IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 14, 2009

ELROY GAINES v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 01-03286 James M. Lammey, Jr., Judge

No. W2008-01341-CCA-R3-PC - Filed August 5, 2009

The petitioner, Elroy Gaines, appeals the Shelby County Criminal Court’s denial of his petition for

post-conviction relief. Following a jury trial, he was convicted of aggravated sexual battery, a Class

B felony, and was subsequently sentenced as a career offender to thirty years in the Department of

Correction. On appeal, the petitioner argues that he was denied his right to the effective assistance

of counsel based upon counsel’s failure to: (1) properly investigate the case and prepare for trial; (2)

adequately communicate with the petitioner; and (3) properly preserve appellate issues. Following

review of the record, the judgment of the post-conviction court is affirmed. 

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

JOHN EVERETT WILLIAMS,J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.

MCLIN, JJ., joined.

Juni Ganguli, Memphis, Tennessee, for the appellant, Elroy Gaines.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Greg Gilbert, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

The relevant underlying facts of the case, as established on direct appeal, are as follows:

The thirty-five-year-old victim, Renita Brown, testified that on July 14, 2000,

she left her mother’s residence with the [petitioner] in order to purchase marijuana.

She stated the [petitioner] grabbed her and pulled her into an alley and, when she

started screaming, punched her in the eye. Brown testified the [petitioner] took her

to a park where he choked her and made her perform oral sex on him. She stated the

[petitioner] forced her to accompany him to an empty house, where the [petitioner]
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again forced her to perform oral sex on him. Brown stated she had oral sex with the

[petitioner] because he threatened to kill her with a brick he was holding. She stated

the [petitioner] beat her with his fist on her legs, choked her, covered her mouth with

his hand, and forced her to have vaginal intercourse “for hours” before she finally

“passed out.” . . . . 

Paulina Perkins, the victim’s mother, testified that on the morning of July 14,

the victim appeared at her house bruised and bleeding with her clothes “tore off of

her.” Perkins stated the victim said she had been beaten by the [petitioner]. 

State v. Elroy Gaines, No. W2003-01442-CCA-R3-CD (Tenn. Crim. App. at Jackson, Mar. 30,

2004). At an examination the following morning, it was noted that the victim had a contusion on

her forehead, a swollen and bruised left eye, bruises on both sides of her arms, and a very large

wound on her right hip. Id. Medical personnel were unable to perform a genital examination

because there was “so much swelling” and the area was “very tender and very painful.” Id. It was

noted that the victim’s injuries were consistent with a forcible rape having occurred within the day

prior to the examination, and testing on a vaginal sample taken from the victim matched the

petitioner’s DNA. Id. The petitioner acknowledged that he had sexual intercourse with the victim

but stated that it was consensual. Id. He further admitted that he had beaten the victim but

contended it was only after she commented that he was involved in his nephew’s murder. Id. 

A Shelby County grand jury indicted the petitioner for two counts of aggravated kidnapping

and two counts of aggravated rape. Following a jury trial, he was acquitted on three counts and

found guilty of aggravated sexual battery, as a lesser offense of aggravated rape, on the remaining

count. He was subsequently sentenced as a career offender to a term of thirty years in the

Department of Correction. A direct appeal was filed, challenging only the sufficiency of the

evidence, and a panel of this court affirmed the conviction. Id. Subsequently, the petitioner filed

a timely pro se petition for post-conviction relief alleging, among other grounds, that he was denied

his Sixth Amendment right to the effective assistance of counsel. Following the appointment of

counsel, an amended petition was filed, and a hearing was conducted at which the petitioner, two

trial counsels, and appellate counsel testified.

