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Munford v. State

Court of Criminal Appeals of Tennessee, Jackson

February 26, 2018


          Session November 7, 2017

         Appeal from the Criminal Court for Shelby County No. 00-05477 W. Mark Ward, Judge.

         The Petitioner, Antonio Munford, filed a petition for writ of error coram nobis relief and a petition for post-conviction relief. Following a hearing on the petitions, the trial court denied relief, finding that the Petitioner's post-conviction claims were time-barred and that the coram nobis claims were without merit. On appeal, the Petitioner contends that he is entitled to due process tolling of the post-conviction statute of limitations and that the trial court abused its discretion in denying coram nobis relief. Following a thorough review of the record and applicable law, we affirm the judgment of the trial court.

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

          Michael R. Working, Memphis, Tennessee, for the appellant, Antonio Munford.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ., joined.



         I. Factual and Procedural Background

         Trial Proceedings

         On May 18, 2000, the Petitioner was indicted, along with co-defendants William Johnson, Mario Perry, and David Bond, for first degree felony murder in the perpetration of robbery in the death of Adnan Ali. Following his indictment, trial counsel was appointed to represent the Petitioner. In its order denying post-conviction and coram nobis relief, the trial court provided a summary of the underlying facts from the Petitioner's trial, as follows:

The State's principal witness was Fouad Ali. He testified that in the early morning hours of October 13, 1999, he was working at the Oil City convenience store located on Third Street in Memphis when three men entered the store. One of the men eventually pulled a shotgun from under his clothing and demanded that he lay on the floor. Meanwhile, another man, whom he identified in court as [the Petitioner], jumped on the counter and grabbed the store's gun, a .357 revolver, and tried to open the cash register. [The Petitioner] could not figure out how to open the register, so Mr. Ali told him which button to push. [The Petitioner] then opened the register and got the money out of the register. While this was taking place, Mr. Ali's brother, who had been sleeping in the back, came out of the back and [the Petitioner] shot him with the .357 revolver. Mr. Ali's brother died as a result of a single gunshot wound to his head. After the shooting, the three men left the store. Approximately $200 was taken in the robbery.
The store was equipped with a surveillance video. Exhibits 7-9 show the robbery in progress. In addition multiple photographs taken from frames of the videos were also introduced into evidence. The next day after the robbery, [the Petitioner] was identified as a suspect. On that same day, Mr. Ali identified [the Petitioner] in a photospread as the man who took the money from the cash register and who shot his brother. Again, on the day after the shooting, [the Petitioner] was brought in for questioning and gave two statements to the police.
First statement: In his first statement [the Petitioner] indicated that before he went into the store . . . Mario Perry, David [Bond] and [the Petitioner's] uncle, William Johnson discussed robbing the Oil City in his presence. According to [the Petitioner], when [Mr. Bond] asked him how he felt about robbing the store, [the Petitioner] asked to be taken home. However, after [Mr. Bond] advised him that it would be a simple in and out situation, [the Petitioner] decided to go into the store to make a purchase. [The Petitioner] further stated that[, ] when he came to the counter, [Mr.] Perry pulled out the shotgun and ordered the man to lie down. [Mr. Perry] then told [the Petitioner] [to] grab the money, but [the Petitioner] hesitated, after which [Mr. Bond] entered the store and both [the Petitioner] and [Mr. Bond] grabbed the money from the cash register. [The Petitioner] then stated he heard a shot, after which, the four men all left the store. In this statement, [the Petitioner] denied responsibility for killing the victim and stated that [Mr. Bond] was the other person with a gun. Significantly, even in this first statement [the] Petitioner admitted entering into the store after discussions regarding a robbery of the store and admitted to obtaining some of the money out of the cash register. Also of major significance, in the first statement [the] Petitioner implicated [Mr.] Perry as the leader in the commission of the offense.
After giving this first statement, [the Petitioner] was shown the video surveillance tape and still photographs depicting [the Petitioner] as the sole person on the counter, after which, [the Petitioner] agreed to give a second statement.
Second statement: [The Petitioner's] second statement begins with his acknowledgment that his first statement was not completely truthful. [The Petitioner] again indicated that he entered the store to make a purchase after he was told that the robbery would be an[] in and out situation; and that when he approached the counter [Mr.] Perry put the shotgun on the clerk, after which, [the Petitioner] jumped over the counter, grabbed the store's gun, opened the cash register and took the money out of the register. He then stated that he slipped, hit his head and the gun fired. He then ran out of the store. About $200 was obtained, which was split four ways between the four men. In this statement, [the Petitioner] admitted that [Mr. Bond] did not [] enter the store, admitted he was the one who took the store's gun, admitted taking the money from the register and admitted being the person who shot the victim in the head. He merely claimed that it was an unintentional shooting. Significantly, in this second statement [the] Petitioner once again implicated [Mr.] Perry as the leader in the commission of the offense.
