IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 7, 2010

ANTONIO ARNOLD v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 02-07507 Carolyn Wade Blackett, Judge

No. W2010-00268-CCA-R3-PC - Filed March 31, 2011

The petitioner, Antonio Arnold, appeals the Shelby County Criminal Court’s denial of his

petition for post-conviction relief. The petitioner was convicted by a Shelby County jury of

felony murder, voluntary manslaughter, aggravated burglary, and aggravated assault. He was

subsequently sentenced to an effective term of life in prison. On appeal, he contends that the

denial of his petition was error because he received ineffective assistance of counsel at trial.

Following review of the record before us, we affirm the denial of the petition.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL and ALAN E. GLENN, JJ., joined.

Andrew Hutchinson, Paul K. Guibao, and Matthew S. Lyons, Memphis, Tennessee, for the

appellant, Antonio Arnold.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; William L. Gibbons, District Attorney General; and Tracey Jones,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural History

The relevant facts underlying the petitioner’s multiple convictions, as recited on direct

appeal, are as follows:

The charges arose out of the [petitioner’s] entry into Sandra

Alexander’s home in the morning hours of October 21, 2001, and his
assaulting Ms. Alexander and shooting her boyfriend, Gary Colbert.

. . . .

At trial, Diana Sample, Ms. Alexander’s mother, testified that she

talked with the [petitioner] about two weeks before the offenses giving rise to

this case. Ms. Sample recalled that the [petitioner] showed up at her house and

used her phone to call Ms. Alexander. According to Ms. Sample, the

[petitioner] told Ms. Alexander, “I’m going to kill your B.A. on your birthday.

. . . I want your momma to know,” and then left. Ms. Sample testified that she

called Ms. Alexander back and told her “we need to go downtown and put a

peace bond on him because he might hurt [you].” On redirect examination,

Ms. Sample testified that after the break-in and shooting, Ms. Alexander was

withdrawn, had a nervous breakdown, and tried to commit suicide.

Ms. Alexander testified that she used to date the [petitioner] and they

had a child together. She recalled that around [six] a.m. on October 21, 2001,

she got up to go to the bathroom when she noticed her bedroom door was

unlocked. As she opened the door, the [petitioner] burst into her room, pushed

her in the face, and said he was going to kill her. Ms. Alexander remembered

that the [petitioner] was wearing a utility belt containing an axe, gun, and

handcuffs when he entered the room. The [petitioner] ordered her to put

handcuffs on Colbert but she was not able to latch them. As she pled with the

[petitioner] not to hurt Colbert, Colbert got up off the bed and he and the

[petitioner] began tussling with the gun and the gun went off. Ms. Alexander

testified that she ran for help after the gun went off.

On cross-examination, Ms. Alexander testified that Colbert normally

carried a silver-gray gun with a broken handle, but she did not see him with a

gun the morning of the incident. Ms. Alexander reiterated that the last thing

she saw as she ran out of her bedroom was Colbert and the [petitioner] tussling

with a black gun that the [petitioner] had pulled out.

Cassandra Cooper, Ms. Alexander’s oldest child, testified that she was

sleeping in her bedroom on October 21, 2001, when she was awakened by “[a]

lot of noise and commotion, [and] arguing.” She recalled that she heard her

mother’s, Colbert’s, and the [petitioner’s] voices, so she called 911 “[b]ecause

[the petitioner] wasn’t supposed to be in the house.” Cassandra testified that

she ran outside and hid in the bushes. A short while later, Cassandra saw Ms.

Alexander run out of the house and down the street. Cassandra testified that

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the [petitioner] ran out of the house to his car that was parked next door, then

went to the side of the house and shot at a window. Cassandra explained that

she did not see the [petitioner] take the shot, but she heard glass break.

Cassandra testified that when the [petitioner] came out of the house he was

holding something to his side that she thought was a gun.

