         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                          OCTOBER 1999 SESSION
                                                    FILED
                                                       March 2, 2000

STATE OF TENNESSEE,                  *            Cecil Crowson, Jr.
                                          No. W1999-02031-CCA-R3-CD
                                                 Appellate Court Clerk
      Appellee                       *    SHELBY COUNTY
VS.                                  *    Hon. John P. Colton, Jr., Judge

ERNEST PURYEAR,                      *    (Aggravated Robbery)

      Appellant.                     *


For Appellant                             For Appellee

Dane N. Blue                              Paul G. Summers
4127 Callie Powell Cove                   Attorney General and Reporter
Memphis, TN 38135-1645
(At Trial)                                Clinton J. Morgan
                                          Assistant Attorney General
Craig V. Morton II                        Cordell Hull Building, 2nd Floor
200 Jefferson Avenue, Ste. 725            425 Fifth Avenue North
Memphis, TN 38103                         Nashville, TN 37243-0493
(On Appeal)
                                          William L. Gibbons
                                          District Attorney General

                                          James J. Challen III
                                          Assistant District Attorney General
                                          201 Poplar Avenue, Ste. 301
                                          Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                      OPINION



       A Shelby County jury found defendant guilty of aggravated robbery, a Class
B felony. Defendant received an eight-year sentence. In this appeal as of right,

defendant claims (1) the evidence was not sufficient to sustain the conviction for

aggravated robbery, and (2) he received ineffective assistance of trial counsel.
Upon our review of the record, we conclude the evidence was sufficient to sustain

defendant's conviction, and defendant received effective assistance of counsel.

Thus, we AFFIRM the judgment of the trial court.




                                I. Factual Background



       On July 15, 1996, Norma Fowler exited First Tennessee Bank with

approximately $500. The defendant approached her and asked her for a ride. She
offered him money for a cab, but he refused. As Fowler sat in her vehicle, the

defendant approached her window with a briefcase and a gun. Another man was

on the passenger side. While the defendant held a gun on Fowler, the second man

collected the victim’s money and jewelry. The men fled across the parking lot, and

the victim called the police.


       On October 5, 1996, Fowler saw the defendant in a local grocery store. She

exited the store and waited for defendant. When defendant got into his car, she
followed him to the First Tennessee Bank parking lot. Subsequently, Fowler flagged

down a passing police car and identified the defendant to the officer as the man

who robbed her on July 15, 1996. Fowler also identified the defendant in the
courtroom as the person who robbed her on July 15, 1996.



       The only other person to testify at trial was Jerome Corley, who stated he

was a “professional con artist.” He testified that he “runs cons” with the defendant,
and the defendant never used a weapon. However, on the day defendant robbed

Fowler, Corley was incarcerated in another state.



       Based on this evidence, the jury convicted the defendant of aggravated

robbery.

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       Subsequent to his conviction, defendant retained another attorney and filed

a motion for new trial asserting insufficiency of the evidence and ineffective

assistance of counsel. At the evidentiary hearing, the trial court heard testimony
from defendant and trial counsel. The defendant testified that he did not use force

to obtain the stolen property. It was his assertion that he and his partner initiated

a "con game" designed to trick the victim into giving them her money and jewelry.
He claimed defense counsel failed to effectively represent him.



       Trial counsel testified that he met with the defendant eleven times and
discussed various trial strategies. He testified that he conducted discovery and

prepared the witnesses for trial.



       The trial court determined the evidence was sufficient to support defendant’s

conviction, and the defendant failed to prove his allegations of ineffective assistance

of counsel. The trial court denied the motion for new trial.




                          II. Sufficiency of the Evidence



       In determining the sufficiency of the evidence, this Court does not reweigh
or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A jury verdict approved by the trial judge accredits the state's witnesses and

resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803
(Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view of the

evidence and all legitimate or reasonable inferences which may be drawn

therefrom. Id. This Court will not disturb a verdict of guilt due to the sufficiency of
the evidence unless the defendant demonstrates that the facts contained in the

record and the inferences which may be drawn therefrom are insufficient, as a

matter of law, for a rational trier of fact to find the accused guilty beyond a

reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

Accordingly, it is the appellate court's duty to affirm the conviction if the evidence,

viewed under these standards, was sufficient for any rational trier of fact to have

found the essential elements of the offense beyond a reasonable doubt. Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.

Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

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       Defendant alleges the evidence is insufficient to sustain his conviction for

aggravated robbery because the state failed to prove the property was taken by

force. At trial the victim testified that the defendant came up to her car, put a gun
in her face and forced her to give up her money and jewelry. The defense offered

only the testimony of Jerome Corley. Corley testified that he “runs scams” with the

defendant, and the defendant never used a weapon. However, Corley admitted that
he was not present on July15, 1996, when the victim was robbed.



       The weight and credibility of the witnesses’ testimony is entrusted exclusively
to the jury as the trier of fact.   State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.

1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). The jury

accredited the testimony of the victim and could reasonably conclude that the
robbery was “accomplished with a deadly weapon.” See Tenn. Code Ann. 39-13-

402(a)(1).



       This issue is without merit.




                      III. Ineffective Assistance of Counsel



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994);

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). If the petitioner does not

establish the prejudice prong, it is unnecessary for the Court to examine the

deficiency prong. Goad, 938 S.W.2d at 370.


       The test in Tennessee to determine whether counsel provided effective

assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. The

petitioner must overcome the presumption that counsel’s conduct falls within the

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wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104

S.Ct. at 2065; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); Alley

v. State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997). Therefore, in order to
prove a deficiency, a petitioner must show that “counsel’s acts or omissions were

so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688,

104 S.Ct. at 2065).



       In order to establish prejudice, the petitioner must demonstrate a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.




       Defendant lists the following allegations as evidence of trial counsel’s

ineffective representation:
(1)           Trial counsel failed to file a motion to suppress a photo
              identification;

       (2)    Trial counsel did not investigate potential witnesses and
              subpoena critical evidence;

       (3)    Trial counsel failed to exercise his peremptory challenges
              during voir dire to exclude jurors who had relatives working for
              the police department, were victims of violent crime, or knew
              someone who had been a victim of violent crime;

       (4)    Trial counsel failed to request Jencks material;
       (5)    Trial counsel failed to adequately cross-examine the victim;

       (6)    Trial counsel failed to call the defendant as a witness;

       (7)    Trial counsel failed to seek judgment of acquittal at the end of
              the State’s proof; and

       (8)    Trial counsel failed to request a proper jury instruction on the
              lesser included offenses to aggravated robbery.




                                         (1)

       Due to the victim’s misidentification of the suspected accomplice, defendant
claims trial counsel had sufficient grounds to file a motion to suppress the victim’s

photo identification.



       The victim admitted she mistakenly identified Jerome Corley as the

defendant’s accomplice. However, she made an uncontested in-court identification

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of the defendant. There was no basis to suppress the photo identification. This

allegation is without merit.



                                          (2)

         Defendant asserts trial counsel failed to adequately investigate potential

witnesses and solicit discovery. He argues trial counsel should have interviewed
the arresting officer and obtained the police report and the victim’s incident report.

Defendant claims there are inconsistencies between the reports and the victim’s

testimony. In addition, defendant argues trial counsel should have called Mary
Henderson to testify that the day defendant was arrested, he and an accomplice

were in the process of “running a con” on her in which defendant did not use a

weapon. Defendant further asserts trial counsel should have subpoenaed the
bank’s surveillance tapes. He argues the tapes would have shown he did not have

a gun.



         “When a petitioner contends that trial counsel failed to discover, interview,

or present witnesses in support of his defense, these witnesses should be

presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d

752, 757 (Tenn. Crim. App. 1990); see also Scott v. State, 936 S.W.2d 271, 273

(Tenn. Crim. App. 1996). As a general rule, this is the only way the petitioner can
establish that (1) a material witness existed who could have been discovered but

for counsel’s negligent investigation of the case; (2) a known witness was not

interviewed; (3) the failure to discover or interview the witness caused him prejudice;
or (4) the failure to present a known witness or call the witness to the stand resulted

in the denial of critical evidence which caused the petitioner prejudice. Black, 794

S.W.2d at 757. Neither the trial court nor this Court can speculate on what a
witness’ testimony might have been if introduced by counsel. Id.



