Adam C. Braseel v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 19, 2016 Session

ADAM C. BRASEEL v. STATE OF TENNESSEE

Appeal from the Circuit Court for Grundy County

No. 4221 Justin C. Angel, Judge

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No. M2016-00057-CCA-R3-PC – Filed October 7, 2016

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Petitioner, Adam Clyde Braseel, was convicted of first degree premeditated murder,

felony murder, especially aggravated robbery, attempted first degree murder, aggravated

assault, and assault and sentenced to an effective sentence of life imprisonment with the

possibility of parole. State v. Adam Clyde Braseel, No. M2009-00839-CCA-R3-CD,

2010 WL 3609247, at *1 (Tenn. Crim. App. Sept. 17, 2010), perm. app. denied (Tenn.

Feb. 17, 2011). On direct appeal, this Court merged the aggravated assault and attempted

first degree murder convictions and corrected several clerical errors in the judgments. In

all other respects, the convictions and sentences were affirmed. Petitioner subsequently

sought post-conviction relief on the basis of ineffective assistance of counsel, arguing,

among other things that trial counsel should have filed a motion to suppress the pre-trial

identification of Petitioner as the perpetrator, should have challenged the eyewitness

identification of Petitioner at trial, and should have requested a jury instruction on

eyewitness identification. After a hearing, the post-conviction court granted relief. The

State appealed. After a thorough review, we reverse and remand the judgment of the

post-conviction court. All of Petitioner‟s covictions are reinstated and his petition for

post-conviction relief is dismissed.

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

Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant

Attorney General; Mike Taylor, District Attorney General; and Steve Strain and David

Shinn, Assistant District Attorneys General, for the appellant, State of Tennessee.

Douglas A. Trant, Knoxville, Tennessee, for the appellee, Adam C. Braseel.

OPINION

Petitioner was indicted in March of 2006 for first degree murder, felony murder,

especially aggravated robbery, attempt to commit first degree murder, aggravated assault,

especially aggravated burglary, and assault. The State‟s proof at trial consisted primarily

of the testimony of the victim‟s sister, Rebecca Hill, and nephew, Kirk Braden. Ms. Hill

and Mr. Braden were staying with the victim, Malcolm Burrows, at his home in Tracy

City while they were in between residences.

On the night of the victim‟s death, a person identified by both Ms. Hill and Mr.

Braden as Petitioner, knocked on the door and asked the victim for help with his vehicle.

The victim left with Petitioner in Ms. Hill‟s vehicle. Not long thereafter, Petitioner

returned to the house alone and asked for starter fluid. When Ms. Hill reached under the

sink to get the starter fluid, Petitioner began hitting her with a long object. Mr. Braden

came to her assistance after she yelled for help. Petitioner threw a fire extinguisher at

him. The victim‟s body was found in the woods a short distance from Ms. Hill‟s vehicle.

His wallet was missing.

Ms. Hill identified Petitioner from a photographic lineup when she regained

consciousness four or five days later. Mr. Braden was able to describe Petitioner‟s

vehicle and made an unsolicited identification of Petitioner from a set of photographs. At

least one of the victim‟s neighbors gave a description of the vehicle that was consistent

with Mr. Braden‟s description. Petitioner‟s mother confirmed that she owned a vehicle

matching the description of the vehicle seen at the victim‟s house. There was no physical

evidence linking Petitioner to the crimes. Petitioner relied on an alibi defense at trial

through several witnesses and his own testimony claiming that he was with a group of

people four-wheeling in a nearby town, Coalmont, on the night of the victim‟s death. Id.

at *1-7.

At the conclusion of the jury trial, Petitioner was convicted of first degree

premeditated murder, first degree felony murder, especially aggravated robbery, attempt

to commit first degree murder, aggravated assault, and assault. The trial court merged the

convictions for first degree premeditated murder and first degree felony murder and

sentenced him to life imprisonment for his murder conviction. The trial court ordered all

of the other sentences to run concurrently for an effective sentence of life with the

possibility of parole. Id. at *1.

On direct appeal, Petitioner challenged the sufficiency of the evidence for murder,

especially aggravated robbery and aggravated assault. He also complained that the pre-

trial identification processes were unduly suggestive. Id. This Court determined

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Petitioner waived the issue with regard to impermissibly suggestive pre-trial

identification because no motion to suppress was filed pre-trial and no objection was

lodged during trial to challenge the identifications. Id. at *7. This Court found the

evidence sufficient to support the murder convictions but remanded the matter for

correction of the judgments to properly reflect the merger of the conviction of first degree

felony murder into the conviction of first degree premeditated murder for a single

judgment of conviction. Id. at *8. Lastly, this Court found, “as plain error that principles

of double jeopardy bar . . . multiple convictions [for the aggravated assault and attempted

first degree premeditated murder of Ms. Hill].” Id. at *12. The supreme court denied

permission to appeal.

