        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               September 13, 2011 Session

               JAMES W. GANN, JR. v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Coffee County
                       No. 36,573 L. Craig Johnson, Judge




                  No. M2010-01944-CCA-R3-PC - Filed July 13, 2012


The petitioner, James W. Gann, Jr., was convicted of first degree murder, arson, and setting
fire to personal property, and he received an effective sentence of life imprisonment plus
eight years. Subsequently, the petitioner filed a petition for post-conviction relief, alleging
the ineffective assistance of counsel. The post-conviction court denied the petition, and the
petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., J., joined. J ERRY L. S MITH, J., not participating.

Jeffrey D. Ridner, Manchester, Tennessee, for the appellant, James W. Gann, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; and
C. Michael Layne, District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

        At trial, the proof revealed that “[o]n December 6, 2000, firefighters responding to
a fire at the residence of the victim, Willard Morris, Jr., discovered the victim’s body under
a pile of blankets.” State v. Gann, 251 S.W.3d 446, 451 (Tenn. Crim. App. 2008). The
“victim’s shirt was soaked with blood[,] and . . . his clothing had been stuffed with paper.”
Id. Police discovered the petitioner’s blood on a calendar and on a poster board that was
underneath the victim; additionally, blood from the petitioner and the victim was found on
two pieces of toilet paper. Id. at 452, 454.
       Timmy Brawley testified that on December 5, 2000, he and the petitioner went to the
victim’s house and bought cocaine. Id. at 452, 454. They left the victim’s house, bought
and used more cocaine and Dilauded, and ultimately returned to the victim’s house. Id. at
452, 454. The petitioner initially asked Brawley to wait outside then told Brawley to go buy
cigarettes for the victim. Id. at 452-54. Brawley returned, and the three of them used more
cocaine. Id. at 453. The victim and the petitioner argued about money and cocaine. Id.
Brawley went home at 3:45 a.m., leaving the victim and the petitioner in the kitchen with
a large amount of cocaine. Id. The petitioner was wearing a blue flannel jacket, a t-shirt,
baggy pants, and tennis shoes. Id.

        When Brawley drove to work later that morning, he saw police responding to a fire
at the victim’s house. Id. at 453. After Brawley learned the victim was dead, he contacted
police and ultimately agreed to wear a wire to record a conversation between himself and
the petitioner at the petitioner’s residence. Id. at 452, 453. Although parts of the recording
were “distorted,” it revealed that the petitioner told Brawley that his wife had scratched his
cheek and poked him in the eye. Id. at 452. During the recording of the conversation, the
petitioner and Brawley left the residence and were stopped by police who asked them to
come in for questioning. Id. The recording revealed that as Brawley and the petitioner
drove to the police station, the petitioner “told Brawley, ‘We are the only alibi that each
other’s got.’” Id. at 452. The petitioner also asked Brawley to say that the petitioner left the
victim’s residence with Brawley. Id. at 453.

       When they arrived at the police station, the petitioner waived his Miranda rights and
made a statement, acknowledging that he had smoked crack cocaine with the victim and
Brawley at the victim’s residence before leaving around 4:30 a.m. Id. The petitioner
maintained that the scratches on his hands occurred when he ran from police on a prior
occasion. Id. Following the statement, police took the petitioner to the hospital to have
blood drawn for DNA testing, and the petitioner was arrested. Id.

       Michael McKay, a neighbor of the victim, testified that around 7:45 a.m. on
December 6, 2000, he saw someone leave the victim’s house; the person was wearing dark
sweat pants, a red and black checked shirt, and a navy toboggan and was carrying a garbage
bag. Id. The person unhurriedly walked down the street and repeatedly looked back at the
victim’s house. Id. McKay initially believed the person, who he described as approximately
5'4" tall with a slim build and shoulder-length hair, was a woman. Id. However, he
subsequently identified the petitioner from a photograph lineup as the person he saw leaving
the victim’s house. Id.




