Jaquan Gathing v. State of Tennessee

02/23/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 6, 2024

JAQUAN GATHING v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 14-03635 Lee V. Coffee, Judge

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No. W2023-00596-CCA-R3-PC

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The petitioner, Jaquan Gathing, appeals the denial of his post-conviction petition, arguing

the post-conviction court erred in finding he received the effective assistance of counsel.

After our review of the record, briefs, and applicable law, we affirm the denial of the

petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN W. CAMPBELL, SR., and

KYLE A. HIXSON, JJ., joined.

Shae Atkinson (at post-conviction hearing) and Bianka Y. Valdez (on appeal), Memphis,

Tennessee, for the appellant, Jaquan Gathing.

Jonathan Skrmetti, Attorney General and Reporter; Raymond J. Lepone, Assistant

Attorney General; Steve Mulroy, District Attorney General; and Leslie Byrd, Assistant

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

OPINION

Facts and Procedural History

On direct appeal, this Court summarized the facts surrounding the petitioner’s

convictions for one count of attempted especially aggravated robbery, two counts of

aggravated assault, two counts of facilitation of aggravated assault, one count of facilitation

of attempted aggravated robbery, and one count of especially aggravated robbery, as

follows:

On March 13, 2014, Mr. [Eric] Cain, Ms. [Myisha] White, Mr.

[Deangelo] Terry [(collectively “the victims”)], and Mr. [Rico] Johnson were

visiting at the apartment of Ms. Danneisha Stinson. At around 2:00 or 3:00

a.m., the victims and Mr. Johnson went outside into the parking lot to look

for the key to Mr. Terry’s vehicle when they were attacked. Mr. Cain

testified that there were two attackers, Ms. White testified that there were

three attackers, and Mr. Terry testified that there were three attackers. Ms.

Stinson observed the attack from her upstairs window and testified that there

were three or four attackers. The victims testified that the attackers were

wearing masks and bandanas.

Using a sawed-off shotgun, a pistol, and a hatchet, the attackers forced

Mr. Cain, Ms. White, and Mr. Terry to the ground and instructed the victims

to take off their clothes and “to give [the attackers] what they had.” The

attackers “snatched” the clothes off of Mr. Cain. Mr. Cain saw the attackers

“torture” Mr. Terry and Ms. White. Mr. Cain was hit repeatedly, and his face

was slammed into the ground, knocking him unconscious. Mr. Terry was hit

in the head with the hatchet before passing out. Ms. White watched as Mr.

Terry and Mr. Cain were “brutalized” before the attackers did the same to

her. The attackers picked up Mr. Cain, threw him on top of Mr. Terry, and

said they were going to kill them. Upon hearing police sirens, the attackers

ran away with the items they took from the victims.

Ms. Stinson was still in the upstairs apartment when the attack

occurred. From her window, Ms. Stinson saw Mr. Terry, Mr. Cain, and Ms.

White lying on the ground in the parking lot and the attackers beating the

victims with a gun and “a long metal object like a knife.” The attackers “were

swinging a long metal object back and forth, and you could hear it hit.” She

heard a gunshot, and she was “scared” and “panicking.” She tried to call 9-

1-1 on Ms. White’s tablet, but was unsuccessful in her attempts.

During the attack, Mr. Johnson came back upstairs and knocked on

Ms. Stinson’s door. Ms. Stinson let Mr. Johnson inside, and he also tried to

call 9-1-1. After Mr. Johnson went back outside, the victims came upstairs.

Ms. Stinson testified that Ms. White had stab wounds to the head, Mr. Cain

had “blood and chunks of meat everywhere,” and Mr. Terry was unconscious

on the living room floor. An officer responding to the scene described Mr.

Cain as having “his ear hanging off” and described Mr. Terry’s head, neck,

and collar bone area as “chopped up.” Mr. Terry was put on oxygen and was

going in and out of consciousness. The victims and Mr. Johnson were all

transported to the hospital for treatment for their wounds.

