Assigned on Briefs June 3, 2014
Appeal from the Criminal Court for Shelby County No. 04-00120 W. Mark Ward, Judge
Rosalind Elizabeth Brown, Memphis, Tennessee, for the appellant, Charles Hall.
Herbert H. Slatery, III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Amy P. Weirich, District Attorney General; and Stacy M. McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Camille R. McMullen, J., joined. Jeffrey S. Bivins, J., Not Participating.
ALAN E. GLENN, JUDGE
On direct appeal, this court set out the facts resulting in the petitioner's conviction:
The victim testified that she was working at the Wonder Bread store on Sunday, February 23, 2003. As she was stocking shelves in the back room in preparation of closing, the victim noticed that a man, identified as the [petitioner], had entered the store through the front door. As the [petitioner] entered, a young boy also entered the store, yelling to the victim that she had a customer. The victim called to the front that she would help him shortly, but the [petitioner] walked from the front and into the office that bisected the store. The [petitioner] brandished a "[l]ittle silver gun" in his right hand and told her to cooperate. Upon seeing the gun, the victim was frightened, afraid that the [petitioner] was going to kill her.
The [petitioner] told the victim to go to the front of the store, display the "closed" sign, and lock the door. When the victim complied with the [petitioner]'s demand, she noticed that the young boy, who appeared to be nine years old, was still in the store. She explained that it was normal for the neighborhood children to hang around the store and help with tasks in exchange "for a cake or something." The [petitioner] held the boy's hand in his left hand and the gun in his right hand as he told the victim to go to the cash register and not sound any alarms. The [petitioner] told her to remove only the cash from the register and put it in a plastic bag. The victim did as she was instructed, placing approximately $100 in a store bag. The victim handed the money to the [petitioner] "[b]ecause he had a gun, and [she] was afraid."
The victim testified that the [petitioner] then asked for the videotape from the store's surveillance camera. When the victim tried unsuccessfully to eject the tape from the VCR, the [petitioner] became agitated. The victim attempted to remove the VCR from the wall, and the [petitioner] "snatched it and stepped on it, and that's the only way we got the tape out of it." The [petitioner] had the victim show him a door in the stock room he could use as an exit and then placed the victim and young boy in the bathroom with instructions not to come out for fifteen minutes. The [petitioner] threatened to hurt them if they came out of the bathroom before he left.
The victim testified that after fifteen to twenty minutes, they exited the bathroom, and she called the nearby fire station. By the time the fire department personnel arrived, the young boy had left the store. Police officers arrived in less than ten minutes after the fire department personnel, and she told them what had happened. However, she did not mention anything about the young boy being present because "[t]hey never asked [her] was anybody in the store. They just asked [her] about the robbery." The victim admitted that she later gave a statement to Sergeant Bell in which she again did not mention the young boy. She explained that she did not mention him because
he was upset about [the robbery]. And I was upset. And I didn't want to put him through what I had to go through because his mom - during that time, his mom had said he was already having problems, so I didn't want to take him through it, so I never mentioned him.
She elaborated that she spoke with the boy's mother about the incident because he had told his mother about what had happened. The victim said that the first time she mentioned the presence of the young boy was when she was asked a question by the [petitioner]'s attorney at another court proceeding.
The victim testified that she gave a brief description to the police that the [petitioner] was tall and light-skinned. At trial, she recalled that the [petitioner] was wearing blue jeans, a yellow-orange "bubble" jacket pulled up over the bottom of his face, a "skull hat, " and rubber surgical gloves. She estimated that the entire ordeal, including the time they waited in the bathroom, lasted thirty minutes. She was within one to two feet of the [petitioner] the entire time, and nothing impaired her view. The victim explained that she had been instructed by her employer that in the event of a robbery, to look at the perpetrator's eyes in hopes of later making an identification. The victim said that she looked at the [petitioner]'s face but focused on his eyes as a way of letting him know that she was going to cooperate.
