Assigned on Briefs April 1, 2014
Direct Appeal from the Criminal Court for Shelby County No. 11-07851 Lee V. Coffee, Judge
Juni S. Ganguli, Memphis, Tennessee, for the appellant, Racris Thomas.
Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Harrison, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Ann Schiller, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., J., joined. Jerry L. Smith, J., not participating.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
The appellant was charged with two counts of especially aggravated kidnapping, one count of aggravated robbery, one count of attempted aggravated robbery, one count of aggravated burglary, one count of employing a firearm during the commission of an aggravated burglary, and one count of being a convicted felon in possession of a handgun.
At trial, Vanzelle Clark testified that around 9:30 or 10:00 p.m. on April 11, 2011, he and his girlfriend, Keshya McClinton, returned to his apartment in her Honda Civic, which Clark was driving. Clark parked, and McClinton got out of the car and walked to the trunk. After hearing someone speak to McClinton, Clark got out of the car and saw a man standing beside McClinton. The man was wearing a ski mask, and his hair was in "dreads." The man was wearing a black and red shirt and black pants and was carrying a long gun and a shorter gun. The man pointed the guns at Clark and said, "'Go upstairs. Come on. Hurry up. I'm going to shoot you in your face. Let's go." The prosecutor showed Clark Exhibit 2, a .38 caliber pistol, and Clark stated that it resembled the shorter gun.
Clark said that he informed the gunman that the front door of his apartment, which was upstairs, was locked and that they could not enter the apartment through that door. Clark explained that he typically used the back door because the front door was locked with a deadbolt to which he did not have a key. Nevertheless, the gunman insisted that they go upstairs. Clark did not think he could escape and walked upstairs, followed by McClinton and then the gunman. At the top of the stairs, Clark noticed that the lock on his front door had been broken. He pushed the door open, walked into the living room, and glanced around. He noticed that his Xbox 360 video game system, video games, DVDs, and television were missing. Because the appellant was not directly behind Clark, Clark was able to escape out the back door. He went to a friend's residence nearby and called the police.
Clark said that he remained on the telephone with the police dispatcher until the police arrived approximately seven to ten minutes later. At that point, he went outside to speak with the officers and saw McClinton already speaking with them. After giving a statement, Clark returned to his apartment and discovered that a television from his bedroom had also been taken.
Clark said that the gunman never removed his mask that night. Nevertheless, Clark thought he recognized the gunman from "[h]is voice and body language, his dreads. . . . Talking to him before and being around him a couple of times. I knew like it was like the way he act, the way he did, how he – how he sound." Clark thought the gunman was someone he had met through friends. Clark did not tell the police that he suspected the appellant was the gunman because he was afraid and was not completely certain of the identification at that time.
Clark said that at the request of Sergeant Shawn Hicks, he went to the police station around 5:00 p.m. on August 16, 2011, to view a photograph lineup. He identified a photograph of the appellant, whom he knew as "Chris, " as the gunman. Clark asserted that after seeing the appellant's photograph in the lineup, he was "a hundred percent (100%) sure" of his identification of the appellant. Approximately one week later, the police returned Clark's Xbox and video games, but his televisions and DVDs were never found.
Clark acknowledged that on November 4, 2011, he and McClinton testified at the appellant's preliminary hearing in general sessions court. During the hearing, Clark identified the appellant as the gunman. Clark also identified the appellant at trial as the gunman.
On cross-examination, Clark stated that the crime occurred on a Monday night and that he had not been drinking. He lived in apartment number four, which was located on the second floor of the apartment building. Clark said that the gunman was wearing a black and red ski mask that covered all of his face, except his eyes and mouth, and that the man's "dreads" were showing. Clark walked unhurriedly up the stairs, followed by McClinton and the appellant, and Clark entered the apartment first. By the time the appellant walked into the apartment, Clark had exited the back door, leaving McClinton behind with the appellant. Clark called the police, but the appellant was gone when they arrived.
Clark acknowledged that he told the police that he had never seen the gunman previously and that he thought the gunman was someone named "Chris." He denied that he had ever met a man named Danny Howard. Clark agreed that he first identified the appellant as the perpetrator over four months after the offense. He denied that Sergeant Hicks told him whom to identify.
