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Smith v. State

Court of Criminal Appeals of Tennessee, Jackson

June 26, 2017

CARLOS SMITH
v.
STATE OF TENNESSEE

          Session March 7, 2017

         Appeal from the Criminal Court for Shelby County No. 10-02597 Paula Skahan, Judge

         The petitioner, Carlos Smith, appeals the denial of post-conviction relief from his 2012 Shelby County Criminal Court jury convictions of attempted second degree murder, aggravated assault, aggravated robbery, especially aggravated burglary, employing a firearm during the commission of a dangerous felony, and being a felon in possession of a handgun, claiming that he was denied the effective assistance of counsel at trial. Because the post-conviction court failed to make any findings with regard to the petitioner's claim that trial counsel did not properly inform him of his potential sentencing exposure, we remand for the limited purpose of making the requisite findings on this issue. In all other respects, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; Remanded

          Joshua B. Dougan, Jackson, Tennessee (on appeal), and Eugene Belenitsky, Memphis, Tennessee (at hearing), for the appellant, Carlos Smith.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Pamela Fleming Stark and Sam Winnig, Assistant District Attorneys General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         A Shelby County Criminal Court jury convicted the petitioner of two counts each of attempted second degree murder and aggravated assault, and one count each of aggravated robbery, especially aggravated burglary, employing a firearm during commission of a dangerous felony, and being a felon in possession of a handgun, and the trial court imposed an effective sentence of 120 years' incarceration. This court affirmed the convictions on direct appeal. See State v. Carlos Smith, No. W2012-01931-CCA-R3-CD (Tenn. Crim. App., Jackson, Aug. 29, 2013), perm. app. denied (Tenn. Jan. 15, 2014).

         In Carlos Smith, this court stated the facts of the case as follows:

Late in the evening of November 2, 2009, the defendant, his girlfriend, Kelsie Brunner, and his friend, Carl Hall, decided to rob Reginald Milam. The defendant, Ms. Brunner, and Mr. Hall proceeded to a local Wal-Mart, where Ms. Brunner purchased two ski masks, a pair of gloves and a set of bolt cutters. Ms. Brunner then drove the men to Mr. Milam's residence. The defendant and Mr. Hall exited the vehicle, wearing the ski masks rolled up on their heads to resemble caps.
The defendant and Mr. Hall accosted George McColley, Jr., and Richard Hardin, Mr. Milam's brother-in-law, as the two gentlemen were returning to Mr. Milam's residence, where they resided. The defendant and Mr. Hall, both of whom were armed and wearing ski masks, forced Mr. McColley and Mr. Hardin into the residence at gunpoint, demanding to see Mr. Milam. In a back bedroom of the residence, the gunmen encountered Mr. Milam, his wife, Lillian Hardin, and two of the couple's grandchildren. The defendant held them all, including Mr. McColley and Mr. Hardin, at gunpoint and demanded money. Renell Hardin, Mr. Milam's and Mrs. Hardin's adult daughter, heard the commotion and exited her bedroom. When the defendant and Mr. Hall noticed her, they forced her into the back bedroom at gunpoint. At some point during the fracas, a struggle ensued, and the defendant and Mr. Hall shot both Mr. Hardin and Mr. McColley. Mr. McColley also managed to stab Mr. Hall in the back of the neck. The defendant and Mr. Hall then fled the scene with approximately $300 to $400 in cash, and they returned to Ms. Brunner's vehicle. The defendant told Ms. Brunner that "the people in the house weren't compliant, that they got into a physical altercation and at that point [the defendant] had to shoot them."
On April 15, 2010, the Shelby County grand jury issued an 11-count indictment against the defendant, Mr. Hall, and Ms. Brunner, stemming from these criminal offenses. The defendant was charged with two counts of attempted second degree murder in the shootings of Mr. Hardin and Mr. McColley, and two counts of aggravated assault against Mrs. Hardin and her daughter, Renell Hardin. In addition, the defendant was charged with the aggravated robbery of Mr. Milam, the especially aggravated burglary of Mr. Hardin's residence, employing a firearm during the commission of a dangerous felony, and being a felon in the possession of a handgun.
The trial court conducted a jury trial in January 2012. Mr. McColley, Mr. Hardin, Mrs. Hardin, Ms. Renell Hardin, and Lajettie Pegues, one of Mr. Milam's and Mrs. Hardin's daughters, all provided similar testimony about the events of November 2-3, 2009. Ms. Brunner testified that she had been charged with facilitation of especially aggravated robbery for her role in the offenses and confirmed that she had been convicted of the felony of reckless aggravated assault in 2008. Ms. Brunner denied that she had been offered a deal in exchange for her testimony against the defendant. Christina Lane with the Shelby County Criminal Court Clerk's Office testified that the defendant was charged with aggravated robbery in July 2000 and that he was ultimately convicted of that crime. Immediately following Ms. Lane's testimony, the trial court instructed the jury as follows:
Ladies and gentlemen, if from the evidence presented you find that [the defendant] has been convicted of a prior crime you can consider that evidence only for the purpose of its effect on the count of the indictment that alleges that he is a convicted felon in possession of a firearm. You are not to consider it for any other purpose. It doesn't go to whether he's guilty, or not guilty of any of the other charges involved in any of the other counts of the indictment. It is only being allowed to be presented to you for the sole purpose of that particular count that alleges that he has previously been convicted of a felony. ...

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