                                                                                        05/28/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 7, 2020

         JONQUARIUS CUNNINGHAM v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Madison County
                     No. C-18-170        Kyle C. Atkins, Judge
                     ___________________________________

                           No. W2019-01292-CCA-R3-PC
                       ___________________________________


Petitioner, Jonquarius Cunningham, appeals the Madison County Circuit Court’s denial
of his petition for post-conviction relief. In 2015, Petitioner was convicted of one count
of attempted second degree murder, one count of reckless endangerment, two counts of
employing a firearm during the attempt to commit a dangerous felony, and two counts of
aggravated assault, for which he received an effective sentence of twenty-three years’
incarceration. This court affirmed the judgments of conviction on direct appeal. State v.
Jonquarius Cunningham, No. W2016-00065-CCA-R3-CD, 2017 WL 3616667, at *1
(Tenn. Crim. App. Aug. 23, 2017), no perm. app. filed. Thereafter, Petitioner instituted a
collateral proceeding seeking post-conviction relief. Following a hearing, the post-
conviction court denied relief. On appeal, Petitioner contends that he was denied the
effective assistance of counsel based on trial counsel’s failure to introduce at trial the
deposition transcript of one of the victims. He further contends that his judgment of
conviction in count five is void based on inconsistent verdicts. Following a thorough
review, we affirm the judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.

J. Noble Grant, III, Jackson, Tennessee, for the appellant, Jonquarius Cunningham.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; Jody Pickens, District Attorney General; and Al Earls, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                       OPINION

                       I. Factual and Procedural Background

      The relevant facts at trial, as summarized by this court on direct appeal, were as
follows:

              Gary Patrick testified that, on July 21, 2013, he was on Conger
      Street in Jackson, Tennessee to meet his friend, Jerry Massengill. Patrick
      saw two classmates from school, [Petitioner] and [co-defendant Randy
      Taylor, Jr.], as he was walking down the street with Massengill. Patrick
      said that no words were exchanged as he and Massengill passed by
      [Petitioner] and Taylor. Patrick testified that “[a] second later [he] heard
      shots” and he turned around to see both [Petitioner] and Taylor shooting at
      him. Patrick also testified that they continued shooting at him as he ran
      away and after he fell to the ground. Patrick identified [Petitioner] at trial
      and in a photographic lineup shortly after the shooting. Patrick was shot
      thirteen times, including once in the neck, and was paralyzed and confined
      to a wheelchair as a result of his injuries.

              On cross-examination, Patrick said that he had not talked to
      [Petitioner] or Taylor that morning. Regarding what the shooters were
      wearing, Patrick could only recall that Taylor was wearing a “fishing hat.”
      Patrick confirmed that he was deposed on November 1, 2013, while he was
      still in the hospital. He did not recall the answers he gave during the
      deposition, although he recalled participating in the deposition. Patrick also
      confirmed that he answered questions that [Petitioner] asked him on
      Facebook.      Patrick said that he did not remember the Facebook
      conversation, although he confirmed the messages were sent from his
      account. Defense counsel read the messages, in which [Petitioner] asked,
      “What made you tell them I shot you? What made you think that?” and to
      which Patrick replied, “Cuz [sic] you’re the only one I seen [sic] run up and
      my big brother said you did.”

             On redirect, Patrick confirmed that, at his deposition, he repeatedly
      said that he saw [Petitioner] shooting at him. Patrick also said that he only
      responded to [Petitioner’s] Facebook messages so that [Petitioner] would
      leave him alone. On recross examination, Patrick said that he could not
      describe [Petitioner’s] gun but that he remembered one shooter was
      wearing a hoodie and one was wearing a fishing hat.

                                          -2-
        Jerry Massengill testified that he was Patrick’s brother-in-law and
that they were friends in July 2013. Massengill confirmed that he was on
Conger Street with Patrick around 8:00 a.m. Massengill saw both
[Petitioner] and Taylor on Conger Street, but he did not know them at the
time. Massengill said that he and Patrick walked by [Petitioner] and Taylor
and that no one said anything. Massengill then heard shots, turned around
to see [Petitioner] and Taylor shooting at him and Patrick, and ran to the
side of a building. Massengill suffered a graze wound to his hand but was
not shot. Massengill testified that Taylor was wearing a fishing hat and
[Petitioner] was wearing a hoodie. Massengill was not able to identify
[Petitioner] in a photographic lineup. Massengill confirmed that he was
absolutely positive both [Petitioner] and Taylor had guns and were shooting
at them. Massengill identified [Petitioner] at trial as one of the shooters.

