The opinion
12/30/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 5, 2019
MARCHELLO GOSSETT v. STATE OF TENNESSEE
Appeal from the Circuit Court for Tipton County
No. 8083 Joe H. Walker, III, Judge
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No. W2019-00364-CCA-R3-PC
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A Tipton County jury convicted the Petitioner, Marchello Gossett, of one count of
possession with intent to deliver .5 grams or more of cocaine and two counts of felony
possession of a handgun. On appeal, this court affirmed the convictions. State v.
Marchello Karlando Gossett, No. W2015-02414-CCA-R3-CD, 2017 WL 1163683, *1
(Tenn. Crim. App., at Jackson, March 28, 2017) perm. app. denied (Tenn. Aug. 18,
2017). The Petitioner filed a post-conviction petition, claiming that he received the
ineffective assistance of trial counsel and prosecutorial misconduct. After a hearing, the
post-conviction court denied relief. On appeal, the Petitioner maintains that he received
the ineffective assistance of counsel at trial. After review, we affirm the post-conviction
court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.
Monica A. Timmerman, Bartlett, Tennessee, for the appellant, Marchello Gossett.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Mark E. Davidson, District Attorney General; and Sean G. Hord,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
The underlying case for this appeal arises from a controlled drug buy between the
Petitioner and a confidential informant on May 14, 2013, and the execution of a search
warrant at the Petitioner’s residence that same afternoon. Based on evidence found
during the search, a Tipton County grand jury indicted the Petitioner, in case number
7824, for one count of simple possession of marijuana; one count of simple possession of
codeine; two counts of felony possession of a handgun; one count of possession of .5
grams or more of cocaine with the intent to deliver; one count of possession of .5 grams
or more of cocaine with intent to deliver, having been convicted previously of three class
B felonies; and one count of possession of drug paraphernalia.
On April 3, 2014, the trial began. After voir dire, but before the jury was sworn,
the State requested ruling on a Rule 404(b) motion regarding prior acts by the Petitioner.
We provide the following summary of the 404(b) hearing from this court’s opinion in the
direct appeal as follows:
The State argued:
[T]here was a search warrant executed at 7673 Richardson Landing
in Drummonds in Tipton County by the Tipton County Sheriff’s
Office and that it was based on a controlled buy which happened,
according to the search warrant, within 72 hours of the execution on
May 14, which was in the afternoon of May 14, 2013.
At the execution of the search warrant there was found to be buy
money from the sale of $70 worth of cocaine, which actually was
analyzed by the TBI lab to be 0.25 grams. There was some text
messaging back and forth on that day of May 14 between [the
[Petitioner]] and the undercover person, who was [the confidential
informant] and the purchase was made actually that morning. And
on the execution of the search warrant the very prerecorded $70 in
miscellaneous currency, which will be described, was found under
[the [Petitioner]] while he was asleep on the bed.
So we have the situation in this case, obviously the important
element as far as the State is concerned, and certainly the
[Petitioner], is how this cocaine, which was obtained on the
execution of the search warrant, was possessed. Was it simple
possession? Was it possession with intent?
And the officer who is available to testify would testify regarding the
purchase which was in the morning of May 14, 2013, for which he
has actually the pre-recorded money used in that purchase which
was found under [the [Petitioner]]. He can testify about his
observance of the transaction on a video which was obtained as a
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result of this undercover buy, which was also the basis of the search
warrant.
In addition to this, Your Honor, there was a series of drug
transactions about which Investigator [ ] Chunn can testify. One was
on May 8, 2013, for $90 worth of crack cocaine, which was
purchased from [the [Petitioner]]. Again, he, the officer, viewed the
videotape of this transaction involving the same confidential source.
On May 9, 2013, Investigator Chunn was involved in an undercover
buy from [the [Petitioner]] for what was analyzed to be 0.61 grams
of crack cocaine, again involving the same confidential source and
[the [Petitioner]].
All of these purchases were at 7673 Richardson Landing.
Also there was a purchase on the next day May 10, 2013, from [the
[Petitioner]], using the same confidential source, involving
Investigator [ ] Chunn. Again, videotapes on all of these
transactions and lab report[s] on all of these transactions. In this
case, 0.37 grams of cocaine.
In all of the cases the officer was involved in the controlled buy,
monitored the situation, and viewed the videotapes.
We think that all of these transactions should be admissible, the
events of May 8, May 9, May 10, but certainly, certainly the event of
May 14, in that that recorded money was actually found under [the
[Petitioner]] when the search warrant was executed.