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Officer Wayne Greygor of the Memphis Police Department

responded to a call about the robbery in progress at approximately 3:00 a.m.

When entering the apartment complex, Officer Greygor turned the direction

normally used as an exit, believing that the attackers would come from that

direction if they attempted to leave the apartment complex. He saw a gold

or beige sport utility vehicle (“SUV”) coming toward him. It stopped and

turned its headlights off. Officer Greygor pulled to the side and turned his

headlights off, as well. After about thirty seconds, the SUV’s headlights

turned back on, and it started to drive toward Officer Greygor. He then

turned on his headlights and activated his blue lights, pulling into the middle

of the road in an attempt to block the vehicle from leaving. The SUV went

around Officer Greygor and kept going, so Officer Greygor turned around

and followed it.

While Officer Greygor was following the SUV, he saw a black male

wearing dark clothing jump out from the front passenger door. The man was

described as “about the same size” as Defendant Prince Parker. As the man

jumped, a mask and green bandana were dropped or thrown from the car.

Officer Greygor continued to follow the SUV until another patrol car stopped

the SUV from the front. The two officers ordered everyone out of the SUV

at gunpoint and detained them. Co-defendant Danielle Brown was driving

the SUV at the time. [The petitioner] and Co-defendant Morgan Edwards

were both in the back seat. Mr. Parker was not in the vehicle at the time.

....

After the [d]efendants had been arrested, Sergeant George Cave

overheard a discussion between [the petitioner] and Mr. Parker, who were in

separate rooms with an adjoining wall between them. They attempted to

speak to each other through the wall, and Sergeant Cave heard Mr. Parker

“saying something to the effect [of], ‘Don’t tell them anything,’ and [the

petitioner] saying something to the effect of, ‘I didn’t tell them anything, I

didn’t tell them nothing.’” [Mr. Prince and the petitioner] were later moved

away from each other.

The SUV was towed to the Crime Scene Office and searched pursuant

to a search warrant. The items found inside the SUV included a sawed-off

shotgun with duct tape wrapped around the handle, a Tec-9 pistol, a

magazine for the Tec-9 containing thirteen rounds, a yellow shotgun shell,

what appeared to be a bloodstain on the inside of the passenger door, a pair

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of bloody latex gloves, a dollar bill with blood on it, a red bandana, a “skull

cap,” a wallet, various articles of clothing, and two pairs of tennis shoes.

During the trial, Ms. Brown, a co-defendant, testified on behalf of the

State that she was Mr. Parker’s girlfriend at the time of the attack. Prior to

the attack, Mr. Parker had told Ms. Brown that he knew some people who

had “a lot of money and weed” and that he planned to rob them. Mr. Parker

drove his SUV to the apartment complex, with Ms. Brown in the front

passenger seat and Mr. Edwards and [the petitioner] in the back seat. They

pulled to the back of the complex and parked. Mr. Parker and [the petitioner]

put masks and bandanas over their faces and got out of the vehicle while Ms.

Brown remained in the vehicle with Mr. Edwards. Although Ms. Brown was

aware of the two guns in the vehicle, she did not see Mr. Parker or [the

petitioner] leave with the weapons. Ms. Brown moved to the driver’s seat to

play with the radio while [the petitioner] and Mr. Parker were gone. She

testified that they were gone for thirty minutes to an hour before returning to

the vehicle. Upon their return, they were “calm,” and there was “no

screaming” and “no excitement.” Mr. Parker got into the front passenger

seat and told Ms. Brown to drive. Ms. Brown did so but stopped the vehicle

when she saw police cars in front of her. When the car was stopped, Mr.

Parker got out of the vehicle and jumped over a gate. Ms. Brown testified

that when Mr. Parker returned to the scene after she had been placed in a

patrol car, he was wearing different clothes than he was wearing during the

robbery.

....

