        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 post-
conviction 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 post-
conviction court.

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

T IMOTHY L. E ASTER, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL,
P.J., and A LAN E. G LENN, 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 ninety-
year sentence for the remaining offenses.1 Id. Petitioner’s convictions and sentences were
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

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

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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 post-
conviction 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 post-
conviction 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 re-
evaluate 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.



                                               -6-
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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