Assigned on Briefs June 3, 2014
Appeal from the Criminal Court for Shelby County No. 08-05482 Honorable J. Robert Carter, Jr., Judge
Joseph A. McClusky, Memphis, Tennessee, for the Petitioner-Appellant, Courtney Watkins.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; Amy P. Weirich, District Attorney General; and Josh Corman, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Alan E. Glenn, J., joined. Jeffrey S. Bivins, J., Not Participating.
CAMILLE R. McMULLEN, JUDGE
After a jury trial, the Petitioner was convicted of especially aggravated robbery arising from the shooting and robbery of Kelvin McDonald on February 25, 2008. He was subsequently sentenced to a term of twenty-three years in confinement. See State v. Courtney Watkins, No. W2010-01851-CCA-R3-CD, 2011 WL 4529615 (Tenn. Crim. App. Sept. 30, 2011), perm. app. denied (Tenn. Feb. 15, 2012). In its opinion on direct appeal, this court affirmed his conviction and summarized the evidence at trial as follows:
On the afternoon of February 25, 2008, the victim, Kelvin McDonald, was driving his white Lincoln Town Car to Best Buy. On his way, he encountered the [Petitioner], Courtney Watkins, whom he had met while the two were incarcerated together in the Memphis jail in 2007. The [Petitioner] was seeking a ride to his cousin's residence at the Wingood Apartments, and the victim offered to take him there after he finished a few errands. The victim did not know the [Petitioner] by name, only by his nickname, "Shorty Fat."
During the course of the afternoon, they stopped at a market for some gas, and the victim bought the [Petitioner] some food and drinks. In the [Petitioner]'s presence, the victim paid for his purchases with a $100 bill. They also discussed the [Petitioner]'s need for a steady job. The victim told him that he was working as a truck driver and gave the [Petitioner] information about how to obtain his commercial driver's license. They also stopped at the victim's cousin's house because he had been having car trouble and had requested the victim's assistance. While at the victim's cousin's house, the victim and the [Petitioner] encountered a man named George Gates, who had also been incarcerated with them.
When they arrived at the Wingood Apartments, the [Petitioner] instructed the victim to drive around to the back to his cousin's apartment. The men encountered a group of Hispanic individuals, and the [Petitioner] spoke to them in Spanish. After the [Petitioner] spoke with them, they all left the area. The [Petitioner] returned to the victim's car and told the victim that his cousin was not home. As the victim turned the car around to leave the apartment complex, the [Petitioner] pulled out a gun and said, "Give me your money." The victim initially thought he was joking because he could not imagine the [Petitioner] doing this to him after he had helped him that afternoon. He told the [Petitioner] to put his gun away and stop playing. The [Petitioner] assured him that he was serious, cocked the gun, and twice fired. Fortunately, the gun misfired both times. After that, he hit the victim in the head with the gun. The victim kept driving, trying to get to a place where he could summon help. The [Petitioner] hit him in the head with the gun a second time while the victim struggled to get his wallet out of his pants. The [Petitioner] told him that he was not moving fast enough and shot him in the head. The victim struggled with the [Petitioner] until he saw a man outside at the apartment complex. The victim rolled down his window and yelled out, "Call the police. He's robbing me."
The man the victim called out to was Larrial Gill, the maintenance man for the Wingood Apartments. While Gill was unloading some equipment at the apartment complex on the afternoon of February 28, he heard a man call out from a white Lincoln, "Call the police. I'm being robbed." He could see two African-American men in the front seat but could not identify either. Gill did not respond to the victim's call for help; instead, he went about his business unloading the equipment. After the car was out of sight, he heard two gunshots. Gill again did nothing in response but went into an apartment in which he was working.
The victim's car subsequently struck a dumpster at the apartment complex. The victim struggled to get out of the car, injuring his knee, but the [Petitioner] held on to him. When the [Petitioner] finally got out of the car, he took the victim's leather jacket and the victim's cellular phone car charger. The [Petitioner] then got back into the car, shot the victim again in the head, and left.
Memphis Patrol Officer Lakeisha Ross responded to the scene. When she arrived, the victim was already in the back of an ambulance, but he was alert and very excited. He told Officer Ross what had happened and that a man with whom he had been incarcerated had robbed and shot him. He explained how the [Petitioner] had come to be in his car that afternoon and how he knew him from their time together while incarcerated. The victim was then taken to a hospital, where he spent a week recovering from his wounds.
Several officers processed the crime scene. Officer Sam Blue took photographs of the victim's Lincoln and collected evidence from the car. He took a number of photographs showing blood on the outside of the driver's side of the car and on the pavement below. Memphis Police Officer Stacy Milligan also photographed the victim's car and areas where fluid samples were identified.
On the same day as the robbery and shooting, Memphis Police Officer Myron Fair interviewed the victim at the hospital. Though the victim was mad and upset, he was clear-minded and recounted to Officer Fair the story of how he had given the [Petitioner] a ride and how he knew him from jail. He also told Officer Fair about their afternoon together, running errands and ending up at the Wingood Apartments. He explained how the [Petitioner] had pulled a gun on him, demanding his money, and the struggle over the gun and subsequent shots to his head. The victim described his assailant as being approximately five feet, nine inches tall and weighing 210 pounds. Officer Fair photographed the victim's injuries.
After his conversation with the victim, Officer Fair learned that the [Petitioner]'s first name was Courtney and pulled jail records from the floor and pod on which the victim was incarcerated. As a result, Officer Fair located the [Petitioner]'s name and photograph. Officer Fair then compiled a photographic line-up and presented that line-up to the victim approximately one week after the shooting, after he had been discharged from the hospital. The victim identified the [Petitioner] as his assailant.
Shelby County Sheriff's Sergeant Michaele Byers is the record keeper for the Jail Division. She confirmed at trial that the victim, the [Petitioner], and George Gates had all been incarcerated together on the same floor and in the same pod from March 28, 2007, to April 16, 2007, when the [Petitioner] was released.
The defense at trial was that the [Petitioner] was not the assailant. To that end, Vander Moore testified that on February 25, 2008, the [Petitioner] was helping him move from his residence on Fields Road to a new residence on Gilleas Road from about 10:30 or 11:00 a.m. until shortly before 3:00 p.m., when the [Petitioner] left to pick up his mother at her job downtown. Moore explained that he is employed by the City of Memphis at the Whitehaven Golf Club but that he took February 25 and 26 off to move. However, Mary Hilliard, the keeper of records from Memphis Light, Gas, and Water, presented records showing that the utilities were disconnected at Moore's Field Road residence on February 21, 2008, and also connected that same day at his new Gilleas Road residence. Sandra ...