Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs Date: January 14, 2015
Criminal Court for Sumner County No. 2009-CR-792 Dee David Gay, Judge
Sharlina Pye-Mack, Hendersonville, Tennessee, for the appellant, James Allen Gooch.
Herbert H. Slatery, III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; L. Ray Whitley, District Attorney General; and Lytle Anthony James, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
I. Factual and Procedural Background
Following a jury trial, the Petitioner was convicted of one count of sale of not less than .5 ounces of marijuana within 1, 000 feet of a school and one count of attempted sale of .5 grams or more of cocaine. The trial court ordered consecutive sentences of 12 years and 15 years, respectively. The Petitioner appealed, challenging his sentence and the trial court's denial of his motion to sever his charges. This Court affirmed the judgments of the trial court. State v. James Allen Gooch, Jr., No. M2012-01135-CCA-R3-CD, 2012 WL 4358195, at *1 (Tenn. Crim. App. Sept. 25, 2012), perm. app. denied (Tenn. Jan. 15, 2013).
The Petitioner filed a timely petition for post-conviction relief, alleging ineffective assistance of both trial and appellate counsel. After a hearing, the post-conviction court denied relief. On appeal, the Petitioner challenges the denial of post-conviction relief as to trial counsel only. We interpret the Petitioner's brief to raise the following grounds to support his claim: (1) trial counsel rendered deficient performance when he requested rejoinder of the offenses after they had been severed; (2) trial counsel failed to object to any of the State's questions during trial; (3) trial counsel failed to challenge the introduction of audio/video recorded (the "recordings") evidence for lack of authentication; (4) trial counsel failed to object to the State being allowed to reopen its proof after a Momon hearing was conducted; (5) trial counsel failed to inform the Petitioner of his right to testify at trial; (6) trial counsel failed to investigate the Petitioner's alibi defense; and (7) a number of the Petitioner's constitutional rights were abridged. Additionally, the Petitioner argues that cumulative error necessitates reversal of the post-conviction court's judgment.
The Petitioner was indicted for two separate drug transactions. Prior to trial, the Petitioner filed a motion to sever the charges, which the State did not oppose, and the trial court granted the motion. Subsequent to the severance, on August 31, 2010, the Petitioner's counsel withdrew, and trial counsel was appointed. On December 3, 2010, trial counsel made an oral motion to rejoin the offenses. At the time of the motion, trial counsel explained that the Petitioner "very much want[ed] to have both of these charges tried at the same time." The trial court also had the following exchange with the Petitioner:
THE COURT: Okay. Mr. Gooch, you realize that this could be prejudicial to you?
THE [PETITIONER]: Yes, sir.
THE COURT: The fact that you're trying two counts as opposed to one and the jury dealing with two situations as opposed to one?
THE [PETITIONER]: Yes
THE COURT: This is what you want to do?
THE [PETITIONER]: Yes, sir.
The trial court ordered the offenses to be rejoined.
However, three days before trial, on January 7, 2011, trial counsel made an oral motion to re-sever the offenses. He explained that he felt trying the offenses separately would be less prejudicial to the Petitioner. The trial court denied the motion to re-sever.
At the end of the first day of trial, trial counsel conducted a Momon hearing with the Defendant, wherein the Defendant stated that he did not want to testify. After the Momon hearing, the State informed the trial court that it had one additional witness, Investigator Russell of the drug task force, who was unable to make it to court due to inclement weather. The trial court allowed the State to call Investigator Russell the following morning. After the close of proof, the jury convicted the Petitioner of both offenses.
At the post-conviction relief hearing, trial counsel testified that, after he was appointed to the case, he spent many hours talking to the Petitioner in preparation for trial. At no time did the Petitioner provide trial counsel with information regarding the identify of an alibi witness or any possible affirmative defense. Consequently, trial counsel developed a trial strategy in which he tried to discredit the State's proof and highlight the weaknesses of its case against the Petitioner.
Additionally, trial counsel noted that the Petitioner's offenses had been severed by another attorney before trial counsel was appointed to represent the Petitioner. Trial counsel explained that he moved the court to rejoin the cases based on his understanding of the facts of the case and the law. He also noted that the Petitioner was "absolutely insistent" that the charges be rejoined. After the offenses were rejoined, trial counsel interviewed two of the State's witnesses. Then, on January 7, 2011, trial counsel moved the trial court to re-sever the offenses, and his motion was denied. He explained that he moved to re-sever the charges because there may have been "some marginal benefit in having them tried separately because of possible–the inflammatory nature and prejudicial nature of the two charges being tried together, but I thought that it would only be marginal. I didn't think that it would . . . be conclusive as far as the outcome." The case proceeded to trial on January 10, 2011, and trial counsel stated that he was "totally" prepared for trial and that he knew what each witness would say on the stand.
Trial counsel testified that, as a matter of strategy, he did not file any motions to prevent the introduction of the recordings of the drug transactions and he did not object to ...