IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville December 9, 2014

ANTONIO D. ALEXANDER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Rutherford County

No. 70558 Mitchell Keith Siskin, Judge

No. M2014-01022-CCA-R3-PC - Filed January 16, 2015

Petitioner, Antonio D. Alexander, was convicted of first degree felony murder,second degree

murder, especially aggravated kidnapping, especially aggravated robbery, attempted

aggravated robbery, and reckless endangerment committed with a deadly weapon and

sentenced to a total effective sentence of life without the possibility of parole plus 90 years.

Petitioner’s convictions and sentences were affirmed on appeal. State v. Antonio D.

Alexander, No. M2010-02485-CCA-R3-CD, 2012 WL 1895801, at *1 (Tenn. Crim. App.

May 23, 2012), perm. app. denied (Tenn. Sept. 20, 2012). Petitioner filed a petition for postconviction relief, claiming that his right to due process was violated when the trial court

failed to sequester the tentatively selected jury prior to the beginning of the trial and that he

received ineffective assistance of counsel. The post-conviction court denied relief. Upon

our review of the record and applicable authorities, we affirm the decision of the postconviction court.

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

TIMOTHY L. EASTER,J., delivered the opinion of the Court, in which THOMAS T. WOODALL,

P.J., and ALAN E. GLENN, J., joined.

Joshua Crain, Murfreesboro, Tennessee, for the appellant, Antonio D. Alexander.

Herbert H,. Slatery III, Attorney General and Reporter; Michelle L. Consiglio-Young,

Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul

Newman, Assistant District Attorney General, Nashville, Tennessee, for the appellee, State

of Tennessee.
OPINION

Factual Background

This case arises out of the 2008 robbery of an O’Charley’s restaurant in Murfreesboro

and the death of the on-duty manager. At midnight on February 2, 2008, Sean Mahoney was

leaving his job as a bartender for O’Charley’s when he was approached by Petitioner, who

was wearing a ski mask and coveralls. Antonio D. Alexander, 2012 WL 1895801, at *1.

Petitioner informed Mr. Mahoney that he was robbing him and brandished a .22 caliber

pistol. Id. Petitioner then forced Mr. Mahoney out of his car and towards the back door of

the restaurant. Id. Another employee, Michael Dorton, opened the door and Petitioner

pointed the gun at him. Id. Mr. Mahoney and Mr. Dorton ran into the manager’s office

where their manager, Nadar Bahmanziari, was counting receipts; however, they were unable

to completely close and lock the Dutch-style door. Id. Mr. Mahoney told Mr. Bahmanziari

that Petitioner was robbing them, and Mr. Bahmanziari called 911. Id. at *2. Petitioner

demanded that they open the door and give him the money. Id. Petitioner fired two shots;

one shot did not penetrate the door, while the other went through the gap between the top and

bottom sections of the door and struck Mr. Bahmanziari in the abdomen. Id. at *2, *6. Mr.

Dorton pulled Mr. Bahmanziari into the office’s closet and locked the door. Id. at *2. Then,

Mr. Mahoney allowed Petitioner into the office, where he stole $2700 in cash before fleeing

the scene. Id. Mr. Bahmanziari later died as a result of the gunshot wound to his abdomen.

Id. at *6.

During the course of the investigation into the robbery, Mr. Mahoney, Mr. Dorton, and

other employees of the O’Charley’s gave the police a description of the perpetrator that

matched Petitioner. Id. at *2. A van was discovered in the parking lot of the restaurant

which did not belong to any of the employees. Id. at *3. The hood of the van was still warm,

and inside the van was Petitioner’s work identification badge, several pairs of gloves,

earplugs, a stocking mask, and a wallet containing Petitioner’s driver’s license. Id. Pursuant

to Petitioner’s instructions, Petitioner’s wife lied to the police and told them that she had left

the van at the restaurant after becoming sick and had been picked up by a friend, Leon

Moton. Id. at *3, *4.