Under 404(b), Your Honor, there are a lot of cases for the
proposition that prior events of drug selling are admissible on
charges of drug selling or possession with intent.
The State continued:
We think it would be a disservice to the State and not unduly
burdensome on the [Petitioner] that evidence should come in that
when the search warrant was executed on the afternoon of May 14,
the officers found all of the recorded currency which had been used
in the purchase of cocaine from [the [Petitioner]] hours before, for
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which there was a videotape of that transaction and for which there
was a lab report that indicated 0.25 grams of Schedule II cocaine.
We think it’s highly relevant, Your Honor, to the only real issues in
the case, in the State’s opinion, which is the intent of the [Petitioner].
The State then proposed:
I would offer for [the [Petitioner]’s] consideration by his lawyer and
in consultation with him that the State—what the State intends to do
is in July to indict [the [Petitioner]] for the facts in 7824 and also
those at this point uncharged events of May 8, 9, 10, and 14. The
State is going to do that.
If [the [Petitioner]] is agreeable to just going forward with that
information on the prior sale of May 14 coming in, then the State
will never charge him further on the other events; that is, there will
be evidence of a May 14 delivery, but he will not be further charged
in that case, nor on the events of May 8, 9, and 10.
....
So in other words, we could go—the State would be willing to go
forward today if we get in that evidence. Otherwise, the State would
move to [dismiss] the case with the clear understanding by [the
[Petitioner]] we’re going forward with everything in July, or
attempting to.
Defense counsel responded that “this would be a very different
conversation if [she] had ever been allowed in the past to ask anything
about the confidential informant’s buy.” Defense counsel stated that she
had no information about “other buys on May 8, 9, and 10.” Moreover,
defense counsel stated that she had not been provided the text messages
between the [Petitioner] and the confidential informant or the video of the
drug buy from May 14, 2013. Defense counsel argued that, if the Rule
404(b) evidence that the trial court had previously ruled was inadmissible
was allowed to be introduced at trial, the defense would be “completely
unprepared” and “forced to move for a continuance[.]”
The trial court allowed the [Petitioner] time to discuss the matter with
defense counsel during a lunch break. Following the break, defense
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counsel announced that the [Petitioner] would not stipulate to the
introduction of the evidence. Defense counsel stated:
[I]t’s the defense’s position that at this point I could not go forward,
I could not consent to go forward on trial today with information
about the alleged buy, because I don’t have any information about
the marked money at all. If the State wants to provide me with the
information that they intend to present and allow me an opportunity
to review it and know whether or not I could in fact go forward with
trial based on that information, then I would ask the Court for a
continuance to do that. But short of that opportunity, I could not
provide effective assistance with so little knowledge about a vital
aspect of this case.
The trial court sustained the [Petitioner]’s objection to the admission of
the evidence “due to the way the case had developed up to that point.”
Upon the trial court’s ruling, the State entered a nolle prosequi in case
number 7824, with the expressed intent to re-indict the [Petitioner] in July
2014.
Marchello Karlando Gossett, 2017 WL 1163683, *2-4.
Following the dismissal of case number 7824, a Tipton County grand jury indicted
the Petitioner, in case number 8083, for two counts of delivery of .5 grams or more of
cocaine; two counts of delivery of less than .5 grams of cocaine; two counts of possession
of .5 grams or more of cocaine with intent to deliver; one count of possession of .5 grams
of cocaine or more with intent to deliver, having been convicted previously of three Class
B felonies; and two counts of felony possession of a handgun. The case went to trial, and
the jury convicted the Petitioner of one count of possession with intent to deliver .5 grams
or more of cocaine and two counts of felony possession of a handgun. The trial court
sentenced the Petitioner to serve thirty years in the Tennessee Department of Correction,
and this court affirmed the trial court’s judgments. Id. at *1.
The Petitioner filed a post-conviction petition, claiming ineffective assistance of
counsel and prosecutorial misconduct. In his petition the Petitioner alleged that his trial
counsel failed to: (1) properly impeach a witness, (2) properly assert the Petitioner’s right
to a speedy trial, (3) waive the statute of limitations on lesser-included offenses, (4)
“demonstrate the delay incurred as a result of the violation of Petitioner’s due process,”
and (5) request relevant information from the State regarding the confidential informant.
As to prosecutorial misconduct, the Petitioner alleged that: (1) the State engaged in
vindictive conduct as a result of the Petitioner’s refusal to allow 404(b) evidence to be
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admitted; and (2) the State committed prosecutorial misconduct by failing to turn over the
identity and criminal history of the confidential informants in violation of Brady v.