                                              -2-
       The autopsy, which was performed by Doctor Feng Li, revealed that the victim had
been stabbed seventy-seven times and that he had numerous blunt force trauma injuries. The
victim died as a result of the multiple stab wounds. Id.

       The petitioner testified that he and Brawley went to the victim’s house, bought
cocaine, left the victim’s house, bought and used cocaine and Dilauded, and returned to the
victim’s house where they used more cocaine. Id. at 452, 454. Brawley left to buy the
cigarettes for the victim. Id. at 454. Thereafter, the petitioner heard a car enter the
driveway, and he went into the bathroom. Id. When he heard sounds of a struggle, he
emerged to see Brawley “‘sticking’” the victim. Id. The petitioner tried to intervene and
was knocked unconscious. Id. When he regained consciousness, he was on the floor with
paper stuffed in his clothes. Id. The petitioner smelled smoke and left without checking on
the victim. Id.

       The petitioner was convicted of first degree murder, arson, and setting fire to personal
property, and, on direct appeal, this court affirmed his convictions. Id. at 451.

        Thereafter, the petitioner filed one original and two amended petitions for post-
conviction relief, arguing, in pertinent part, that his trial counsel was ineffective. Specifically,
the petitioner complained that counsel failed to maintain adequate communication with him;
failed to obtain an audible copy of the audiotape of his conversation with Brawley; did not
move to suppress the petitioner’s statement to police; did not request curative jury
instructions after his objections were sustained; and did not object to the State’s closing
argument.

       At the post-conviction hearing, the petitioner testified that he was appointed trial
counsel and that trial counsel was assisted by co-counsel and a criminal investigator, Dale
Conn (collectively “the defense team”). The petitioner said that after trial counsel was
appointed, he was moved from the Coffee County Jail to Riverbend Maximum Security
Penitentiary (“Riverbend”). He stated that while he was at Riverbend, the defense team met
with him only once.

        Approximately eleven days before trial, the petitioner was transported to the Coffee
County Jail. The petitioner said that while he was in jail, most of his meetings were with co-
counsel. He stated that he met with her several times. During the meetings, they examined
pictures from the crime scene, reviewed the proof to be presented at trial, and discussed the
possible suppression of his statement. He said that co-counsel informed him about the issues
surrounding each witness’s credibility and that they discussed the methods that co-counsel
and trial counsel would use during cross-examination. The petitioner stated that he thought



                                                -3-
co-counsel and trial counsel would participate equally in the cross-examination of trial
witnesses.

       He said that he occasionally met with Conn, who told him about the DNA evidence
obtained from the crime scene. The petitioner admitted that trial counsel visited him on some
occasions with the other members of the defense team, but he contended that those visits
were infrequent. The petitioner stated that he explained the events surrounding the victim’s
murder to the defense team and reviewed his police statement with them.

       The petitioner believed that because his visits with trial counsel were sporadic, trial
counsel did not know enough information about his case. However, the petitioner conceded
that he knew co-counsel and Conn reported to trial counsel the information derived from
their meetings with the petitioner.

       The petitioner complained that trial counsel failed to listen to the contents of an
audiotape, which contained a recorded conversation between him and Brawley. The
petitioner believed that this failure limited counsel’s ability to address the audiotape at trial.
The petitioner said that trial counsel informed him that the audiotape was inaudible and that
he could not understand a word on it.

        The petitioner complained that trial counsel failed to request curative jury instructions
after the trial court sustained five of his objections, which precluded him from raising the
issues in later court proceedings. However, the petitioner could not identify any specific
objections requiring curative instructions and could not explain how trial counsel’s failure
to request the instructions was prejudicial.

        The petitioner further contended that trial counsel should have objected to the State’s
closing argument, during which the State compared the petitioner to Charles Manson. The
petitioner stated that he “felt like they put their personal opinions and their personal feelings
got involved, and [he] believe[d] that the jury listened to every word they said and took it to
heart.”