Petitioner filed a timely petition for post-conviction relief on February 14, 2012.

In the petition, he alleged that he received ineffective assistance of counsel, that his

convictions were based on an unconstitutional failure of the prosecution to disclose

evidence favorable to the defense, that his convictions were based on an

unconstitutionally selected and impaneled grand jury, and that the trial court erred in

admitting illegal evidence. Specifically, with regard to ineffective assistance of counsel,

Petitioner questioned trial counsels‟ failure to object to or contest the eyewitness

identifications, call certain alibi witnesses, and the failure of trial counsel to request a jury

instruction regarding the reliability of eyewitness identification. Petitioner also argued

that trial counsels‟ cumulative failure to object to evidence at trial was ineffective

assistance of counsel and that the State utilized an impermissibly suggestive photographic

lineup for identification.

An amended petition was filed adding allegations of due process violations based

on the disappearance of a Sun Drop bottle recovered from the scene containing a

fingerprint that did not match Petitioner‟s fingerprint and the disappearance of the

photographic lineup.1 Petitioner also submitted the findings of an independent

investigator along with a list of potential witnesses as part of an amended petition for

relief.

The post-conviction court held a hearing on the petition at which the entire trial

transcript was entered into evidence. At the hearing, Petitioner called several witnesses

to testify on his behalf, all of whom testified regarding Petitioner‟s whereabouts on the

night of the incident. Only one of those witnesses, Charles Partin, testified at trial.

Neither trial counsel nor Petitioner testified at the hearing. Petitioner was represented by

1

The orginal photographic line up has not disappeared. When we requested and received the

archive record from Petitioner‟s direct appeal, trial Exhibit 25, the photographic lineup, was included. It

was filed on May 29, 2009 with other trial exhibits and has remained with the clerk since that time. It is

apparent that post-conviction counsel did not request the return of the trial exhibits to the post-conviction

court before the evidentiary hearing. We have reviewed this archived exhibit and find that it and the

photo line up attached to Petitioner‟s appeal brief are identical.

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two attorneys at trial. Additionally, at the time of the post-conviction hearing, Ms. Hill

was deceased.

Charles Partin, one of Petitioner‟s friends, testified at the hearing on the petition

for post-conviction relief. Mr. Partin claimed that Petitioner spent January 7, 2006, the

day of the victim‟s death, “pretty much all day” at his house. Petitioner left that night

“between 9:00 and 9:15” when Mr. Partin “and a buddy” left to go to Manchester. Danny

Johnson and Robin Crabtree were also at his house that day. Mr. Partin admitted that he

testified at the trial and that he only “vaguely” remembered what occurred on the day of

the victim‟s death. Mr. Partin could not recall what type of car Petitioner drove but

recalled that it was a “dark” car with four doors.

None of the remaining witnesses presented by Petitioner at the hearing on the

petition for post-conviction relief testified at the trial of the matter. Robin Smith met

Petitioner for the first time at Mr. Partin‟s house on the day that the victim was killed.

She recalled that Petitioner was at Mr. Partin‟s house at around 8:00 p.m. Ms. Smith left

at around 9:00 p.m. with her daughter.

Danny Johnson also remembered meeting Petitioner at Mr. Partin‟s house on the

same night at Mr. Partin‟s house at around 8:30 p.m. Mr. Johnson testified that he left

around 9:00 p.m. with Mr. Partin and Ms. Smith to go to Manchester to an establishment

called “Billiards.”

James Nick Brown knew Petitioner and saw him on the day the victim was killed

at Mr. Partin‟s house with Mr. Partin, BJ Partin and Hope Nunley. Petitioner was at the

house from around noon to 9:15 p.m. that night when they went to Josh Seagroves‟s

house. When they left the Seagrove residence, they went “four-wheel drive riding.” Mr.

Brown was with Petitioner “until the next day about 3 or 4 o‟clock.”

Darren Nunley, also known as “Boog,” also testified that he saw Petitioner at the

house of Mr. Seagroves around 9:30 or 10:00 p.m. on the night the victim was killed.

