# State v. Jamil Butler > Court of Criminal Appeals of Tennessee · May 14, 1998 URL: https://www.frixlaw.com/law-library/cases/1082723 ## Case - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** May 14, 1998 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1082723 ## Opinion text 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- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1082723. Public record. Not legal advice.