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Swafford v. State

Court of Criminal Appeals of Tennessee, Nashville

August 14, 2017

CHARZELLE LAMONTEZ SWAFFORD
v.
STATE OF TENNESSEE

          Assigned on Briefs July 19, 2017

         Appeal from the Criminal Court for Davidson County No. 2012-A-291 Cheryl A. Blackburn, Judge

         Petitioner, 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.

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

          Ryan 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., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         After 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.

         The 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.

         At the 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.

         Petitioner 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.

         Petitioner 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.

         Trial 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." ...


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