The victims each testified to injuries sustained in the attack. Mr. Cain

testified that he remembered waking up in the hospital with a “[b]roken jaw,

wound to the back of the head, a cut up ear, beat up knees, bruised ribs,” and

a cut around his eye that was still leaking fluid into his eye at the time of trial.

His ear had to be reattached, and he remained in the hospital for a week.

Although Ms. White did not take off her clothes after being told to do so by

her attackers, she remembered waking up in the hospital wearing only her

“boxers and a wife beater.” She had bruised ribs from being kicked and two

stab wounds in the back of her head, and she remembered being knocked out

with a “big gun.” Mr. Terry remembered being hit in the head, “knock[ing]

some of [his] dreads out.” He had cuts to his hand from attempting to protect

his head during the attack. He also testified at trial that he still suffered from

headaches from the attack.

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....

Special Agent Donna Nelson of the Tennessee Bureau of

Investigation (“TBI”) provided expert testimony regarding DNA testing of

some of the items found in the SUV and at the scene of the attack. Mr.

Parker’s DNA was found on the nose and mouth area of the ski mask that

fell out of the car while Officer Greygor was following it. Ms. White’s DNA

was found in a sample taken from a bloodstain from the inside door of the

SUV. The “skull cap” found in the SUV contained [the petitioner’s] DNA,

and one of the gloves from the SUV contained Mr. Edwards’s DNA. The

tennis shoes [the petitioner] was wearing the night of the incident had both

[the petitioner’s] DNA and Ms. White’s DNA on them. A bloodstain on [the

petitioner’s] pants from that night had DNA from both [the petitioner] and

Mr. Cain.

....

The jury found both [the petitioner] and Mr. Parker not guilty of all

three counts of attempted first degree murder. The jury found [the petitioner]

guilty of one count of attempted especially aggravated robbery of Mr. Cain,

one count of aggravated assault of Mr. Cain, one count of facilitation of

aggravated assault of Mr. Cain, one count of facilitation of attempted

aggravated robbery of Ms. White, one count of aggravated assault of Ms.

White, one count of facilitation of aggravated assault of Ms. White, and one

count of especially aggravated robbery of Mr. Terry. The trial court merged

the aggravated assault of Mr. Cain and facilitation of aggravated assault of

Mr. Cain with the attempted especially aggravated robbery of Mr. Cain. The

trial court also merged the facilitation of aggravated assault of Ms. White

with the aggravated assault of Ms. White. [The petitioner] received an

effective sentence of forty-seven years of imprisonment.

State v. Gathing, No. W2016-02076-CCA-R3-CD, 2018 WL 486001, at *1-5 (Tenn. Crim.

App. Jan. 19, 2018), perm. app. denied (Tenn. May 17, 2018).

Following the denial of his direct appeal, the petitioner filed a pro se petition for

post-conviction relief on January 28, 2019, arguing, in part, that trial counsel was

ineffective for failing to communicate with the petitioner. Counsel was appointed, and the

petitioner filed an amended petition in which he argued, in part, trial counsel was

ineffective for failing to meet with the petitioner as necessary, failing to adequately conduct

a pre-trial investigation, and failing to secure a proper appellate record. An evidentiary

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hearing was held on September 23, 2022, during which the petitioner and trial counsel

testified.1

Trial counsel testified that he was appointed to represent the petitioner following his

preliminary hearing. Trial counsel met with the petitioner following each of the

petitioner’s court appearances and answered any questions the petitioner had.

Additionally, trial counsel visited the petitioner in jail and responded to the petitioner’s

questions through letters. Trial counsel reviewed discovery with the petitioner and

provided him with a copy of the discovery materials. On cross-examination, trial counsel

agreed the petitioner had eighteen court appearances prior to trial, and trial counsel met

with the petitioner at each appearance to discuss the petitioner’s case.

