Assigned on Briefs September 3, 2014.
Appeal from the Criminal Court for Shelby County No. 10-08128 James C. Beasley, Jr., Judge.
Brett B. Stein, Memphis, Tennessee, for the appellant, Michael Kizer.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Vicki Carricker, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE.
Factual and Procedural Background
A Shelby County grand jury indicted the Defendant on two counts of aggravated robbery and one count of attempted aggravated robbery. See Tenn. Code Ann. § 39-12-101 (2006); 39-13-402 (2006). Prior to trial, the Defendant moved for severance of his case from that of his co-defendant, Martrevious Kizer,  on the ground that Martrevious had filed a notice of intent to pursue a defense of duress. During a pretrial hearing on the motion, the Defendant argued that severance was warranted because Martrevious's defense of duress was antagonistic to his own defense. In denying the motion, the trial court reasoned, "I don't think that just the mere fact of antagonistic defenses is sufficient . . . under the circumstances I don't see a valid reason why just simply one of them saying the other made me do it is sufficient grounds for me to sever." The Defendant proceeded to a jury trial on April 30, 2013.
Officer Thomas Avery with the Memphis Police Department ("MPD") testified that, on June 27, 2010, he responded to a call of a robbery on Monsarrat Street in Memphis. When he arrived at the scene, he encountered three victims: Kristen Hall, Frederick Green, and Marquette Sidney. He described the scene he encountered upon arrival as "frantic." Green had a bleeding wound on the side of his face, and Sidney had a "noticeable contusion or laceration" on the back of his head that was "bleeding relatively profusely." Officer Avery also noticed that Kristen Hall was "in her underwear" and that Green was "missing his shoes." After he arrived on the scene, another victim, Farrah Hall,  came out of a "vacant lot in the woods" and appeared nervous. Officer Avery called an ambulance for Sidney and Green. He took a short statement from Green before Green was taken to the hospital for treatment of his head wound. Officer Avery also took a statement from Kristen Hall.
Farrah Hall testified that she was fourteen years old at the time of the robbery. Kristen Hall is her sister. In the early morning hours of June 27, 2010, Farrah was walking down Monsarrat Street with Kristen, Green, and Sidney. Farrah testified that they were walking "in the street, " rather than on the sidewalk. As they walked, a white, four-door car carrying three people pulled up next to them. Someone in the white car asked them if they knew a person named Markisha. As Farrah and Kristen began to walk towards the car, "[the Defendant] jumped out of the car." Farrah identified the Defendant and testified that she recognized the Defendant because she had "seen him around." The Defendant was riding in the front passenger seat of the car.
After he exited the car, the Defendant "told [Kristen] and them to take off all their clothes." The Defendant had a "black pistol" in his hand and he was "holding it towards [Green's] head" as he demanded that the victims strip their clothes. Farrah ran "far into the bushes" in a nearby vacant lot, where she hid and called the police. While she was in the bushes, Farrah heard the Defendant tell Kristen to "strip her clothes." The Defendant stated that he was "going to rape [Sidney] and Kristen." The Defendant took a pack of cigarettes from Kristen. He also took Green's shoes. At some point during the robbery, Farrah saw Martrevious exit the car through the driver's side rear door. She recognized Martrevious from "seeing him around the neighborhood." Farrah testified, "I saw [the Defendant] drop the gun, and I seen [Martrevious] get out and pick it up."
On cross-examination, Farrah clarified that the Defendant was the person who had asked about Markisha from the white car. She agreed that the Defendant was not wearing a hood or a mask. She also agreed that the street was lit and that there were houses on both sides of the street. Farrah testified that the police showed up about five minutes after she called them.
Kristen Hall testified that, on the night of the robbery, she was walking on Monsarrat Street with Farrah, Green, and Sidney. The four of them lived in the neighborhood and they were walking to the store. As they walked, "a mysterious vehicle pulled up" beside them. The windows were down, and the person in the front passenger seat, whom she identified as the Defendant, asked them if they knew "Keisha." Kristen responded that she had not seen Keisha. At that point, the Defendant "jumped out" of the car and said, "Give me every mother fing thing ya'll got." Kristen testified that she immediately recognized the person to be the Defendant because he had a distinctive "tattoo on the middle of his forehead." When the Defendant jumped out of the car, Kristen noticed that he was wielding a black handgun. Kristen looked for Farrah, and she saw that Farrah had run away toward the bushes.
The Defendant was "waving the gun" and told them to "strip naked." The Defendant asked them, "[Y]a'll think I'm playing?" Next, the Defendant "cocked the pistol and proceeded to pistol whip [Sidney]." Kristen clarified that by "pistol whip" she meant that the Defendant struck Sidney in the head with the gun. After the Defendant hit Sidney, Kristen realized that the Defendant was "serious, " so she "proceeded to undress." She testified, "I was in my bra and panties in the middle of the street crying." The Defendant went through Sidney's pockets as Sidney was "laying on the ground helpless." At one point during the robbery, the Defendant dropped the gun. Kristen saw the passenger in the back seat of the car get out and pick up the gun. She recognized that person as Martrevious, because she went to school with him, and they had "hung out together." Martrevious picked up the gun and "walked toward [Green] where he then proceeded to pistol whip [Green]." Kristen testified that the Defendant was the one doing most of the talking. At some point during the robbery, the Defendant said, "I ought to rape you" to Sidney. The Defendant then turned to her and stated, "I'll rape you too." Kristen saw the ...