Maryland, 373 U.S. 83 (1963). On appeal, however, the Petitioner maintains only that
trial counsel was ineffective. He now asserts that trial counsel was “rendered”
ineffective: (1) “when she was forced to make a decision that would either admit
inadmissible, and highly prejudicial, evidence against the [Petitioner] or subject the
[Petitioner] to further, more serious charges;” and (2) “when the State failed to disclose
information pertaining to Investigator Chunn’s ongoing criminal investigation.” The
post-conviction court held a hearing on the petition and the parties presented the
following evidence:
The Petitioner’s attorney at trial (“Counsel”) testified that she represented the
Petitioner on case number 7824 through dismissal and case number 8083 through the
trial. Counsel explained that case number 7824 related to items recovered during the
May 14, 2013 search of the Petitioner’s residence and case number 8083 included
additional charges for controlled buys occurring on May 9, 10, and 11, 2013. Counsel
recalled filing a motion to suppress the evidence seized during the search of the
Petitioner’s residence and a motion to compel information about the confidential
informant, which the trial court denied.
Counsel testified about the circumstances surrounding the dismissal of case
number 7824. She stated she had filed a 404(b) motion to exclude any testimony about
the confidential buys since those incidents were not indicted in case number 7824 and
thus irrelevant to the proceedings. On the morning of trial, after the jury had been
selected but not yet sworn in, the State requested that Counsel agree to admission of
information about the controlled buys or the State would dismiss the case and re-indict
adding offenses related to the controlled buys. Counsel said that she had not been given
any of the information about the controlled buys, which included text messages and four
videos. Counsel met with the Petitioner during the lunch break and they discussed “what
would happen if [they] went forward to trial, what the evidence was expected to be, the
fact that [they] didn’t have [this evidence] beforehand, what kind of preparation should
have gone into it, and . . . how [they] wanted to proceed.” Ultimately, the Petitioner told
Counsel to tell the State to “dismiss it and re-indict it,” and then they could file a motion
to dismiss for prosecutorial misconduct.
Counsel testified that, after the State indicted the Petitioner again in case number
8083, she filed a motion alleging that the Petitioner was denied his right to a speedy trial
and due process, and that the State had committed vindictive prosecution. She later filed
a supplemental memorandum of law on the prosecutorial vindictiveness. The motion was
heard and the trial court denied the motion. Counsel also successfully filed a motion to
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sever the offenses to force the State to carry their burden of proof for each individual
date.
Counsel testified that after the trial, she learned of a year-long TBI investigation
“where [Investigator Chunn] had been under surveillance for purchasing marijuana.”
Counsel was unaware of when the investigation started so did not know if there was any
“overlap[ ]” with the Petitioner’s case. Counsel learned this information from the
Petitioner’s mother and not from the State. The trial court noted, for the record, that
Investigator Chunn was indicted in 2018.
The Petitioner testified that he did not understand the length of jail time he faced if
convicted at trial. The Petitioner stated that Counsel talked with him “a little bit” about
sentencing but that he was confused by the two different indictments. The Petitioner
agreed that he felt like he had a role in the decision-making about whether to proceed to
trial and stipulate to the evidence of the controlled buys or allow the State to dismiss and
indict again adding new charges.
In a subsequent written order, the post-conviction court denied relief. It is from
this judgment that the Petitioner appeals.
II. Analysis
On appeal, the Petitioner argues that Counsel was “rendered” ineffective when
placed in the untenable position of having to determine whether to stipulate to
undisclosed prejudicial evidence against the Petitioner or to place the Petitioner in the
position of potentially facing harsher punishment. The Petitioner further contends that
Counsel was “rendered” ineffective because the State failed to disclose information
pertaining to the criminal investigation of Investigator Chunn. The State responds that
the post-conviction court properly denied post-conviction relief.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate
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 judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
conviction court’s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
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be overcome only when a preponderance of the evidence is contrary to the post-
conviction court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court’s conclusions of law are subject to a purely de novo review by
this Court, with no presumption of correctness. Id. at 457.
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:
First, the [petitioner] must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the [petitioner] by
the Sixth Amendment. Second, the [petitioner] must show that the
deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the [petitioner] of a fair trial,
a trial whose result is reliable. Unless a [petitioner] makes both showings,
it cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).
In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)).
When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the
“distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly
deferential and “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. Finally,
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we note that a defendant in a criminal case is not entitled to perfect representation, only
constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v.
Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been
ineffective merely because 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).
“‘The fact that a particular strategy or tactic failed or hurt the defense, does not, standing
alone, establish unreasonable representation. However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate
preparation.’” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).