Regarding pretrial investigation, trial counsel testified that he did not hire an

investigator in this case because “there was not much in dispute, other than [the petitioner]

saying he was not the person who was involved.” Although witnesses placed the petitioner

at the crime scene and the petitioner admitted to being present during the commission of

the crime, the petitioner stated that he was merely “breaking it up.” Additionally, because

the potential witnesses were affiliated with gangs and the petitioner assured trial counsel

that they would not testify, trial counsel chose not to speak with them prior to trial. On

cross-examination, trial counsel agreed that because of the witnesses’ gang affiliation and

the brutality of the attacks, he did not believe the witnesses would speak to him even if he

tried to contact them.

When trial counsel was preparing the appellate record, he noticed that a portion of

one of the transcripts was incomplete. Following an investigation, trial counsel discovered

that the audio of the transcript was not fully recorded. Therefore, trial counsel filed a

motion with this Court which included an affidavit from the court reporter stating that the

entire record was not recorded and that portions of the audio were missing. Trial counsel

testified that when a record is incomplete attorneys are required to submit their notes from

trial in order to complete the record. However, rather than submit his notes, trial counsel

chose to argue on direct appeal that the court reporter, as a party of the State, lost or

destroyed evidence, and he believed that argument “[was] less effective or essentially [did

not] exist if you’re just writing the notes as to what was missing and filling in the blanks.”

The petitioner testified that there was not “a substantial amount of conversation”

between trial counsel and the petitioner. According to the petitioner, the only in-depth

conversations he had with trial counsel were at the petitioner’s court appearances.

Although trial counsel also visited the petitioner at jail, “it wasn’t that long for us to just

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We limit our recitation of the testimony at the evidentiary hearing to that relevant to the

petitioner’s issues on appeal.

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get anything establish[ed] to me to really fully understand what was taking place, because

I was ignorant of the law at the time and didn’t really understand what was going on.” The

petitioner agreed that trial counsel provided him with a copy of his discovery; however,

trial counsel did not go over it with the petitioner “in full detail.”

After its review of the evidence presented, the post-conviction court denied relief,

and this timely appeal followed.

Analysis

On appeal, the petitioner argues trial counsel was ineffective for failing to conduct

an adequate investigation, failing to communicate with the petitioner, and failing to

properly preserve the record. The State contends the post-conviction court properly denied

relief. Upon our review, we agree with the State.

The petitioner bears the burden of proving his post-conviction factual allegations by

clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The findings of fact

established at a post-conviction evidentiary hearing are conclusive on appeal unless the

evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).

This Court will not reweigh or reevaluate evidence of purely factual issues. Henley v.

State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial court’s

application of the law to the facts is de novo, with no presumption of correctness. See Ruff

v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel

presents mixed questions of fact and law. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

Thus, this Court reviews the petitioner’s post-conviction allegations de novo, affording a

presumption of correctness only to the post-conviction court’s findings of fact. Id.; Burns

v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner must show

both that counsel’s performance was deficient and that counsel’s deficient performance

prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687

(1984); State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the

standard for determining ineffective assistance of counsel applied in federal cases is also

applied in Tennessee). The Strickland standard is a two-prong test:

First, the defendant 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 defendant by

the Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

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errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the

Strickland test must be satisfied. Id. Thus, courts are not required to even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” Id.; see

also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove

either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim”).

A petitioner proves a deficiency by showing “counsel’s acts or omissions were so

serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter

v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the Strickland test is

satisfied when the petitioner shows there is a reasonable probability, or “a probability

sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at

694. However, “[b]ecause of the difficulties inherent in making the evaluation, a court

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

reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action ‘might be considered sound trial

strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

I. Failure to Investigate

The petitioner argues trial counsel was ineffective for failing to investigate

witnesses and possible defenses. Although the petitioner denied participating in the crime,

trial counsel failed to hire an investigator or speak to potential witnesses prior to trial. The

State contends the post-conviction court properly found that trial counsel was not

ineffective for failing to investigate.

