Assigned on Briefs July 8, 2014
Appeal from the Criminal Court for Shelby County No. 1202349 Carolyn W. Blackett, Judge
Stephen Bush, District Public Defender; and Sanjeev Memula and Anna Benson (at trial), and Phyllis Aluko (on appeal), Assistant District Public Defenders, for the appellant, Markius Williams.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Camille R. McMullen, J., joined. Jerry L. Smith, J., not participating.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The defendant was charged with the aggravated robberies of James David Oliver and Erica Oliver, a married couple who were robbed at gunpoint outside a laundromat in Shelby County on December 9, 2011. The attendant at the laundromat, who initially appeared to be another victim, eventually confessed that she had not been robbed but was acquainted with the perpetrators and had been aware that the robbery would take place. She implicated the defendant and two other men in the crime. One of the victims was able to identify the defendant from a photographic lineup.
At trial, Mr. Oliver testified that on December 9, 2011, he and his wife went to the laundromat because their home machine was broken. Ms. Oliver had just cashed her paycheck and had eight or nine hundred dollars hidden in her bra. The Olivers parked behind the building, with the trunk of their car facing a wooded area. During the approximately two hours that they spent at the laundromat, Ms. Oliver washed the clothes, pulling the money out of her bra in front of the laundry attendant to make change at the machine. Mr. Oliver was in and out of the building attempting to fix a malfunctioning alarm on their car. Mr. Oliver testified that he did not remember exactly when he and his wife arrived, but he said that it was dark when they left. While going in and out of the laundromat, Mr. Oliver noticed a man sitting in a car, and he said hello to the man.
The robbery occurred as the victims were preparing to leave. The laundry attendant had held the back door open for Ms. Oliver so that she could bring the clothes to the car. Mr. Oliver testified he was by the rear passenger's side tire and Ms. Oliver was by the trunk. They both had their backs to the wooded area. Mr. Oliver suddenly saw two men. The men first pretended to rob the attendant, who was yelling that she didn't have anything. Ms. Oliver defended the attendant, saying, "Leave her alone. . . . [S]he don't have nothing." One of the men, whom Mr. Oliver identified as the defendant, had a gun and jammed it to the back of Ms. Oliver's head, telling her to give him her money. The defendant immediately grabbed the money from her bra, without searching elsewhere first. The defendant then held the gun pointed at Ms. Oliver while the man who had been sitting in the car earlier, and who was unarmed, came around and robbed Mr. Oliver of his billfold. Mr. Oliver testified that he was afraid during the encounter. After the men left, the victims asked the attendant, who still had her phone, to call the police. She told them that her phone was not working. Ms. Oliver then ran into traffic to flag down help. The victims began to suspect that the attendant was in league with the robbers, and they reported their suspicions to the investigator who had phoned them the next day.
Mr. Oliver testified that, although it was dark, he could clearly see the defendant from the light coming from the building. Mr. Oliver identified the defendant from a photographic lineup. He described the gun as a gray and black .22 target pistol with a long barrel.
The defense impeached Mr. Oliver with inconsistencies within his testimony and between his testimony and a statement made to police nine days after the crime. Mr. Oliver's police statement alleged that $200 had been taken from his billfold, but his testimony at trial was that he had no money in the billfold, which had a maxed-out credit card, his identification, and his social security card. On redirect, he testified that he did not remember if he had money but did not think he did. He acknowledged that he could not identify from the photographic lineups either the attendant or the man who took his wallet. He also acknowledged that he did not describe the robbers at all in his statement except to say one was bigger and one was smaller, but he explained that he was not asked to give a description because the police were preparing to show him the photographic lineups. Mr. Oliver's statement indicated that the man from the parking lot had been talking to the attendant all night and was therefore involved; however, he acknowledged that his testimony at trial was the opposite in that he testified he did not see the man in the car or the attendant speak on the phone. He also acknowledged that his statement said, "The guy that run up to me had a gun. I couldn't see if the guy that run up on my wife had a gun or not, " which was the opposite of his testimony at trial. He maintained, however, that the defendant's face and his gun were the focus of his attention and were engraved on his mind.
Ms. Oliver confirmed that the couple went to the laundromat on December 9, 2011, that her husband was in and out of the building, and that she had $800 cash in one side of her bra. She also had her medicine in the other side. Ms. Oliver spoke with the attendant several times, and she believed that the attendant saw the "big wad" of money she was taking out of her bra. The attendant asked Ms. Oliver for a cigarette several times. The attendant went in and out of the business, and she was talking on the phone while Ms. Oliver was washing the clothes. When Ms. Oliver's laundry was finished, the attendant asked for a cigarette again, and Ms. Oliver gave her one and asked her to hold open the back door to help get the laundry to the car. When they went out, Mr. Oliver was by the trunk and had the hood up. Ms.
Oliver was spreading a comforter over the back seat and the attendant was holding some clothing for her when she heard the attendant yell, "Get off me. I told you I don't have anything." Ms. Oliver defended the attendant, saying, "She told you she didn't have anything." She turned and saw a man standing by the attendant. The man was pointing a gun at Ms. Oliver's chest. He said, "I'm going to get what you have." He then immediately grabbed the money from one side of her bra and the medicine from the other. The man put his hand down her pants, looking for more money. He then turned her to face the car and hit her twice "very hard" on the neck ...