       Investigator Marvin Jerome Rodish, Jr. was employed by the City of
Jackson Police Department (“JPD”) at the time of the incident. Investigator
Rodish located and photographed nineteen shell casings and one bullet at
the crime scene; however, due to a sudden rainstorm, he was only able to
collect eighteen of the shell casings. Investigator Rodish testified that the
majority of the shell casings were found on Conger Street “in a north to
south trajectory.” He agreed that the location of the shell casings indicated
a direction moving towards where Patrick was found lying on the ground.

        JPD Investigator Aubrey Richardson interviewed [Petitioner] on July
24, 2013. [Petitioner’s] mother was present for the interview, and
[Petitioner] signed a waiver of his Miranda rights. [Petitioner] provided the
following written statement, which was read to the jury:

               I was there when Gary Patrick got shot Sunday
       morning. Me and Rambo, who is Randy Taylor, went to
       Allenton Heights the night before. Rambo and I were sitting
       there when Gary Patrick and some other guy walked by.
       Rambo, who was wearing a safari hat, got up and ran towards
       Gary and firing [sic] his chrome pistol at Gary. When he was
       shooting at Gary, Gary fell down and Rambo ran up to him
       and stood over him and fired his gun some more. We ran off
       and went back to where we came from. I went back to the
       house and Randy came in about thirty seconds later. He took
       the gun apart and eventually got rid of it. It had a long clip.
       He called someone he knew in a white van who took us to a
       trailer in the country. I don’t know where it was but I don’t
                                    -3-
             think it was in Jackson. It may have been in Haywood
             County or something. We stayed there until Wednesday
             morning. Rambo told me not to tell on him and not to talk to
             anyone about this.

              On cross-examination, Investigator Richardson confirmed that
      [Petitioner] was brought in by his mother for the interview. [Petitioner]
      was arrested after giving his statement.

              Special Agent Eric Warren, an expert in forensic science firearm
      identification and ballistics, testified that he was employed by the
      Tennessee Bureau of Investigation and assigned to the firearms
      identification unit in the Memphis Crime Laboratory. Warren analyzed the
      eighteen shell casings found at the scene and determined that the casings
      came from two separate guns.

              After the State rested, [Petitioner] presented testimony from
      Nicholas Donald, who was a JPD patrol officer at the time of the incident.
      Officer Donald testified that he was the first officer on the scene. Officer
      Donald confirmed that Patrick described the shooter as wearing a “tan
      fishing hat and a plaid shirt.” Officer Donald asked Patrick who shot him,
      and Patrick gave him [Petitioner’s] name. Officer Donald confirmed that
      Patrick did not say there were two shooters at that time, however, on cross-
      examination, Officer Donald confirmed that, before he left the scene, it was
      clear to officers that there were two shooters.

             At the conclusion of the proof, [Petitioner] was found guilty of the
      attempted second degree murder of Patrick in count one, unlawful
      employment of a firearm during the attempt to commit a dangerous felony
      in count two, the aggravated assault of Patrick in count three, the reckless
      endangerment of Massengill in count four, unlawful employment of a
      firearm during the attempt to commit a dangerous felony in count five, and
      the aggravated assault of Massengill in count six.

Id. at *1-2. This court affirmed Petitioner’s judgments of conviction on direct appeal. Id.
at *1.




                                           -4-
        Petitioner then filed a timely petition for post-conviction relief. Following the
appointment of counsel, an amended petition was filed. At a hearing,1 trial counsel
testified that he had been licensed to practice law since 1992 and that his practice was
almost exclusively criminal defense. Trial counsel stated that Petitioner was initially
charged in juvenile court but that he began representing Petitioner after the case was
transferred to circuit court.

        Trial counsel recalled that one of the victims, Gary Patrick, provided testimony in
a deposition conducted at Regional One Medical Center in Memphis prior to the trial.
Although trial counsel was not representing Petitioner at the time of Mr. Patrick’s
deposition, he obtained a copy of the transcript of the deposition prior to trial. Trial
counsel agreed that he identified some “substantial inconsistencies” between Mr.
Patrick’s trial testimony and his testimony from the deposition. He explained that, at
trial, Mr. Patrick testified that he saw both Petitioner and Mr. Taylor shooting at him;
however, Mr. Patrick said in his deposition that he only saw Petitioner with a gun. Trial
counsel stated that he confronted Mr. Patrick with that inconsistency during trial using
the deposition transcript to cross-examine him and to refresh Mr. Patrick’s recollection.
Trial counsel stated that Mr. Patrick did not want to agree that his deposition testimony
was any different than his trial testimony. Trial counsel said, “At one point I passed [the
deposition transcript] to [Mr. Patrick] and refreshed his memory, and he agreed it was on
the paper and he was there and testified, but he . . . denied he said it or didn’t want to
agree that he said something different.” He continued, “[Mr. Patrick] contradicted
himself on the day of trial, saying that, [‘]well, maybe I was there and said that, but this is
what truth is.[’]” Trial counsel stated that he did not seek to introduce Mr. Patrick’s
deposition transcript into evidence as an exhibit because it contained testimony that was
damaging to the defense.