       Co-counsel testified that she met with the petitioner once at Riverbend and at least
four times at the Coffee County Jail. She thought trial counsel was present for about half of
those meetings. She said that she acted as an intermediary between the petitioner and trial
counsel.

      She recalled discussing with the petitioner the potential cross-examination of Brawley
and McKay. She maintained that she did not agree with trial counsel’s cross-examination
of Brawley. She explained that trial counsel “was very calm and thorough,” whereas co-

                                               -4-
counsel “wanted to do a lot of jumping and screaming.” She stated that trial counsel was a
“seasoned veteran . . . [who] handled it how he wanted.”

      Co-counsel and the petitioner discussed his statement and the possibility that the
statement could be suppressed due to the appellant’s drug use. She stated she could not recall
who made the decision not to move for suppression of the statement.

        Co-counsel noted that when the defense team received the audiotape of the
petitioner’s conversation with Brawley, the tape was inaudible. However, during trial they
learned that they had been playing the tape at the wrong speed. The State gave the defense
team the proper equipment to listen to the tape, and the trial court recessed the trial overnight
to allow the defense to listen to the tape. Co-counsel said that some portions of the tape were
still “garbled and . . . hard to hear” and that certain audible portions of the tape were
damaging to the petitioner’s case.

        She heard the State compare the petitioner to Charles Manson during the closing
argument but did not object to the characterization because trial counsel did not object. She
stated that she regretted not objecting. Regardless, she thought the outrageousness of the
closing argument possibly hurt the State’s credibility.

       Co-counsel conceded that she did not request curative instructions after the defense’s
objections were sustained. However, she believed the trial court “issued some type of
statement, and that may have been taken by me as curative.”

       Dale Conn, the criminal investigator, testified that the initial meeting at Riverbend
between the petitioner and the defense team lasted between two and four hours. He opined
that the State’s case against the petitioner was “pretty strong,” particularly in light of the
evidence of the petitioner’s blood at the scene.

       Trial counsel testified that he was appointed to represent the petitioner and that he met
with the petitioner on several occasions to discuss his case. Specifically, trial counsel stated
that he visited the petitioner at least four times while he was incarcerated at the Coffee
County Jail and once while he was incarcerated at Riverbend. Additionally, trial counsel said
that co-counsel and Conn spoke with the petitioner on the telephone and in person on
multiple occasions. Trial counsel said the defense team reviewed the petitioner’s case and
discussed the witnesses with the petitioner.

       Trial counsel testified that the petitioner told the defense team that he did not
participate in the victim’s murder but that he was present at the murder scene. When trial
counsel learned that the State’s DNA evidence showed that the petitioner’s blood was

                                               -5-
underneath the victim’s body and on a piece of toilet paper at the crime scene, he believed
the evidence against the petitioner was extremely strong. Therefore, he engaged the State
in plea negotiations. Trial counsel wrote the petitioner a letter that “pretty well outlined
exactly what happened,” and co-counsel delivered the letter to the petitioner. Trial counsel
advised the petitioner to plead guilty. However, the petitioner did not want to plead guilty.

       Trial counsel stated that the petitioner claimed to be under the influence of drugs when
he gave a statement to police saying that he smoked crack cocaine with the victim and
Brawley at the victim’s residence, that he took a cab home from a nearby market after he left
the victim’s home, and that police would not find his blood at the victim’s residence. Trial
counsel testified that he consulted the defense team and two police investigators who spoke
with the petitioner after he waived his Miranda rights. Trial counsel said the defense team
noticed that the petitioner’s statement to police matched the one he told them. The
investigators acknowledged that the petitioner was clearly under the influence of
“something,” but they maintained that the petitioner “was coherent, that he could narrate
what had happened, and his participation in it, which he denied.” Accordingly, trial counsel
concluded that the petitioner’s statement was not “suppressible.”

       Trial counsel said that he did not request curative instructions after the trial court
sustained his objections because the trial court told the jury that they should disregard the
statements.