. . . [T]he only defense witness at the trial was the [P]etitioner, Antonio Munford. [The Petitioner] testified on February 15, 2001. He testified under oath that he was [twenty] years of age at the time of his testimony.[1] . . . He began his testimony by stating that the two prior statements he gave to the police were a combination of truth and fiction. He testified that his uncle[, ] William Johnson[, ] and [Mr. Bond] mentioned on the night in question that they had just missed an opportunity to commit a robbery, and that five minutes later they said they were going to take care of some business. Despite this talk of a robbery, [the Petitioner] testified that he merely thought they were going to get "high." [The Petitioner] then testified that he asked to go with the two men and they rode around in the car smoking marijuana until they pulled up on a parking lot near the Oil City. [The Petitioner] then testified that his uncle spotted [Mr.] Perry and he heard his uncle tell [Mr. Perry] about the incident in which they just tried to "knock off" the man with a money bag. [The Petitioner] testified that he then told the three other men that he was going into the store to get something to eat. As he was entering the store[, ] he glanced back and [Mr.] Johnson and [Mr.] Perry followed him into the store, although he opened the door for them and they entered the store in front of him. [The Petitioner] further testified that as he approached the counter [Mr. Perry] pulled the shotgun on the clerk and told the clerk to get down on the floor. [Mr.] Perry then told [the Petitioner] to get the money, so he ran and jumped on the counter. [The Petitioner] then testified that he reached down and grabbed the store's gun and started trying to open the register. He could not get it open until Mr. Ali told him which button to hit. At that time he was holding the gun and trying to get the money at the same time. He then heard a voice say "watch out" and heard a "pow" after which he ran out of the store and passed the gun to [Mr. Perry], but did not have time to pass him the money from the cash register.
According to [the Petitioner], he briefly split up with the other men, but rejoined them at his uncle['s] grandmother's house[, ] [a]fter which they rode around in the car smoking more marijuana and went to a Krystal. He testified further that he did not learn that there had been a killing involved in the robbery until the next day. However, [the Petitioner] testified . . . that he was the person who fired the shot that killed the victim, but claimed that there was no discussion regarding a plan to rob the Oil City before entering and that he actually did not enter with intent to rob the Oil City. He further admitted that he knew the clerk had a firearm in the store and that he got the gun before he got the money out of the cash register. He further explained that the shooting was not intentional and that he was so intoxicated that he did not even realize that he had fired the .357 revolver as he didn't notice any recoil. Finally, he re-emphasized that he did not enter the store with intent to participate in a robbery, but he also acknowledged that no one forced him into getting the money out of the cash register.
In essence, [the Petitioner's] trial testimony was basically consistent with his version of events in his second statement given to the police, except at trial he claimed no prior discussions or planning of the robbery took place and he did not enter into the store with the intent to participate in the robbery. He did acknowledge his participation in the robbery, but, in essence, testified that it was a spur of the moment reaction to the events that unfolded without his prior knowledge. Again, at trial, [the] Petitioner implicated [Mr.] Perry as the leader in the commission of the offense.
Faced with a video depicting the Petitioner participating in the robbery and the fact that [the] Petitioner had given a typed confession to participating in the robbery and shooting the victim, [] trial counsel made an opening statement that emphasized to the jury that [the Petitioner] had been placed in a situation where he was forced to make a "split-second decision" as to how to react. In his closing argument, [the] Petitioner's trial counsel continued the version of the incident testified to by the Petitioner and simply contended that [the Petitioner] never entered the Oil City with intent to participate in a robbery.

         Following deliberations, the jury found the Petitioner guilty as charged, and he was sentenced to life imprisonment. A motion for new trial was filed on July 12, 2001, which was overruled on August 1, 2001. No notice of appeal was filed by trial counsel.

         On September 23, 2003, the Petitioner filed a pro se notice of appeal with this court.[2] He then filed a pro se motion to accept late-filed notice of appeal on October 10, 2003. On October 30, 2003, this court filed an order denying the Petitioner's motion to accept his late-filed notice of appeal and denied his request to waive the timely filing requirement found in Rule 4(a) of the Tennessee Rules of Appellate Procedure. A mandate was issued by this court on December 1, 2003.

         Post-Conviction and Coram Nobis Proceedings

         On July 27, 2012, the Petitioner filed a pro se petition for writ of error coram nobis. Attached to the pro se petition were several newspaper articles from 2004 which indicated that the Petitioner's trial counsel had been charged and convicted in federal court of various offenses relating to his involvement with the Gangster Disciples. The Petitioner asserted that he did not become aware of this information until June 14, 2012.

