                                                                                        03/09/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 29, 2020

               CAREY R. FAUGHT v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                       No. 105530 Bobby R. McGee, Judge


                            No. E2019-00436-CCA-R3-PC


The Petitioner, Carey R. Faught, appeals from the Knox County Criminal Court’s denial
of his petition for post-conviction relief from his jury trial convictions of aggravated
burglary, employing a firearm during a dangerous felony, reckless endangerment, two
counts of attempted aggravated robbery, and two counts of especially aggravated
robbery, and his effective forty-eight-year sentence. He contends that the post-conviction
court erred in denying relief on his claim that he received the ineffective assistance of
counsel because counsel failed to challenge an impermissibly suggestive photograph
lineup. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT
W. WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Carey R. Faught.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
Assistant Attorney General; Charme Allen, District Attorney General; Ta Kisha
Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

         The Petitioner’s convictions result from a home invasion and robbery. The
mother of the Petitioner’s children contacted the authorities and later testified at the
Petitioner’s trial that the Petitioner had confessed details of the crimes to her in a
telephone conversation. State v. Carey Faught, No. E2012-02419-CCA-R3-CD, 2014
WL 12653822, at *1 (Tenn. Crim. App. Mar. 3, 2014). Two accomplices testified about
the offenses, including the Petitioner’s involvement in them. Id. at *1-2. A victim
testified that he had identified the Petitioner in a photograph lineup as one of the
perpetrators, although he was unable to identify the Petitioner at the trial. A police
officer testified at the trial that the Petitioner was biracial and that the photograph lineup
included “‘light-skinned’ males” who were not white.

        The Petitioner’s convictions were affirmed on appeal. See id. Thereafter, he filed
the present post-conviction action, in which he alleged numerous constitutional
shortcomings in the conviction proceedings. Because his appeal is limited to the question
of whether the post-conviction court erred in denying his claim of the ineffective
assistance of counsel related to counsel’s failure to challenge the photograph lineup, we
will limit our recitation of the evidence to that which is relevant to this issue.

       At the post-conviction hearing, the Petitioner testified that the only discovery he
saw before the trial was a police report and the photograph lineup from which the victim
had identified him. The Petitioner said he advised trial counsel of the Petitioner’s
concerns that the Petitioner was the only biracial person in the lineup. The Petitioner said
that by “biracial,” he meant “black and white.” He said the other individuals in the
photograph lineup were Hispanic. The Petitioner said he pointed out to counsel that
although the police report stated “they were looking for two white males, not of Hispanic
race,” the lineup had been compiled with photographs of five Hispanic individuals. The
Petitioner identified the photograph lineup that had been introduced at the trial and
agreed he was in the bottom, center position. The Petitioner testified that he had “light-
color” hair and blue eyes and that the other individuals in the lineup had black hair and
brown eyes. He said he also tried to explain to counsel that the Petitioner’s photograph in
the lineup was several years old and that his appearance had been different when the
photograph had been made. He agreed he had “a little bit of hair” in his photograph in
the lineup and said he had been “smaller” in the photograph. He estimated that the
photograph had been taken in 2006, whereas the offenses in the present case occurred in
2011.

       The Petitioner was unsure whether trial counsel filed a motion to suppress
evidence of the victim’s identification of him from the photograph lineup. The Petitioner
did not recall the victim’s identifying him or testifying about the photograph lineup at the
preliminary hearing.

       The Petitioner testified that trial counsel showed him two versions of the
photograph lineup: one that was black and white, and one that was color. He agreed that
the color lineup was introduced at the trial. When asked if the skin tones of the other
individuals in the lineup were similar or different from his skin tone, he said, “Some of
them look similar to me.” He acknowledged that some had hairstyles similar to his. He
said, however, that his photograph in the lineup did not resemble his appearance at the
time of the crimes. He said a viewer could tell his eyes were blue “[a] tad bit” in the
photograph and said his eyes were different from the others’ eyes.

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      The Petitioner testified that he did not commit the crimes and said his accomplices
and the mother of his children had lied about his involvement. The Petitioner said the
victim had been erroneous in the victim’s identification of the Petitioner in the
photograph lineup.

       Trial counsel testified that he had represented the Petitioner in a carjacking case
before he represented the Petitioner in the conviction proceedings in this case. Counsel
said that in the previous case, the photograph lineup was “a central issue” because the
individuals other than the Petitioner who were depicted were “five dark-skinned African-
Americans.” Counsel did not think he had discussed filing a motion to suppress with the
Petitioner in the present case because he had not thought a sufficient disparity in skin
color existed in the lineup and because he thought the victim would be unable to identify
the Petitioner at the trial. He thought the victim ultimately had not been able to identify
the Petitioner at the trial.

        After receiving the evidence, the post-conviction court noted that the victim had
been unable to identify the Petitioner at the trial, although the victim testified that he had
identified the Petitioner from a photograph lineup. The court found that the Petitioner
had not established by clear and convincing evidence that he had received the ineffective
assistance of counsel. The court found that the Petitioner had presented no evidence of
prejudice from trial counsel’s failure to challenge the photograph lineup. The court noted
the eyewitness testimony that the Petitioner had been present for the crime and had been
the shooter and the Petitioner’s confession to the mother of his children that he had shot
the victim.

        On appeal, the Petitioner contends that the post-conviction court erred in denying
relief on his ineffective assistance of counsel claim relative to the lack of a motion to
suppress the photograph lineup.

       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2018). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2018). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.



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       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a petitioner must show that “there is 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. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

       The Petitioner argues that trial counsel was ineffective by failing to challenge the
photograph lineup because it was impermissibly suggestive in that the individuals
depicted other than the Petitioner were Hispanic, whereas the Petitioner is biracial, and
the photograph of the Petitioner was several years old and did not accurately depict his
appearance at the time of the crimes.

       Trial counsel testified that he had challenged a photograph lineup in a previous
case in which he represented the Petitioner but that he did not think a sufficient basis
existed for suppression in this case because, in his view, no sufficient disparity in skin
color between the Petitioner and the other individuals existed in the lineup. Also, counsel
thought the victim would not be able to identify the Petitioner at the trial.

       The photograph lineup was received as an exhibit at the post-conviction hearing.
It depicts six young men, all of whom have short haircuts and short facial hair. The

                                            -4-
Petitioner’s skin tone appears neither substantially lighter nor darker than any of the other
individuals. To the extent that the Petitioner testified that he had blue eyes, his eye color
is not discernible as blue in the lineup.

       The evidence supports the post-conviction court’s determination that the Petitioner
did not receive the ineffective assistance of counsel. Trial counsel made an informed
decision not to challenge the lineup because he did not believe it was impermissibly
suggestive and because he did not think the victim would be able to identify the
Petitioner at the trial. In addition, even if the lineup had been suppressed, other evidence
existed to identify the Petitioner as a participant and as the shooter, including the
testimony of the Petitioner’s accomplices and the mother of the Petitioner’s children, to
whom the Petitioner had confessed. The Petitioner is not entitled to relief on this basis.

       In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.


                                             _____________________________________
                                              ROBERT H. MONTGOMERY, JR., JUDGE




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