### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M ay 3, 2005
PERCY FAR

RIS v. STATE OF TE NNESSEE
Appeal from the Circuit Court for McNairy County No. 1339A Jon Kerry Blackwood, Judge

No. W2004-03078-CCA-R3-PC - Filed July 8, 2005

The Defend

ant, Perc y F arris, w as convic

ted by a jury of attemp t to commit f

irst degree premeditated murder an d e sp ec ia ll y ag gr av at ed ro bb er y. His c onvictions were affirmed on direct appea l. See State v. Percy

Perez Fa rris , No. W2001-01787-CCA-R3-CD, 2002 WL 927430 (Tenn. Crim. App., Jackson, May 8, 2002). The D efendant subsequently filed for post-conviction relief alleging ineffective assistance of counsel. After an evidentiary heari ng , the tria

l court de nied rel ief. This appeal f ollowed. We affir

m the judg

ment of the

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

D AV ID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OHN E VERE TT W IL LI AMS , J., joined.

Ken Seat on, Selmer , Tennes see, for the appe llant, Per

cy Farris

. Paul G. Summers, Attorney Gene ral and Reporter; J. Ross Dyer , Assista nt Attorney Gene

ral; and Elizabeth Rice, District Attorney Gene ral, for the appellee, State of Tennessee

. OPINION

The Defendant and his codefendant, Sean Single ton, robbed a Day s Inn

Motel in Selmer, Tennessee. During the robbery , the Defendant attacked the desk cler k and stabbed

her thirt y times. Following th e r obbery, the De fendant and Singleton returned to Singleton’s residenc e in the Defendant’s car. The next morning, police officers ar rived at the residence. Singleton confes sed his participation

in the crimes. The police sear ched Singleton’s residence and the De fendant’s car, which was still parked there. Blood matching the victim’s was recovered from the Defe ndant’s car. See State v. Percy

Perez Farris , No. W2001-01787-CCA-R3-CD, 2002 WL 927430, at **1-2 (Tenn. Crim. App., Jackson, May 8, 2002).1 At the post -con viction hearing, t he Defendant comp lained about the physica l line-up. In his brief b efore this Co urt, he co mpla ins abo ut the ph otog raph ic array.
-2- Approximat

ely three months after the crimes, a phy sical line-up was conducted at the courthou se in which the Defendant’s first lawy er participated. After viewing this line-up, the victim identified the Defendant as her

attacke r. During this identification, the victim expressed some doubt about her choice. Some day s later, the police showed the victim a photographic arra y. The victim again identified the Defend

ant as he r attack er. She a lso identified the Defendant at trial. See id. at *3.

Prior

to tr ial, the Defendant’s second lawy er (“Counsel”) filed a motion to suppress the victim’s previous identifications of the Defendant. After a hear ing, the trial court denied this motion.

Inthis proc eeding , the Def endant c omplains th at Counse l was def icient in three r

espects : failing to move to suppress the evidence collected at the Singleton residence, including that collected fromthe De fendan t’s ca r; fai ling t o chal lenge the pre-trial identific ations; 1 and fail ing to ad equatel y challenge the credibility

of codefendant Singleton and his wife.

At the post-conviction hearing, only the Defendant and Counsel testified . The D efendant testified he was arrested at the Singleton res idence. The p olice did not show a warrant to search either the hom e or his car, but searched them both any way. Counsel did not file a motion challenging

the warrantless searches. The De fendant stated that both Singleton and his wife testified and their testimony was inconsistent with prior statements they had each ma de to the p olice. He

said that Counsel was inef

fective inpointing out these inconsistencies. The Defendant also complained about his first trial lawyer’ s participation in the physical line-up, stating that “he should have picked outpeople more my height, more my size, more my complexion instead of picking out pe ople that were different in weight and he ight and all that.”

On cross-examination, the Defendant admitted that he did not know if Singleton had given the police consent to search his residence. He admitted that the outside door handle of his car, on which some of the victim’s blood was found, was in plain view of the policewhile it was parked at Sin gleton’s residence. He a dmitted tha

t Counsel br

ought ou t inconsist

ences in the Sin gletons ’ testimony during her

cross-examination of them, but maintained that it was “[n]ot as much as she should have.”

Counsel testified that, based on her investigation of the case, the police searched Singleton’s residence by

consent. Accordingly , with respect to evidence recovere d from inside the residence,
a motion to suppress was not merited. With respect to the proof recovered from the Def endant’s car, Singletonhad confessed to the crim es and the blood on the vehicle was in “plain view.” Ac co rd in gl y, she conc luded tha t a motion to

suppress that evidence would not have been suc cessful

. As to the Sing le tons’ t estimony, she was awa re of the inconsistencies with their prior statemen ts and br ought thos e out d uring cros s-examina tion. At tha

t point, the

veraci ty o f their-3-

testimony became a jury issue. As t

o the vict im’s pre- trial ide

ntificat ions of the

Defend ant, she filed
a motion to suppress

both the physical line-up a

nd the photographic line-up. Her motion was denied. She also rais ed this issu

e in the di rect ap peal of t he Defe ndant’s c onviction s, but was unsuccessful inhavin g the Defen dant’s convictions reversed on this basis. The supreme court denied he r applica tion for p ermission

to appea l.

On cross-e

xamination, Co unsel testified that she did not recall whether she confronted Singleton directly a

bout whether he gave the police conse nt to search his residence.

