Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Gathing

Court of Criminal Appeals of Tennessee, Jackson

January 19, 2018

STATE OF TENNESSEE
v.
JAQUAN GATHING and PRINCE PARKER

          Session October 3, 2017

         Appeal from the Criminal Court for Shelby County No. 14-03635 James C. Beasley, Jr., Judge

         The 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.

         Tenn. 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, Jaquan Gathing.

          Jennifer J. Mitchell, Memphis, Tennessee, for the appellant, Prince Parker.

          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 of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         The 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.

         On 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.

         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.

         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. Defendant Jaquan Gathing and Co-defendant Morgan Edwards were both in the back seat. Mr. Parker was not in the vehicle at the time.

         While 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 was true.

         Officer 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 vehicle.

         After 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.

         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 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 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.

         Ms. 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.

         Ms. 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 conversation.

         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.

         At 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.

         Ms. 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 "long dreads."

         Mr. 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.

         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 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.

         Special 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.

         Although 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.

         Ms. 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.

         The 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.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.