         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 19, 2002

                EDDIE L. COLEY, JR. v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Williamson County
                          No. 201-63    Donald P. Harris, Judge



                   No. M2001-03130-CCA-R3-PC - Filed September 4, 2002


The petitioner, Eddie L. Coley, Jr., was convicted of aggravated robbery in 1996 and sentenced to
confinement for twelve years. Following an unsuccessful appeal of his conviction, he filed a petition
for post-conviction relief, alleging that his trial counsel was ineffective for not filing a motion to
suppress a photographic lineup and not allowing him to testify at his trial. The post-conviction court
denied the petition; and, following our review, we affirm that denial.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.
WEDEMEYER, JJ., joined.

J. Britt Phillips, Franklin, Tennessee, for the appellant, Eddie L. Coley, Jr.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The petitioner was indicted for the July 15, 1995, aggravated robbery of two Baskin-Robbins
ice cream shop employees in Brentwood. His first trial resulted in a mistrial. However, he was
convicted in the second, the facts of which were set out in State v. Coley, 32 S.W.3d 831, 832-33
(Tenn. 2000):

                       Coley does not challenge the sufficiency of the evidence upon
               which he was convicted; thus, only those facts necessary to this
               appeal are provided. On July 15, 1995, Sarah Blumberg and Jennifer
               McMillen were working at an ice cream shop in Brentwood. At
               approximately 1 p.m., a male entered the store. After placing an
               order, the male brandished a gun and instructed one of the employees
to put the store's money into a bag. The male then forced both
employees into the store's walk-in freezer where they remained until
they heard a customer enter the store. After exiting the freezer, they
called the police.

        The police uncovered no physical evidence at the crime scene.
Both employees, however, separately described the robber as an obese
"Black" man around 5' 9" tall and about twenty years old. The
employees then helped the police prepare separate composite pictures
of the robber. Nine days after the robbery, Blumberg observed a
photographic line-up which included Coley's picture. She identified
him as the robber. Five months after the robbery, McMillen saw the
same photographic line-up. She too identified Coley.

        At trial, the critical issue was identification. The State's case
relied heavily on Blumberg's and McMillen's pre-trial and in-court
identifications of Coley. Coley, on the other hand, offered an alibi
defense, maintaining that another person had committed the robbery.
Coley desired to adduce the testimony of Michael G. Johnson, Ph.D.,
J.D., an expert in the field of eyewitness identification. The State
objected to Johnson's testimony on the ground that it would not assist
the jury in deciding the identification issue. The trial court agreed
and refused to admit Johnson's testimony.

        The trial court, nevertheless, allowed Johnson to make a
proffer of his testimony for the record. The proffered testimony
included information covering the following topics:

        1. the process of eyewitness identification;

        2. the relationship between stress and memory of an event;

        3. cross-racial identification;

        4. the confidence the witnesses have in the accuracy of their
identifications and the actual accuracy of their identifications;

        5. the effect of time on the accuracy of memory; and

        6. the suggestibility of the photographic line-up used in this
case.




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        Following his unsuccessful appeal, the petitioner filed a petition for post-conviction relief,
presenting a number of claims as to ineffectiveness of trial counsel. After the appointment of
counsel, and the filing of amended petitions, the post-conviction court limited the hearing to the
claims that trial counsel was ineffective by not filing a motion to suppress the photographic lineup
and not allowing the petitioner to testify at his trial. The hearing subsequently was held on
November 21, 2001.

         At the hearing, the petitioner’s trial attorney testified that he had been licensed to practice law
since 1976, including as an assistant district attorney for six years and as an assistant public defender
for ten years, and had participated in seventy to seventy-five trials. He said that the hearing exhibit
from which the two victims identified the petitioner had the petitioner’s photograph placed in the
middle of the top row. We note that this exhibit consists of six photographs of young men of the
same race, and of approximately the same age and facial shape. Three of the men, including the
petitioner, were wearing black, or very dark, T-shirts. The petitioner’s T-shirt bears a design of some
sort, only the upper portion of which is shown in the photograph, consisting of a blue background
with lighter blue vertical random stripes and small patches of yellow, reddish-orange, and black. No
writing appears on the visible portion of the petitioner’s shirt. Trial counsel testified that the victims
had said, both at the preliminary hearing and at the trial, that the robber wore a black T-shirt bearing
the slogan “sight for sore eyes,” and that the shirt did not have a design. Trial counsel said that he
had considered filing a motion to suppress the photo lineup as being overly suggestive and had sent
letters to five to ten psychologists soliciting their opinions as to the fairness of the lineup. He made
several trips to Knoxville to meet with Dr. Michael G. Johnson, a clinical psychologist, who said that
the lineup was not as suggestive as others he had seen. Because of Dr. Johnson’s opinion and trial
counsel’s recognition of the similarities of the men in the photo lineup, he concluded that he did not
have a basis for seeking to suppress it.