       Trial counsel agreed that the State made improper comments during closing argument.
However, he did not object because he believed the comparison between the petitioner and
Manson was inapt and clearly outrageous. Trial counsel also stated that he thought the
closing argument was so egregious that it may have turned the jury against the prosecution.

       The post-conviction court entered a written order, denying the petition. The post-
conviction court concluded that the petitioner had failed to meet his burden of establishing
by clear and convincing evidence that trial counsel was deficient or that the petitioner was
prejudiced by such deficiency. The petitioner now appeals.

                                        II. Analysis

       To be successful in his claim for post-conviction relief, the petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. §40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

                                              -6-
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
finding of facts de novo with a presumption that those findings are correct. See Fields, 40
S.W.2d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Notably,

                       [b]ecause a petitioner must establish both prongs of the
              test, a failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance of
              claim. Indeed, a court need not address the components in any
              particular order or even address both if the [petitioner] makes an
              insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

       On appeal, the petitioner complains that his trial counsel erred by failing to: (1)
maintain adequate communication with him; (2) obtain an audible copy of the audiotape of
his conversation with a witness; (3) suppress his statement to police; (4) request curative jury
instructions; (5) and object to prosecutor’s closing argument.

       The post-conviction court found that trial counsel maintained sufficient contact with
the petitioner, noting that trial counsel visited the petitioner at the jail and the penitentiary

                                               -7-
and that he had multiple meetings with the petitioner shortly before trial. Regarding the
audiotape of the petitioner’s conversation with Brawley, the post-conviction court noted that
during trial, trial counsel was provided with a transcribed copy of the recording and was
allotted time to review it. The post-conviction court concluded that the petitioner failed to
show prejudice.

        The post-conviction court accredited the testimony of trial counsel and co-counsel
regarding the discussions they had concerning the statement the petitioner made to police.
The post-conviction court found that because trial counsel determined that the petitioner was
coherent when he gave his statement to police, trial counsel made a tactical decision to not
file a motion to suppress.

        Regarding trial counsel’s failure to request curative jury instructions, the post-
conviction court noted that the trial court “properly instructed the jury to disregard statements
made by counsel not supported by the evidence [and] also gave the instruction concerning
objections and rulings by the [trial court].” The post-conviction court stated that the trial
court instructed the jury that when evidence did not support statements made by trial counsel,
the jury was to disregard those statements.

        Finally, the post-conviction court recognized that trial counsel failed to object to the
State’s prosecutorial misconduct during closing argument; however, the post-conviction
court noted that neither counsel’s inaction nor the State’s closing argument altered the jury
verdict and that the petitioner failed to prove that trial counsel’s failure to object was not a
tactical decision.

       The petitioner maintains that on direct appeal this court determined that “[t]he
improper argument would have warranted a new trial had an objection been raised.”
Although this court did conclude that the prosecutor’s comments “were improper,
inflammatory, and utterly indefensible as they violate nearly every rule established for proper
closing argument,” we also concluded that the comments “were so improper that it is our
view that no reasonable attorney would have failed to object out of simple inadvertence or
neglect.” Gann, 251 S.W.3d at 462. To this end, this court observed that

              it is difficult to know, upon a cold reading of the record, what
              effect the prosecutor’s comments had on the jury. It is certainly
              possible that the argument was so outrageous that the prosecutor
              lost more credibility than he gained. If that were the case, then
              the failure to object could have been a reasonable tactical
              decision.



                                               -8-
Id. Accordingly, our opinion on direct appeal bolsters the post-conviction court’s finding
that counsel made a strategic decision to not object to the State’s closing argument.
Moreover, we note that the post-conviction court determined that given the overwhelming
evidence presented against the petitioner at trial, he suffered no prejudice. We conclude that
the evidence does not preponderate against the post-conviction court’s findings.

                                      III. Conclusion

      Because the petitioner failed to establish that his trial counsel was ineffective, we
conclude that the post-conviction court did not err in denying post-conviction relief.




                                           ________________________________
                                           NORMA MCGEE OGLE, JUDGE




                                             -9-