If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
The Petitioner claims that Counsel was “rendered” ineffective when the State
proposed that the Petitioner stipulate to admission of the controlled buys or face
additional charges in a subsequent indictment. The Petitioner did not raise this issue in
his petition for post-conviction relief as an ineffective assistance of counsel claim. He
did claim that the State committed prosecutorial misconduct by engaging in vindictive
behavior. Consequently, the post-conviction court addressed this issue as a claim of
prosecutorial misconduct. In its ruling denying relief, the post-conviction court stated,
“Trial counsel is not responsible for actions of the attorneys for the State.” The post-
conviction court further recognized the various motions and appellate issues raised by
Counsel on the Petitioner’s behalf. Finally, the post-conviction court noted that the issue
of prosecutorial misconduct had been reviewed on direct appeal and thus “previously
determined.”
Our review of the record reveals that, on the day of trial, Counsel was presented
with the State’s proposition that the defense either stipulate to evidence of previous
unindicted controlled buys or the State would seek dismissal of the case and re-indict the
Petitioner with additional charges. Counsel effectively argued the Petitioner’s difficult
position to the trial court and was allowed time to discuss the options with the Petitioner.
The Petitioner and Counsel spent about an hour discussing the options, and the Petitioner
ultimately determined not to stipulate to admission of the previous unindicted controlled
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buys. After the new indictment, Counsel filed a motion to dismiss the new indictment
based upon “a denial of right to a speedy trial, a violation of due process rights, and
vindictive prosecution,” but the trial court denied the motion. We agree with the post-
conviction court that Counsel is not responsible for the actions of the prosecutors and
,therefore, we conclude that the Petitioner has failed to carry his burden of showing that
Counsel was deficient in how she responded to and addressed the State’s proposal,
dismissal, and new indictment. We also agree with the post-conviction court that this
issue was raised in the Petitioner’s direct appeal and thus, has been previously
determined.
The Petitioner also argues on appeal that Counsel was “rendered” ineffective when
the State failed to disclose a criminal investigation of Investigator Chunn. The State
correctly notes that the Petitioner failed to raise this issue in his petition and, therefore,
the post-conviction court was not afforded the opportunity to address it. As a general
rule, this court will not address post-conviction issues that were not raised in the petition
or addressed in the trial court. Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App.
1996) (citing State v. Smith, 814 S.W.2d 45, 49 (Tenn. 1991)); see David Lynn Jordan v.
State, No. W2015-00698-CCA-R3-PD, 2016 WL 6078573, at *65 (Tenn. Crim. App.
Oct. 14, 2016); Richard Price v. State, No. W2012-02192-CCA-R3-PC, 2014 WL
1512861, at *3 (Tenn. Crim. App. Apr. 16, 2014), no perm. app. filed; Patrick Thurmond
v. State, No. M2005-00214-CCA-R3-PC, 2006 WL 680924, at *7 (Tenn. Crim. App.
Mar. 15, 2006), perm. app. denied (Tenn. Aug. 21, 2006); Torry Caldwell v. State, No.
01C01-9703-CC-00115, 1999 WL 97915, at *2 (Tenn. Crim. App. Feb. 18, 1999), perm.
app. denied ( Tenn. June 28.1999). This court has likewise refused to review an issue
when it was first raised at the post-conviction hearing, the evidence regarding the issue
was “not developed in any meaningful way,” and the issues was not ruled upon by the
post-conviction court. Oscar Polk, Jr., v. State, No. W2018-01072-CCA-R3-PC, 2019
WL 911156, at *3 (Tenn. Crim. App. Feb. 15, 2019) (concluding that the issue was
waived when it was absent from the petition, not ruled upon by the post-conviction court,
and not meaningfully developed), no. perm. app. filed.
Although the Petitioner failed to raise this issue in his petition, there was some
testimony at the hearing about the criminal investigation of Investigator Chunn. In our
view, however, the issue was not developed in a “meaningful way.” There is little
evidence about the investigation and no evidence as to whether there was any overlap
between the time of the Petitioner’s crimes and the investigation of Investigator Chunn.
We agree with the State that the Petitioner has waived our review for failure to raise it in
his petition. Notwithstanding waiver, the Petitioner failed to carry his burden of proof in
showing that Counsel was deficient in this regard and how that deficiency prejudiced
him. The Defendant is not entitled to relief as to this issue.
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III. Conclusion
After a thorough review of the record and relevant authorities, we conclude that
the post-conviction court properly denied post-conviction relief. Accordingly, we affirm
the judgment of the post-conviction court.
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ROBERT W. WEDEMEYER, JUDGE
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