        Trial counsel testified that Petitioner was originally charged with attempted first
degree murder in count four but that the jury convicted him of the lesser included offense
of reckless endangerment, as a Class A misdemeanor. Trial counsel noted that,
nonetheless, the jury found Petitioner guilty of employing a firearm in the commission of
a dangerous felony in count five. Trial counsel explained that he believed that the
verdicts were inconsistent because Petitioner was not convicted of the underlying
dangerous felony. Trial counsel noted that he did raise the issue of inconsistent verdicts
in Petitioner’s motion for new trial, thereby preserving the issue for appeal. He said that
appellate counsel raised the issue on direct appeal but that this court did not grant relief
on the claim.


          1
              We will limit our summary of the hearing testimony to that which is relevant to the issues on
appeal.
                                                     -5-
       On cross-examination, trial counsel testified that, as part of his representation of
Petitioner, he “went out to the scene and talked to [Petitioner] and reviewed what
happened, his testimony, and tried to interview as many witnesses as [he] could.” Trial
counsel explained that it was a tactical decision on his part not to introduce the transcript
of Mr. Patrick’s deposition. He stated that the inconsistencies he wanted to use to
impeach Mr. Patrick were “brought out on the record” during his cross-examination of
Mr. Patrick.

        Petitioner testified that he had wanted trial counsel to introduce the transcript of
Mr. Patrick’s deposition “[b]ecause [Petitioner] felt like it showed that [Mr. Patrick]
wasn’t really credible, because he said one thing under oath prior to trial, then he said
something totally different at trial under oath again. [Petitioner] felt like that was perjury,
really.”

       At the conclusion of the hearing, the post-conviction court found:

              [W]ith regard to the inconsistent testimony from [Mr.] Patrick
       during his deposition and the lack of entering the transcript at trial, first I’ll
       note that [Petitioner] failed to show that [trial counsel’s] performance was
       deficient as it relates to that.

              He vigorously cross-examined [Mr. Patrick] about that during the
       trial. He brought the deposition testimony that was relevant to the
       inconsistencies to the attention of the jury. He read it to the jury and he
       cross-examined Mr. Patrick about that. And that was well with[in] the
       range of competence of the attorney.

              Plus he made a tactical decision not to enter that deposition because
       the deposition likely contained things that could have hurt . . . [Petitioner’s]
       case.

              The State would have had the right, if he entered the excerpts, to . . .
       offer whatever excerpts they wanted to enter that len[t] clarity to the issue.
       So that’s a tactical decision that this Court is not allowed to second-guess.
       And . . . secondly, [Petitioner] didn’t show that [the] failure to do that
       prejudiced the defense in any way.

       Regarding the inconsistent verdict issue, the post-conviction court found that the
issue was previously determined. It noted that Petitioner raised the issue on direct appeal
and was denied relief on the claim. Accordingly, the post-conviction court entered a
written order denying relief.
                                             -6-
       This timely appeal follows.

                                        II. Analysis

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of law and
application of the law to factual findings are reviewed de novo with no presumption of
correctness. Kendrick, 454 S.W.3d at 457.

                         Right to Effective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

                                            -7-
        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

        Petitioner contends on appeal that trial counsel rendered ineffective assistance by
failing to introduce the transcript of Mr. Patrick’s deposition into evidence at trial. The
post-conviction court found that Petitioner failed to establish deficient performance or
prejudice based on this claim.

        We agree with the post-conviction court’s assessment and conclude that Petitioner
has failed to show deficient performance on the part of trial counsel or resulting prejudice
based on this claim. At the post-conviction hearing, trial counsel testified that he
obtained a copy of the transcript before trial and used it to cross-examine and impeach
Mr. Patrick in front of the jury. Trial counsel testified that there were valid reasons not to
introduce the deposition transcript as there were things in the transcript that would be
harmful to the defense. He further explained that, if he attempted to introduce portions of
the deposition transcript, the State could have introduced the entire transcript or other
portions for completeness. For these reasons, trial counsel made the tactical decision not
to introduce the deposition transcript or portions thereof. Trial counsel made a sound
tactical decision, which this court will not second guess on appeal. See Granderson, 197
S.W.3d at 790. This claim is without merit.