Officers found a trail of money leading from a fence behind the restaurant to a house

on North Maple Street which was undergoing renovations. Id. at *3. Inside the house were

several footprints that matched one found near the fence. Id. Additionally, officers found

a pair of dark coveralls, an earplug, and gloves of the same type as those provided by

Petitioner’s employer. Id. After the initial search of the house, a construction supervisor

informed police that a loaded .22 caliber revolver was found in the top of a closet. Id. The

coveralls and gun were positively identified by the O’Charley’s employees as the

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perpetrator’s. Id. at *4. The bullets recovered from the door and the victim had

characteristics consistent with bullets fired from the .22 caliber revolver. Id. at *5.

Petitioner’s DNA was found on the coveralls and gloves, and a partial DNA profile

consistent with Petitioner was found on the earplug. Id.

On the morning of February 3, 2008, Petitioner called his girlfriend for help. Id. at

*4. She picked him up around 7:00 a.m. and took him to Mr. Moton’s house, where

Petitioner changed clothes. Id. Petitioner later asked his girlfriend to tell the police that he

had been with her during the robbery, but she refused. Id. Petitioner asked Mr. Moton to tell

his wife that Petitioner had been with him the previous night, and Mr. Moton agreed. Id.

Later, Petitioner asked Mr. Moton to tell the police that he had picked up Petitioner’s wife

at the O’Charley’s around 10:00 p.m. on February 2. Id. Mr. Moton later admitted to police

that these statements were not true and told police that he had thrown Petitioner’s clothes into

the dumpster across the street from his house. Id. at *5. Petitioner’s DNA was found on the

pants and shoes recovered from the dumpster. Id. The shoes also matched the footprints

found in the house on North Maple Street. Id.

Petitioner was convicted by a Rutherford County jury of first degree felony murder,

second degree murder, especially aggravated kidnapping, especially aggravated robbery,

attempted aggravated robbery, and reckless endangerment committed with a deadly weapon.

Id. at *1. The jury sentenced Petitioner to life without the possibility of parole for the first

degree felony murder conviction, and the trial court sentenced him to a consecutive ninetyyear sentence for the remaining offenses. Id. Petitioner’s convictions and sentences were

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affirmed on appeal. Id.

On September 6, 2013, Petitioner filed a timely pro se petition for post-conviction

relief. Counsel was appointed, and an amended petition was filed on February 26, 2014.

Petitioner claimed that, even though the jury was sequestered during trial, the trial court erred

by allowing the jury to separate over the weekend after they were selected but before the trial

began. Petitioner also claimed that he received ineffective assistance of counsel when his

trial attorney did not object to the jury’s separation. The post-conviction court held a hearing

on May 2, 2014, at which both Petitioner and trial counsel testified.

Petitioner testified that he did not have an active role in the jury selection process

because his attorneys told him to just sit and observe the proceedings. Jury selection took

several days, and Petitioner testified that he believed the jury would be sequestered

immediately after the selection process. When jury selection concluded on Thursday,

however, the trial court allowed the tentatively selected jurors to return home until the trial

The second degree murder conviction merged with the first degree felony murder conviction. 1

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began on the following Monday so that they would not have to stay in a motel an extra

weekend. Petitioner testified that he raised his concern about the jury being allowed to

separate to his attorneys, but his attorneys did not raise the issue with the trial court.

Petitioner agreed that he did not address the issue when the trial actually began and that he

did not raise the issue after the trial because he was not “aware” that a jury sequestration

issue had occurred. Petitioner testified that trial counsel never showed him the issues being

raised on appeal; rather, trial counsel told him there “would be an automatic appeal.” On

cross-examination, Petitioner agreed that the trial court gave very specific instructions to the

jury before they were allowed to separate over the weekend.

Petitioner also raised an issue concerning a juror bringing a newspaper into the

courtroom during the trial. Counsel for Petitioner informed the post-conviction court that he

had investigated the issue and could not find any evidence either in the record or from

interviewing former jurors that the incident occurred. Petitioner explained to the postconviction court that upon returning from a break in the trial, a juror had a newspaper tucked

under her arm. The trial judge noticed it and questioned the juror about it. The juror did not

realize she had done anything wrong, and, after determining that nothing in the paper

referenced Petitioner’s case, the trial court did not remove the juror from the jury. Petitioner

claimed that when the trial court asked the jury who had read the paper, “there was a show

of hands.” Petitioner explained that he was concerned about this incident because “the jury

defied what the [j]udge instructed, who is to say that they hadn’t done [the same] throughout

the course of the trial.” Trial counsel did not object, and the trial court did not declare a

mistrial. Petitioner admitted that he did not address this issue with trial counsel.