Post-Conviction Hearing

The first witness to testify at the hearing was the assistant public defender appointed to

represent the petitioner (“trial counsel”). Trial counsel was the division head of the major violators

unit, where the petitioner would be tried based upon his prior convictions for voluntary

manslaughter, attempted assault with rape, receiving and concealing stolen property, accessory after

the fact, murder in the perpetration of a robbery, grand larceny, burglary of a building, and seven

counts of aggravated assault. Trial counsel explained to the petitioner that, if convicted, he would

be sentenced as a career offender and could be subject to “60 years, mandatory.” 
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Trial counsel testified that she was appointed to represent the petitioner on April 1, and that

his first report date was May 11. She acknowledged that the only pretrial motion which she filed,

the discovery motion, was not filed until May 23, after the first report date. However, she related

that the general practice in the major violator’s unit was for the State to prepare the discovery packet

and give it to defense counsel at arraignment. Trial counsel specifically testified that she received

a discovery packet prior to the petitioner’s report date in this case. The motion she subsequently

filed was precautionary following reindictment of the petitioner. 

Trial counsel stated that she worked more than seventy-five hours on the petitioner’s case.

She also testified that she visited with the petitioner at the jail on at least two occasions, as well as

at various report dates. Additionally, when the petitioner wanted to see trial counsel, he would notify

her and he would then be brought to the courtroom for a meeting. According to trial counsel, this

occurred at least four or five times. In the four months prior to the trial, trial counsel recalled

meeting with the petitioner “at least a couple of times per month.” Additionally, trial counsel

requested an additional assistant public defender sit as second-chair on the case and met with him

on numerous occasions to go over the file. Trial counsel also utilized the services of an investigator

in her office. 

According to trial counsel, before the trial began, she and the investigator met with the

witnesses they were able to locate. She testified that the defendant had previously given them a list

of witnesses but failed to include addresses, phone numbers, or, in some instances, last names. She

testified that the petitioner complained to the trial court regarding her failure to interview witnesses

and requested that she be relieved based upon her failure to investigate. However, the trial court

explained to the petitioner that trial counsel and the investigator were unable to conduct the

investigation based upon the information he had supplied. The petitioner then supplied trial counsel

with a more thorough list, and she and the investigator interviewed the witnesses they could locate.

However, according to trial counsel, none were eyewitnesses to the crime and did not provide any

useful information for the petitioner’s defense. Trial counsel acknowledged that she did not speak

with the victim but testified that it was a strategic decision. The victim had previously given two

contradictory sworn statements, which trial counsel intended to use to impeach the victim’s

credibility. Trial counsel also testified that she investigated the victim’s criminal history prior to

trial. 

Prior to trial, counsel advised the petitioner that his previous criminal convictions could be

used to impeach him and advised him against testifying, advice which the petitioner did not follow.

However, trial counsel testified that she did prepare the petitioner for testifying by telling him what

to expect; however, she did not conduct a mock cross-examination with him.

During jury deliberations, the jury asked a question regarding the instructions for aggravated

rape and rape. As a result of that question, the trial court altered the instructions. According to trial

counsel, the element of bodily injury had inadvertently been included in the charge for rape. The

court removed the improper element from the charge. Additionally, the court added the element that

the victim did not consent to the charge for aggravated rape. The court stated that it made this
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addition because the instruction, as written, would allow the jury to believe the petitioner and still

convict of aggravated rape. Trial counsel did not object to the addition, despite the fact that the

added element was not prescribed by statute as it added an additional element, thus increasing the

burden on the State. As noted, the jury found the petitioner not guilty of aggravated rape and rape,

convicting him only of the lesser offense of aggravated sexual battery. No amendment was made

to the charge for the lesser offense. 

Next to testify was second-chair defense counsel. He testified that he was brought in later

in the case “basically to run interference between trial counsel and [the petitioner] and to answer any

questions the petitioner might have regarding the trial.” He testified that he recalled that the

witnesses suggested by the petitioner were not helpful to his defense. Finally, he testified that no

objection was made to the altered jury charge, as it inured to the defendant’s benefit by increasing

the State’s burden of proof. 

