Gai D. Kuot v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 19, 2016 Session
GAI D. KUOT v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2010-B-1529 Monte Watkins, Judge
No. M2016-00485-CCA-R3-PC – Filed December 21, 2016
_____________________________
A Davidson County jury convicted the Petitioner, Gai D. Kuot, of first degree
premeditated murder, first degree felony murder, and especially aggravated robbery. On
appeal, this Court affirmed his convictions and sentence. State v. Gai D. Kuot, No.
M2012-01884-R3-CD, 2013 WL 4539020, at *1 (Tenn. Crim. App., at Nashville, Aug.
26, 2013), perm. app. denied (Tenn. Dec. 11, 2013). The Petitioner filed a petition for
post-conviction relief in which he alleged that he had received the ineffective assistance
of counsel because his trial counsel had failed to obtain a translator to explain to him his
rights. After a hearing, the post-conviction court denied the petition. We affirm the post-
conviction court‟s judgment.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.
Jamaal L. Boykin, Nashville, Tennessee, and for the appellant, Gai D. Kuot.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Glenn R. Funk, District Attorney General; and Deborah M. Housel, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
A. Trial
This case arises from the killing of the victim, which occurred in April 2010.
Because of the length of the facts presented by this Court in our opinion on the
Petitioner‟s direct appeal and the issues in this post-conviction appeal, we will briefly
summarize the facts supporting the Petitioner‟s conviction. Kout, 2013 WL 4539020, at
*1-21.
The victim was a “Lost Boy” refugee from Sudan and obtained employment at
Montgomery Bell Academy (“MBA”) as a custodial worker through a charity in 2004.
He earned $23,000 annually. The State charged one of his roommates, the Petitioner,
with his murder. Trial testimony showed that the victim got along with his fellow
employees and remained employed at MBA until his death in April 2010. The victim‟s
shift at MBA on April 20, 2010, the day of his murder, started at 1:00 p.m. and ended at
10:00 p.m. The victim also had a side business in which he sold long distance phone
cards to other members of the refugee community. For this business, he often carried a
large roll of cash in his pocket. One of the victim‟s co-workers testified that he saw the
at work the evening before his murder. The victim told his co-worker that he was going
to Kroger after his shift and then going to pick up one of his roommates in Gallatin. The
victim did not say which roommate.
Police responded to a call on April 21, 2010, about an injured man. When
Sergeant Mitch Kornberg arrived at the scene, he saw the victim sitting on the ground,
leaning against a chain-link fence. The victim had been shot multiple times and was
dead. The sergeant noted that the victim was wearing a maroon MBA shirt with tan pants
and a name tag on a lanyard around his neck. Also, in his lap were calling cards or credit
cards. An autopsy revealed that the victim died as a result of eight gunshot wounds.
The police investigation revealed that the victim had immigrated to the United
States in 2004 from Sudan. The victim‟s cousin, William Deng, who had himself
immigrated to the United States in 1995, became roommates with the victim and the
Petitioner sometime in 2009. The victim and the Petitioner each occupied their own
bedroom, and Mr. Deng slept on the couch. Mr. Deng testified that he owned a PT 92
Beretta nine-millimeter because his employment required that he carry a gun. He owned
two magazines for the weapon. He kept one inside the weapon and the other in the glove
box of his Nissan Pathfinder. Mr. Deng kept the weapon hidden between the driver‟s and
passenger‟s seats of his vehicle. On April 12 or 13, 2010, Mr. Deng discovered that his
gun was missing, and he called the police. His car was locked and showed no signs of
forced entry, and the person who stole the weapon did not take the extra magazine. Mr.
Deng said that he routinely kept his keys on the kitchen table of the apartment that he
shared with the victim and the Petitioner and that the Petitioner knew he kept a weapon in
his car.
Mr. Deng recalled that the victim would purchase telephone calling cards in bulk
and then would sell them to members of the Sudanese community in Nashville. He often
conducted these transactions in a coffee shop on Murfreesboro Road, which was a
popular establishment among Sudanese men. Mr. Deng recounted that the victim often
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carried with him the money earned during the transactions.