Keshya McClinton testified that on April 11, 2011, she and Clark were dating and lived together at the French Village Apartments. That evening, Clark drove her back to the apartment complex. After he parked the car, McClinton got out and went to the back of the car to retrieve her backpack. A man with dreads and wearing a ski mask approached them. He was wearing a red and black shirt and dark pants, and he was holding a small, black revolver in one hand and a "silver with a long nose revolver" in the other hand. The prosecutor showed McClinton a photograph entered as Exhibit 2, and she identified it as the small revolver the gunman carried. McClinton said that the man pointed the guns at her and instructed her to give him all her money. McClinton, shocked and terrified, turned toward the gunman. About the same time, Clark got out of the car and walked around the car toward McClinton. McClinton told the gunman that she did not have anything, and he ordered them to go upstairs. At first, McClinton was confused, but when she realized the gunman was serious, she complied.
McClinton said that Clark walked up the stairs first, followed by her and then the gunman. The gunman pointed the guns at her back and occasionally shoved a gun into her back to encourage her to keep moving.
McClinton explained that she and Clark never used the front door because
we had asked the apartment people to give us a dead bolt for those doors, but all it had was just a simple lock and a chain from the inside. So we always used the back door because that door wasn't secured correctly unless you used the chain from the inside.
Clark tried to tell the gunman that they could not get into the apartment through the front door. The gunman responded that the door was already open. At the top of the stairs, McClinton saw that the front door had been kicked in.
McClinton said that the gunman told them to go inside the apartment. Clark complied and was able to "slip out" the back door. McClinton feared being alone with the gunman. She looked around the apartment and saw that it had been ransacked. Specifically, she noticed that the television and Xbox were missing from the living room.
McClinton said that the gunman was surprised by Clark's escape and repeatedly asked, "'Where is he, where is he?'" The gunman forced McClinton to walk into the bedroom. He instructed her to call Clark and tell him to return, and she complied. The gunman spoke with Clark and told him that if he did not come back, the gunman would kill McClinton. Clark said he would return.
McClinton said that the gunman went into the living room. She remained in the bedroom until she heard the gunman's "voice kind of leave." McClinton tried to leave but saw the gunman at the bottom of the stairwell. He had his mask off and was speaking on a cellular telephone. He saw McClinton and told her to go back upstairs. She ran upstairs, and the gunman followed her. At the top of the stairs, the gunman asked her why she had tried to leave and ordered her to return to the bedroom. The gunman then changed his mind and ordered her to go downstairs to her car. McClinton could see the gunman's face clearly because he had removed the mask.
McClinton said that the gunman forced her into the passenger seat of her car and closed the door. The gunman went around to the driver's side and demanded that McClinton give him the keys to the car. McClinton responded that Clark had the keys. The gunman searched for the keys in the glove compartment then exited the car. He told McClinton to get out of the car and walk to the other side of the apartment building, and she complied. They heard sirens, and the gunman became agitated and frightened. McClinton tried to calm him by telling him that the police were not coming for him. The gunman tried to force her into the alley beside the apartment building, but she resisted, fearing what might happen in the alley. The gunman demanded that McClinton give him her wallet. She removed the wristlet wallet that she was wearing, which contained her driver's license, credit cards, insurance cards, and cash. When she handed the wristlet to the gunman, he ran away. McClinton ran the other way and used her cellular telephone to call 911.
McClinton said that when the police arrived, she returned to the apartment with them. She noticed that one television from the bedroom, one television from the living room, an Xbox, games, and her yellow laptop computer were missing. She walked down the alley with the police and saw her laptop computer propped against a piece of wood.
McClinton said that she had never seen the gunman prior to the robbery. She described her assailant to the police. Clark also spoke with the police. McClinton said she did not speak with Clark because she was mad at him for leaving her.
McClinton said that approximately four months later, on August 16, 2011, Sergeant Hicks contacted her and asked her to come to the police station. She did not recall Sergeant Hicks telling her the name of the suspect, and she did not try to find photographs of the appellant on the internet in order to identify him as the suspect. After she arrived at the police station, she was shown a photograph lineup, and she immediately identified the appellant as her assailant. She asserted that the police did not tell her whom to identify. Additionally, at the preliminary hearing and at trial, she identified the appellant as the ...