Appellate counsel was also called to testify at the hearing and stated that the only issue raised

on direct appeal was sufficiency of the evidence. When questioned regarding the jury instruction

alteration, appellate counsel stated that he did not see anything improper and that he certainly would

not appeal something the petitioner was acquitted of, stating there was no basis to complain after the

petitioner had been acquitted of aggravated rape. Appellate counsel stated that he communicated

with the petitioner by letter, sending copies of his brief and transcripts to the petitioner. 

Finally, the petitioner testified and acknowledged that he had informed trial counsel that he

had sex with the victim and beat her, although he claimed the sex was consensual. He further

acknowledged that this was the strategy pursued by trial counsel. He complained that he did not

receive discovery material “for about three months” following counsel’s appointment. The petitioner

went on to state that he filed multiple motions, which were ruled upon by the trial court, because trial

counsel did not file any. He testified that he gave trial counsel the names of four or five witnesses

and that she made no effort to speak with them. According to the petitioner, trial counsel stated there

was no need to speak with the additional witnesses because the victim had told so many lies. He

further testified that trial counsel never visited him in jail and failed to respond to his numerous

letters. He testified that he asked that trial counsel be removed from his case and that he made a

complaint to the Board of Professional Responsibility. He claimed that he met second-chair counsel

about five days prior to trial and that neither attorney prepared him for cross-examination. He

acknowledged that he testified against the advice of counsel. He also testified that neither attorney

answered his questions during the trial. When he asked why they failed to object to the alteration

of the jury charge, they told him that the trial judge “ran the courtroom” and could do what he

wanted. 

According to the petitioner, trial counsel informed him that sufficiency of the evidence was

the only issue that would be raised on appeal. He testified that he wrote numerous letters to appellate

counsel but did not receive a response before the appeal was filed. The petitioner believed that the

jury instruction issue should have been included in the motion for new trial and should have been

raised on appeal. 
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After hearing the evidence presented, the post-conviction court found that the petitioner had

failed to establish his claim of ineffective assistance of counsel. Following the denial of his petition,

the petitioner filed the instant timely appeal. 

Analysis

On appeal, the petitioner asserts that the post-conviction court erred in denying his petition

for post-conviction relief. Specifically, he contends that the court erred in finding that trial counsel

was not ineffective based upon trial counsel’s failure to: (1) properly investigate the case and

prepare for trial; (2) adequately communicate with the petitioner; and (3) properly preserve appellate

issues. To succeed on a challenge of ineffective assistance of counsel, the petitioner bears the burden

of establishing the allegations set forth in his petition by clear and convincing evidence. T.C.A. §

40-30-110(f) (2006). The petitioner must demonstrate that counsel’s representation fell below the

range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),

the petitioner must establish (1) deficient performance and (2) prejudice resulting from the

deficiency. The petitioner is not entitled to the benefit of hindsight, may not second-guess a

reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made

during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994). This deference to the tactical decisions of trial counsel is dependent upon a showing that the

decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992).

It is unnecessary for a court to address deficiency and prejudice in any particular order or

even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.

at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish 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.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104

S. Ct. at 2068).

The issues of deficient performance by counsel and possible prejudice to the defense are

mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying a claim of

ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with

a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960

S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law are reviewed under a purely de novo

standard with no presumption that the post-conviction court’s findings are correct. Id.

Following the presentation of evidence at the post-conviction hearing, the court made the

following findings with regard to the amendment of the jury charge:
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And basically, [the trial court] made it - - gave the State something else they had to

prove which they were unable to prove and because of that, [the petitioner] did not

get - - if he was found guilty of an A felony as a career offender, he’d be facing 120

years right now. . . . And but for the fact that apparently [the trial court] did the right

thing, he went on about it, talking about what he should do and that basically if he

did not do what he did, in his opinion he thought the defendant would get convicted

and he thought it was the appropriate thing to do. 

To object to that by defense counsel, frankly I think would be - - that would

have been ineffective assistance of counsel if they would of objected to it, you know,

and if they had prevailed. So I don’t see how anything the defense counsel did

actually injured [the petitioner.] 

