Session October 3, 2017
from the Criminal Court for Shelby County No. 14-03635 James
C. Beasley, Jr., Judge
Defendants, Jaquan Gathing and Prince Parker, were convicted
of various offenses in connection with the robbery and
assault of three victims committed with firearms and a
hatchet. Mr. Gathing was convicted of attempted especially
aggravated robbery, aggravated assault, facilitation of
aggravated assault, facilitation of attempted aggravated
robbery, and especially aggravated robbery, and he received
an effective sentence of forty-seven years. Mr. Parker was
convicted of facilitation of attempted especially aggravated
robbery, facilitation of aggravated assault, facilitation of
attempted aggravated robbery, and facilitation of especially
aggravated robbery, and he received an effective sentence of
twenty-six years. On appeal, Mr. Gathing relies on his brief
and oral argument and challenges: (1) the trial court's
denial of his motion to suppress; (2) improper comments made
by the State during voir dire; (3) the insufficient chain of
custody for DNA evidence; (4) improper comments made to the
jury regarding the merger of offenses; and (5) the
State's failure to preserve the record for appeal. On
appeal, Mr. Parker relies on his brief and challenges: (1)
the sufficiency of the evidence to support his convictions;
(2) the admission of a photograph of an alleged victim's
injuries; (3) the trial court's application of
enhancement factors to his sentences; and (4) the trial
court's decision to run his sentences consecutively.
After review of the record and applicable law, we affirm the
judgments of the trial court but remand for entry of
corrected judgments of Prince Parker to reflect facilitation
of aggravated assault with a deadly weapon, rather than with
serious bodily injury, and to reflect the proper
classification of facilitation of especially aggravated
robbery as a Class B felony, rather than a Class C felony.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed and Case Remanded
Terrell L. Tooten, Cordova, Tennessee, for the appellant,
Jennifer J. Mitchell, Memphis, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter;
Katherine C. Redding, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Ann Schiller,
Assistant District Attorney General, for the appellee, State
Everett Williams, J., delivered the opinion of the court, in
which Norma McGee Ogle and Alan E. Glenn, JJ., joined.
EVERETT WILLIAMS, JUDGE.
AND PROCEDURAL HISTORY
Defendants, along with two co-defendants who are not parties
to this appeal, committed a brutal attack on Mr. Eric Cain,
Ms. Myisha White, and Mr. Deangelo Terry (collectively
"the victims") as part of a robbery on March 13,
2014. In the course of the robbery, the perpetrators took the
victims' clothing and personal property and inflicted
injuries on the victims with a hatchet and by hitting them
with firearms. The crimes were interrupted by the arrival of
police, who apprehended all four perpetrators that night. The
Defendants were both charged with one count of attempted
first degree murder of Mr. Cain, one count of attempted
especially aggravated robbery of Mr. Cain, two counts of
aggravated assault of Mr. Cain while acting in concert with
two or more persons, one count of aggravated robbery of Mr.
Rico Johnson, one count of attempted first degree murder of
Ms. White, one count of attempted aggravated robbery of Ms.
White, two counts of aggravated assault of Ms. White while
acting in concert with two or more persons, one count of
attempted first degree murder of Mr. Terry, and one count of
especially aggravated robbery of Mr. Terry.
March 13, 2014, Mr. Cain, Ms. White, Mr. Terry, and Mr.
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.
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.
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
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.
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
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. Defendant
Jaquan Gathing and Co-defendant Morgan Edwards were both in
the back seat. Mr. Parker was not in the vehicle at the time.
Mr. Gathing, Mr. Edwards, and Ms. Brown were each being
detained in separate patrol cars, Mr. Parker walked up to the
officers on the scene. He informed the officers that Ms.
Brown was his girlfriend and that the SUV belonged to him.
Mr. Parker told Sergeant Clifton Dupree that he had asked Ms.
Brown to drive his two friends around "to do
whatever." Mr. Parker said his sister told him that she
had seen his vehicle pulled over while she was driving by the
area. Mr. Parker had come outside to the scene to see if that
Greygor testified that Mr. Parker tried to give the officers
information in an effort to "barter" for Ms.
Brown's release. Sergeant Dupree testified that Mr.
Parker stated that "one of his friends had [a] Tec-9 and
one of them had a shotgun." He told the officers that a
work hatchet was used on the victims, that the shotgun for
which the officers were searching was located inside the SUV,
and that the Tec-9 was normally stored under the seat in the
vehicle. As the officers at the scene with the SUV received
information from the officers at the scene of the attack,
they realized that Mr. Parker had very specific information
that would not have been known to somebody who was not
involved in the robbery. Mr. Parker was eventually taken into
custody and charged along with the three occupants of the
the Defendants had been arrested, Sergeant George Cave
overheard a discussion between Mr. Gathing 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
Mr. Gathing saying something to the effect of, 'I
didn't tell them anything, I didn't tell them
nothing.'" The two Defendants were later moved away
from each other.
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 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.
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 Mr. Gathing
in the back seat. They pulled to the back of the complex and
parked. Mr. Parker and Mr. Gathing 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 Mr. Gathing leave with the weapons. Ms. Brown moved
to the driver's seat to play with the radio while Mr.
Gathing 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.