Tiara Cooper, Ms. Alexander’s second-oldest child, testified that she

awoke to the sound of gunshots on October 21, 2001. Tiara testified that she

got out of bed in time to see the [petitioner] exit the house. She remembered

seeing a lot of blood and Colbert on the kitchen floor breathing heavily.

. . . .

Memphis Police Officer Russell Woolley testified that he received a

disturbance call on October 21, 2001, from Ms. Alexander’s residence.

Officer Woolley testified that as he approached the residence, a young girl

jumped out from behind some bushes and said, “don’t go inside. Don’t go

inside. He’s in there. He’ll kill you.” Officer Woolley recalled that upon

entering the house he saw a black ski mask on the floor and he smelled fresh

gunpowder, indicating that a weapon had recently been discharged. During his

canvas of the house, Officer Woolley saw a barely-alive naked male lying face

down on the kitchen floor with a gun in his hand. Office Woolley testified that

his partner recovered the gun for safety reasons and placed it on top of the

china cabinet.

. . . Officer Woolley testified that Colbert died while he was on the scene.

Outside, Officer Woolley noticed a white car parked in front of the house next

door.

. . . .

Lieutenant Anthony Craig of the Memphis Police Department testified

that he was one of the homicide officers assigned to investigate the case.

Lieutenant Craig recalled that it appeared that the suspect gained entry into the

home through an open window or had pried open a window. Thereafter, the

suspect entered a bedroom, a struggle ensued, and shots were fired. Lieutenant

Craig testified that Ms. Alexander identified Colbert as the victim and the

[petitioner] as the possible suspect. Lieutenant Craig further testified that the

[petitioner’s] father showed up at the scene and indicated that the [petitioner]

had written some type of a list with Ms. Alexander’s name on it.

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Lieutenant Craig recalled that the [petitioner’s] abandoned vehicle was

towed to the storage lot where its contents were inventoried. In the vehicle,

Lieutenant Craig found a green and black duffle bag, “one stick, one cassette

tape, duck tape, garbage bag, plastic, ski mask, flexie cuffs, nine millimeter

ammunition, gray notebook, pagers, box cutters, screwdriver, and blue

bandana.” Lieutenant Craig testified that he listened to the cassette tape and

it contained two songs, then a male voice that said he was Captain Smith and

he was on a mission. The speaker on the tape also referred to himself as a

convicted felon. Lieutenant Craig was able to identify the [petitioner] as the

speaker. According to Lieutenant Craig, he did not formally interview the

[petitioner], but the [petitioner] spontaneously claimed that he was Captain

Smith with the Marine Corps and he was “coming back from a highly volatile

mission, and . . . he had encountered the enemy in which he had employed the

rules of engagement. . . . That at the time he took the enemy out. It was a

female involved with the enemy at which time he . . . could not . . . eliminate

her.” Lieutenant Craig stated that he believed the [petitioner] was “faking it.”

. . . .

Tamala Arnold, the [petitioner’s] sister, testified that the [petitioner]

lived with her in October of 2001. Ms. Arnold recalled seeing the [petitioner]

with papers showing that he had taken out a loan to pay off Ms. Alexander’s

loan on her house. On cross-examination, Ms. Arnold admitted that she knew

about Ms. Alexander’s order of protection against her brother, yet she knew

they had seen each other on occasion. Ms. Arnold also admitted that the

[petitioner] was a convicted felon.

Adrian Arnold, the [petitioner’s] brother, testified that he was at Ms.

Alexander’s house along with his father shortly after the shooting. . . . Mr.

Arnold further recalled that he saw the [petitioner] the following day and he

was acting “[v]ery out of the ordinary,” like “he was in a military training

doing some kind of business.”

State v. Antonio Arnold, No. W2005-00119-CCA-R3-CD (Tenn. Crim. App., at Jackson,

Aug. 25, 2006).

