         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs May 3, 2005

                    PERCY FARRIS v. STATE OF TENNESSEE

                     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 Defendant, Percy Farris, was convicted by a jury of attempt to commit first degree premeditated
murder and especially aggravated robbery. His convictions were affirmed on direct appeal. See
State v. Percy Perez Farris, No. W2001-01787-CCA-R3-CD, 2002 WL 927430 (Tenn. Crim. App.,
Jackson, May 8, 2002). The Defendant subsequently filed for post-conviction relief alleging
ineffective assistance of counsel. After an evidentiary hearing, the trial court denied relief. This
appeal followed. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOHN
EVERETT WILLIAMS, J., joined.

Ken Seaton, Selmer, Tennessee, for the appellant, Percy Farris.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and
Elizabeth Rice, District Attorney General, for the appellee, State of Tennessee.

                                            OPINION


        The Defendant and his codefendant, Sean Singleton, robbed a Days Inn Motel in Selmer,
Tennessee. During the robbery, the Defendant attacked the desk clerk and stabbed her thirty times.
Following the robbery, the Defendant and Singleton returned to Singleton’s residence in the
Defendant’s car. The next morning, police officers arrived at the residence. Singleton confessed his
participation in the crimes. The police searched Singleton’s residence and the Defendant’s car,
which was still parked there. Blood matching the victim’s was recovered from the Defendant’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).
        Approximately three months after the crimes, a physical line-up was conducted at the
courthouse in which the Defendant’s first lawyer participated. After viewing this line-up, the victim
identified the Defendant as her attacker. During this identification, the victim expressed some doubt
about her choice. Some days later, the police showed the victim a photographic array. The victim
again identified the Defendant as her attacker. She also identified the Defendant at trial. See id. at
*3.

       Prior to trial, the Defendant’s second lawyer (“Counsel”) filed a motion to suppress the
victim’s previous identifications of the Defendant. After a hearing, the trial court denied this motion.

         In this proceeding, the Defendant complains that Counsel was deficient in three respects:
failing to move to suppress the evidence collected at the Singleton residence, including that collected
from the Defendant’s car; failing to challenge the pre-trial identifications;1 and failing to adequately
challenge the credibility of codefendant Singleton and his wife.

         At the post-conviction hearing, only the Defendant and Counsel testified. The Defendant
testified he was arrested at the Singleton residence. The police did not show a warrant to search
either the home or his car, but searched them both anyway. Counsel did not file a motion
challenging the warrantless searches. The Defendant stated that both Singleton and his wife testified
and their testimony was inconsistent with prior statements they had each made to the police. He said
that Counsel was ineffective in pointing 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
out people more my height, more my size, more my complexion instead of picking out people that
were different in weight and height 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 police while it was parked at
Singleton’s residence. He admitted that Counsel brought out inconsistences in the Singletons’
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 recovered from inside the residence,
a motion to suppress was not merited. With respect to the proof recovered from the Defendant’s car,
Singleton had confessed to the crimes and the blood on the vehicle was in “plain view.”
Accordingly, she concluded that a motion to suppress that evidence would not have been successful.

       As to the Singletons’ testimony, she was aware of the inconsistencies with their prior
statements and brought those out during cross-examination. At that point, the veracity of their


         1
          At the post-conviction hearing, the Defendant comp lained about the physica l line-up. In his brief b efore this
Court, he co mplains abo ut the photographic array.

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testimony became a jury issue. As to the victim’s pre-trial identifications of the Defendant, she filed
a motion to suppress both the physical line-up and the photographic line-up. Her motion was denied.
She also raised this issue in the direct appeal of the Defendant’s convictions, but was unsuccessful
in having the Defendant’s convictions reversed on this basis. The supreme court denied her
application for permission to appeal.

       On cross-examination, Counsel testified that she did not recall whether she confronted
Singleton directly about whether he gave the police consent to search his residence.

       After the hearing, the trial court entered an order denying the Defendant’s petition for post-
conviction relief. With respect to the Defendant’s various allegations, the trial court found as
follows:

       Specifically, [the Defendant] alleges that [Counsel] was ineffective when she failed
       to file a motion to suppress various evidence that was found pursuant to a search of
       the co-defendant’s home. At the time of this search, the petitioner’s vehicle was also
       searched. The vehicle was parked in the co-defendant’s yard. Pursuant to that
       search, blood evidence was found that linked the [Defendant] to this crime. The
       testimony and the record reveal that the co-defendant and his wife (girl friend)
       consented to the search of their home. The record also reveals that blood was visible
       in plain view in the [D]efendant’s car. A motion to suppress would not have been
       warranted. This issue is without merit.
                [The Defendant] claims that [Counsel] did not adequately point out
       inconsistencies in statements and testimony given by the co-defendant and his wife.
       [Counsel] did cross-examine those witnesses and pointed out these inconsistencies.
       This issue is without merit.
                [The Defendant] complains about the lineup conducted in this case.
       [Counsel] filed a motion to suppress the lineup, which was overruled and affirmed
       on appeal. This issue is without merit.

The Defendant now contends that the trial court was mistaken in its ruling.

        To sustain a petition for post-conviction relief, a defendant must prove his 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 re-
weigh 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 the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.



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         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. 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 representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial 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 components: deficient performance by the defendant’s lawyer, 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 the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 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 fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
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 ineffective assistance of counsel at trial. He has
demonstrated neither that his lawyer’s performance was in any way deficient, 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 Singletons in some fashion other than she did. His allegations about the pre-trial


                                                  -4-
identifications ignore the fact that Counsel challenged those by motion but lost. There is no merit
to the Defendant’s contentions.

      The trial court did not err in denying the Defendant’s claim for relief. We affirm the
judgment of the trial court.



                                                     ___________________________________
                                                     DAVID H. WELLES, JUDGE




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