Assigned on Briefs March 5, 2019
from the Criminal Court for Shelby County No. 10-00629 James
M. Lammey, Judge.
Lashun Gray, appeals the Shelby County Criminal Court's
denial of post-conviction relief from his convictions for
attempted first degree murder and employing a firearm during
the commission of a dangerous felony, for which he received
an effective sentence of thirty years in the Tennessee
Department of Correction. On appeal, Petitioner contends that
he was denied the effective assistance of counsel based on:
(1) trial counsel's advice on whether Petitioner should
testify at trial; (2) trial and appellate counsels'
failure to object to and appeal the jury instructions
pertaining to criminal responsibility for the acts of
another; and (3) trial counsel's failure to properly
advise Petitioner regarding the State's plea offer of
twenty-five years with a thirty-percent release eligibility.
Upon review, we affirm the judgment of the post-conviction
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Hewlett, Memphis, Tennessee, for the appellant, Lashun Gray.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Leslie Byrd,
Assistant District Attorney General, for the appellee, State
L. Holloway, Jr., J., delivered the opinion of the court, in
which Alan E. Glenn and Robert H. Montgomery, Jr., JJ.,
L. HOLLOWAY, JR., JUDGE.
and Procedural Background
case arises from a shooting at a Shelby County night club
called the Boom Boom Room on October 18, 2009, in which
Jimmie Johnson died as result of a single gunshot wound and
Eldridge Donaldson was injured by a gunshot. Petitioner and a
co-defendant, Stanley Williams, were tried in a joint jury
trial. Numerous witnesses testified that, immediately prior
to the shooting, a fight involving Mr. Johnson broke out over
a spilled drink. April Campbell testified that she saw
Petitioner walking toward Mr. Johnson after the shooting
started, carrying a handgun. Janice Campbell testified that
she saw Petitioner shooting a gun. She identified Petitioner
as "the second shooter" and said that he fired his
gun "everywhere." She said that Mr. Johnson was
still standing after Co-defendant Williams shot him and that
he fell after Petitioner ran through the club shooting.
Memphis Police Crime Scene Investigator Demar Wells testified
that he found one fired nine-millimeter shell casing and two
fired forty-caliber shell casings inside the club and
concluded that at least two handguns were used inside the
club because a forty-caliber bullet would not fire from a
nine-millimeter handgun due to the size of the bullet. Derias
Pettis testified on behalf of Petitioner that everyone on the
dance floor got into the fight, including Petitioner and Mr.
Johnson and that the fight lasted ten or fifteen minutes
until he heard a gunshot. He said that, when the shooting
started, he and Petitioner reached the front door together
and ran out to the parking lot. Mr. Pettis denied that
Petitioner had a gun that night.
jury found Co-defendant Stanley Williams guilty of first
degree murder for the death of Mr. Johnson, attempt to commit
first degree murder for shooting Mr. Donaldson, and employing
a firearm during the commission of a dangerous felony.
Co-defendant Williams was sentenced to consecutive terms of
life imprisonment for the first degree murder conviction,
twenty-four years for the attempted first degree murder
conviction, and ten years for the firearm violation, for an
effective sentence of life plus thirty-four years. Petitioner
was acquitted of first degree murder but was convicted of
attempted first degree murder and employing a firearm during
the commission of a dangerous felony. He was sentenced to
consecutive sentences of twenty-four years for the attempted
first degree murder conviction and ten years for the firearm
violation, for an effective thirty-four-year sentence.
State v. Lashun Gray and Stanley Williams, Nos.
W2012-00415-CCA-R3-CD, W2012-01052-CCA-R3-CD, 2013 WL
3291888, at *1-8 (Tenn. Crim. App. June 26, 2013), perm.
app. denied (Tenn. Nov. 13, 2013). This court affirmed
Petitioner's convictions, and the Tennessee Supreme Court
denied Petitioner's application for further review.
Id. at *1.
12, 2014, Petitioner filed a timely petition for
post-conviction relief. Following the appointment of counsel,
he filed amended petitions for post-conviction relief on May
6, 2015, and August 25, 2015.
hearing on the petition,  Officer Will Bryson testified that
dispatch received a "shots-fired call" and that he
responded to the scene of the shooting at a club called the
"Boom Boom Room." When he arrived, Officer Bryson
saw a man lying in the floor of the establishment, who had
been shot in the stomach. Officer Bryson recalled that he
sought medical attention for the man and then
"held" the crime scene until detectives arrived.