They went “riding in [his] Bronco” for most of the night and the next day. Mr. Nunley

was uncertain about specific times and recalled that he was drinking.

Jake Baum testified that he had known Petitioner since the seventh grade. He did

not testify at trial because he was in the military at the time and stationed in Washington

State. He was not permitted to leave service to testify at trial. On the night of January 7,

he was going from his house in Winchester to take his girlfriend, Kristen King, home. At

around 9:30, Petitioner “pulled [him] over.” Mr. Baum pulled in to a church parking lot

at Altamont, and got into the car with Petitioner. Mr. Baum‟s girlfriend stayed in his car.

According to Mr. Baum, Petitioner wanted to “smoke a joint” but neither of the men had

rolling papers. Petitioner asked for Mr. Baum‟s sister‟s telephone number. Mr. Baum

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told Petitioner he needed to take his girlfriend home and went back to his own car.

Petitioner went “toward Josh Seagroves‟ house.” Mr. Baum was sure that it was between

9:00 and 10:00 p.m. because he “had to be in Winchester by 10:00.”

Phillip Clay testified that he gave a statement to Chief Deputy Lonnie Cleek on

March 2, 2007, when he was in jail. Mr. Clay testified, over objection, that he told

Deputy Cleek that he was riding in the backseat of a car with Dana Frederick and

Dewayne Lane at some point after the victim was killed. Mr. Lane was driving and Ms.

Frederick was sitting in the passenger seat. The couple was arguing. During the

argument, the car started to swerve, and Mr. Lane reached over and pushed Ms.

Frederick‟s face. She said, “[T]ouch me again, and you‟ll wind up dead just like [the

victim]. F—with my daddy, f—with Big Eck.” Mr. Clay recalled that Ms. Frederick‟s

father‟s name was “Eck.” Mr. Clay was not a witness at trial.

At the conclusion of the hearing, the post-conviction court took the matter under

advisement. In a written order, the post-conviction court granted relief, finding that trial

counsel were ineffective.

The State filed a timely notice of appeal.

Analysis

On appeal, the State insists that the record does not support the “essential factors

upon which the court based its finding of ineffective assistance of counsel” and that the

post-conviction court failed to utilize the proper legal analysis to support the findings.

The State argues that the post-conviction court‟s judgment should be reversed and

remanded and the petition for post-conviction relief dismissed with prejudice. Petitioner

insists that the post-conviction court correctly determined that his petition warranted

post-conviction relief.

Post-conviction Standard of Review

Post-conviction relief is available for any conviction or sentence that is “void or

voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to

prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations

by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d

152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or

substantial doubt about the correctness of the conclusions drawn from the evidence.”

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

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Both the Sixth Amendment to the Constitution of the United States and article I,

section 9 of the Tennessee Constitution guarantee the right of an accused to the effective

assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a

petitioner must demonstrate that counsel‟s representation fell below the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,

936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466

U.S. 668, 687 (1984), a petitioner must prove that counsel‟s performance was deficient

and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408

(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a

claim of ineffective assistance of counsel, “failure to prove either deficient performance

or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,

960 S.W.2d at 580. “Indeed, a court need not address the components in any particular

order or even address both if the [petitioner] makes an insufficient showing of one

component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466

U.S. at 697).

The test for deficient performance is whether counsel‟s acts or omissions fell

below an objective standard of reasonableness under prevailing professional norms.

Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the

questionable conduct from the attorney‟s perspective at the time, Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel‟s

conduct falls within the wide range of reasonable professional assistance.” State v.

Burns, 6 S.W.3d 453, 462 (Tenn. 1999). A defendant in a criminal case is not entitled to

perfect representation, only constitutionally adequate representation. Denton v. State,

945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of

ineffective assistance of counsel, „we address not what is prudent or appropriate, but only

what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting

United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). This Court will not use

hindsight to second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334,

347 (Tenn. Crim. App. 1994), even if a different procedure or strategy might have

produced a different result, Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App.

1980). “The fact that a particular strategy or tactic failed or hurt the defense does not,

standing alone, establish unreasonable representation.” House v. State, 44 S.W.3d 508,

515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). However, this deference to the

tactical decisions of trial counsel is dependent upon a showing that the decisions were

made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992).

Even if a petitioner shows that counsel‟s representation was deficient, the

petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain

relief. Prejudice is shown where “there is a reasonable probability that, but for counsel‟s

unprofessional errors, the result of the proceeding would have been different.” Burns, 6

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S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). This reasonable probability must be

“sufficient to undermine confidence in the outcome.” Id. “An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691.