Based upon this conduct, the petitioner was indicted by a Shelby County grand jury

for first degree premeditated murder, felony murder, aggravated burglary, and aggravated

assault. Following a jury trial, the petitioner was convicted of voluntary manslaughter,

felony murder, aggravated burglary, and aggravated assault. He was subsequently sentenced

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by the trial court to an effective term of life in prison. The petitioner filed a direct appeal to

this court, and his convictions were affirmed.

Thereafter, the petitioner filed a timely petition for post-conviction relief, alleging that

he was denied the effective assistance of counsel. The post-conviction court initially

dismissed the petition because it lacked any statements indicating the grounds upon which

relief was sought or any factual basis as required by statute. The petitioner appealed, and a

panel of this court reversed the summary dismissal and remanded the case for an evidentiary

hearing. Antonio Arnold v. State, No. W2007-02640-CCA-R3-PC (Tenn. Crim. App., at

Jackson, May 5, 2009). Thereafter, post-conviction counsel was appointed, and an amended

petition for relief was filed. An evidentiary hearing was conducted thereafter, at which the

following grounds for relief were presented: (1) whether trial counsel failed to elect a

defense strategy, namely diminished capacity; (2) whether trial counsel failed to present

expert testimony regarding mens rea; (3) whether trial counsel failed to present witness

testimony, specifically from the petitioner’s father, that could have refuted the underlying

felony and, therefore, removed liability for felony murder; (4) whether trial counsel failed

to attack the credibility of Ms. Alexander by introducing evidence of a prior nervous

breakdown; (5) whether trial counsel failed to introduce the protective order into evidence

for the purpose of demonstrating that the petitioner was not barred from entering the home;

and (6) whether trial counsel failed to introduce evidence showing that the petitioner had an

ownership interest in the house he was charged with burglarizing based upon his securing a

loan.

The first witness called was the petitioner. He testified that, during pretrial

preparations, he and trial counsel had repeatedly discussed the defense of diminished

capacity. Furthermore, the petitioner stated that he was sent to Midtown Mental Health

Institute for evaluation and, subsequently, was interviewed by a second doctor. However,

he noted that no mental health expert was called to testify at his trial and that the jury was

given no instruction regarding diminished capacity. The petitioner stated that, had a

diminished capacity defense been presented, he believed the mens rea elements of the

offenses could have been negated.

The petitioner also testified that he repeatedly informed his attorney that he had legal

access to Ms. Alexander’s house and that he felt this factshould have been established at trial

to negate the offense underlying the felony murder charge. He stated that he had secured a

loan on the house to keep Ms. Alexander from losing it. However, he was unable to recall

which financial institution he had used. The petitioner testified that he had informed trial

counsel of the loan but opined that no documentation regarding the loan was presented at

trial. He testified that, to his knowledge, trial counsel had made no attempt to locate the loan

documentation. The petitioner also faulted trial counsel for failing to introduce a copy of

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the protective order, which did not include specific language barring him from Ms.

Alexander’s home.

The petitioner’s final complaint was that the State presented evidence at trial which

showed that he had entered Ms. Alexander’s home through a window, evidence he claims

should and could have been negated. The petitioner testified that he informed trial counsel

that he did not enter the home through a window but, rather, entered through an unlocked

door. The petitioner testified that trial counsel should have put on evidence to establish this,

specifically, the fact that the window was painted shut, thereby precluding the petitioner from

being able to access the house through the window. He complained that trial counsel failed

to call his father who had direct knowledge of the window, as he had personally painted the

home shortly before the incident.

Trial counsel was the next witness to testify. He stated that he provided discovery to

the petitioner, reviewed the materials, and met with the petitioner on multiple occasions.

Trial counsel stated that his initial strategy was to pursue a defense of diminished capacity

based upon the petitioner’s erratic behavior at the time of the offenses. To further this

defense, trial counsel had the petitioner evaluated at Midtown Mental Health Institute. The

test results did not support a finding of insanity or incompetence. However, the testing did

reveal that the petitioner suffered from “mild abuse cerebral atrophy,” or shrinking of the

brain. Based upon this finding, trial counsel then employed a forensic neuro-psychologist

to determine if that condition could support a diminished capacity defense. After

interviewing the petitioner, the expert found no evidence of mental disease or defect. As

such, trial counsel stated that he was not able to pursue his initial strategy and had to pursue

a defense of reasonable doubt. Trial counsel testified that he informed the petitioner of the

findings.