Rivers testified that he and his wife, April Campbell, were
at the Boom Boom Room on the night of the shooting, along
with April's sister, Janice Campbell.Mr. Rivers
explained that he arrived somewhere between 10:00 and 11:00
p.m. He recalled that another club patron spilled a drink on
the victim and refused to apologize. When the victim
confronted the patron, a fist fight "broke out."
Mr. Rivers joined in the fight as he attempted to reach
April, who was pregnant, near the stage. As he and April
attempted to leave the club, people entered the Boom Boom
Room with guns. Mr. Rivers heard multiple gunshots as he and
April ran towards the "kitchen area" at the back of
the club. When he got to the back of the club, Mr. Rivers saw
that the victim had been shot, and Janice was holding him.
Mr. Rivers testified that the victim told him that he had a
gun in his car outside the club. Mr. Rivers decided that he
would try to get the victim's gun out of the car. As he
was leaving out the front door, Mr. Rivers "bumped into
[Co-defendant Williams, ]" who was coming into the club.
Mr. Rivers testified that he did not see Co-defendant
Williams or Petitioner with a gun but admitted that he was
"not looking for one[.]" Mr. Rivers recalled,
however, that another club patron, Albert Hall, had a
"machine gun." He stated that the victim was shot
inside the club, but Mr. Rivers did not see him get shot. Mr.
Rivers recalled that, while attempting to locate the
victim's car, he saw Petitioner and Co-defendant Williams
in the parking lot. Mr. Rivers testified that, by the time he
found the victim's car, the police had arrived, so he
left the victim's gun inside the vehicle.
Rivers stated that April had been confused about what she saw
that night. Mr. Rivers said that April was "very
emotional" after the shooting and that "[s]he
probably thought it was [Petitioner] or probably some guy
that looked like him[.]" He said that he had not been
scared during the shooting and that he had "watch[ed]
and [saw] what [was] going on." He stated that he told
April that "them [sic] folk had nothin' to do with
[the shooting]." He acknowledged, however, that he did
not see the victim get shot.
Rivers stated that he did not testify at Petitioner's
trial. Mr. Rivers said that he would have testified at
Petitioner's trial but that he went to Atlanta for
several months after the shooting to care for his mother. He
recalled that he was contacted about the case by a man, whom
he believed was a detective. Mr. Rivers stated that he never
spoke to Petitioner's trial counsel. He recalled that he
told a detective who called him that he was going out of town
for his grandmother's funeral and could not meet with the
detective. He stated that he knew Co-defendant Williams and
was friends with Co-defendant Williams' older brother. He
acknowledged that he had known Co-defendant Williams'
family for twenty years. Mr. Rivers further acknowledged that
he had several prior felony convictions. Mr. Rivers stated
that, in 2001, a relative of the Campbell sisters had killed
Co-defendant Williams' mother in a fight and had been
prosecuted for the crime.
Garrett, Co-defendant Williams' retained trial attorney,
testified that Petitioner's trial counsel, Larry
Copeland, passed away sometime after Petitioner's trial.
Mr. Garrett recalled that he and trial counsel did not have a
"joint strategy" for the trial but that they spoke
openly about the case as the defenses were not antagonistic.
Mr. Garrett stated that trial counsel was successful in his
representation of Petitioner as Petitioner was acquitted of
first degree murder. He recalled that a witness had observed
Petitioner shooting a gun in the club after the victim had
been shot and that Co-defendant Williams had been identified
as "entering first and aiming for . . . the
victim[.]" Mr. Garrett testified that both he and trial
counsel actively participated in the cross-examination of the
Campbell testified that she "made a mistake" when
testifying at Petitioner's trial. April explained that
she "identified the wrong person" when she said
that she saw Co-defendant Williams shooting at the victim.
She stated that two years before the post-conviction hearing
she saw another man who looked "exactly like
[Co-defendant Williams]" in a club. She claimed that the
man said that "he was the one who did it." April
testified that Mr. Rivers told her that her identification of
Co-defendant Williams and Petitioner was wrong.
cross-examination, April agreed that she signed a written
statement to police in which she said that Co-defendant
Williams and Petitioner were responsible for the victim's
murder. However, she stated that she did not read the
statement before signing it. She claimed that the statement
identifying Petitioner that was attributed to her had been
made by her sister. She also denied that she described
Petitioner and his clothing to police. She did not recall
telling the police that Mr. Rivers said he was "standing
right behind [Petitioner] when [Petitioner] was
shooting" and that he saw Petitioner "when he ran
Williams testified that the State did not make an offer to
settle the case prior to trial but that, during trial, the
State extended a twenty-five-year plea offer. However, he
stated that, while he was discussing the offer with Mr.
