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Crockett v. State

Court of Criminal Appeals of Tennessee, Nashville

January 10, 2020

ANTONIO M. CROCKETT
v.
STATE OF TENNESSEE

          Assigned on Briefs June 19, 2019

          Appeal from the Criminal Court for Davidson County No. 2013-D-2862 Cheryl A. Blackburn, Judge

         The 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 post-conviction court.

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

          Lesli 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 Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Robert L. Holloway, Jr., J., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND [1]

          The 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.

         A. Pretrial Motions

         Prior 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.

         The 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."[2] 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 earlier."
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).

         B. Trial

         At the 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.

         Ms. 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.

         Robert 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.

         Cleo 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.

         Laquitta 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 this." Id.

         Antonio 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.

         Laquinta 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.

         Metro 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.

         Metro 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.

          Metro 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.

         Based 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.

         C. Direct Appeal

         In his 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;[3] (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.

         Relative 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.

         Relative 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.

         Relative 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.

         Relative 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.

         D. Post-Conviction Petition

         The 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 severance ...

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