Brown acknowledged that she provided false information in her
statement to the police on the day of the attack. She had
previously identified Mr. Gathing and Mr. Edwards but had
claimed the occupant who jumped out of the car was named
Kevin Ward. Ms. Brown explained at trial that before the
robbery occurred, Mr. Parker had instructed Ms. Brown to give
the name Kevin Ward, which was his alias, in the event they
were caught. Ms. Brown testified that she did not know that
the victims were going to be "chopped up, " that
she had never been arrested before, and that she was
"scared" and "shocked" when the police
showed her photographs of the victims' injuries.
Brown also testified to a conversation she had with Mr.
Parker while they were both incarcerated. Mr. Parker had
hidden in the bathroom, unbeknownst to Ms. Brown. When Ms.
Brown entered the bathroom, Mr. Parker asked Ms. Brown not to
testify against him. Although Ms. Brown did not initially
report the encounter, she later told her attorney about 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.
trial, Mr. Cain identified a jacket, a pair of sweatpants,
and a lighter with a shoe string tied around it as the items
taken from him during the attack. These items were found in
the SUV during the execution of the search warrant. He
identified a pair of shoes found in the SUV as the shoes Mr.
Terry was wearing the night of the attack. He identified his
cellular phone found in the parking lot where the attack
occurred. He identified the pistol as the gun with which he
was hit. He also identified the sawed-off shotgun as the
shotgun with which an attacker hit Mr. Terry across the face.
Mr. Cain identified the mask that fell out of the vehicle
when Mr. Parker jumped out as the mask that one of the
attackers was wearing. He further described the attacker as
wearing a green bandana and having "dreads, " which
was the hairstyle Mr. Parker wore at the time.
White identified a pair of tennis shoes found in the SUV as
looking similar to the ones she was wearing the night of the
attack. She agreed that in her initial statement to the
police, she described one of the attackers as having
Terry identified a pair of pants found in the SUV as the ones
he was wearing during the robbery. He also identified his
wallet, photo identification, and cellular phone, all of
which were found in the SUV.
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 Mr. Gathing's DNA, and one of the gloves from
the SUV contained Mr. Edwards's DNA. The tennis shoes Mr.
Gathing was wearing the night of the incident had both Mr.
Gathing's DNA and Ms. White's DNA on them. A
bloodstain on Mr. Gathing's pants from that night had DNA
from both Mr. Gathing and Mr. Cain.
Agent Kasia Lynch from the TBI's Firearms Identification
Unit provided expert testimony regarding the firearms and
ammunition found at the scene of the attack and in the SUV.
She identified the pistol as an Intratec Tec-9, 9 millimeter
Luger pistol. She concluded that the pistol was inoperable
due to a missing firing pin. She determined that the thirteen
unfired, 9 millimeter Luger cartridges, which were found in
the magazine in the SUV, would be the proper size to fire
from the pistol. Special Agent Lynch identified the shotgun
as a New England Firearms, Pardner SB1, 20 gauge sawed-off
shotgun. She concluded that the shotgun was operational and
that the fired shell case found at the scene of the attack
had been fired from the shotgun. She also concluded that the
unfired shell from the SUV and the unfired shell from the
scene of the attack were both the correct gauge to be fired
from the shotgun.
Mr. Johnson was treated for his injuries and included as an
alleged victim in the indictment and throughout the trial,
the evidence at trial did not establish that his injuries
were caused by the attack. The other three victims testified
that Mr. Johnson went outside with them. Since Mr. Johnson
was the last to come out of the apartment and down the
stairs, he was walking behind the other three victims when
the attack occurred. None of the other victims saw Mr.
Johnson at any time during the attack. It was not established
at trial how much time elapsed between the time the attack
began and the time Mr. Johnson went upstairs to Ms.
Stinson's apartment. Likewise, there was no testimony as
to his location during that time.
Stinson testified that Mr. Johnson had been in an altercation
with another individual in the apartment complex before the
robbery occurred. She further testified that when Mr. Johnson
came back upstairs to her apartment during the robbery, he
looked the same as he did after the altercation. When shown
the photograph taken of Mr. Johnson's injuries while he
was in the hospital, Ms. Stinson testified that his injuries
appeared the same as they did after the altercation and
before the robbery. Mr. Johnson was unable to be located
during the investigation, his DNA sample was never retrieved
to be used as a standard in the testing performed by the TBI,
and he did not testify at trial. At the end of the
State's proof, the trial court entered a directed verdict
in favor of both Defendants as to the aggravated robbery
committed against Mr. Johnson.
jury found both Mr. Gathing and Mr. Parker not guilty of all
three counts of attempted first degree murder. The jury found
Mr. Gathing 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. Mr. Gathing received an effective sentence of
forty-seven years of imprisonment.
jury found Mr. Parker guilty of one count of facilitation of
attempted especially aggravated robbery of Mr. Cain, two
counts of facilitation of aggravated assault of Mr. Cain, one
count of facilitation of attempted aggravated robbery of Ms.
White, two counts of facilitation of aggravated assault of
Ms. White, and one count of facilitation of especially
aggravated robbery of Mr. Terry. The trial court merged the
two counts of facilitation of aggravated assault of Mr. Cain
with the facilitation of attempted especially aggravated
robbery of Mr. Cain. The trial court also merged the two