Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs July 19, 2017
from the Criminal Court for Davidson County No. 2012-A-291
Cheryl A. Blackburn, Judge
Charzelle Lamontez Swafford, was convicted of first degree
murder, four counts of attempted first degree murder, and
employing a firearm during the commission of a dangerous
offense. His convictions and effective sentence of life plus
fifty-six years were affirmed on direct appeal. See State
v. Charzelle Lamontez Swafford, No.
M2014-00421-CCA-R3-CD, 2015 WL 1543251, at *1 (Tenn. Crim.
App. Apr. 2, 2015), perm. app. denied (Tenn. Aug.
12, 2015). Petitioner subsequently sought post-conviction
relief on the basis of ineffective assistance of counsel. The
post-conviction court denied relief after a hearing. On
appeal, we determine that Petitioner failed to show that he
was prejudiced by counsel's actions. Accordingly, the
judgment of the post-conviction court is affirmed.
R. App. 3 Appeal as of Right; Judgment of the Criminal Court
C. Caldwell, Nashville, Tennessee, for the appellant,
Charzelle Lamontez Swafford.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; Glenn R. Funk, District Attorney
General; and Megan King, Assistant District Attorney General,
for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in
which James Curwood Witt, Jr. and John Everett Williams, JJ.,
TIMOTHY L. EASTER, JUDGE
being convicted of first degree murder, four counts of
attempted first degree murder, and employing a firearm during
the commission of a dangerous felony during a "shooting
spree" at a Nashville apartment, Petitioner received an
effective sentence of life in prison plus fifty-six years at
100%, to be served in incarceration. Charzelle Lamontez
Swafford, 2015 WL 1543251, at *1. On direct appeal, this
Court affirmed Petitioner's convictions. Id.
Petitioner filed a pro se petition for post-conviction relief
in which he alleged various ways in which he received
ineffective assistance of counsel. He included complaints
about trial counsel's failure to raise diminished
capacity as a defense, failure to request psychological
testing, and failure to challenge a sleeping juror. Counsel
was appointed for purposes of post-conviction relief and an
amended petition was filed. In the amended petition,
Petitioner argued that trial counsel failed to effectively
cross-examine the State's witnesses, failed to adequately
communicate with him, failed to investigate his case, and
failed to raise a "diminished capacity" defense.
Petitioner also insisted that one of the jurors fell asleep
during trial and that he notified trial counsel, who failed
to notify the trial court which led to a "tainted
verdict." At the hearing on the petition,
post-conviction counsel orally amended the petition to
include an issue related to trial counsel's failure to
appeal the trial court's denial of a motion to suppress
cell phone data which was used at trial to help prove
Petitioner's location at the time of the crimes. The
parties agreed to the amendment of the petition.
hearing on the petition for post-conviction relief,
Petitioner testified that he spoke with trial counsel "a
good amount of time" during his incarceration prior to
trial. Trial counsel even enlisted the help of another
attorney. They both met with Petitioner at the jail and went
over the discovery documents prior to trial. Petitioner
admitted that numerous motions were filed pretrial, including
a motion to suppress cell phone records.
explained that he suffered from "ADHD and some other
stuff." He recalled an "evaluation" prior to
trial but did not recall who performed the evaluation or the
purpose of the evaluation. Petitioner knew that he had
completed a mental health evaluation sometime in the past at
"Dede Wallace and Centerstone" where he learned he
had "ADHD and something else." Petitioner was
unable to put a label on the exact source of his problems but
explained that his mental problems affected his ability to
understand things "a little bit." Petitioner
recalled that trial counsel "got [his] alibi in court,
" meaning trial counsel utilized an alibi defense during
trial. Petitioner explained that the defense strategy was
unsuccessful. Petitioner read the opinion issued by this
Court on direct appeal but did not "get" some of it
because it was difficult for him to understand.
insisted that a juror fell asleep during the trial.
Petitioner described the juror as a white male that was
"sitting either [in] the third seat or the fourth seat
in the front." He told trial counsel about the juror but
trial counsel did not address the issue with the trial court.
Petitioner testified that he relied on all of the allegations
made in his petition for relief, not just the ones he
remembered to talk about at the hearing.
counsel testified that he had been licensed to practice law
in Tennessee since 2008 and, at the time of the hearing, had
worked in the public defender's officer for seven years.
Trial counsel was appointed to represent Petitioner after
someone in the public defender's office retired but
recalled being involved "essentially from the very
beginning, maybe initially as the second chair." Trial
counsel "really liked" Petitioner, describing him
as a "loving, funny guy." Trial counsel met with
Petitioner "a lot" because he was Trial
counsel's "most serious case at the time." ...