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Gray v. State

Court of Criminal Appeals of Tennessee, Jackson

May 8, 2019

LASHUN GRAY
v.
STATE OF TENNESSEE

          Assigned on Briefs March 5, 2019

          Appeal from the Criminal Court for Shelby County No. 10-00629 James M. Lammey, Judge.

         Petitioner, 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 court.

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

          Terita 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 of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         Factual and Procedural Background

         This 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.

         The 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.

         On June 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.[1]

         At a hearing on the petition, [2] 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.

         Frederic 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.[3]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.

         Mr. 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.

         Mr. 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.

         Coleman 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 State's witnesses.

         April 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.

         On 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 out[.]"

         Co-defendant 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.

         Appellate 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 murder.

         Vita 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.

         Petitioner 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 testified:

. . . 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 ...

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