                                                                                         08/14/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 19, 2017

   CHARZELLE LAMONTEZ SWAFFORD v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2012-A-291     Cheryl A. Blackburn, Judge
                     ___________________________________

                           No. M2017-00082-CCA-R3-PC
                       ___________________________________


Petitioner, Charzelle Lamontez Swafford, was convicted of first degree murder, four
counts of attempted first degree murder, and employing a firearm during the commission
of a dangerous offense. His convictions and effective sentence of life plus fifty-six years
were affirmed on direct appeal. See State v. Charzelle Lamontez Swafford, No. M2014-
00421-CCA-R3-CD, 2015 WL 1543251, at *1 (Tenn. Crim. App. Apr. 2, 2015), perm.
app. denied (Tenn. Aug. 12, 2015). Petitioner subsequently sought post-conviction relief
on the basis of ineffective assistance of counsel. The post-conviction court denied relief
after a hearing. On appeal, we determine that Petitioner failed to show that he was
prejudiced by counsel’s actions. Accordingly, the judgment of the post-conviction court
is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and JOHN EVERETT WILLIAMS, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Charzelle Lamontez Swafford.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; and Megan King, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       After being convicted of first degree murder, four counts of attempted first degree
murder, and employing a firearm during the commission of a dangerous felony during a
“shooting spree” at a Nashville apartment, Petitioner received an effective sentence of
life in prison plus fifty-six years at 100%, to be served in incarceration. Charzelle
Lamontez Swafford, 2015 WL 1543251, at *1. On direct appeal, this Court affirmed
Petitioner’s convictions. Id.

        The Petitioner filed a pro se petition for post-conviction relief in which he alleged
various ways in which he received ineffective assistance of counsel. He included
complaints about trial counsel’s failure to raise diminished capacity as a defense, failure
to request psychological testing, and failure to challenge a sleeping juror. Counsel was
appointed for purposes of post-conviction relief and an amended petition was filed. In
the amended petition, Petitioner argued that trial counsel failed to effectively cross-
examine the State’s witnesses, failed to adequately communicate with him, failed to
investigate his case, and failed to raise a “diminished capacity” defense. Petitioner also
insisted that one of the jurors fell asleep during trial and that he notified trial counsel,
who failed to notify the trial court which led to a “tainted verdict.” At the hearing on the
petition, post-conviction counsel orally amended the petition to include an issue related to
trial counsel’s failure to appeal the trial court’s denial of a motion to suppress cell phone
data which was used at trial to help prove Petitioner’s location at the time of the crimes.
The parties agreed to the amendment of the petition.

        At the hearing on the petition for post-conviction relief, Petitioner testified that he
spoke with trial counsel “a good amount of time” during his incarceration prior to trial.
Trial counsel even enlisted the help of another attorney. They both met with Petitioner at
the jail and went over the discovery documents prior to trial. Petitioner admitted that
numerous motions were filed pretrial, including a motion to suppress cell phone records.

       Petitioner explained that he suffered from “ADHD and some other stuff.” He
recalled an “evaluation” prior to trial but did not recall who performed the evaluation or
the purpose of the evaluation. Petitioner knew that he had completed a mental health
evaluation sometime in the past at “Dede Wallace and Centerstone” where he learned he
had “ADHD and something else.” Petitioner was unable to put a label on the exact
source of his problems but explained that his mental problems affected his ability to
understand things “a little bit.” Petitioner recalled that trial counsel “got [his] alibi in
court,” meaning trial counsel utilized an alibi defense during trial. Petitioner explained
that the defense strategy was unsuccessful. Petitioner read the opinion issued by this
Court on direct appeal but did not “get” some of it because it was difficult for him to
understand.

       Petitioner insisted that a juror fell asleep during the trial. Petitioner described the
juror as a white male that was “sitting either [in] the third seat or the fourth seat in the
front.” He told trial counsel about the juror but trial counsel did not address the issue
with the trial court. Petitioner testified that he relied on all of the allegations made in his
petition for relief, not just the ones he remembered to talk about at the hearing.
                                             -2-
       Trial counsel testified that he had been licensed to practice law in Tennessee since
2008 and, at the time of the hearing, had worked in the public defender’s officer for seven
years. Trial counsel was appointed to represent Petitioner after someone in the public
defender’s office retired but recalled being involved “essentially from the very beginning,
maybe initially as the second chair.” Trial counsel “really liked” Petitioner, describing
him as a “loving, funny guy.” Trial counsel met with Petitioner “a lot” because he was
Trial counsel’s “most serious case at the time.” They discussed discovery, possible
defenses, and Petitioner’s needs during their meetings which were sometimes brief.

