Court of Criminal Appeals of Tennessee, Nashville
ANTONIO M. CROCKETT
STATE OF TENNESSEE
Assigned on Briefs June 19, 2019
from the Criminal Court for Davidson County No. 2013-D-2862
Cheryl A. Blackburn, Judge
Petitioner, Antonio M. Crockett, appeals from the denial of
his petition for post-conviction relief, wherein he
challenged his jury conviction for first-degree felony
murder. On appeal, the Petitioner alleges the following
grounds of ineffective assistance of trial counsel: (1)
failure to impeach a witness; (2) failure to assert a proper
basis for severance pretrial or renew the motion to sever at
trial; (3) failure to request a jury instruction; (4) failure
to object to the State's articulating multiple theories
during its closing argument; (5) failure to object to the
prosecutor's inflammatory comments during the State's
rebuttal argument; (6) failure to develop and present
evidence of the disproportionality of a mandatory life
sentence. The Petitioner also argues that his mandatory life
sentence is unconstitutional and that he was deprived of a
fair trial on the basis of cumulative error. After a thorough
review of the record, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Oliver Wright, Nashville, Tennessee, for the appellant,
Antonio M. Crockett.
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; Glenn R.
Funk, District Attorney General; and Megan King, Assistant
District Attorney General, for the appellee, State of
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which John Everett Williams, P.J., and Robert L. Holloway,
Jr., J., joined.
KELLY THOMAS, JR., JUDGE
October 2013 term of the Davidson County Grand Jury charged
the Petitioner and his co-defendant, Raymond Douglas Wilson
III, with the first-degree felony murder and first-degree
premeditated murder of Derrick Lyons. See Tenn. Code
Ann. § 39-13-202. Following a joint jury trial, the
Petitioner was convicted of felony murder and acquitted of
first-degree premeditated murder; co-defendant Wilson was
acquitted of both charges. See State v. Antonio M.
Crockett, No. M2015-00566-CCA-R3-CD, 2016 WL 769890, at
*6 (Tenn. Crim. App. Feb. 29, 2016), perm. app.
denied (Tenn. Jun. 23, 2016). The Petitioner received a
mandatory life sentence, which was to be served consecutively
to a sentence for a previous conviction. Id.
to trial, the Petitioner filed two motions to sever his trial
from that of co-defendant Wilson. After the first motion,
which was based upon a potential confrontation issue if the
defendants' statements to law enforcement were
introduced, the State "announced that it did not intend
to admit any statement from co-defendant Wilson that would
incriminate the [Petitioner] at trial."
Crockett, 2016 WL 769890, at *1. The State also
redacted the Petitioner's police statement to remove
references to co-defendant Wilson. Id.
second motion was based upon the Petitioner's right to a
speedy trial. Crockett, 2016 WL 769890, at *1. The
Petitioner argued that he had been in custody since 2012 and
that two indictments had "been nolled since that
time." Id. This court summarized the
remainder of the second pretrial severance motion as follows:
[The Petitioner] argued that he had not waived his right to a
speedy trial and that the State's recent request for
fingerprints and testing of DNA evidence created "the
obvious prospect of new last-minute evidence and expert
testimony" and a need to continue the [Petitioner]'s
trial, which was scheduled to begin July 28, 2014. The
[Petitioner] additionally argued that a severance was
necessary because there was a disparity in the proof against
the defendants; the defendants' knowledge of each
other's statements caused "mutual animosity and
resentment," necessitating extra courtroom security; and
it was possible that one of the defendants' out-of-court
statements led to the discovery of incriminating evidence
against the other.