Garrett, the prosecutor entered the room and said that the
offer was "off the table" because the trial court
was not going to accept the plea agreement. Co-defendant
Williams stated that he would not have accepted the offer
because he did not kill the victim. Co-defendant Williams
agreed that both Mr. Garrett and trial counsel questioned the
Campbell sisters "quite a bit" about the
differences between their two statements.
counsel testified that trial counsel was his former law
partner. Appellate counsel handled Petitioner's direct
appeal and stated that he had spoken to trial counsel about
the issues that had arisen at trial. Appellate counsel
testified that he reviewed the jury instructions in preparing
Petitioner's appeal but that he did not see any issue
with the instructions. Upon reviewing the jury instructions
at the post-conviction hearing, appellate counsel stated that
there may have been an appealable issue regarding the way the
trial court charged criminal responsibility. He said that it
appeared that criminal responsibility was charged as a
lesser-included offense and noted that criminal
responsibility was not a crime but a theory of liability.
Appellate counsel said that he had not researched the issue
and was unaware of any case law concerning the issue.
Appellate counsel agreed that, in this case, facilitation of
a felony was a lesser-included offense of first degree
Zelikob testified that she worked as a private investigator,
and she was hired by trial counsel to assist in preparing
Petitioner's defense. Ms. Zelikob recalled that she
worked on Petitioner's case for "at least a
year" and that she met with trial counsel about once a
month, "more so probably right before trial." She
stated that she also visited Petitioner at least three times
"[m]aybe more." Ms. Zelikob testified that she had
worked with trial counsel in "a lot of trials"
prior to Petitioner's and that trial counsel
"appeared to be engaged during [Petitioner's]
trial." Ms. Zelikob estimated that she interviewed eight
to ten witnesses in preparation for trial, including April
Campbell in September 2010. They discussed April's
statement to police, in which she implicated Petitioner by
saying that she "saw him with a gun." April told
Ms. Zelikob that she "was mistaken and thought she was
signing a different photospread." April said that she
did not believe she saw Petitioner with a gun and that she
did not plan to testify that she saw him with a gun. April
also told Ms. Zelikob that Co-defendant Williams had "a
lot of inner hatred and anger," which April believed was
directed at the Campbell sisters. Ms. Zelikob prepared a
memorandum for trial counsel detailing her conversation with
April. Ms. Zelikob also attempted to interview Janice
Campbell and Mr. Rivers, but they would not speak to her. She
agreed that April told her that Mr. Rivers "did not want
to be involved in the case[.]" Ms. Zelikob recalled that
April's testimony at trial was consistent with her
statement to police that she saw Petitioner with a gun but
that she did not see him shoot the gun. Ms. Zelikob stated
that she was not called as a witness by trial counsel
following April's testimony. She recalled, however, that
trial counsel cross-examined April on the inconsistencies in
her various statements.
testified that trial counsel advised him to reject the
State's offer of twenty-five years with a thirty percent
release eligibility, which was made on the third or fourth
day of Petitioner's trial. Petitioner recalled that trial
counsel advised him not to take the offer and that trial
counsel said, "I got this" and assured Petitioner
that it was "in the bag." Petitioner acknowledged
that it was his decision to reject the offer but stated that
he was following trial counsel's advice. Petitioner
recalled that, at one point during trial, he was asked during
a Momon hearing whether he wanted to testify.
Petitioner claimed that he wanted to testify but that trial
counsel advised him not to testify because Petitioner had a
prior conviction for having a gun on school grounds.
Petitioner explained, "So [trial counsel] said that was
gonna [sic] make me look bad if I tried to testify, so,
'Don't testify. You don't say nothing [sic]
because it gonna [sic] incriminate you.'" Based on
trial counsel's advice, Petitioner decided not to
testify. He stated that, if he had testified at trial, he
would have explained that he was still fighting when
"the shooting was already going on." Petitioner
. . . How can I be over here on the stage fightin[g]
people-just go over there to the door, run out the door . . .
and come back while I'm still fightin[g]. There ain't
[sic] no way. How can . . . the gun get in my hand if I'm
fightin[g]. So, that's ...