by Sharon Rondeau
(Apr. 8, 2022) — A decision issued Thursday by a three-judge panel reversed a trial court’s denial of relief from post-conviction petition claims to Shelby County, TN resident Kristina Cole in a case which sentenced her to 13.5 years in state prison on drug charges.
Cole’s case, prosecuted by Tennessee’s 30th Judicial District, is inextricably intertwined with those of co-defendants/inmates Jason Lamar White and Montez Mullins, who confessed to committing the crime alone but for which White and Cole were nevertheless sentenced in October 2017.
Cole and White have appealed their convictions as well as filed post-conviction petitions. Cole’s petition was heard and denied in 2020, while White is awaiting a hearing which has been rescheduled four times.
During trial and for the post-conviction petition hearings, Shelby County Criminal Court Judge Robert “Bobby” Carter, Jr. presided.
The appellate panel’s “judgment” regarding Carter’s November 6, 2020 dismissal of Cole’s petition states that “this Court is of the opinion that the record is insufficient to enable appellate review” and remands the case back to Carter “for further proceedings consistent with this opinion.”
In Cole’s appeal of the petition’s dismissal, her current attorney, Ben Israel, asked the court to consider whether or not trial counsel Kortney Simmons failed to provide Cole an adequate defense. Israel also wrote that then-Bartlett Police Department Detective Mark Gaia’s description of his search of Cole’s home in early February 2016 following the delivery of a drug-filled package lacked precise information (pp. 11-12).
Cole was accused and convicted of two Class “B” felonies and two Class “A” felonies in relation to the package delivered to her home on February 3, 2016 containing methamphetamine. The charges alleged Cole participated in a “conspiracy to possess 300 grams or more of methamphetamine with intent to sell” and “deliver in a drug-free zone” as well as “intent to sell” and “deliver in a drug-free zone.”
Pages 29-30 of the petition contain detailed claims about Gaia’s testimony about text messages sent from Cole’s phone on the day of her arrest and what her attorney maintains were inappropriate statements made by the prosecutor to which Simmons failed to object.
“Detective Gaia’s credibility came into serious question later in the trial,” Israel wrote on page 21.
The package containing the methamphetamine contained a mailing label with an address similar to, but not matching, the address of Cole’s residence in Memphis. On February 3, 2016, the Bartlett Police Department placed the package on Cole’s porch in a “controlled delivery,” and, after she retrieved it, served her with a search warrant of her home.
The petition corroborates much of what White’s mother, Kimberly White, told The Post & Email of the case against her son and Cole since 2017, including that Gaia admitted to sending “at least one” of three text messages from Cole’s phone “confirming that the package had arrived” (p. 8).
The appellate panel’s 13-page opinion and order faults the “post-conviction court” for failing to “make factual findings” addressing possible deficiencies in Cole’s defense as well as “credibility determinations.”
“A mere recitation or summary of the testimony of the witnesses at a hearing is not a ‘finding of fact’ as is required,” the court wrote on page 13. “…Without sufficient factual findings and conclusions of law, we are unable to properly address the merits of Petitioner’s claims. Accordingly, we reverse the judgment of the post-conviction court and remand for further proceedings consistent with this opinion.”
As The Post & Email has reported, White’s post-conviction petition appeal has been rescheduled a fourth time for May 19, 2022. He, too, claims his trial defense was ineffective and has previously moved for Carter and the 30th Judicial District to recuse themselves due to alleged conflicts of interest.