In its written order denying relief, the post-conviction court further found: 

[The p]etitioner contends that counsel failed to timely secure discovery

materials in time to adequately investigate the case. [Trial counsel] testified that the

discovery motion was filed May 23, 2001. [Trial counsel] further testified that

discovery packets were usually already prepared, enabling counsel to get the

discovery materials on arraignment date. The later motion for discovery was a

protective measure to ensure counsel had received all materials. This Court finds that

[trial counsel] exercised reasonable professional judgment in securing the discovery

materials. 

. . . . 

[The p]etitioner claims counsel failed to conduct a full and adequate pre-trial

investigation. Specifically, [the p]etitioner contends that counsel did not interview

potential witnesses and ignored important aspects of the investigation, including the

consensual past relations between [the p]etitioner and the victim. [Trial counsel]

testified that she submitted the case for investigation and she met with witnesses she

was able to find. [Trial counsel] also testified that [the p]etitioner did not supply

addresses or phone numbers for witnesses, nor did [the p]etitioner provide last names

until shortly before trial. This court finds that [trial counsel] exercised reasonable

professional judgment and that the representation did not fall below an objective

standard of reasonableness.

. . . . 

[The p]etitioner contends that counsel was ineffective for failure to meet with

[the p]etitioner as necessary. . . . [Trial counsel] testified that she met with [the

p]etitioner in the jail on at least two occasions. [Trial counsel] also testified that she

met with [the p]etitioner another four or five times on non-trial or report dates in the
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courtroom. This Court finds that [the p]etitioner has failed to prove how [trial

counsel] acted below an objective reasonable standard.

. . . . 

[The p]etitioner contends that counsel did not object to the trial court’s

amending the jury instructions, waiving the issue for appeal. [Trial counsel] testified

that she did not object to the jury instruction amendment because it added an element

the State to prove. [Second-chair counsel] testified that adding the element was a

benefit for [the p]etitioner. [The p]etitioner has failed to prove how counsel’s action

fell below an objectively reasonable standard. 

Appellate Counsel failed to raise the jury instruction amendment issue under

plain error, thus waiving the issue. [Appellate counsel] testified that he would not

raise something on appeal if a defendant was acquitted. As [the p]etitioner was

convicted of a lesser included offense, [appellate counsel] made a tactical decision

to not appeal this issue. This Court finds that [appellate counsel] exercised

reasonably objective representation. 

I. Failure to Investigate and Prepare

On appeal, the petitioner first contends that trial counsel was ineffective for failure to

properly investigate and prepare the case. Specifically, he asserts that trial counsel failed to timely

file appropriate discovery motions, properly investigate defense witnesses, and interview prosecution

witnesses, specificallythe victim. He argues that “in this multiple offense felony case, [trial counsel]

filed only one pre-trial motion, investigated witnesses only a few weeks before trial, and chose to

not investigate the victim in the twenty[-]two[-]month period that [the petitioner] awaited trial.” 

With regard to the discovery motion, trial counsel, as observed by the post-conviction court

in its findings, testified that she received a discovery packet from the State prior to the filing of the

motion, which the petitioner ignores in his argument. Trial counsel also specifically stated that the

motion was filed only as a protective measure to insure that she was in possession of all relevant

information following reindictment. Clearly, based upon its findings, the post-conviction court

accredited the testimony of trial counsel, and it is not the province of this court to reweigh or

reevaluate such a determination. See Henley, 960 S.W.2d at 579. Regardless, the petitioner failed

to put forth evidence of any discoverymaterial which was not timely received that would have aided

in his defense. With regard to his argument that trial counsel filed only one single motion in the

case, the petitioner has likewise failed to present proof that any such motion would have inured to

his benefit. In fact, the record establishes that multiple motions were filed by the petitioner and

denied by the trial court. 