       Trial counsel made the decision to have an evaluation performed on Petitioner
“out of caution” but ultimately decided that it was not “going to be a fruitful avenue to
follow especially given the report.” Trial counsel could not exactly recall Petitioner’s
diagnosis but thought that “PTSD and ADHD” were the primary issues Petitioner faced.
Trial counsel informed the post-conviction court that Petitioner had a “very rough life.”

       Petitioner “was pushing” trial counsel to use an alibi defense. Trial counsel agreed
with Petitioner at the time but admitted in “hindsight” that he “may not have done that” in
light of testimony introduced at trial by the State, including a 911 call that named
Petitioner as a suspect. Additionally, Petitioner’s mother, the main alibi witness, was not
a “natural speaker.” In fact, trial counsel remembered rebuttal testimony entered by the
State that tended to prove Petitioner’s mother admitted to an officer that Petitioner was
not actually with her at the time of the incident. Trial counsel also admitted that he
should have “pushed harder” to emphasize the power that the gang leader had over
Petitioner as he felt that it was a “more fruitful” defense than the alibi defense.

        Trial counsel filed several pretrial motions including a motion to suppress cell
phone records. The motion sought to prohibit the State from using “actual pings on cell
phone towers around the city that they could use to somewhat triangulate somebody’s
position.” The motion was denied in a lengthy order from the trial court, who determined
that a search warrant was not required to obtain historical cell site data from a third party
provider and the State complied with the requirements of the applicable statute by
obtaining a court order for the telecommunications records. Trial counsel admitted that
he made an “actual mistake” by failing to “include [this issue] in the motion for new
trial.”

        When asked about a sleeping juror, Trial counsel testified he “think[s] maybe
there was one guy that [he] felt like was listening, but he would listen with . . . his head
down.” Trial counsel “kept watching him and felt like he was actually awake.” Trial
counsel admitted that he did not “remember much on that” issue or a “specific person.”
Trial counsel explained that if a juror fell asleep, the remedy would most likely be for
that juror to become an alternate.
                                            -3-
       In a written order, the post-conviction court denied relief. Specifically, the post-
conviction court determined that Petitioner’s evidentiary hearing testimony did not
support the allegation that trial counsel failed to adequately prepare for trial. In fact, the
post-conviction court concluded that the testimony indicated that Petitioner and trial
counsel met multiple times to prepare the case for trial, discussing strategy and reviewing
discovery. The post-conviction court determined “based on Petitioner’s testimony alone”
that Petitioner failed to demonstrate a deficiency with regard to trial counsel’s
investigation and communication. The post-conviction court accredited trial counsel’s
testimony and determined that the proof before the post-conviction court “contradict[ed
Petitioner’s] allegation[s].”

        The post-conviction court likewise determined Petitioner failed to establish that
trial counsel was ineffective for failing to consider Petitioner’s mental health or seek an
evaluation. The post-conviction court again accredited the testimony of trial counsel and
determined Petitioner “presented no proof to demonstrate otherwise.”

        The post-conviction court noted that Petitioner’s “primary complaint” at the
hearing was with regard to the sleeping juror. The post-conviction court determined that
Petitioner failed to establish through clear and convincing evidence that the incident even
occurred. The only proof at the hearing was the “uncorroborated testimony of the
Petitioner.” The post-conviction court reviewed the court’s notes from trial and found
that a black female juror was actually sitting in the seat alleged to have been occupied by
the white male juror who Petitioner insisted was sleeping. The white male juror who was
seated in the “third seat” was ultimately “slated as an alternate juror” and did not
deliberate or assist in rendering the verdict.

        Finally, the post-conviction court addressed Petitioner’s oral amendment to the
petition. At the hearing, the post-conviction court allowed Petitioner to amend the
petition to include an allegation that trial counsel was ineffective for failing to include the
motion to suppress the cell phone data in the motion for new trial. The State did not
object to the oral amendment. Even though trial counsel admitted that he should have
included this issue on appeal and its omission was a “mistake,” the post-conviction court
determined that Petitioner failed to establish that he was prejudiced by trial counsel’s
failure.

       Petitioner appeals from the denial of post-conviction relief.