Trial counsel acknowledged that the petitioner informed him that he had secured a

loan to help Ms. Alexander keep her house and that, based upon this ownership interest, he

felt he had the right to be there despite the restraining order in place. However, the petitioner

had no documentation to support this, and trial counsel, after searching county records, was

also unable to locate any supporting documentation. He noted that the information was put

before the jury by the petitioner’s sister, who testified at trial that this second mortgage

existed. Trial counsel further testified with regard to his intent to introduce the actual

protective order into evidence because the verbiage of it did not specifically prohibit the

petitioner from being in the home. However, trial counsel testified that he did not seek to

introduce the evidence after all because the State was prepared to call the commissioner who

had issued the protective order to testify that the petitioner had been verbally instructed to

stay away.

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Trial counsel also testified regarding the petitioner’s complaint that he did not present

evidence to rebut the State’s theory of how the petitioner had gained entrance into the home.

Trial counsel testified that he had spoken with the petitioner’s father and anticipated calling

him as a witness to testify that he had done work on the home and that the window in

question was painted shut. However, the petitioner’s father was taken into custody during

the trial and was not present. Moreover, trial counsel testified that after the State presented

its case, he did not believe that they had actually offered a firm explanation as to how the

petitioner had entered the home, so it really was not an issue which needed contradiction.

The petitioner also called both his mother and father to testify. The petitioner’s father,

David Arnold, testified that he had painted Ms. Alexander’s home and was personally aware

that the windows were painted shut. He acknowledged that he was arrested on the fourth day

of trial and held in the jail. Mr. Arnold was not aware of any efforts made by trial counsel

following his arrest to locate him for the purpose of testifying. The petitioner’s mother

testified and stated that she had personally informed trial counsel that Mr. Arnold had been

arrested and where he was located at the time of trial.

After hearing the evidence presented, the post-conviction court found that the

petitioner had failed to establish his entitlement to relief. The petitioner now timely appeals

that decision.

Analysis

On appeal, the petitioner contends that the post-conviction court erred in denying his

petition for relief because “trial counsel’s representation fell outside the standards set forth

in Baxter v. Rose and Strickland v. Washington.” To succeed on a challenge of ineffective

assistance of counsel, the petitioner bears the burden of establishing by clear and convincing

evidence the allegations set forth in his petition. T.C.A. § 40-30-110(f) (2006). The

petitioner must demonstrate that counsel’srepresentation fell below the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

Under Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)

deficient performance and (2) prejudice resulting from the deficiency. The petitioner is not

entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy,

and cannot criticize a sound, but unsuccessful, tactical decision made during the course of

the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This

deference to the tactical decisions of trial counsel is dependent upon a showing that the

decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528

(Tenn. Crim. App. 1992). An appellate court will not reweigh or reevaluate the evidence

below; all questions concerning the credibility of witnesses, the weight and value to be given

their testimony, and the factual issues raised by the evidence are to be resolved by the trial

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judge, not the appellate courts. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997).

It is not necessary for a court to address deficiency and prejudice in any particular

order or even to address both if the petitioner makes an insufficient showing on either.

Strickland, 466 U.S. at 697. In order to establish prejudice, the petitioner must establish 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.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)

(quoting Strickland, 466 U.S. at 694).

The issues of deficient performance by counsel and possible prejudice to the defense

are mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying

a claim of ineffective assistance of counsel are reviewed on appeal under a de novo standard,

accompanied with a presumption that those findings are correct unless the preponderance of

the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn.

R. App. P. 13(d); Henley, 960 S.W.2d at 578). However, conclusions of law are reviewed

under a purely de novo standard with no presumption that the post-conviction court’s

findings are correct. Id.