Trial counsel testified that he was one of two attorneys representing Petitioner in his

capital case. Trial counsel met with Petitioner several times to discuss the case and also

discussed all motions with Petitioner. Trial counsel did not believe that he and Petitioner had

any trouble during the course of the representation. Trial counsel testified that there was a

bit of a difference in opinion as to how to proceed in the case, but trial counsel took

Petitioner’s concerns into account and made sure Petitioner was involved in decisions

regarding trial strategy. Trial counsel denied ever telling Petitioner not to communicate with

him regarding his concerns or not to participate in the trial.

Regarding the jury sequestration issue, trial counsel recalled that the trial court sent

the jury home over the weekend after they were tentatively selected. The jury had not been

sworn in at that time. The trial court gave the jury instructions regarding the role of the jury

inside and outside of the courtroom. When the jury returned for the start of the trial, the trial

court administered the oath. Trial counsel testified that he was not concerned about the trial

court’s actions because it was consistent with the law. Trial counsel did not raise an

objection and did not raise the issue on appeal because it was not a viable issue.

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On cross-examination, trial counsel explained that the voir dire took at least a week.

On each night of the voir dire, the individuals went home knowing what the case was about

and the issues that would likely come up at trial. Trial counsel testified that he was not any

more concerned about the trial court allowing the tentatively selected jurors to go home over

the weekend than he had been about the voir dire panel going home each evening.

The post-conviction court orally denied the petition at the conclusion of the hearing,

then filed a written order on May 7, 2014. The post-conviction court found that the trial

court had followed the sequestration rules and that the trial court had the discretion to allow

the tentatively selected jurors to return to their homes prior to the start of the trial as long as

the trial court gave the proper admonitions. The post-conviction court found that the claimed

incident with the newspaper was not substantiated by the record and that Petitioner had not

proven a constitutional violation by clear and convincing evidence. The post-conviction

court also found that trial counsel’s performance did not fall below the prevailing

professional norm when he failed to object to the trial court’s decision not to sequester the

tentatively selected jury prior to the start of trial.

Petitioner filed a timely notice of appeal.

Analysis

I. Standard of Review

Post-conviction relief is available for any conviction or sentence that is “void or

voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee

or the Constitution of the United States.” T.C.A. § 40-30-103. In order to prevail in a claim

for post-conviction relief, a petitioner must prove his factual allegations by clear and

convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn.

1999). “Evidence is clear and convincing when there is no serious or substantial doubt about

the correctness of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d

240, 245 (Tenn. Crim. App. 1998). On appeal, this Court gives deference to the postconviction court’s findings as to witness credibility, the weight and value to be given to

testimony, and the factual issues raised by the evidence. Momon, 18 S.W.3d at 156 (citing

Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or reevaluate the evidence presented below and is bound by the findings of the post-conviction

court unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn.

1999). However, the post-conviction court’s conclusions of law and application of the law

to the facts are subject to de novo review with no presumption of correctness. Fields v. State,

40 S.W.3d 450, 457 (Tenn. 2001).

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Separation of Tentatively Selected Jury

“In all criminal prosecutions, except those in which a death sentence may be rendered,

jurors shall only be sequestered at the sound discretion of the trial judge, which shall prohibit

the jurors from separating at times when they are not engaged upon actual trial or

deliberation of the case.” T.C.A. § 40-18-116. Sequestration is mandatory in capital cases.

State v. Bondurant, 4 S.W.3d 662, 672 (Tenn. 1999). The purpose of sequestration is “to

preserve a defendant’s right to a fair trial and impartial jury by protecting jurors from outside

influences so that the verdict will be based only upon evidence developed at trial.” Id. at

671. However, the trial judge has the discretion to allow separation of tentatively selected

jurors prior to the time the jurors are sworn, so long as appropriate admonitions are given.