The State responded that the [Petitioner]'s motion should
be denied because there was no legal basis for a severance
and argued that the defendants be tried together for the sake
of judicial economy. Additionally, the State noted that the
[Petitioner] was in jail serving a sentence until 2017 and
that the [Petitioner] had several other pending cases. The
State further contended that the DNA evidence could implicate
the [Petitioner] because the victim's car was driven away
from the scene by co-defendant Wilson but found near the
[Petitioner]'s mother's house. The victim's car
had been "gone through," and the State's theory
was that the [Petitioner] was "one of the ones who went
through that car." The State conceded that its failure
to have the DNA evidence tested sooner was "an
oversight" and that "[i]t should have been done
The trial court noted that it had been made aware, at a
hearing on June 27, 2014, of the existence of possible trace
evidence which might contain identifiable DNA. The court
explained that, although co-defendant Wilson had not opposed
a continuance in order for the State to conduct DNA testing,
the [Petitioner] had objected to the continuance, asserting
that the testing would take months to complete. When the
trial court asked whether the redacting of the
[Petitioner]'s statement would prevent the [Petitioner]
from introducing proof necessary for a fair trial, defense
counsel responded, "I don't foresee that at the
moment." As to the speedy trial issue, defense counsel
stated that the [Petitioner] would have no problem with
securing witnesses or presenting defense proof because of the
delay of the start of trial. Defense counsel agreed that the
basis of his allegation of prejudice was the additional time
the [Petitioner] could spend in confinement given the time he
had already spent in custody. The trial court also asked the
[Petitioner] about the potential for ordering a severance
during trial based upon proof arising that necessitated it.
The [Petitioner] stated that the trial court could do so if
needed but indicated that he "would sort of like to not
be at that point."
Following the hearing, the trial court filed a written order
denying the motion to sever and granting the State's
request for a continuance of the [Petitioner]'s trial.
The trial court determined that there was no Bruton
[v. United States, 391 U.S. 123 (1968), ] issue
because the State agreed not to use either co-defendants'
statements at trial. The trial court found that the animosity
between the two defendants was an insufficient reason to
grant a severance. Additionally, the trial court determined
that the pending DNA testing was a proper basis for a
continuance and that considerations of judicial economy
weighed in favor of a joint trial. Finally, the trial court
found that the [Petitioner] was not prejudiced by the delay
and noted that the reason for the [Petitioner]'s
incarceration was that the [Petitioner] was serving another
sentence and had multiple cases pending before the court.
Id., at *1-2 (footnotes omitted).
January 2015 trial, Jenenia Keeler, the victim's
fiancée ("Ms. Keeler"), testified that on
June 30, 2012, she was at her mother's house prior to a
planned swimming trip when the victim called her and said
that he was ready to go. Crockett, 2016 WL 769890,
at *2. As Ms. Keeler walked to the front door, her sister,
Kathy Patterson, came in from outside and told her that the
victim had been shot. Id. Ms. Keeler ran outside and
saw the victim "squeezing out" of the driver's
side door of his SUV. Id. Another car was parked
"[r]ight beside" the victim's driver's side
door such that the victim could not drive away. Id.
The victim ran across the street toward Ms. Keeler, and she
saw that he had a "red spot" on the right side of
his shirt. Id. Ms. Keeler made the victim lie down,
and eventually an ambulance arrived. Id. at *2-3.
Ms. Keeler noted that the victim "had been known to
carry cash." Id.
Patterson testified that she was on her mother's front
porch when she heard a gunshot and saw the victim getting out
of his car. Crockett, 2016 WL 769890, at *3. The car
was "hemmed in" by a black car facing the same
direction. Id. The victim had to struggle to exit
his car because he was "pinned in." Id.
Although Ms. Patterson did not see anyone inside the black
car, she had seen the Petitioner, whom she knew as
"Bull," driving the same car three or four times in
the month preceding the shooting. Id.
Rooks, the victim's cousin, testified that on the day of
the shooting, he was walking through an alley when he heard a
gunshot. Crockett, 2016 WL 769890, at *3. A man ran
into the alley and told Mr. Rooks that the victim had just
been "shot and robbed." Id. As Mr. Rooks
ran toward the victim, he saw the victim's SUV turn right
onto another road. Id. Mr. Rooks was the first
person to reach the victim, and the victim told Mr. Rooks
several times, "Bull blocked me in." Id.
Mr. Rooks had known the Petitioner for ten years and stated
that the Petitioner's nickname was Bull. Id.
Keeler, Ms. Keeler's mother ("Mrs. Keeler"),
testified that she called 9-1-1 after the victim had been
shot, that she saw a black car "sitting alongside"
the victim's SUV, and that although she did not see who
was inside the black car, she knew it to be the car the
Petitioner drove. Crockett, 2016 WL 769890, at *4.
While Mrs. Keeler was on the phone, she saw an unknown man
get into the driver's seat of the victim's SUV; both
the black car and the SUV drove away. Id.