        As to the petitioner’s not testifying at the trial, counsel said that the petitioner had previous
armed robbery convictions and had not asked to testify, telling counsel that he would do whatever
they thought in that regard. Counsel said he told the petitioner that he had to make the decision as
to whether to testify, but counsel’s recommendation was that he not do so. He said that certain of
the petitioner’s robbery convictions involved his using “very similar” techniques to that for which
he was being tried, resulting in danger in the petitioner’s testifying. Trial counsel said that he had
alibi witnesses whom he thought would be convincing and did not see how the petitioner’s testimony
would help the defense. Also, he was concerned that the petitioner might say something during his
testimony which would harm the case.

       The petitioner said he told counsel that he wanted to testify and that counsel then moved to
prevent the prior convictions from being utilized at the trial, but the trial court denied the motion.
He wanted a motion to suppress filed “to let [the judge] make the decision” as to it.




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                                             ANALYSIS

                                 Ineffective Assistance of Counsel

         In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at
2063. The Strickland standard is a two-prong test:

                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

                In any case presenting an ineffectiveness claim, the performance
                inquiry must be whether counsel’s assistance was reasonable
                considering all the circumstances. . . . No particular set of detailed
                rules for counsel’s conduct can satisfactorily take account of the
                variety of circumstances faced by defense counsel or the range of
                legitimate decisions regarding how best to represent a criminal
                defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

         As for the prejudice prong of the test, the Strickland Court stated: “The defendant 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.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a



                                                  -4-
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-
210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for relief,
therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-
206(d) (1997).

         We note that when post-conviction proceedings have included a full evidentiary hearing, as
in this case, the trial judge’s findings of fact and conclusions of law are given the effect and weight
of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we conclude that
the evidence contained in the record preponderates against the judgment entered in the cause.” Black
v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must indulge a strong
presumption that the conduct of counsel falls within the range of reasonable professional assistance,
see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-guess the tactical and
strategic choices made by trial counsel unless those choices were uninformed because of inadequate
preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a strategy or tactic
failed or hurt the defense does not alone support the claim of ineffective assistance of counsel. See
Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). Finally, a person charged with
a criminal offense is not entitled to perfect representation. See Denton v. State, 945 S.W.2d 793, 796
(Tenn. Crim. App. 1996). As explained in State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999),
“[c]onduct that is unreasonable under the facts of one case may be perfectly reasonable under the
facts of another.”

       We now will consider the two claims of ineffective assistance of counsel for which proof was
presented at the hearing.

                  A. Failure to File Motion to Suppress Photographic Lineup

        The petitioner argues on appeal that his trial counsel was ineffective for not filing a motion
to suppress the photographic lineup identification. The State responds that counsel was not
ineffective in declining to file a meritless motion. As to this issue, we agree with the State.

       First, we note that, according to the opinion of our supreme court in this matter, the two
victims identified the petitioner as the robber, both upon viewing the photographic lineup and at the
second trial. Additionally, during the post-conviction hearing, trial counsel testified that the victims
also had identified the petitioner at the preliminary hearing and at the first trial of the matter, which


                                                  -5-
had resulted in a hung jury. It was following that first trial that the petitioner had written trial
counsel requesting the filing of a motion to suppress. Given this array of identifications of the
petitioner by the victims, we have difficulty in concluding that the defense would have been
strengthened by suppression of the photographic lineup unless the defense also could have
established that the victims’ subsequent identifications of the petitioner were so tainted by their
viewing the photographs that those identifications, too, must be suppressed. In his testimony, the
petitioner did not recognize this additional requirement before the victims’ in-court identifications
also could be suppressed.

