Court of Criminal Appeals of Tennessee, Nashville
ANTONIO D. ALEXANDER
STATE OF TENNESSEE
Assigned on Briefs at Knoxville December 9, 2014
Appeal from the Circuit Court for Rutherford County No. 70558 Mitchell Keith Siskin, Judge
Joshua Crain, Murfreesboro, Tennessee, for the appellant, Antonio D. Alexander.
Herbert H, . Slatery III, Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J., joined.
TIMOTHY L. EASTER, JUDGE
This case arises out of the 2008 robbery of an O'Charley's restaurant in Murfreesboro and the death of the on-duty manager. At midnight on February 2, 2008, Sean Mahoney was leaving his job as a bartender for O'Charley's when he was approached by Petitioner, who was wearing a ski mask and coveralls. Antonio D. Alexander, 2012 WL 1895801, at *1. Petitioner informed Mr. Mahoney that he was robbing him and brandished a .22 caliber pistol. Id. Petitioner then forced Mr. Mahoney out of his car and towards the back door of the restaurant. Id. Another employee, Michael Dorton, opened the door and Petitioner pointed the gun at him. Id. Mr. Mahoney and Mr. Dorton ran into the manager's office where their manager, Nadar Bahmanziari, was counting receipts; however, they were unable to completely close and lock the Dutch-style door. Id. Mr. Mahoney told Mr. Bahmanziari that Petitioner was robbing them, and Mr. Bahmanziari called 911. Id. at *2. Petitioner demanded that they open the door and give him the money. Id. Petitioner fired two shots; one shot did not penetrate the door, while the other went through the gap between the top and bottom sections of the door and struck Mr. Bahmanziari in the abdomen. Id. at *2, *6. Mr. Dorton pulled Mr. Bahmanziari into the office's closet and locked the door. Id. at *2. Then, Mr. Mahoney allowed Petitioner into the office, where he stole $2700 in cash before fleeing the scene. Id. Mr. Bahmanziari later died as a result of the gunshot wound to his abdomen. Id. at *6.
During the course of the investigation into the robbery, Mr. Mahoney, Mr. Dorton, and other employees of the O'Charley's gave the police a description of the perpetrator that matched Petitioner. Id. at *2. A van was discovered in the parking lot of the restaurant which did not belong to any of the employees. Id. at *3. The hood of the van was still warm, and inside the van was Petitioner's work identification badge, several pairs of gloves, earplugs, a stocking mask, and a wallet containing Petitioner's driver's license. Id. Pursuant to Petitioner's instructions, Petitioner's wife lied to the police and told them that she had left the van at the restaurant after becoming sick and had been picked up by a friend, Leon Moton. Id. at *3, *4.
Officers found a trail of money leading from a fence behind the restaurant to a house on North Maple Street which was undergoing renovations. Id. at *3. Inside the house were several footprints that matched one found near the fence. Id. Additionally, officers found a pair of dark coveralls, an earplug, and gloves of the same type as those provided by Petitioner's employer. Id. After the initial search of the house, a construction supervisor informed police that a loaded .22 caliber revolver was found in the top of a closet. Id. The coveralls and gun were positively identified by the O'Charley's employees as the perpetrator's. Id. at *4. The bullets recovered from the door and the victim had characteristics consistent with bullets fired from the .22 caliber revolver. Id. at *5. Petitioner's DNA was found on the coveralls and gloves, and a partial DNA profile consistent with Petitioner was found on the earplug. Id.
On the morning of February 3, 2008, Petitioner called his girlfriend for help. Id. at *4. She picked him up around 7:00 a.m. and took him to Mr. Moton's house, where Petitioner changed clothes. Id. Petitioner later asked his girlfriend to tell the police that he had been with her during the robbery, but she refused. Id. Petitioner asked Mr. Moton to tell his wife that Petitioner had been with him the previous night, and Mr. Moton agreed. Id. Later, Petitioner asked Mr. Moton to tell the police that he had picked up Petitioner's wife at the O'Charley's around 10:00 p.m. on February 2. Id. Mr. Moton later admitted to police that these statements were not true and told police that he had thrown Petitioner's clothes into the dumpster across the street from his house. Id. at *5. Petitioner's DNA was found on the pants and shoes recovered from the dumpster. Id. The shoes also matched the footprints found in the house on North Maple Street. Id.
Petitioner was convicted by a Rutherford County jury of first degree felony murder, second degree murder, especially aggravated kidnapping, especially aggravated robbery, attempted aggravated robbery, and reckless endangerment committed with a deadly weapon. Id. at *1. The jury sentenced Petitioner to life without the possibility of parole for the first degree felony murder conviction, and the trial court sentenced him to a consecutive ninety-year sentence for the remaining offenses. Id. Petitioner's convictions and sentences were affirmed on appeal. Id.
On September 6, 2013, Petitioner filed a timely pro se petition for post-conviction relief. Counsel was appointed, and an amended petition was filed on February 26, 2014. Petitioner claimed that, even though the jury was sequestered during trial, the trial court erred by allowing the jury to separate over the weekend after they were selected but before the trial began. Petitioner also claimed that he received ineffective assistance of counsel when his trial attorney did not object to the jury's separation. The post-conviction court held a hearing on May 2, 2014, at which both Petitioner and trial counsel testified.
Petitioner testified that he did not have an active role in the jury selection process because his attorneys told him to just sit and observe the proceedings. Jury selection took several days, and Petitioner testified that he believed the jury would be sequestered immediately after the selection process. When jury selection concluded on Thursday, however, the trial court allowed the tentatively selected jurors to return home until the trial began on the following Monday so that they would not have to stay in a motel an extra weekend. Petitioner testified that he raised his concern about the jury being allowed to separate to his attorneys, but his attorneys did not raise the issue with the trial court. Petitioner agreed that he did not address the issue when the trial actually began and that he did not raise the issue after the trial because he was not "aware" that a jury sequestration issue had occurred. Petitioner testified that trial counsel never showed him the issues ...