Whether a petitioner has been denied the effective assistance of counsel presents a

mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the

post-conviction court‟s findings of fact “under a de novo standard, accompanied with a

presumption that those findings are correct unless the preponderance of the evidence is

otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.

13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh

or re-evaluate the evidence presented or substitute our own inferences for those drawn by

the trial court. Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the

weight and value to be given to testimony, and the factual issues raised by the evidence

are to be resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing

Henley, 960 S.W.2d at 578). However, the post-conviction court‟s conclusions of law

and application of the law to the facts are reviewed under a purely de novo standard, with

no presumption of correctness. Fields, 40 S.W.3d at 458.

In the order granting relief, the post-conviction court recounted the issues raised

by Petitioner as follows: (1) trial counsel failed to move to suppress the photographic

lineup used when Mr. Braden identified Petitioner; (2) trial counsel failed to notice the

misidentification of Petitioner at trial by Ms. Hill; (3) trial counsel failed to argue that

Ms. Hill could not identify Petitioner after the incident; (4) trial counsel failed to request

a jury instruction on identity; (5) trial counsel failed to object to the photographic lineup

at trial; (6) the evidence does not support the convictions; (7) trial counsel failed to call

alibi witnesses; and (8) the trial proceeding was flawed. The post-conviction court

determined that Petitioner‟s “allegation that he did not receive effective assistance of

counsel at the jury trial was supported by clear and convincing evidence at the post-

conviction hearing” (emphasis added). The post-conviction court pointed to the fact that

there was “no other evidence relating the Petitioner to the crimes except the identification

by Rebecca Hill and Kirk Braden,” placing “great emphasis on the credibility and

sufficiency of the identifications.” The post-conviction court went on to comment that:

The jury clearly relied on the identification of the Petitioner by Rebecca

Hill and Kirk Braden.

It was testified to at trial that Rebecca Hill failed to identify the

Petitioner in a photo lineup immediately after the crimes. It was only at a

later time did Ms. Hill identify the Petitioner. At trial, Ms. Hill improperly

identified the Petitioner on a lineup, actually identifying someone else.

This misidentification was not noticed or argued to the trial jury by trial

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counsel. Trial counsel did not seek to suppress Ms. Hill‟s identification of

the Petitioner. Ms. Hill is now deceased.

Kirk Braden was shown a single photo lineup of the Petitioner by

former Grundy County Sheriff, Brent Myers. Single photo lineups have

consistently been held to be unconstitutional by our appellate courts. Mr.

Braden obviously identified the Petitioner. Trial counsel failed to move to

suppress the single photo lineup or object to it as well.

Trial counsel also failed to request that the trial judge charge the jury

on identify, found in [Tennessee Pattern Jury Instruction] 42.05. Trial

counsels‟ actions at trial precluded the appellate court to consider the issue

of identity due to the waiver said actions constituted.

All of these actions or inactions by trial counsel constitute

ineffective assistance of counsel, thus denying the Petitioner his

constitutional rights to trial. Again, the court is considering the

aforementioned issues of identification with extreme weight, based

contextually with the fact that identification alone is all that ties the

Petitioner to the crimes. If any other evidence whatsoever existed, then the

flaws with the identification of the Petitioner would likely not be as

important and fundamental to ensuring that the Petitioner receive a

constitutionally fair trial.

The post-conviction court determined that trial counsels‟ failure to call certain

alibi witnesses was most likely a strategic decision and, as such, did not rise to the level

of ineffective assistance of counsel. As a result of the post-conviction court‟s findings,

the post-conviction court granted post-conviction relief and ordered a new trial.

At the outset, we note that in the order granting relief, the post-conviction court

did not articulate the application of the Strickland analysis as to each specific allegation

presented in the post-conviction petition. Further, our review of the issues raised is

complicated by the post-conviction court‟s analysis of the issues presented in the post-

conviction petition in the aggregate. Ordinarily, this Court undertakes review of the grant

or denial of a post-conviciton petition by examining each individual allegation of

ineffective assistance of counsel separately. As such, our opinion will follow this format.

Identity

1. Trial Counsels’ Failure to Challenge Impermissibly Suggestive Lineup

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The State argues that the post-conviction court improperly determined that trial

counsel were ineffective for failing to challenge the identification of Petitioner by Mr.

Braden. Petitioner insists that the post-conviction court properly determined that the

“one photo line-up” was improper because it was impermissibly suggestive, relying on

State v. Tyson, 603 S.W.2d 748 (Tenn. Crim. App. 1980), for the proposition that no

court has approved the practice of showing a single photo to a victim.