Likewise, with regard to the petitioner’s assertion that trial counsel only interviewed

witnesses immediately prior to trial, trial counsel gave a valid explanation as to why this occurred,
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which the post-conviction court again accredited based upon itsfindings. According to trial counsel,

the petitioner failed to provide them with enough information to locate the witnesses. Immediately

after the trial court instructed the petitioner to provide the information, trial counsel and an

investigator began interviewing the witnesses. Trial counsel cannot be held responsible for the

petitioner’s failure. Moreover, both trial counsel and second-chair counsel testified that the

witnesses they interviewed were not eyewitnesses to the crime and were unable to provide any useful

information to the defense. Because the petitioner failed to present these witnesses at the postconviction hearing, both this court and the post-conviction court are unable to determine what their

testimony would have been. It is the petitioner’s burden to present such witnesses. See Black v.

State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). 

The petitioner also contends that trial counsel was ineffective in failing to investigate the

victim. However, he offered no proof of what such investigation would have revealed. See Black,

794 S.W.2d at 757. Moreover, trial counsel testified that she did review statements made by the

victim, as well as the victim’s prior criminal history. After adequate preparation, trial counsel chose

to pursue a valid strategy of impeachment based upon inconsistencies in the victim’s statements,

which was apparently successful at trial. See Cooper, 847 S.W.2d at 528. This issue is without

merit. 

II. Adequate Communication

Next, the petitioner contends that trial counsel failed to adequately communicate with him,

based upon their poor working relationship, and asserts that trial counsel was “scared of her client.”

While the petitioner testified that trial counsel rarely met with him and failed to respond to his

correspondence, the post-conviction court, again accrediting the contradictory testimony given by

trial counsel, found that trial counsel had sufficiently met with the petitioner. The record supports

this finding, as trial counsel testified that she met with the petitioner on at least two occasions at the

jail, another four or five times in the courtroom on non-report dates, and wrote the petitioner several

letters advising him of the status. Trial counsel also testified that between December of 2002 and

March of 2003, she met the petitioner “at least a couple of times a month.” While trial counsel

acknowledged that she and the petitioner had a poor working relationship, she continued to represent

him. Moreover, following the petitioner’s complaint to the trial court, a hearing was held at which

the petitioner eventually agreed that she should continue with her representation. Based upon the

record before us, we are unable to conclude that the record preponderates against the postconviction’s courts finding that the petitioner failed to establish how trial counsel acted below an

objective reasonable standard.

III. Appellate Issues

The petitioner also contends that his attorneys failed to properly preserve grounds for appeal,

specifically, by failing “to object to alterations made to the jury instruction, to include all issues in

the motion for new trial, and further to properly investigate all grounds for appeal.” He also

contends that appellate counsel was ineffective by failing to “fully familiarize himself with the client
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and with the technical record before filing the appeal.” However, nothing preponderates against the

post-conviction court’s findings with regard to this issue. All the attorneys involved in the

petitioner’s representation testified that the alteration of the charge inured to his benefit by requiring

an additional element to be proven by the State. Moreover, the petitioner was not convicted of the

crime for which the charge was amended. Thus, the petitioner cannot show prejudice based upon

the amendment or how counsel was deficient for failing to preserve or raise the issue. Furthermore,

the petitioner has pointed to no other issues which would have been meritorious if raised on appeal;

indeed, he has pointed to no other appealable issues. The petitioner bears the burden of establishing

the merits of a claim, which was not appealable, in order to be entitled to relief. Carpenter v. State,

126 S.W.3d 879, 887 (Tenn. 2004). This issue is without merit.

Finally, the petitioner, conceding “that [while] each alleged deviation perhaps does not

individually warrant a determination of ineffective assistance of counsel[,] [t]he cumulative effect

of these errors, however, illustrates prior counsel’s ineptitude.” We disagree. The petitioner has

failed to carry his burden that his counsel deviated from the required standard of assistance. Thus,

there can be no cumulative effect. 

CONCLUSION

Based upon the foregoing, the denial of post-conviction relief is affirmed. 

___________________________________ 

JOHN EVERETT WILLIAMS, JUDGE