The victim testified that she viewed a photographic array on March 13, 2003, from which she identified the [petitioner] as the robber because "[she] recognized him through his eyes." She said that she also recognized the [petitioner]'s forehead, nose, cheeks, and mustache area. She recalled that the [petitioner]'s photograph "jumped out" at her, so she took a piece of paper to cover part of his forehead and mouth "to make sure [she] was picking the right guy." The victim said that in addition to the photographic array, she also identified the [petitioner] at a preliminary hearing, at a motion hearing, and at another court proceeding.
On cross-examination, the victim admitted that it was untruthful for her to have previously testified that the first time she spoke with anyone about the young boy being present was when defense counsel asked her at a prior proceeding when she had actually spoken with the boy's mother. She also admitted that it was untruthful for her to have not mentioned the boy when asked to give a detailed description of the incident. The victim said that she never told Sergeant Bell prior to viewing the photographic array that the robber's eyes were the feature by which she would be able to identify him. When shown the photographic array, the victim admitted that she would not have picked two of the individuals because their eyes were closed but said that she still looked at their photographs. The victim acknowledged, in looking at a photograph of the [petitioner], that the [petitioner] had a scar in his left eye, but she did not include a scar in her description.
On redirect examination, the victim testified that she did not select the individuals in the array who had their eye or eyes closed because neither of them was the individual who robbed her.
Boris Owens testified that he and his mother were outside the Wonder Bread store on February 23, 2003, when they saw a light-skinned, African-American man who was approximately 6'1" exit out the seldom-used side door of the store. They went to the front door of the store and it was locked. They looked inside and saw that the cash register was lying on the counter. Owens never saw a young boy or a woman come out of the store.
The prior sworn testimony of Officer Sherman Bonds was read into evidence. In that testimony, Officer Bonds stated that he worked in the Memphis Police Department's Crime Scene Unit. On February 23, 2003, Officer Bonds was called to the scene at the Wonder Bread store on South Third Street. Officer Bonds dusted a VCR for prints but was unable to obtain any.
Lieutenant William Woodard with the Memphis Police Department testified that he was involved in the investigation of the Wonder Bread store robbery. Lieutenant Woodard made a follow-up call to the victim the day after the robbery to obtain any additional details. The victim never mentioned a young boy being present, nor did he ask if a young boy was there. Lieutenant Woodard typed a synopsis for the case file and waited for more information to come in. At some point, the officer received a Crime Stoppers tip identifying the Wonder Bread store and the [petitioner] by name and giving a few details about the [petitioner]. Lieutenant Woodard obtained an old booking photograph of the [petitioner] based on the information gathered from the tip. Approximately five days later, Lieutenant Woodard received a call inquiring about the status of the prior Crime Stoppers tip and providing the same, plus some additional, information. Lieutenant Woodard did not take a formal, written statement from the victim, and he explained that it was not uncommon to wait for an arrest to be imminent before obtaining a written statement. The case was transferred to Sergeant J.B. Bell of the Memphis Police Department.
On cross-examination, Lieutenant Woodard acknowledged that the victim told him during their conversation the day after the robbery that she did not think she could identify the robber and such was noted in the report supplement. He also acknowledged that he was able to create a photographic array based on information received from the Crime Stoppers tip, not from any information given by the victim.
Sergeant J.B. Bell, Jr. testified that he was transferred to the Wonder Bread store robbery case after the Crime Stoppers tip came in because he was working on a similar case. Upon receiving the case, Sergeant Bell contacted the victim who gave him a general description of the robber, including the robber's hair and eyes and that he had "a little mustache" and was light-complected. Based on the information given by the victim, along with the information from the Crime Stoppers tip, Sergeant Bell assembled a photographic array depicting the [petitioner] and five other individuals similar to the [petitioner] and matching the victim's general description. He first attempted to assemble the array with the help of a computer system. However, the computer kept suggesting ...