In Simmons v. United States, 390 U.S. 377 (1968), and Neil v. Biggers, 409 U.S.

188 (1972), the Supreme Court discussed pretrial identifications by photographs. In

Simmons, the Court held that “convictions based on eyewitness identification at trial

following a pretrial identification by photograph will be set aside on that ground only if

the photographic identification procedure was so impermissibly suggestive as to give rise

to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384. In

Neil, the Court established a two-part analysis which the trial court must apply to

determine the validity of a pretrial identification. 409 U.S. at 198-200. First, the trial

court must determine whether the identification procedure was unnecessarily suggestive.

Id. at 198. Next, if the trial court determines that the identification was unnecessarily

suggestive, it must then consider whether, under the totality of the circumstances, the

identification procedure was nonetheless reliable. Id. at 199. “[A] photographic

identification is admissible unless, based upon the totality of the circumstances, „the

confrontation conducted . . . was so unnecessarily suggestive and conducive to

irreparable mistaken identification that [the accused] was denied due process of law.‟”

State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998) (quoting Stovall v. Denno, 388 U.S. 293,

301-02 (1967)). In Tennessee, it is unnecessary to apply the totality of the circumstances

test described in Biggers if the trial court determines that the identification procedure was

not unnecessarily suggestive. See State v. Butler, 795 S.W.2d 680, 686 (Tenn. Crim.

App. 1990) (declining to apply the totality of the circumstances test when a lineup was

not found to be unnecessarily suggestive).

At trial, Mr. Braden testified that he gave police a description of Petitioner, the hat

he was wearing, and the car he was seen driving. Petitioner was identified as a suspect.

Officers learned that Petitioner‟s mother owned a car like the one described by Mr.

Braden. When confronted by officers, Petitioner‟s mother confirmed Petitioner was

driving the car on the night of the victim‟s death. Mr. Braden testified at trial that he

went to the police station a few days after the incident where he identified Petitioner from

a photograph. The following exchange took place at trial:

[Counsel For Defendant]: [D]id they show you one photograph or a whole

bunch of photographs?

[Mr. Braden]: A lot of photos.

[Counsel for Defendant]: A lot of photos?

[Mr. Braden]: Yeah.

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[Counsel for Defendant]: How many photos?

[Mr. Braden]: I couldn‟t tell you how many. There was a stack.

[Counsel for Defendant]: All right. Now, I take it, out of those photos, you

picked one of the photos, didn‟t you?

[Mr. Braden]: Yeah. I did.

[Counsel for Defendant]: Was there ever a live line-up where you put them

behind you and you picked out live, living people? Was there anything like

that?

[Mr. Braden]: He showed me the first photo and I identified him.

[Counsel for Defendant]: All right. Did they show you the first photo - -

[Mr. Braden]: He showed me several.

[Counsel for Defendant]: - - before he showed you the other photos? Do

you remember? In other words, did the sheriff come up and just show and

say is this the man? Is that what he did?

[Mr. Braden]: He come up and asked me, yes, is this the man who done it?

[Counsel for Defendant]: Okay. With just one photo?

[Mr. Braden]: He showed me three or four.

[Counsel for Defendant]: Was the photo you identified the first photo he

showed you or the second or the third?

[Mr. Braden]: I identified the first one right off the - -

[Counsel for Defendant]: Okay. You identified the first one he showed

you?

[Mr. Braden]: Yes.

Sheriff Myers testified at trial that Mr. Braden came to the office without an

appointment. “He came to the sheriff‟s office hunting me, and he actually went inside

the building, and they sent him out to the trailer [where the investigator‟s office was

located].” When Mr. Braden came in to the investigator‟s office, “all of these pictures

were on the desk . . . because we had to cut these pictures out [to prepare the

photographic lineup].” When Mr. Braden sat down in the “metal chair that was to the

right of . . . the desk[,] . . . he pointed at the picture and told me that that picture was the

one that had [done] it.” Sheriff Myers then “handed Mr. Braden all of the photographs

and told him to make sure that he had picked out the right photograph, and Mr. Braden

again identified the [petitioner].” Adam Braseel, 2010 WL 3609247, at *4. This Court‟s

review of the factual basis for the conviction in the opinion on direct appeal is consistent

with our review of the trial transcript.