Mr. Deng testified that he fell asleep on the couch the night before the murder, and
neither the Petitioner nor the victim was present. He was awoken the next morning by
police officers. He said that the Petitioner exited his room wearing street clothing rather
than clothing in which he normally slept, which surprised him. The Petitioner, who was
unemployed, told the police officers that he had not spoken with the victim the previous
evening. The Petitioner and Mr. Deng both went to the police station to speak with
police.
Kroger surveillance footage from April 20, 2010, showed a man, who appeared to
be either the Petitioner or the victim entering the Kroger store at 11:31 p.m. and leaving
alone at 11:35 p.m. The quality of the video was not clear. A witnesses near the scene of
the shooting heard two or three gunshots at around 12:30 a.m. on April 21, 2010. The
victim‟s car was found near where his body was found, and there were two bullet holes in
the driver‟s side of the car that appeared to have been fired from the interior of the car.
Police found the victim‟s wallet on the ground near the vehicle.
Other officers searched Mr. Deng‟s and the Petitioner‟s vehicles. Evidence
collected from the Petitioner‟s vehicle, a white Volvo, included four phone cards and two
Western Union receipts. The Western Union receipts indicated that “Gai Deng,” which
was the name the Petitioner gave to police, wired $100 to Uganda at 2:30 p.m. on April
20, 2010, the day leading up to the victim‟s murder, from a Western Union located at a
Kroger on Charlotte Pike.
The Petitioner‟s friend, Dennis Ogwang, testified that he played cards with the
Petitioner on Sunday, April 18, 2010, but not on Tuesday, April 20, 2010. Mr. Ogwang
said that police contacted him about this murder. Before he went to the station to speak
with them, the Petitioner called him and asked him to tell the police that the Petitioner
and Mr. Ogwang were playing cards together on the night of the murder. When he spoke
with police, Mr. Ogwang told them about the Petitioner‟s request. He also called the
Petitioner while in the presence of police, and the Petitioner told him to “[j]ust tell them
that I was with you playing cards.”
A witness, Yvonne Claybrooks, said that, on April 21, 2010, she and her neighbor
saw a white, four-door Volvo that had a yellow marking on one of its tires in front of a
vacant lot next to her house. She saw a black arm reach out the window and throw a red
jacket over the car and into a ditch. She could not see the driver‟s face because of the
window‟s dark tint. After the car drove away, the witness and her neighbor walked down
to the ditch to see what had been discarded, and they found a stack of phone cards in the
jacket. Later that day, another neighbor, Royce Cavender, saw the jacket lying in the
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ditch next to a stack of cards. He found this unusual, so he called the police. Ms.
Claybrooks testified that the following day police searched the location where the jacket
had been thrown. They found the jacket, and forensic testing showed that the victim‟s
blood was on the right cuff of the jacket. Further testing showed an area of DNA from
which the forensic analyst could not exclude the Petitioner or the victim as being the
contributor.
As officers were searching the location where they found the jacket, Ms.
Claybrooks saw the white Volvo drive down her street. Ms. Claybrooks went to police
and told them about what she had seen. Two detectives present at the scene saw the
Petitioner driving a white Volvo past them while they were looking for property near Ms.
Claybrooks‟s home. One of the detectives noted that Ms. Claybrooks‟s home was
located near where the Petitioner lived at the time.
The next day, Ms. Claybrooks observed a man walking up and down her street
looking into the ditch. She noted that he was wearing flip flops, which she found
unusual, so she called the detective associated with this case. He came and showed her a
photographic lineup from which she identified the Petitioner‟s picture as belonging to the
man who was walking on her street.
Police officers interviewed the Petitioner twice on April 21, 2010, and then a third
time. Detective Thompson said that, during the first interview, the Petitioner denied
having seen or spoken with the victim since 12:30 p.m. on April 20, 2010, when the
victim left their apartment for work. During the second interview, the Petitioner
maintained that he had not spoken with the victim by cell phone on April 20, 2010.