Initially, we must note that we are somewhat unclear as to the exact argument being

raised by the petitioner. It is clear that he is asserting ineffective assistance of counsel but

what remains unclear is his actual contention of how trial counsel was deficient. Other than

a recitation of the applicable law, the petitioner’s brief contains the following:

The above standards used in Baxter seem to hinge on the involvement

of a defendant in his or her defense. This is because the right to trial exists for

the defendant and not trial counsel. To ignore, to not even further explore

information from your client, is preventing that defendant from participating

in their own defense. In this matter especially, where a killing was admitted

and the focus was as to mental state as to what type of killing or supporting the

underlying felony used to justify as charge of felony murder, the defendant

must be involved in his or her own defense. [The petitioner] submits that in

his matter, such deficiencies existed that it rendered counsel ineffective under

the first prong under Strickland and under Baxter.

The petitioner continues that the deficiencies were prejudicial because the “failures prevented

[the petitioner] from presenting existing evidence that would have almost certainly have

negated the [S]tate’s case against him.” Again, we are unclear as to the petitioner’s exact

allegations on appeal. The argument that he was not allowed “to participate in his own

defense” was not raised in either the petition for post-conviction relief or before the court at

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the hearing. As such, the petitioner has waived this issue, and we are precluded from review

as issues may not be raised for the first time on appeal. See T.C.A. § 40-30-106(g); see also

Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009).

The State notes that the petitioner “appears” to contend that counsel was ineffective

for six reasons, those specifically argued at the hearing: (1) failure to pursue a diminished

capacity defense; (2) failure to present expert testimony regarding mens rea; (3) failure to

present testimony to refute the underlying felony; (4) failure to attach the credibility of the

female victim: (5) failure to present evidence to show that the petitioner was not prohibited

from accessing the house; and (6) failure to show the petitioner’s ownership interest in the

house. As these issues were addressed by the post-conviction court, in the interest of justice

and finality, we will briefly review the court’s determinations.

In its order denying relief, the post-conviction court reviewed the evidence presented

with regard to each of the petitioner’s arguments and concluded that the petitioner had failed

to establish that he was denied the effective assistance of counsel. Following review, we

conclude that nothing in the record before us preponderates against the post-conviction court’s

findings.

I. Diminished Capacity Defense/Expert Testimony

The petitioner continues to maintain that trial counsel was deficient for failing to

pursue this defense and to call experts to the stand to support it. However, his assertion is

belied by the testimony of trial counsel at the hearing. Counsel specifically testified that he

considered and attempted to pursue a defense of diminished capacity. He retained experts to

examine the petitioner, and the conclusion reached following the examinations was that the

petitioner did not suffer from a mental disease or defect. This finding, alone, precluded use

of the defense. Trial counsel cannot be faulted for failing to present and prepare a defense

which was clearly notsupported by the facts before him. Moreover, the petitioner’s complaint

that trial counsel failed to present expert testimony at trial is misplaced. Had trial counsel

called an expert to the stand to testify, the expert would have assumedly testified that the

petitioner did not suffer from a mental disease or defect, testimony which would have placed

before the jury direct evidence that the defense was not viable. Finally, we note that the

petitioner has failed to present any evidence to contradict the findings testified to by trial

counsel, thereby precluding relief pursuant to Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990).

II. Testimony to Refute the Underlying Felony, to Establish the Petitioner’s

Ownership Interest in the Home, and to Establish that he was not Prohibited

from Entering the Home

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To support the petitioner’s contention that he had entered the home through an

unlocked door, the petitioner testified at the post-conviction hearing that counsel was deficient

for failing to present testimony from his father that the window had been painted shut. He

further complained that trial counsel failed to locate and introduce loan documentation which

established that the petitioner had taken out a second mortgage on the home in order to

prevent Ms. Alexander from losing the home. Finally, he complained that trial counsel failed

to introduce the actual restraining order entered against the petitioner, as it did not contain

specific language prohibiting the petitioner from entering the home. Again, trial counsel gave

testimony with regard to each of these alleged deficiencies, and the post-conviction court

accredited that testimony. As has been noted on numerous occasions, it is not the function

of this court to reweigh or reevaluate credibility determinations made in the lower court. See

Henley, 960 S.W.2d at 578-79.