The post-conviction court‟s finding that Mr. Braden was shown a “single photo

lineup” by the sheriff is not supported by the trial transcript. Mr. Braden‟s trial testimony

and the trial testimony of the sheriff showed that Mr. Braden was shown more than one

photograph. Petitioner‟s photograph was the first picture in a stack of photos that Mr.

Braden saw when he showed up early at the sheriff‟s office and before the photos could

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be arranged in a photo array. Prior to that time, he had provided a description of

Petitioner, his car, and the hat he was wearing on the night of the murder, enabling him to

make the identification of Defendant so quickly once he was shown a photograph.

Moreover, Petitioner did not present any testimony at the post-conviction hearing to

contradict the facts surrounding the identification of Petitioner by Mr. Braden as

presented at trial. Instead, Petitioner relied on the trial transcript introduced at the

hearing as an exhibit and argument of post-conviction counsel. Accordingly, the

evidence in the record preponderates against the post-conviction court‟s finding that Mr.

Braden‟s identification resulted from an unnecessarily suggestive single-photo lineup.

2. Trial Counsels’ Failure to File Motion to Suppress

The State insists that the post-conviction court failed to analyze the failure of trial

counsel to file a motion to suppress his identification with the proper legal framework.

Specifically, the State argues that any motion to suppress would have been without basis

and, as such, trial counsel cannot now be held ineffective for failing to file a motion to

suppress. Petitioner maintains that trial counsel should have filed a motion to suppress

prior to trial and that trial counsel was ineffective for failing to do so.

This Court has previously addressed the evidence necessary at a post-conviction

hearing in order to demonstrate that counsel‟s failure to file a motion to suppress

prejudiced the petitioner:

It is well settled that when a [p]etitioner in post-conviction proceedings

asserts that counsel rendered ineffective assistance of counsel by failing to

call certain witnesses to testify, or by failing to interview certain witnesses,

these witnesses should be called to testify at the post-conviction hearing;

otherwise, [p]etitioner asks the [c]ourt to grant relief based upon mere

speculation. Black v. State, 794 S.W.2d 752, 757 (Tenn. 1990). The same

standard applies when a [p]etitioner argues that counsel was

constitutionally ineffective by failing to file pre-trial motions to suppress

evidence. In order to show prejudice, [a] [p]etitioner must show by clear

and convincing evidence that (1) a motion to suppress would have been

granted and (2) there was a reasonable probability that the proceedings

would have concluded differently if counsel had performed as suggested.

Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006) (citing Strickland, 466

U.S. at 687). In essence, the petitioner should incorporate a motion to

suppress within the proof presented at the post-conviction hearing.

Terrance Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436, at *8

(Tenn. Crim. App. Sept. 12, 2011), no perm. app. filed. Thus, “[i]f a petitioner alleges

that trial counsel rendered ineffective assistance of counsel by failing to . . . file a motion

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to suppress[,] . . . the petitioner is generally obliged to present . . . the [evidence

supporting his claim] at the post-conviction hearing in order to satisfy the Strickland

prejudice prong.” Demarcus Sanders v. State, No. W2012-01685-CCA-R3-PC, 2013

WL 6021415, at *4 (Tenn. Crim. App. Nov. 8, 2013), perm. app. denied (Tenn. Mar. 17,

2014); see also Craig Abston v. State, No. W2014-02513-CCA-R3-PC, 2016 WL

3007026 (Tenn. Crim. App. May 17, 2016), perm. app. denied (Tenn. Aug. 18, 2016).

In this case, the Petitioner failed to demonstrate that a motion to suppress his

identification would have been successful had it been filed. The only argument in the

record indicating that the indentification procedure was impermissibly suggestive is the

Petitioner‟s own claim and post-conviction counsel‟s statements. Because we determined

above that the identification of Petitioner by Mr. Braden was not impermissibly

suggestive, we conclude there would have been little likelihood of success if trial counsel

had filed a motion to suppress. Further, Petitioner admits that both Ms. Hill and Mr.

Braden were able to identify him from photographs and at trial. Moreover, and

significantly, neither trial counsel testified at the post-conviction hearing. Without the

testimony of trial counsel, we cannot determine whether the decision was a part of trial

counsels‟ trial strategy. This Court may not speculate about the substance of the

testimony of a potential witness whose testimony was not offered at the post-conviction

hearing. Black, 794 S.W.2d at 757. Based on the record before us, we are unable to

determine that a motion to suppress would have been granted. The Petitioner has failed

to show that he was prejudiced by any alleged deficiency as required by a proper

Strickland analysis. Post-conviction counsel‟s argurment is all that is contained in the

record, and that equates to no proof at all. The post-conviction court improperly

concluded that Petitioner received ineffective assistance of counsel for trial counsels‟

failure to file a motion to suppress.