                                           Analysis

                                   A. Standard of Review

                                             -4-
        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). On appeal, this Court will review the post-conviction court’s
findings of fact “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 v. State,
960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court.
Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the weight and
value to be given to testimony, and the factual issues raised by the evidence are to be
resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing Henley, 960
S.W.2d at 578). However, the post-conviction court’s conclusions of law and application
of the law to the facts are reviewed under a purely de novo standard, with no presumption
of correctness. Fields, 40 S.W.3d at 458.

                            B. Ineffective Assistance of Counsel

       On appeal, Petitioner contends that the post-conviction court improperly
determined that trial counsel rendered effective representation at trial. Specifically,
Petitioner points to trial counsel’s failure to include the suppression issue in the motion
for new trial and trial counsel’s failure to notify the trial court that there was a sleeping
juror. The State argues that Petitioner has failed to satisfy his burden and that any other
issues raised in the petition are now abandoned on appeal.

       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. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel’s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel’s performance was deficient
and that the deficiency prejudiced the defense. See 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. “Indeed, a court need not address the components in any particular
order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).
                                             -5-
       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-
guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994), even if a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, 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).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).

        Petitioner alleged in the petition and on appeal that a juror fell asleep during trial
and trial counsel failed to notify the trial court of this fact. Petitioner was unable to
definitively identify the juror but thought that he was a younger white male seated in the
third or fourth seat on the front row. Trial counsel did not recall a juror sleeping during
Petitioner’s trial. Trial counsel actually thought he recalled a juror who appeared to be
listening with his head down but was awake during trial. Trial counsel admitted that he
may have had a conversation with Petitioner about the sleeping juror but testified that if
he had noticed a sleeping juror, he would have brought it to the attention of the trial
court.

       The post-conviction court accredited the testimony of trial counsel and noted that
Petitioner’s testimony was uncorroborated. In fact, the post-conviction court reviewed
records from Petitioner’s trial and determined that a female juror was seated in the fourth
seat and a male juror was seated in the third seat. The male juror ultimately became an
alternate and did not deliberate with the jury. The post-conviction court determined that
Petitioner failed to prove deficient performance or prejudice of trial counsel with regard
to the juror. The evidence does not preponderate against the determination of the post-
conviction court. Petitioner’s only proof with regard to the allegedly sleeping juror was
                                             -6-
his own testimony, which the post-conviction court discredited. The post-conviction
court assessed his credibility—a task within its purview—and determined Petitioner’s
testimony was not credible. We will not review this determination on appeal. Momon,
18 S.W.3d at 156 (citing Henley, 960 S.W.2d at 578). Petitioner is not entitled to relief
on this issue.

        Additionally, the record does not preponderate against the post-conviction court’s
determination that Petitioner failed to prove ineffective assistance of counsel for trial
counsel’s failure to challenge the trial court’s ruling on the motion to suppress cell phone
data in a motion for new trial. Trial counsel admitted at the hearing that his failure to
include the issue in the motion for new trial was a “mistake.” The post-conviction court
determined that Petitioner failed to show he was prejudiced by the omission of the issue.
We agree. Petitioner merely argues that the evidence from cell phone “pings” was
“crucial in placing [him] at or near the scene of the crime” but fails to show how or why
he would have prevailed on appeal had this issue been included in the motion for new
trial. Petitioner failed to prove prejudice on this claim. The post-conviction court
extensively analyzed this issue, discussing the original order denying the motion to
suppress the cell phone data and concluding that there was still no authority that would
result in the exclusion of the evidence. In other words, the post-conviction court
concluded that even if trial counsel had included the issue in a motion for new trial,
Petitioner would not have been successful on appeal. Petitioner has presented no
authority in this Court that would show otherwise. Petitioner is not entitled to relief on
this issue.

        We also note that, from our review of the record and the briefs, it appears that
Petitioner does not raise on appeal all issues that were identified in his petition and
amended petition. Any issues that were raised in the post-conviction court but that have
not been pursued on appeal are deemed abandoned. See Ronnie Jackson, Jr. v. State, No.
W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. Oct. 26,
2009) (“While the Petitioner raised additional issues in his petition for post-conviction
relief, he has abandoned those issues on appeal.”), perm. app. denied (Tenn. Apr. 16,
2010).

                                        Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                                             ____________________________________
                                             TIMOTHY L. EASTER, JUDGE


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