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Smith v. State

Court of Criminal Appeals of Tennessee, Jackson

October 26, 2017

ANTOINE CARDET SMITH
v.
STATE OF TENNESSEE

          Assigned on Briefs August 15, 2017

         Appeal from the Circuit Court for Montgomery County No. 41101125, 63CC1-2011-CR-1126 William Goodman, Judge

         The 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.

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

          Samuel 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.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         The 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.

         At the 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 criminal history.

         The 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.

         Trial 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 Criminal Appeals.

         In 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.

         On 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 different jury."

         Upon hearing the above proof, the post-conviction court issued a written order denying post-conviction relief. The Petitioner later filed this timely appeal.

         ANALYSIS

         The 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 ...


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