Detective Thompson obtained the victim‟s cell phone records, which showed that,
contrary to the Petitioner‟s statements, there had been several phone calls between the
Petitioner‟s and the victim‟s phones between 10:30 p.m. and shortly after midnight on
April 20, 2010. Phone analysis revealed that there were multiple calls between the
Petitioner‟s and the victim‟s phones on the night of the murder, with the final
communication occurring at 12:13 a.m. At that time, both phones “pinged” off of the
towers closest to where the victim‟s car was found.
Detective Thompson said that the Petitioner gave them permission to look through
his cell phone. When Detective Thompson did so, he noticed and wrote down a number
for a contact identified as “Dennis.” Later, during his interview with the Petitioner, the
Petitioner said he had been with “Dennis” on the night of the murder. The detective
asked the Petitioner for Dennis‟s number. The Petitioner looked through his cell phone
and then said that he did not have Dennis‟s contact information. The detective looked at
the phone and noted that the contact for Dennis had been deleted. Further investigation
showed that the Petitioner had written checks from the victim‟s checking account. The
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Petitioner initially claimed that the victim had written the checks to him but later said that
the victim had just given him the checks. The parties stipulated that the Petitioner had
written six checks on the victim‟s account, totaling $800. The checks were made out to
the Petitioner, and the Petitioner had forged the victim‟s name on the checks before
cashing them.
The detective obtained video surveillance from a pawn shop showing the
Petitioner looking at guns a month before the murder. He also found information
indicating that the Petitioner owed the State of Tennessee for overpayment of
unemployment benefits and owed money to a college in Michigan.
The Petitioner testified that the victim was his best friend and like a brother to
him. The Petitioner said that he had previously loaned the victim $900 and that the
checks made out to him were a repayment of that loan. The Petitioner said the victim did
not read or write very well in English, so he often had the Petitioner fill out checks on his
behalf. The Petitioner said that he had forgotten that he spoke with the victim the night
of the murder, recalling that the two did speak and discussed an election that was
happening in Sudan. The Petitioner said he was playing cards in Antioch at the time of
the murder and that he got back home to his apartment at around midnight. He opined
that “Dennis” and another man denied playing cards with him that evening because they
were afraid of the police.
The Petitioner said that the victim and Mr. Deng had gotten into an argument after
the victim refused to loan Mr. Deng $200. The Petitioner said that the victim told Mr.
Deng that he had to move from the apartment. The Petitioner denied throwing a red
jacket on the side of the road. He denied that he needed money. The Petitioner asserted
that both Mr. Ogwang and Ms. Claybrooks had lied in their testimony.
B. Post-Conviction Hearing
Counsel testified that he represented the Petitioner during his trial. He said that he
and the Petitioner never discussed the need for an interpreter. Counsel acknowledged
that he knew that the Petitioner was from Sudan. Counsel believed that, at the time he
represented the Petitioner, the Petitioner had been in the United States for three or four
years. Counsel said that, while in the United States, the Petitioner had been employed in
Nashville and had attended one or two years of college. Counsel said that the Petitioner
never mentioned using an interpreter at college.
Counsel said that he never had a problem talking with the Petitioner “at all.”
Counsel gave the discovery to the Petitioner, and the Petitioner apparently could read it.
The Petitioner did not ask Counsel to read it to him and did not ask for an interpreter.
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Counsel said the Petitioner appeared to understand him “perfectly well.”
Counsel said he reviewed the evidence with the Petitioner, and the Petitioner never
indicated that he had any problem understanding their discussion. Counsel said that,
throughout the trial, the Petitioner never expressed difficulty in understanding the
proceedings or testimony. Counsel said that the Petitioner did not make “a very good
witness” testifying on his own behalf because he lied, which came through during his
testimony.
Counsel agreed that he sometimes had to ask the Petitioner to repeat himself while
he was testifying. He agreed that this may have been caused by his difficulty in
understanding the Petitioner‟s response. He also agreed that some of the Petitioner‟s
responses were not entirely grammatically correct, but he said that the Petitioner
effectively conveyed his testimony.