At the evidentiary hearing, trial counsel testified that he did not hire an investigator

in this case because “there was not much in dispute, other than [the petitioner] saying he

was not the person who was involved.” Trial counsel did not speak with potential witnesses

believing they would not meet with him because of their gang affiliation and the brutality

of the attack. Although the petitioner argues that trial counsel should have interviewed

potential witnesses prior to trial or hired a private investigator, he failed to present any

witnesses at the evidentiary hearing or state what information further investigation would

have revealed or how it would have altered the outcome of the trial, and therefore cannot

establish prejudice. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

Furthermore, the post-conviction court accredited the testimony of trial counsel, and

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nothing in the record preponderates against its findings. See Tidwell, 922 S.W.2d at 500.

The petitioner is not entitled to relief on this issue.

II. Failure to Communicate

The petitioner argues trial counsel was ineffective for failing to adequately consult

the petitioner about critical decisions. The petitioner contends communication was

“minimal, infrequent, and resulted in a bar complaint.” The State contends the post-

conviction court properly found that trial counsel was not ineffective for failing to

communicate with the petitioner.

At the evidentiary hearing, trial counsel testified he spoke with the petitioner

following each court appearance, visited the petitioner in jail, and communicated with the

petitioner through letters. Trial counsel reviewed discovery with the petitioner and

provided him with a copy of the discovery materials. The petitioner testified that trial

counsel spoke with him at every court appearance but stated that there was not “a

substantial amount of conversation.” Although trial counsel also visited the petitioner at

jail, “it wasn’t that long for us to just get anything establish[ed].” The petitioner also agreed

that trial counsel provided him with a copy of his discovery but stated trial counsel did not

go over it “in full detail.”

As noted above, the post-conviction court accredited the testimony of trial counsel,

and nothing in the record preponderates against its findings. See Tidwell, 922 S.W.2d at

500. Thus, the petitioner has not shown deficient performance on the part of trial counsel.

Furthermore, the petitioner has failed to establish a reasonable probability that the result of

the proceeding would have been different if trial counsel had spent more time with him,

especially in light of the overwhelming evidence against the petitioner. Strickland, 466

U.S. at 694. The petitioner is not entitled to relief on this issue.

III. Failure to Properly Preserve the Record

The petitioner argues trial counsel was ineffective for failing to properly preserve

the record on direct appeal in violation of Tennessee Rule of Appellate Procedure 24(b).

The petitioner contends that trial counsel’s failure to supplement the appellate record on

direct appeal with the missing portions of the trial transcript “left the Court unable to

adequately address[] issues and unable to review a full and complete record.” The State

contends the post-conviction court properly found that trial counsel was not ineffective for

failing to properly preserve the appellate record.

At the evidentiary hearing, trial counsel testified that he noticed a portion of one of

the transcripts was incomplete due to missing audio when preparing the record during the

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petitioner’s direct appeal. Although trial counsel knew that he was required to provide his

trial notes when the record was incomplete, trial counsel instead chose to argue on direct

appeal that the court reporter, as a party of the State, lost or destroyed evidence, and he

believed that argument “[was] less effective or essentially [did not] exist if you’re just

writing the notes as to what was missing and filling in the blanks.”

As noted above, trial counsel’s testimony indicates that he considered submitting

his trial notes as required by Tennessee Rule of Appellate Procedure 24(c). However, he

made a strategic and informed decision to argue that the court reporter, as a State actor,

lost or destroyed evidence. Trial counsel believed that submitting his trial notes under

24(c) would undercut this argument. The post-conviction court accredited the testimony

of trial counsel, and nothing in the record preponderates against the findings of the post-

conviction court. See Tidwell, 922 S.W.2d at 500. In addition, the fact that a strategy or

tactic failed or was detrimental to the defense does not, alone, support a claim for

ineffective assistance of counsel. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.

1992). Deference is given to sound tactical decisions made after adequate preparation for

the case. Id. The petitioner is not entitled to relief on this issue.

Conclusion

Based upon the foregoing authorities and reasoning, we affirm the post-conviction

court’s judgment denying the petitioner post-conviction relief.

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J. ROSS DYER, JUDGE

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