Assigned on Briefs August 15, 2017
from the Circuit Court for Montgomery County No. 41101125,
63CC1-2011-CR-1126 William Goodman, Judge
Petitioner, Antoine Cardet Smith, appeals from the denial of
post-conviction relief by the Montgomery County Circuit
Court. In this appeal, he argues that he received ineffective
assistance of counsel. Upon our review, we affirm the
judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Knolton, Clarksville, Tennessee, for the Defendant-Appellant,
Antoine Cardet Smith.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; John W. Carney, District Attorney
General; and Lee Willoughby, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court,
in which Thomas T. Woodall, P.J., and Robert L. Holloway,
Jr., J., joined.
CAMILLE R. McMULLEN, JUDGE
Petitioner was originally convicted by a jury of aggravated
robbery and sentenced to serve eleven years and six months in
the Tennessee Department of Correction. State v. Antoine
Cardet Smith, No. M2013-01891-CCA-R3-CD, 2015 WL 128741,
at *1 (Tenn. Crim. App. Jan. 9, 2015). The facts supporting
the Petitioner's conviction, as relevant to the instant
appeal, involve him entering a store in Clarksville,
Tennessee, brandishing a gun, and demanding money from the
clerk. After receiving $170, the Petitioner fled the scene.
The store clerk identified the Petitioner as the perpetrator
of the offense in the second of two photographic line-ups
shown to her. DNA analysis was performed on overalls, a golf
cap, and a cigarette butt recovered from the crime scene. The
major contributor of DNA was attributed to an unknown male
and the minor contributor was attributed to the Petitioner.
Id. at *2. A video of the offense, showing an
African-American perpetrator, was shown to the jury and
admitted into evidence at trial.
December 2, 2016 post-conviction hearing, the Petitioner
testified that he had "three, maybe four" attorneys
prior to trial counsel. Asked when trial counsel was
appointed to his case, the Petitioner replied, "At the
tail end; pretty much on the last nerve of the presiding
judge." Asked by the post-conviction court to clarify,
the Petitioner explained that "I was running out of
time, so the judge was really getting upset with me."
The Petitioner added that trial counsel was appointed
sometime in 2012. The Petitioner was further aggrieved
because trial counsel (1) failed to adequately investigate
his case, (2) failed to speak with his alibi witnesses, (3)
failed to adequately challenge various aspects of the
evidence presented at trial; and (4) prompted a prejudicial
response from a juror during voir dire which alluded to his
Petitioner explained that there was someone else who was
guilty of the crime and that trial counsel did not
strenuously challenge the circumstantial evidence presented
against him. He also stated that prior to the instant charges
being brought against him, he filed a lawsuit against the
lead detective on the case. According to the Petitioner, the
detective "made some comments about him being an
informant" and "put him in a very bad predicament .
. . on the street." He said he filed the lawsuit in May
2011. The Petitioner said that trial counsel worked for the
same law firm that represented the police department and the
county jail in his lawsuit. The Petitioner told trial counsel
about the conflict and she told him that it would not be a
problem. The Petitioner said trial counsel also failed to
contact one of his alibi witnesses and did not speak with the
other alibi witness until the day of trial. He agreed that he
did not provide trial counsel addresses of his alibi
witnesses, only general locations.
counsel, a twenty-year practicing attorney, testified that
she was the attorney of record for the Petitioner in 2013.
She had been employed with the law firm noted by the
Petitioner but left in September 2012. Trial counsel said
that the motion to suppress and the preliminary hearing were
handled by a different attorney, prior to her appointment.
She reviewed the transcript from the motion to suppress and
opined "there was [nothing] incompetent about the
representation." She renewed the motion to suppress the
photographic line-up at the motion for new trial, which was
denied by the trial court and affirmed by the Court of
terms of trial preparation, trial counsel testified generally
that she met with the Petitioner, reviewed discovery,
investigated the alibi, and contacted the DNA expert. Trial
counsel said that the Petitioner advised her of an alibi
witness on the day of trial, and she filed a notice of alibi
that morning. She clarified that it was possible that the
Petitioner advised her earlier than the day of trial. During
voir dire, one of the jurors, Morgan Nicholson, disclosed
that she worked at the sheriff's department. Trial
counsel discussed this with the Petitioner, but she could not
recall any specifics. Trial counsel acknowledged that the
trial court "accuse[d] [trial counsel] of bringing
forward" where the juror was employed. Trial counsel
wanted to request a mistrial based on the juror's comment
but she knew the trial court would not grant it. Trial
counsel testified that her defense strategy concerned
"identification issues." She also said that she did
not believe there was sufficient evidence supporting the use
of the weapon and opposed a jury instruction to that effect.
cross-examination, trial counsel clarified that she began
representing the Petitioner on August 22, 2012. She agreed
this meant there were "ten-days, maybe eight-days"
she may have had a conflict in representation. She said that
she was unsure when she became aware of the litigation
concerning her prior law firm. She explained that her prior
firm had a civil defense team which would have been solely
responsible for that litigation. She said she only handled
criminal cases and "would not have had any access or
participation in those types of matters." She further
explained that she did not call the person the Petitioner
provided as an alibi witness because "it could have been
that she did not believe it was the same day." Finally,
trial counsel opined that a mistrial should have been
declared as a result of the juror's comment and that the
Petitioner could have received a "fairer chance with a
hearing the above proof, the post-conviction court issued a
written order denying post-conviction relief. The Petitioner
later filed this timely appeal.
sole issue presented for our review is whether the
post-conviction court erred in denying post-conviction relief
based on trial counsel's failure to (1) fully investigate
the Petitioner's case; (2) disclose a potential conflict
of interest; (3) strike a juror; and (4) adequately challenge
key evidence at ...