Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs August 19, 2014
Appeal from the Criminal Court for Knox County No. 84503 Steven Sword, Judge
Keith Lowe, Knoxville, Tennessee, for the appellant, David Patrick Armitage.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Charme Allen, District Attorney General; and Kevin Allen, 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., and David A. Patterson, Sp. J., joined.
JOHN EVERETT WILLIAMS, JUDGE
The defendant's conviction in this case is based upon his involvement in the aggravated robbery of Rainbow Rentals Video. The defendant and co-defendant, Jackie Ellis, entered the store wearing masks close to closing time. They pointed guns at Scott Curry, the store clerk, and demanded money from the cash register and the safe. Mr. Curry told the men that there was no safe in the store, but they did get a small amount of cash from the cash register. After threatening Mr. Curry's life, the two men exited the video store.
Once the two were gone, Mr. Curry called the police. He gave them descriptions of the perpetrators, but Mr. Curry could not identify any suspects by name. After Mr. Ellis was arrested on separate robbery charges a few weeks later, the defendant was developed as a possible suspect in this robbery. Both were indicted in 2006, and Mr. Ellis elected to plead guilty and testify against the defendant. However, the defendant chose to leave the state, was subsequently arrested on separate charges, and remained in a Georgia prison until his 2013 trial.
The first witness called at the trial was the victim, Mr. Curry. He testified that in September 2005, he was an employee of Rainbow Rentals Video where he worked the night shift. Mr. Curry also noted that the defendant was a customer of the adult video store.
Mr. Curry testified that he was working on the evening of September 14, 2005, and that, close to closing time, he received a phone call asking what time the store closed. The number was preserved on caller ID and later traced to Ms. Andrea Floyd.
Mr. Curry stated that he was standing behind the counter when he noticed a silver BMW with "LED" lights enter the parking lot of the video store. He observed two masked men, one Caucasian and one African American, enter the store with guns pointed at him. Mr. Curry testified that the pair demanded money, asked where the safe was located, and forced Mr. Curry to open the cash register drawer. After obtaining between thirty and forty dollars, the men left the building.
After the intruders exited, Mr. Curry called police and reported the crime. On that evening, he did not mention the defendant to the police as a possible suspect in the crime. Moreover, he did not specifically state to police that the car was a BMW, although he did mention the LED lights. Some time later, after speaking with Investigator Charles Lee and viewing a photo line-up, Mr. Curry was able to identity the defendant as the Caucasian perpetrator. At trial, Mr. Curry also identified the defendant as one of the robbers.
Defense counsel for the defendant subjected Mr. Curry to rigorous cross-examination. In addition to the fact that he had not identified the defendant by name prior to the line-up or designated the car as a BMW, Mr. Curry also acknowledged that he had given height approximations of the perpetrators which might be inaccurate. However, Mr. Curry maintained that it was when he was shown the photo identification line-up that it "clicked" with him that the defendant was one of the perpetrators. He testified that he based the identification of the defendant upon the lesions which were on his face at the time; however, he acknowledged that the perpetrators were masked and that he was unable to see the lesions during the robbery. Mr. Curry denied that he was informed that the defendant's fingerprints were found at the scene. However, he did admit that it was possible that he told a defense investigator that he had been informed of that and based his identification on that fact.
The next witness called was Andrea Floyd, the girlfriend of co-defendant Ellis at the time of the robbery. She testified that the defendant and co-defendant Ellis were spending a lot of time "hanging out" during the fall of 2005. She explained that she did not like the situation because she believed that co-defendant Ellis was cheating on her when he was with the defendant. She verified that the defendant drove a silver BMW. She further acknowledged that sometime in early September of that year, she and co-defendant ...