3. Identification of Petitioner by Ms. Hill

Next, the State argues that the post-conviction court improperly found that Ms.

Hill failed to identify Petitioner from the lineup and then actually misidentified Petitioner

at trial. Petitioner disagrees.

As stated previously, when this Court undertakes review of a lower court‟s

decision on a petition for post-conviction relief, the lower court‟s findings of fact are

given the weight of a jury verdict and are conclusive on appeal absent a finding that the

evidence preponderated against the judgment. Black, 794 S.W.2d at 755.

With respect to Ms. Hill‟s identification of Petitioner prior to trial, the post-

conviction court improperly found that Ms. Hill “misidentified” Petitioner both prior to

trial and at trial. Again, we determine that the evidence preponderates against the

findings of the post-conviction court because the trial transcript of Ms. Hill‟s testimony

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clearly demonstrates otherwise. Chief Deputy Cleek testified at trial that the first time he

went to talk with her, Ms. Hill was in no position to either give a statement or look at

pictures because she was unconscious. At some point after Ms. Hill was released from

the hospital, she came to the sheriff‟s department to view the photographic lineup and

“rather quickly” identified Petitioner. Adam Clyde Braseel, 2010 WL 3609247, at *4.

The testimony from Ms. Hill at trial shows that she “went to the jail” and identified

Petitioner in “some pictures.” At that point during the trial testimony, Ms. Hill identified

Petitioner in open court as the perpetrator.

We acknowledge that post-conviction counsel also argued at the hearing that Chief

Deputy Lonnie Cleek incorrectly identified Petitioner‟s photograph in the lineup at trial

as the “third from the right” when it was allegedly the “third from the left.” Petitioner

took issue with the fact that trial counsel did not object during trial and did not raise this

issue on appeal. However, Petitioner did not present any witnesses, including himself or

either trial counsel, at the hearing to support this argument. Argument from counsel does

not amount to proof. State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003).

Moreover, the photographic lineup does not appear in the technical record in either the

post-conviction or trial transcript, so we are unable to ascertain whether any of the

witnesses truly misidentified Petitioner at trial. Where the record is incomplete, an

appellate court is precluded from considering the issue. State v. Roberts, 755 S.W.2d

833, 836 (Tenn. Crim. App. 1988); see also Tenn. R. App. P. 24(b). We determine that

the evidence at the post-conviction hearing preponderates against the findings of the post-

conviction court. The post-conviction court improperly granted relief by finding that trial

counsel were ineffective.

4. Jury Instruction

Petitioner takes issue with trial counsels‟ failure to request a jury instruction

regarding the reliability of eyewitness identification. The State concedes that trial

counsel should have requested such an instruction. However, the State argues that the

post-conviction court utilized the improper analysis of the claim and that the lack of the

jury instruction was harmless. See State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995).

The right to trial by jury is guaranteed by the United States and Tennessee

constitutions. U.S. Const. amend. VI; Tenn. Const. art. I, § 6. Therefore, “a defendant

has a right to a correct and complete charge of the law, so that each issue of fact raised by

the evidence will be submitted to the jury on proper instructions.” State v. Garrison, 40

S.W.3d 426, 432 (Tenn. 2000) (citing State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)).

Accordingly, trial courts have a duty “to give a complete charge of the law applicable to

the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986) (citing State v.

Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)).

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In Dyle, our supreme court held that the pattern jury instruction on eyewitness

identification used up to that point was not adequate in cases where identity of the

defendant is a material issue and set forth a new, more detailed instruction to be given in

those situations. 899 S.W.2d at 612. The supreme court held that identity is a material

issue “when the defendant puts it at issue or the eyewitness testimony is uncorroborated

by circumstantial evidence.” Id. n.4. The instruction is as follows:

One of the issues in this case is the identification of the defendant as

the person who committed the crime. The [S]tate has the burden of proving

identity beyond a reasonable doubt. Identification testimony is an

expression of belief or impression by the witness, and its value may depend

upon your consideration of several factors. Some of the factors which you

may consider are:

(1) The witness‟ capacity and opportunity to observe the offender.