        In his letter to the petitioner of January 2, 1996, explaining why he was not pursuing a motion
to suppress, trial defense counsel demonstrated that he had given substantial thought as to how to
best deal with the victims’ identification of the petitioner. Explaining the holdings of a number of
lineup identification cases, including Bolton v. State, 617 S.W.2d 909 (Tenn. Crim. App. 1981), and
State v. Beal, 614 S.W.2d 77 (Tenn. Crim. App. 1981), counsel opined in his letter that “there was
nothing done by the Brentwood Police Department which remotely [could] be defined as something
that would be so suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Having viewed the photographs comprising the lineup shown to the victims, we
agree with counsel’s assessment that the photographs are not so suggestive as to give rise to a
successful suppression motion. There is no basis for our concluding that simply because the robber
was wearing a black T-shirt with a slogan, the victims both then identified the petitioner because,
in his photograph, he was wearing a black T-shirt with some sort of design.

        Trial counsel decided to deal with the victims’ identifications of the petitioner by attempting
to present expert testimony as to unreliability of eyewitness identifications. The reasonableness of
this effort is demonstrated by the fact that, in the opinions of this court and of our supreme court
affirming the conviction, one member of our panel and two members of the supreme court concluded
that the trial court should have conducted a hearing, pursuant to the holding of our supreme court
in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn.1997), as to whether Dr. Johnson
should have been allowed to testify as to eyewitness identification. See State v. Coley, 32 S.W.3d
831, 839-40 (Tenn. 2000); State v. Eddie L. Coley, Jr., No. 01C01-9707-CC-00270, 1998 Tenn.
Crim. App. LEXIS 1082, at *21-*24 (Tenn. Crim. App. Oct. 13, 1998), perm. to appeal granted
(Tenn. Apr. 19, 1999).

       As to this issue, the post-conviction court found as follows:

               1. [Petitioner’s] attorney at trial . . . was not ineffective for failing to
                  file a motion to suppress a photographic lineup that included
                  [petitioner], as there was no basis for such motion. Moreover,
                  [petitioner] showed no prejudice with respect to the issue. The
                  Court would not have granted the motion to suppress, had it been
                  filed.




                                                   -6-
         The record fully supports this finding.

                     B. Denying the Petitioner His Right to Testify at Trial

         As his second issue, the petitioner argues that he was denied his right to testify at the trial.
The State responds that, trial defense counsel having testified that it was the petitioner’s decision not
to testify, this issue is as to credibility, which the trial court resolved in favor of trial defense
counsel.1

        As we have previously stated, the record reflects that, at the time of this trial, the petitioner
had other aggravated robbery convictions, which the trial court had determined could be utilized if
the petitioner testified. Additionally, trial defense counsel testified that there were sufficient
similarities in certain of the other robberies with the instant offense that counsel was concerned other
convictions could be utilized not only for impeachment as to credibility but also to establish the
identity of the petitioner as the robber of the Baskin-Robbins. Trial defense counsel also said that
he believed his alibi witnesses who testified at the second trial were credible, as evidenced by the
hung jury at the first trial during which they had testified. Although the petitioner honestly may
believe that his testimony at the second trial, professing that he was elsewhere at the time of the
aggravated robbery, would have underscored the similar testimony of his alibi witnesses, we believe
that there would be virtual unanimity among defense lawyers that his credibility would have been
substantially blunted by his prior aggravated robbery convictions, and even more so if the
prosecution had presented proof as to the similarities between the previous robberies and that for
which the petitioner was being tried.

       As to this claim, the post-conviction court determined both that the petitioner’s trial attorney
would have allowed him to testify, had he advised counsel that he wished to do so, and that he failed
to show that he was prejudiced by not testifying. The record fully supports these conclusions as well.

                                                CONCLUSION

        Based upon the foregoing authorities and reasoning, we conclude that the petitioner has failed
to establish either that trial counsel was ineffective or that he was prejudiced by counsel’s alleged
inactions. We affirm the denial of post-conviction relief.


                                                               ___________________________________
                                                               ALAN E. GLENN, JUDGE




         1
        The trial, upon which these allegations are based, occurred in 199 6, before our supreme court had set out in
Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999), the procedure to be followed when a defendant elects not to testify.

                                                        -7-