Waters testified that she was driving in the area of the
shooting and that while she was stopped at a stop sign, she
heard a "big boom" and saw co-defendant Wilson
standing by the front passenger's side door of the
victim's SUV with a gun in his hand. Crockett,
2016 WL 769890, at *4. A black Nissan Altima was pulled up
beside the SUV such that the SUV was blocked in. The victim
ran from the SUV; co-defendant Wilson got into the SUV's
driver's seat; and the Altima pulled away, followed by
co-defendant Wilson. Id. Although Ms. Waters did not
see the Altima's driver, she had seen the Petitioner
driving the car two days previously. Id. Ms. Waters
parked her car and walked to the victim; Mr. Rooks was
present and asked the victim if he knew who had "done
Anthony testified that on the day of the shooting, he saw the
Petitioner, whom he had known for a "long time,"
driving a black Nissan Altima down the street.
Crockett, 2016 WL 769890, at *4. After making a
u-turn, co-defendant Wilson exited the back passenger's
side of the car. The Petitioner pulled up next to the
victim's SUV such that the victim could not drive away;
co-defendant Wilson walked up to the SUV, hit one of the
windows with a gun, and ordered the victim to open the car
door; and the victim "tried to pull off." Mr.
Anthony heard a gunshot, then the victim jumped out of the
car and ran across the street; co-defendant Wilson got into
the SUV's driver's seat; and the Petitioner and
co-defendant Wilson fled the area.
Kirk, the Petitioner's girlfriend at the time of the
shooting, testified that the Petitioner's nickname was
Bull. Crockett, 2016 WL 769890, at *4. After the
shooting, the Petitioner picked up Ms. Kirk in his black
Nissan Altima. Id. The Petitioner began wiping down
the interior of the car, including the front seats and center
console. Id. The Petitioner and Ms. Kirk drove to a
parking lot in East Nashville to meet with detectives and
"clear [the Petitioner's] name." Id.
Nashville Police Officer Jeremy Smith testified that the
victim's SUV, which was found in an alley, had a
shattered back right passenger window, and the vehicle's
contents had been "rummaged through."
Crockett, 2016 WL 769890, at *5. On
cross-examination, Officer Smith stated that Mr. Rooks never
relayed to him the victim's statement that Bull had
blocked him in. Id.
Nashville Police Officer Kenneth Wolfe, the crime scene
technician who examined the crime scene and the victim's
SUV, noted a "defect" in the front passenger seat
headrest. Crockett, 2016 WL 769890, at *5. He
further noted that the vehicle had been
"ransacked." Id. Dr. Erin Carney, an
expert in forensic pathology, testified that the victim's
cause of death was a gunshot wound to the torso and that the
manner of death was homicide. Id.
Nashville Detective Johnny Crumby testified that the
Petitioner's mother called him and stated "that she
and the [Petitioner] had been threatened" because of his
alleged involvement in the victim's murder.
Crockett, 2016 WL 769890, at *5. Detective Crumby
went to the Petitioner's mother's house, which was
"about one minute on foot" from the alley in which
the victim's SUV was found. Id. The
Petitioner's mother confirmed that the Petitioner's
nickname was Bull. Id. Detective Crumby met with the
Petitioner in a parking lot, where the Petitioner gave a
recorded statement acknowledging that he was in his car at
the scene and drove away afterward. Id. However, the
Petitioner denied having been involved in the shooting or
theft. Id. The Petitioner stated that the
victim's car had collided with his Nissan Altima and that
the victim got out of the SUV and ran away. Id. The
Petitioner showed Detective Crumby the damage to his car
caused by the collision. Id. The Petitioner stated
that he drove away because he was scared and that he did not
see the shooter. Id. The Petitioner further stated
that he was not trying to block in the victim and denied that
anyone got out of his car and shot the victim. Id.
Although the Petitioner claimed that he was parked in the
street and calling a girl at the time of the shooting,
Detective Crumby reviewed the Petitioner's phone records
and found no such call. Id.
upon this evidence, the jury found the Petitioner guilty of
first-degree felony murder and not guilty of first-degree
premeditated murder. The jury acquitted co-defendant Wilson
of all charges.
direct appeal, the Petitioner raised the following issues:
(1) whether the trial court erred in denying the
Petitioner's second motion to sever relative to the
Petitioner's right to a speedy trial and a fair
determination of his guilt; (2) the sufficiency of the
evidence; (3) whether the trial court erred by admitting the
victim's dying declaration to Mr. Rooks that "Bull
blocked me in" because it was not proven that the victim
was aware of his impending death; and (4) whether the trial
court erred by imposing consecutive sentences.