         Following the appointment of counsel, the Petitioner filed two amended petitions for writ of error coram nobis. The Petitioner alleged in the amended petitions that he had been a juvenile at the time he committed the instant offense. The Petitioner also asserted that his co-defendant, Mario Perry, prepared an affidavit stating that the Petitioner was not involved in the conspiracy to commit the robbery and did not shoot the victim. He further alleged that his now-disbarred trial counsel had been a member of the Gangster Disciples and had pled guilty to "nearly two-dozen counts of criminal activity involving [h]is activity with the Gangster Disciples . . . ." He argued that trial counsel's "involvement in this case did not further the best interests of [the Petitioner], but the best interests of the Gangster Disciples and its members including [] co-defendants Perry and Johnson." The amended petition argued that the statute of limitations should be tolled because: (1) the claims in the present case arose after the statute of limitations had already run; (2) the Petitioner was mentally incompetent; and (3) because of trial counsel's misconduct.

         The Petitioner, through appointed counsel, filed a petition for post-conviction relief on April 28, 2014. The petition for post-conviction relief raised the identical claims as raised in the petition for writ of error coram nobis and alleged the same grounds for due process tolling of the post-conviction statute of limitations. Additionally, the Petitioner asserted that trial counsel rendered ineffective assistance of counsel based on the following:

1. Trial counsel did not legally waive the Petitioner's right to a transfer hearing in juvenile court.
2. Trial counsel did not challenge the jurisdiction of the criminal court based on the lack of a transfer hearing.
3. Trial counsel failed to file a motion to suppress the Petitioner's statements to police.
4. Trial counsel did not file a motion to suppress the search in which weapons were discovered.
5. Trial counsel never requested a mental evaluation.
6. Trial counsel failed to raise a mental defect defense.
7. Trial counsel failed to seek funds for an investigator.
8. Trial counsel did not seek funds for an expert on eyewitness identification.
9. Trial counsel stated in opening statement that Mr. Perry would be a witness at trial.
10. Trial counsel failed to adequately prepare the Petitioner to testify.
11. Trial counsel advised the Petitioner to take responsibility for the actions of Mr. Perry and Mr. Johnson.
12. Trial counsel elicited testimony at trial about the statements of Mr. Perry and Mr. Johnson.
13. Trial counsel objected to the admission of the Petitioner's self-serving statement, in which he denied culpability.
14. Trial counsel failed to cross-examine police officers as to the misidentification of the Petitioner at the preliminary hearing.
15. Trial counsel abandoned the Petitioner after the motion for new trial was denied and failed to file a notice of appeal.
16. Trial counsel's performance in negotiations with the State was deficient as Mr. Perry and Mr. Johnson received lesser sentences for their involvement in the crime.

         On November 10, 2015, the State filed a response to the petition for writ of error coram nobis. A hearing on both the petition for post-conviction relief and the petition for writ of error coram nobis was conducted over three days.

         Mario Perry testified that he was currently incarcerated at the Hardeman County Correctional Facility (HCCF). He explained that he was originally charged with first degree felony murder along with the Petitioner, but he pleaded guilty to second degree murder and received a sentence of twenty-two years. Mr. Perry testified that his sentence was set to expire in June 2018. He recalled that each of the Petitioner's co-defendants received a lighter sentence than the Petitioner because they took plea deals.[3] Mr. Perry recalled that he and the Petitioner were both housed at HCCF following their convictions, but he and the Petitioner were not around one another and did not have any interactions for the first ten years of their confinement. Mr. Perry explained that, in the summer of 2012, the Petitioner got out of "solitary, " and the Petitioner "ended up in the pod with [Mr. Perry]." At that time, he spoke to the Petitioner and presented the Petitioner with a newspaper clipping about the Petitioner's trial counsel. According to Mr. Perry, he knew trial counsel "through [a] mutual party . . . by [Mr. Perry] being a member of the Gangster Disciples . . . ." Mr. Perry explained that he was the "governor" of South Memphis for the Gangster Disciples and that a man named Jeff Holiday was the "overseer" for the entire state. Mr. Perry first met trial counsel at an "authority meeting, " which he explained was a city-wide meeting of Gangster Disciples that every member of the gang was required to attend. He testified that individuals who were not gang members were not allowed in the meeting and that trial counsel's attendance indicated to him that trial counsel was a member of the Gangster Disciples. Mr. Perry said that co-defendants William Johnson and David Bond were also members of the gang but that the Petitioner was not and had no relationship to the organization.

         During his testimony, the following colloquy took place regarding Mr. Perry's ability to communicate with gang ...

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