admitted that the preliminary

hearing tape h ad be en los t by the c ourt cle rk’s office and that he made numerous

attemp ts to find it. He did ha ve pre vious c ouns el’s notes regarding the hearing.

Counsel also filed for discovery and he had reviewed the State’s file. Counsel

first interviewed the witne sses in Nove mber, 199 6, before the trial in Dec ember.

He stated that they had attempted to contact the witn esse s all alon g but th eir

investigator, Tim D ickerson , was un able to rea ch them . Counsel made a number

of attempts to settle the case before trial and the De fenda nt had reque sted h im

to pursue a plea agreement. There was an attempt to get a split-confinement

sentence with a reduced charge of simple robbery. Negotiations failed and the

case was set for trial, however, settlement discussions continued.               The

Defendant “fired” counsel seve ral times before trial and he beca me ang ry when

counsel would inform him about aspects of the case. Counsel felt that the

Defendant wanted him to focus on trivial matters that would backfire at trial. The

Defe ndan t “fired” c ouns el imm ediate ly after th e trial.



       Counsel testified that he sp ent at le ast thirty hours in pretrial preparation

for the case.    Th e trial court’s order reflects that counsel’s log sheet recorded

                                            -18-
forty-five hours of pretrial preparation, which included investigation time. Counsel

attempted to settle before trial and the Defendant never stated he did not want

a settlem ent. Counsel pursued an extended suppression hearing as a remedy

for the los t prelim inary hearing tape. Counsel also attempted to exclude any

witness testimony from those who viewed the Speedway photos.               Counsel

interviewed the witnesses before the trial. He pursued a defense based on the

inconsis tencies in witnesse s’ identification of the De fendan t.



       From the evidence b efore us, it appears that counsel’s representation was

within the range of competency demanded of criminal defense attorneys.

Counsel investigated the case, made numerous attempts to locate the

preliminary hearing tape, and submitted several motions to exclude evidence.

There is evidence that counsel aggressively pursued plea negotiations at the

behest of the Defend ant. The reco rd also reflects that counsel effectively cross-

examined witnes ses re gardin g their identification of the De fendan t. Because the

Defendant has failed to dem onstrate that counsel’s performance was not

comp etent, we do not reach the evaluation of any alleged prejudice. Therefore,

we con clude tha t this issue is w ithout me rit.



       Accordingly, we affirm the judgment of the trial court in all respects.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE




                                          -19-
CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                             -20-