Crockett, 2016 WL 769890, at *7.
to severance under a speedy trial analysis, this court
concluded that although there was a delay of twenty-nine
months between the Petitioner's arrest and the trial and
the delay was in part due to the State's negligence in
failing to order DNA testing, the Petitioner did not assert
his right to a speedy trial for twenty-three months and did
not suffer prejudice as a result of the delay.
Crockett, 2016 WL 769890, at *7-9. This court noted
that the Petitioner was serving a sentence from a previous
case during the pendency of this trial and that his ability
to present a defense was not impaired. Id.
to severance during the trial, after a jury-out hearing, the
trial court found that a portion of the victim's dying
declaration regarding "the same guy" who robbed the
victim previously violated Tennessee Rule of Evidence 404(b).
Crockett, 2016 WL 769890, at *10. Mr. Rooks
subsequently testified that "the only thing" the
victim said to him was "Bull blocked [him] in."
Id. The Petitioner did not object or renew his
motion to sever. Id. This court concluded that
because the Petitioner did not renew his severance motion or
make a new motion to sever during the trial, he had waived
consideration of this claim. Crockett, 2016 WL
769890, at *11. However, this court examined the issue for
plain error and concluded that a clear and unequivocal rule
of law had not been breached. Id. In particular, it
was not clear that the victim's excluded statement
referred to co-defendant Wilson, that co-defendant Wilson
would have consented to a severance, or that the statement
was necessary to a fair determination of the Petitioner's
guilt or innocence. Id. This court noted that
"the fact that the victim had also implicated
co-defendant Wilson . . . would have bolstered and further
corroborated the testimony of Mr. Anthony, who identified
both [defendants]." Id. Moreover, this court
further noted that the possible references to co-defendant
Wilson would not have changed the victim's identifying
the Petitioner by name in the dying declaration.
to the sufficiency of the evidence, this court concluded that
the evidence was sufficient to support the felony murder
conviction under a theory of criminal responsibility, noting
that the Petitioner drove the gunman to the scene and blocked
in the victim's SUV so that he could not escape; the
victim's SUV was found near the Petitioner's
mother's house; the victim told Mr. Rooks that the
Petitioner was involved; the Petitioner wiped down his car
before he met with detectives; and the Petitioner's claim
that he was merely parked on the street and making a phone
call was not corroborated by his telephone records.
Crockett, 2016 WL 769890, at *12-13.
to the victim's dying declaration, this court concluded
that the statement was properly admitted and that the
circumstances indicated that the victim was aware of his
impending death, although he did not explicitly state as
much. Crockett, 2016 WL 769890, at *13-14. Relative
to sentencing, this court concluded that the trial court did
not abuse its discretion in ordering consecutive sentencing
on the grounds of the Petitioner's being a dangerous
offender and having an extensive criminal history.
Crockett, 2016 WL 769890, at *16-18.
Petitioner filed a November 17, 2016 petition for
post-conviction relief alleging the ineffective assistance of
counsel. Thereafter, the post-conviction court appointed
counsel on December 9, 2016, and the Petitioner filed an
amended petition for post-conviction relief on January 18,
2018. Because the post-conviction hearing testimony was
limited in scope and did not address all the issues raised in
the petition, we will recount the details of the petition
here. The Petitioner made the following allegations related
to ineffective assistance of counsel:
1. Trial counsel failed to impeach Mr. Rooks's testimony
regarding the victim's statement that "Bull"
blocked him in. Mr. Rooks made inconsistent statements in
interviews with investigators John Terry and Johnny Lawrence,
who could have been called as witnesses at trial. At the
motion for a new trial hearing, counsel introduced an
affidavit from Mr. Lawrence, a transcript of Mr.
Lawrence's interview with the Petitioner, and a copy of
Mr. Terry's interview report as exhibits.
2. Trial counsel failed to "assert the proper
basis" for severance pretrial and failed to renew the