This includes, among other things, the length of time available for

observation, the distance from which the witness observed, the lighting, and

whether the person who committed the crime was a prior acquaintance of

the witness;

(2) The degree of certainty expressed by the witness regarding the

identification and the circumstances under which it was made, including

whether it is the product of the witness‟[s] own recollection;

(3) The occasions, if any, on which the witness failed to make an

identification of the defendant, or made an identification that was

inconsistent with the identification at trial; and

(4) The occasions, if any, on which the witness made an

identification that was consistent with the identification at trial, and the

circumstances surrounding such identifications.

Again, the [S]tate has the burden of proving every element of the

crime charged, and this burden specifically includes the identity of the

defendant as the person who committed the crime for which he or she is on

trial. If after considering the identification testimony in light of all the

proof you have a reasonable doubt that the defendant is the person who

committed the crime, you must find the defendant not guilty.

Id.; see also 7 T.P.I.—Crim. 42.05 (19th ed. 2015). The Dyle Court adopted the above-

quoted identity instruction over a more expansive instruction to avoid “impermissibly

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comment[ing] on the evidence; thus, invading the province of the jury.” Dyle, 899

S.W.2d at 612.

In a case so heavily dependent on the identity of the perpetrator and so lacking in

physical evidence connecting Petitioner to the crime, we agree with the post-conviction

court, the State and Petitioner that Petitioner‟s identity was a material issue at trial and

that trial counsels‟ failure to request a jury instruction on identity was certainly deficient.

The post-conviction court‟s order found that trial counsels‟ failure to request the jury

instruction “precluded the appellate court to consider [sic] the issue of identity due to the

waiver said actions constituted.”

However, the post-conviction court did not perform the proper prejudice inquiry.

In order to show prejudice at the post-conviction level, Petitioner is required to establish

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.‟” Goad, 938 S.W.2d at

370 (quoting Strickland, 466 U.S. at 694). Thus the post-conviction‟s court‟s failure to

perform a proper prejudice analysis results in error.

That said, we must determine whether we should remand the case to require the

post-conviction court to apply the proper legal standard or whether the state of the record

enables us to apply the standard and adjudicate the prejudice issue in this appeal.

Petitioner did nothing to contradict the trial record‟s demonstration of what occurred

relative to the absence of the Dyle instruction. He took no steps to articulate, other than

through nonevidentiary argument of post-conviction counsel, how the failure to request

the instruction prejudiced Petitioner. For this reason, we will review the prejudice issue

de novo.

To do so, we look to the non-exclusive list of factors promulgated by Dyle to

assess the probable result of the jury‟s use of the instruction had it been given. Applying

these factors, the trial record contains evidence that leads us to conclude that no

probability existed that the jury would have utilized a Dyle instruction to refute the

identification testimony provided by Ms. Hill and Mr. Braden. Although Petitioner may

have been previously unknown to the witnesses, these witnesses had a substantial and

prolonged opportunity to observe the offender amid adequate lighting and from close

distances. The witnesses expressed certainty as to offender‟s identity and did so within a

short time after the crimes were committed. Contrary to argument of post-conviction

counsel upon which the post-conviction court apparently relied, the record does not

reflect that either witness “mis-identified” or failed to identify Petitioner as the offender.

The record reflects no circumstances surrounding the pretrial identifications that would

derogate from those identifications or the witnesses‟ identifications at trial. The focus of

the Dyle instruction is the competency of eyewitnesses, not their veracity or truthfulness.

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Having reviewed the facts in light of the Dyle factors, we hold that no probability exists

that the result of the trial would have been different. Therefore, we reverse the post-

conviction court‟s judgment on this issue.

Alibi Witnesses

In the petition for relief, Petitioner sought relief for trial counsels‟ failure to call

certain alibi witnesses. Petitioner went on to present multiple alibi witnesses at the post-

conviction hearing, but did not raise this issue on appeal. Issues raised in the pro se

petition and not raised on appeal are deemed abandoned. See Jeffrey L. Vaughn v. State,

No. W2015-00921-CCA-R3-PC, 2016 WL 1446140, at *2 n.4 (Tenn. Crim. App. Apr.

12, 2016), perm. app. denied (Tenn. Aug. 19, 2016); Ronnie Jackson, Jr. v. State, No.

W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. 2009),

perm. app. denied (Tenn. Apr. 16, 2010).

Conclusion

Because we have determined that the evidence preponderates against the factual

findings of the post-conviction court and because Petitioner has failed to prove that he

received ineffective assistance of counsel, we reverse the judgment of the post-conviction

court. Petitioner‟s convictions are reinstated.

____________________________________

TIMOTHY L. EASTER, JUDGE

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