State v. McKay, 680 S.W.2d 447, 453 (Tenn. 1984). When such a separation occurs, “it is

not grounds for reversal or a new trial unless it can be affirmatively shown that prejudice

resulted from the separation.” Id.

In this case, jury selection occurred over the course of several days, concluding on a

Thursday. Due to evidentiary motions, the trial would not begin until the following Monday.

The trial court announced that it did not want the jurors to spend an extra weekend under

sequestration and allowed the tentatively selected jurors to go home. The trial court

admonished the jury not to discuss the case with anyone and not to watch television, read the

newspaper, listen to the radio, or do any internet research on the case. The trial court did not

place the jurors under oath until the trial began on Monday. The decision to allow the

tentatively selected jurors to separate prior to being sworn was properly within the trial

court’s discretion. McKay, 680 S.W.2d at 453; see also State v. Black, 815 S.W.2d 166, 180

(Tenn. 1991) (finding no abuse of discretion on nearly identical facts).

Petitioner erroneously relies on Hines v. State, 27 Tenn. 597, 602 (1848), for the

proposition that, upon proof that a jury separation has occurred, the defendant is entitled to

a new trial unless the State can affirmatively show there was no prejudice. However, in

McKay, our supreme court specifically overruled Hines “insofar as [it] appl[ies] the rule

stated therein to prospective and tentatively selected jurors.” McKay, 680 S.W.2d at 453.

As the supreme court explained:

Until the jury panel has been sworn to try a case, the court may, for any good

cause, discharge a juror who has been tentatively selected and proceed with

selection of another juror in his or her place. Thus, both the State and the

defendant have the opportunity to affirmatively show that a tentatively selected

juror has been tampered with or that some prejudice has resulted from a

separation prior to swearing and sequestration.

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Id. Petitioner failed to make any showing of jury tampering or prejudice that resulted from

the pre-trial separation. Therefore, Petitioner cannot prove a constitutional due process

violation, and this issue is without merit.

Ineffective Assistance of Counsel

Both the Sixth Amendment to the Constitution of the United States and Article I,

section 9 of the Tennessee Constitution guarantee the right of an accused to the effective

assistance of counsel. Burns, 6 S.W.3d at 461. In order to receive post-conviction relief

based on a claim of ineffective assistance of counsel, a petitioner must show that trial

counsel’s performance was deficient and that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Burnett v. State, 92 S.W.3d

403, 408 (Tenn. 2002). Because a petitioner must establish both elements in order to prevail

on a claim of ineffective assistance of counsel, “failure to prove either deficient performance

or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960

S.W.2d at 580.

To establish deficient performance, a petitioner must show that counsel’s

representation fell below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. Counsel’s

performance is considered reasonable “if the advice given or the services rendered [were]

within the range of competence demanded of attorneys in criminal cases.” Henley, 960

S.W.2d at 579 (citing Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). This Court

“should indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Burns, 6 S.W.3d at 462. A petitioner is not entitled to

the benefit of hindsight to second-guess a reasonably based trial strategy or a sound, but

unsuccessful, tactical decision. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994). To establish prejudice, a petitioner must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Burns, 6 S.W.3d at 463 (quoting Strickland, 466 U.S. at 694).

Petitioner contends that he is entitled to relief because trial counsel should have

objected to the trial court’s allowing the tentatively selected jury to separate prior to being

sworn. Trial counsel testified that he did not object or raise the issue on appeal because the

trial court’s actions were consistent with the law and because it was not a viable issue. As

discussed above, the trial court’s actions were consistent with established precedent.

Because the trial court did not err, it was not error for trial counsel to refrain from raising a

meritless objection. Therefore, trial counsel’s performance was not deficient. Additionally,

Petitioner failed to assert any type of prejudice resulting from trial counsel’s actions.

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Therefore, Petitioner is not entitled to relief.

Conclusion

Based on the foregoing reasons, we affirm the judgment of the post-conviction court.

_________________________________

TIMOTHY L. EASTER, JUDGE

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