Assigned on Briefs November 5, 2019
from the Circuit Court for Tipton County No. 8083 Joe H.
Walker, III, Judge.
Tipton County jury convicted the Petitioner, Marchello
Gossett, of one count of possession with intent to deliver .5
grams or more of cocaine and two counts of felony possession
of a handgun. On appeal, this court affirmed the convictions.
State v. Marchello Karlando Gossett, No.
W2015-02414-CCA-R3-CD, 2017 WL 1163683, *1 (Tenn. Crim. App.,
at Jackson, March 28, 2017) perm. app. denied (Tenn.
Aug. 18, 2017). The Petitioner filed a post-conviction
petition, claiming that he received the ineffective
assistance of trial counsel and prosecutorial misconduct.
After a hearing, the post-conviction court denied relief. On
appeal, the Petitioner maintains that he received the
ineffective assistance of counsel at trial. After review, we
affirm the post-conviction court's judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
A. Timmerman, Bartlett, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Assistant Attorney General; Mark E. Davidson,
District Attorney General; and Sean G. Hord, Assistant
District Attorney General, for the appellee, State of
W. Wedemeyer, J., delivered the opinion of the court, in
which Camille R. McMullen and Robert L. Holloway, Jr., JJ.,
W. WEDEMEYER, JUDGE.
underlying case for this appeal arises from a controlled drug
buy between the Petitioner and a confidential informant on
May 14, 2013, and the execution of a search warrant at the
Petitioner's residence that same afternoon. Based on
evidence found during the search, a Tipton County grand jury
indicted the Petitioner, in case number 7824, for one count
of simple possession of marijuana; one count of simple
possession of codeine; two counts of felony possession of a
handgun; one count of possession of .5 grams or more of
cocaine with the intent to deliver; one count of possession
of .5 grams or more of cocaine with intent to deliver, having
been convicted previously of three class B felonies; and one
count of possession of drug paraphernalia.
April 3, 2014, the trial began. After voir dire, but before
the jury was sworn, the State requested ruling on a Rule
404(b) motion regarding prior acts by the Petitioner. We
provide the following summary of the 404(b) hearing from this
court's opinion in the direct appeal as follows:
[T]here was a search warrant executed at 7673 Richardson
Landing in Drummonds in Tipton County by the Tipton County
Sheriff's Office and that it was based on a controlled
buy which happened, according to the search warrant, within
72 hours of the execution on May 14, which was in the
afternoon of May 14, 2013.
At the execution of the search warrant there was found to be
buy money from the sale of $70 worth of cocaine, which
actually was analyzed by the TBI lab to be 0.25 grams. There
was some text messaging back and forth on that day of May 14
between [the [Petitioner]] and the undercover person, who was
[the confidential informant] and the purchase was made
actually that morning. And on the execution of the search
warrant the very prerecorded $70 in miscellaneous currency,
which will be described, was found under [the [Petitioner]]
while he was asleep on the bed.
So we have the situation in this case, obviously the
important element as far as the State is concerned, and
certainly the [Petitioner], is how this cocaine, which was
obtained on the execution of the search warrant, was
possessed. Was it simple possession? Was it possession with
And the officer who is available to testify would testify
regarding the purchase which was in the morning of May 14,
2013, for which he has actually the pre-recorded money used
in that purchase which was found under [the [Petitioner]]. He
can testify about his observance of the transaction on a
video which was obtained as ...