After the hearing, the trial

court en tered a n order d eny ing the D efenda

nt’s petit ion for po stconviction relief. With respect to the Defendant’s various alleg ations, the trial court found as follows:
Sp ec if ic al ly, [the Defendant] alleges that [Counsel] was ineffective when she failed to file a motion to suppress various evidence that was found pursuant to a searc h of the co-defendant’s home. At the time of thi s searc

h, the pet itioner’ s vehicle

was also search ed. The vehicle was parked in the co-defe ndant’s yard. Pursua

nt to that search, blood evidence was found that linked the [Defendant] to this crime. The testimony and the r

ecord r eveal th at t

he co -defendant and his wife (girl fr iend) consented to the sea rch of th eir home . The re cord als o revea ls that blood was visible inplain view in the [D]efendant’s car. A motion to suppress woul d not have been
warran ted. This i ssue is wit

hout merit

. [T he Defendant] claims that [Counsel] did not adequately point ou t inconsistencies in stateme nts and testimony given by the co-defendant and his wife. [Counsel] did cross -examine t hose witne sses and p ointed out these inc onsistenc ies. This issue is without me

rit. [The D efenda nt] complains about the lineup conducted in this case. [Counsel] fil ed a motio n to suppress the lineup, which was overruled and affirmed on appea l. This issue is withou

t merit.

The Def endan t now c onten ds th at the trial court was mi stake n in i ts rul ing.

To sustain a petition for post-conviction relief, a defendant mus t prove hi s or her factual allegations by clear

and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40- 30-110(f); Momon v. State , 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not reweigh or re-evaluate the

evidence below; all questions concerning the credibility of witnesses, the weight and value to be given their testimony , and the factual issues raised by the evidence are to be resolved by t he trial j udge, n

ot the app ellate c ourts. See Momon , 18 S.W.3d at 156; Henley v. State , 960 S.W.2d 572, 57 8-79 (Ten n. 1997). The tria l judge’ s finding s of fac t on a peti tion for p ostconviction relief are afforded the w eight of a jury ver dict and are co nclusive on appeal unless the evidence prepond

erates agains tthose findings. See Momon , 18 S.W.3d at 15 6; Henley , 960 S.W.2d at 578.-4-

Both the Sixth Ame

ndment toth e Un it ed S tat es C ons ti tu ti on a nd A rti cle I, Section 9 of the Tennessee Constitution

guara ntee a criminal de fendant the rig ht to repres entation

by c ounsel. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the right to such repres entation

includes the rig ht to “re asonably

effec tive” as sistance , that is, within the range of compe

tence de manded of

attorne ys i n crimina l cases. See Strickland v. Washington , 466 U.S. 668, 6 87 (1984) ; Burns , 6 S.W.3d at 461; Baxter , 523 S.W.2d at 936.

A lawy er’s as sistance

to his or her c li ent is inef fective if the law

ye r’s cond uct “so unde rm ined

the proper functioning of the adversa rial process that the trial cannot be relied on as having produced a just result.” Strickland , 466 U.S. at 686. This overall standard is comprised of two componen

ts: d eficient performance by the defendant’s lawy

er, and actual prejudice to the defense caused by the

deficient performance. See id. at 687; Burns , 6 S.W.3d at 461. The defendant bears th e burden

of estab lishing b oth of the se components by clear and convincing evidence. See Tenn. Code Ann. § 40-30-1 10(f); Burns , 6 S.W.3d at 461. The defendant’s failure to prove either deficiency

or prejudice is a sufficient basis upon whichto deny relief

on an ineffective assistance of counsel claim. See Burns , 6 S.W.3d at 461; Goad v. Sta

te , 938 S.W.2d 363, 370 (Tenn. 1996).

Inevaluat

ing a la wy er’s perfor

mance, the reviewing court uses a n objective standard of “reasonableness.” See Strickland , 466 U.S. a t 688; Burns , 6 S.W.3d at 462

. The reviewing court must be high ly d efere ntial t o counsel’s choices “and should indulge a strong presumption that counsel’s conduct f

alls within

the wide r

ange o f reaso nable pr

ofess ional ass i stance.” Burns , 6 S.W.3d at 462; see also Strickland , 466 U.S. at 689. The court should not us e the ben efit of hindsight to second

-guess trial stra tegy or to crit icize cou nsel’s ta ctics, see Hellard

v. State , 629 S.W.2d 4, 9 (Tenn. 1982), and coun sel’s all eged e rrors sh ould be jud

ged in li ght of a

ll the fac ts and circumstances as of the time they we re made, see Strickland , 466 U.S. a t 690; Hicks v. St

ate , 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

A trial court’s determination of an ineffective assistance of counsel claim presents a mixed question of law and fac t on appeal. See Fields v. State , 40 S.W.3d 45 0, 458 (Te nn. 2001) . This Courtreviews the trial court’s findings of fact with regard to the effectivene ss of counsel under a de
novo standard, accompani ed with a presumption that those findings are correct unless the preponderance of the evidence is otherwise. See id. “Howev er, a tr ial cour t’s conclusions of law

-- such as whether

counsel’s performance

was deficient or whether that deficienc y was pre judicial--are
r eviewed un de r a pu re ly de novo standard, with no presumption of correctness give n to the tri a l court’s conclusions.” Id.

The trial court correctly

concluded that the Defendant has failed to prove by clear and convincing evidence that he suffered the ineff ective assistance of counsel at t rial. He has demonstrated neither that his lawyer’s pe

rformance was in any

way def icient, nor that he suffered any prejudice as the result of any alleged deficiency . Specifically, the Defendant has not convinced
us that the seizure of evidence from his car was subject to suppression or that Counsel should have cross-examined

the Singl etons in

some fashion other than she did. His allegations about the pre-trial-5-

identifications ignore the fact that Counsel challeng ed those by mo tion but lost . There is no merit to the Defendant’s contentions.

The trial cou

rt did not e

rr in den yin g the De fendant ’s claim f or relie f. We aff

ir m the judgmen t of the tr ial cour t.

___________________________________ DAVID H. WEL

LES, JUDGE