With regard to calling the petitioner’s father, trial counsel testified that he anticipated

calling him to testify that the windows of Ms. Alexander’s house had been personally painted

shut by him. Trial counsel intended to offer this testimony to counter the State’s assertion that

the petitioner had gained access to the home through the window. However, during the course

of the trial, Mr. Arnold was taken into custody on outstanding charges and taken to jail.

Although there was conflicting testimony as to whether trial counsel was aware of Mr.

Arnold’s whereabouts, that is not a determining factor in our review. Trial counsel testified

that the State did not rely on the manner in which the petitioner had gained entrance to

establish the elements of their case. The victim began her account of the events by stating that

she first saw the petitioner in the bedroom. While the detective did testify that it was their

theory that the petitioner had entered the home through an open window or pried a window

open, this is not sufficient to find deficient performance for trial counsel’s failure to rebut the

statement. The statement indicates that the petitioner might have pried the window open,

which is not in conflict with the fact that the window was painted shut. The State relied upon

the fact that the petitioner had entered the home, where he had no right to be, in some illegal

manner and had committed the crimes inside the home. Calling the petitioner’s father to

testify that he had painted the windows shut would not have negated any of the State’s

evidence.

Trial counsel also testified in contradiction to the petitioner and stated that he had

specifically tried to find documentation to support the petitioner’s contention that he had

secured a second mortgage on the home, thereby establishing a partial ownership interest in

the home. Trial counsel testified that he personally went to the court house and checked the

records but was unable to find any evidence of the loan. Nonetheless, trial counsel did

attempt to elicit the information through the petitioner’s sister, who testified at trial that the

petitioner had taken out a loan. The jury’s decision to discredit that testimony or give it little

weight does not equate to deficient performance on the part of trial counsel. Additionally, as

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noted previously, the petitioner failed to put forth any evidence at the hearing which would

lend credence to the fact that the documents exist. As such, he fails to establish his burden.

See Black, 794 S.W.2d at 757.

With regard to the order of protection issued against the petitioner, trial counsel

testified that he considered seeking to admit the document into evidence as it did not explicitly

state that the petitioner was barred from Ms. Alexander’s home. However, during the trial,

it became apparent that the State intended to call the commissioner who issued the order.

Trial counsel had a discussion with her and, based upon that conversation, made the decision

not to introduce the evidence, as the commissioner would have testified that she personally

informed the petitioner to stay away. This was clearly a reasoned strategic choice made by

trial counsel, and this court does not reexamine such choices. See Hellard, 629 S.W.2d at 9.

III. Failure to Attack the Credibility of the Victim

At the hearing, the petitioner opined that trial counsel was deficient in that, in order to

better impeach Ms. Alexander’s testimony, he failed to introduce evidence of a prior mental

breakdown suffered by Ms. Alexander. We are somewhat unclear as to the petitioner’s actual

contention with regard to this on appeal. Trial counsel testified that he chose to object to

testimony given by the Ms. Alexander’s mother regarding a breakdown that she has suffered

after this incident. The petitioner failed to put forth evidence which would bring into question

trial counsel’s decision not to cross-examine the witness about the prior breakdown or, if he

had done so, what effect it would have had on the outcome of the trial. As previously noted,

it is not the function of this court to second-guess trial tactics.

As noted above, we can reach no other conclusion in this case other than that the postconviction court properly determined that the petitioner failed to show by clear and

convincing evidence that he received ineffective assistance of counsel. He is entitled to no

relief.

CONCLUSION

Based upon the foregoing, the denial of post-conviction relief is affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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