Counsel said that the Petitioner offered him an alibi for the evening of the murder,
which was the same alibi he offered to police. The men that the Petitioner said he was
playing cards with, however, denied being with the Petitioner the night of the murder.
Counsel said he never filed a notice of alibi with the State because he could never verify
the alibi.
Counsel said he understood that the Petitioner would be cross-examined if he
testified, but he never considered the need for an interpreter. Counsel said he never
investigated whether there were interpreter services available to the Petitioner because he
never believed that they were necessary. He said his duty was to ensure that the
Petitioner understood the trial and his rights, which was what he did.
During cross-examination, Counsel testified that during the course of his two-year
representation of the Petitioner, he spoke with him extensively. He said that he tried to
talk the Petitioner out of going to trial because he believed that the State had a “very good
circumstantial case” against the Petitioner. Counsel said that he thought that the
Petitioner had an “overwhelming chance of being convicted.” Counsel testified that,
during these conversations, he never doubted that the Petitioner understood him, and the
Petitioner never expressed a lack of understanding.
Counsel testified that he reviewed the police video recorded interviews with the
Petitioner. In the interviews, the Petitioner never said that he needed an interpreter.
Further, he offered the police an alibi. Counsel said he also had two doctors, Dr. Pamela
Auble and Dr. Kimberly Brown, interview the Petitioner, and neither indicated any
difficulty understanding the Petitioner.
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Counsel said that, during the Petitioner‟s trial, the Petitioner never asked anyone to
stop or slow down based upon his lack of understanding English. Counsel identified the
Petitioner‟s petition for post-conviction relief, and he noted that the Petitioner had filled
out the document himself, indicating his level of understanding of the English language.
Counsel said that the Petitioner could read and write English, noting that the Petitioner
had written some things to him about his trial. Counsel said he “never had any problem
communicating with [the Petitioner] and he never in[dicated] to [Counsel] that he was
having problems with communication.”
During redirect examination, Counsel said that the Petitioner was “nearly always
pretty hostile” towards Counsel. Counsel felt the Petitioner had a “bad attitude” in that
he was confrontational and demanding.
The Petitioner testified through an interpreter. He said that Counsel never told
him that he had the right to an interpreter to understand the proceedings. He said that he
had been in the United States for ten years, five years of which he was incarcerated. The
Petitioner said that it was untrue that he had attended college. The Petitioner could not
explain why he owed a university money.
The Petitioner said that his native language was Dinka and that he was from
Sudan. He went to school in Sudan, where the teacher was English. The English was
translated to Dinka for the students. The Petitioner said that, even in the United States,
he spoke Dinka to his friends. He said that he spoke with his attorney and to other
doctors in this case and that he told them that he did not understand some of what they
were saying. However, none of the people he spoke with told him that he was entitled to
an interpreter. He said that he did not learn that he could get an interpreter until he was
incarcerated. The Petitioner said that he had never before been in legal trouble, so this
was a new experience for him.
The Petitioner discussed his decision to testify. He said that Counsel never told
him that he had a right not to testify or that the jury could not hold against him a decision
not to testify. The Petitioner acknowledged that he drafted his petition for post-
conviction relief. He said that it took him three or four months to draft and that “people”
in prison helped him draft it.
During cross-examination, the Petitioner testified that he worked at Wal-mart after
he came to the United States. The Petitioner denied ever going to college in Michigan.
The State then read to him his trial testimony where he said “Back in 2007 when I was in
Michigan, when I was in college in Michigan, he sent me a hundred dollars . . . .” The
Petitioner maintained that he never went to college in Michigan. The State later asked
the Petitioner if he went to Lansing Community College in Michigan. The Petitioner said
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he did not. The State noted that it had introduced evidence at trial showing that he went
to that school, and the Petitioner maintained that he did not.
The Petitioner agreed that he filled out his own petition for post-conviction relief.