                                Inconsistent Jury Verdicts

      Petitioner also contends that he is entitled to post-conviction relief based on his
claim that his conviction in count five is void due to inconsistent jury verdicts. In
denying relief on this claim, the post-conviction court correctly found that the issue was
previously determined. Petitioner raised the claim in his motion for new trial and on
                                            -8-
direct appeal, and this court ruled on the merits of the claim. Specifically, on direct
appeal, this court provided the following analysis in denying relief:

              Regarding [Petitioner’s] firearm conviction related to Massengill,
      [Petitioner] argues that the jury’s verdict was inconsistent because he was
      acquitted of the predicate felony, attempted first degree murder, and,
      instead, was found guilty of the lesser included offense of reckless
      endangerment, a misdemeanor.

              In count five, [Petitioner] was indicted for employing a firearm
      during the commission of a dangerous felony, specifically, the attempted
      first degree murder of Massengill. The jury found [Petitioner] guilty of the
      firearm offense, despite having convicted him of the lesser included offense
      of reckless endangerment; thus, the verdicts are seemingly inconsistent.
      Nevertheless, the Tennessee Supreme Court has long held that inconsistent
      verdicts are allowed:

             Consistency in verdicts for multiple count indictments is
             unnecessary as each count is a separate indictment . . . . An
             acquittal on one count cannot be considered res judicata to
             another count even though both counts stem from the same
             criminal transaction. This Court will not upset a seemingly
             inconsistent verdict by speculating as to the jury’s reasoning
             if we are satisfied that the evidence establishes guilt of the
             offense upon which the conviction was returned.

      Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973). More recently, the
      Tennessee Supreme Court stated “that ‘[t]he validity accorded to
      [inconsistent] verdicts recognizes the sanctity of the jury’s deliberations
      and the strong policy against probing into its logic or reasoning, which
      would open the door to interminable speculation.’” State v. Davis, 466
      S.W.3d 49, 77 (Tenn. 2015) (quoting United States v. Zane, 495 F.2d 683,
      690 (2nd Cir. 1974)).

             Additionally, this court has found on multiple occasions that a
      conviction for employing a firearm during the commission of a dangerous
      felony can stand despite acquittal of the dangerous felony. See State v.
      Joshua Johnson, No. E2015-00545-CCA-R3-CD, 2016 WL 297886 (Tenn.
      Crim. App. Jan. 25, 2016), perm. app. denied (Tenn. June 23, 2016)
      (affirming conviction for employing a firearm during the commission of a
      dangerous felony despite jury’s acquittal of attempted first degree murder
                                         -9-
      and conviction of the lesser included offense of facilitation of attempted
      first degree murder); see also State v. Demetrius J. Pirtle and Cordarius R.
      Maxwell, No. W2014-02222-CCA-R3-CD, 2016 WL 4009712 (Tenn.
      Crim. App. July 22, 2016), perm. app. denied (Tenn. Nov. 22, 2016)
      (affirming conviction for employing a firearm during the commission of a
      dangerous felony despite jury’s acquittal of attempted first degree murder
      and conviction of the lesser included offense of attempted second degree
      murder). Despite the acquittal on the attempted first degree murder charge,
      the State presented evidence from which a rational trier of fact could have
      found that [Petitioner] committed attempted first degree murder, and that he
      thereby employed a firearm during the commission of a dangerous felony.
      Accordingly, [Petitioner] is not entitled to relief on this issue.

Jonquarius Cunningham, 2017 WL 3616667, at *5-6.

        “A ground for relief is previously determined if a court of competent jurisdiction
has ruled on the merits after a full and fair hearing.” Tenn. Code Ann. § 40-30-106(h)
(2018). When a claim has been previously determined, it cannot form the basis for post-
conviction relief. Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004)
(citing Harris v. State, 947 S.W.2d 156, 174-75 (Tenn. Crim. App. 1996)). Accordingly,
Petitioner is not entitled to relief based on this claim.

                                    III. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that
the post-conviction court properly denied post-conviction relief. Accordingly, we affirm
the judgment of the post-conviction court.



                                             ____________________________________
                                             ROBERT L. HOLLOWAY, JR., JUDGE




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