         At the motion for new trial, defendant failed to present testimony from the

arresting officer, Ms. Henderson, or any other potential witness. In addition,
defendant failed to present the alleged video surveillance tape. This Court cannot

speculate about possible testimony or what the tape would show. As to discovery,

trial counsel testified he conducted adequate discovery with the prosecutor. The
trial court agreed. Furthermore, defendant has failed to establish a reasonable



                                           6
probability that the result of the trial would have been different if counsel had utilized

the police report and victim incident report.



       These allegations are without merit.



                                              (3)

       Defendant contends trial counsel failed to adequately use his peremptory

challenges to exclude jurors with relatives on the police force and jurors who were

victims of violent crime or had family members who were victims of violent crime.


       Trial counsel asked each of the jurors who stated they were victims of violent

crime, or knew someone who was a victim of violent crime, a series of questions to
determine if they could be impartial. Through this process, he excluded one of the

potential jurors for cause and used some peremptory challenges. We find no

deficiency by counsel, nor has defendant established prejudice. This allegation is
without merit.



                                              (4)

       Defendant alleges trial counsel should have requested “Jencks” material

before he cross-examined the victim. However, defendant has failed to establish
prejudice. This allegation is without merit.



                                              (5)

       Defendant charges trial counsel did not effectively cross-examine the victim.

He claims trial counsel did not interview the victim before she testified. In addition,

he claims trial counsel asked “open ended” questions which were “completely
ineffective,” and failed to point out obvious inconsistencies in her testimony.



       The manner in which counsel phrases his questions is a tactical and stylistic

choice. The record reflects trial counsel attempted to uncover any inconsistencies
in the victim’s testimony. Furthermore, defendant failed to show he was prejudiced

by trial counsel’s cross-examination of this witness, or by not interviewing her prior

to trial. This allegation is without merit.


                                              (6)

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            Defendant complains trial counsel should have called him to testify. This

ground was not raised in the written motion and was not addressed by the trial

court. Furthermore, defendant’s testimony is extremely limited and unclear. When
asked if he told his counsel he wanted to testify, defendant responded, “no, actually

it was best for me to do, to testify or don’t take the stand.” Trial counsel testified

that he discussed this matter with defendant, and they both decided he should not
testify.



           We consider the issue waived. Furthermore, the evidence shows defendant
agreed not to testify after consultation with counsel. This allegation is without merit.



                                             (7)

           Defendant claims trial counsel should have moved for judgment of acquittal

at the close of the state’s proof. The victim testified the defendant took her property

at gunpoint, and she made an in-court identification of the defendant. The motion
would have been denied; thus, defendant has not shown prejudice. This allegation

is without merit.



                                             (8)

           Defendant contends trial counsel failed to request the jury be instructed on
the lesser included offenses of aggravated robbery. The trial court charged the jury

on the offenses of aggravated robbery, robbery and theft of property. Defendant

contends he was only guilty of theft; however, theft was charged and rejected by the
jury. Defendant has suggested no other lesser offenses. Therefore, defendant has

failed to show counsel was deficient or that he was prejudiced by counsel’s actions.

This allegation is patently without merit.


                                      IV. Conclusion



           The evidence is clearly sufficient to support the guilty verdict. The victim in
this case unhesitatingly and positively identified the defendant as the person who

committed this robbery with a weapon. Defendant faults counsel for not convincing

the jury it was a theft rather than an aggravated robbery. Identification was not an
issue. In light of the victim’s testimony, defendant has not shown a reasonable

probability that he would have been convicted of only theft had trial counsel done

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anything differently. Accordingly, we AFFIRM the judgment of the trial court.




                                               ____________________________
                                               Norma McGee Ogle, Judge




CONCUR:




____________________________
John H. Peay, Judge



____________________________
Alan E. Glenn, Judge




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