He said he received assistance with writing the document. The Petitioner agreed that law
enforcement found multiple letters in his car, one of which showed that he had applied
successfully for unemployment. The Petitioner agreed that he had three long interviews
with the police and that, during the interviews, he did not need assistance answering their
questions. The Petitioner agreed that Counsel gave him all of the discovery and that the
two discussed it at length. He said, however, that he did not understand everything that
Counsel said to him.
The State pointed out to the Petitioner that the record showed that, before he
testified, he was informed that he had a right not to testify. The Petitioner said that he did
not “know what is right and what is wrong.” He then agreed that he wanted to testify and
to “represent his ideas” but explained that no one told him that he did not have to do so.
The Petitioner agreed that, during his trial, his friends including Sammy Sabino
testified in English. The Petitioner agreed that he bragged to police that his English was
better than the victim‟s, but he said that he was talking “about writing and not speaking.
I can write my name, and that is what I said. And some people they don‟t know how to
write their name.”
Based upon this evidence, the post-conviction court denied the Petitioner‟s
petition for post-conviction relief. It found that the Petitioner‟s testimony was not
credible. The post-conviction court noted that the Petitioner did not indicate at any time
during the trial or case preparation that he did not understand English. The court further
noted that Counsel testified that the Petitioner was able to communicate with him and
participate in his defense.
It is from this judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that the post-conviction court erred when it
dismissed his petition because Counsel was ineffective for failing to secure him an
interpreter for the Petitioner. In support of his argument, he notes that he had only been
in the United States for five years at the time of the trial. He asserted that he had no
formal training or education in speaking English and that he did not understand any of the
rights that Counsel explained to him. The State counters that during the two-year time
period over which Counsel represented the Petitioner, Counsel never noted any difficulty
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communicating with the Petitioner. Further, the State notes that the Petitioner attended
college in the United States and appeared to fully understanding the questions posed to
him by law enforcement during his three long interviews. The State asserts that the
Petitioner did not prove by clear and convincing evidence that Counsel was ineffective
for failing to obtain him an interpreter. We agree with the State.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate
the evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
conviction court‟s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-
conviction court‟s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court‟s conclusions of law are subject to a purely de novo review by
this Court, with no presumption of correctness. Id. at 457.
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court‟s evaluation of a claim for ineffectiveness:
First, the [petitioner] must show that counsel‟s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel‟s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial
whose result is reliable. Unless a [petitioner] makes both showings, it
cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).
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In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel‟s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)).
When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney‟s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the
“distorting effects of hindsight” and “judge the reasonableness of counsel‟s challenged
conduct on the facts of the particular case, viewed as of the time of counsel‟s conduct.”
Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly
deferential and “should indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally,
we note that a Petitioner in a criminal case is not entitled to perfect representation, only
constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, „we address not what is prudent or appropriate, but only what is constitutionally
compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v.
Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been
ineffective merely because a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).
“The fact that a particular strategy or tactic failed or hurt the defense, does not, standing
alone, establish unreasonable representation. However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate
preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).
If the petitioner shows that counsel‟s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel‟s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
We conclude in the case under submission that the Petitioner has failed to show
that trial counsel‟s performance was deficient or that trial counsel‟s performance caused
him to suffer prejudice at trial. Counsel testified that he met with the Petitioner numerous
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times over the course of his two years representing him. He said he had no difficulty
communicating with the Petitioner. The two doctors who interviewed the Petitioner also
did not have difficulty communicating with him. Counsel reviewed the Petitioner‟s
interviews with police, during which the Petitioner answered their questions
appropriately, provided them with an alibi, and did not express any lack of understanding.
The Petitioner testified at his trial that he attended college in Michigan, supported by a
bill to the school found by police in the Petitioner‟s vehicle. The Petitioner filled out his
own petition for post-conviction relief. The post-conviction court credited Counsel‟s
testimony and found the Petitioner‟s post-conviction testimony not credible, and we will
not reweigh or reevaluate credibility determinations on appeal. Dellinger v. State, 279
S.W.3d 282, 292 (Tenn. 2009). The Petitioner is not entitled to relief.
III. Conclusion
In accordance with the foregoing reasoning and authorities, we affirm the
judgment of the post-conviction court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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