Assigned on Briefs September 3, 2014
Appeal from the Criminal Court for Shelby County No. 06-00034 James M. Lammey, Jr., Judge
Shairiq Seabrooks, Pikeville, Tennessee, Pro Se (on appeal); Bradley J. Eiseman, Memphis, Tennessee (at hearing), for the appellant, Shairiq Seabrooks.
Herbert H. Slatery, III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.
ALAN E. GLENN, JUDGE
This court's opinion in the direct appeal of the petitioner's conviction set out the evidence against him:
Constance Coleman identified the victim, Ozell Faulkner, as her son. She confirmed that he was also known as Ozell Jordan. Ms. Coleman stated that in December of 2005, the victim was twenty-one years old and lived with her on Pope Street, near Mitchell's Grocery Store.
Delvin Jones testified that the victim was his cousin. At the time of the shooting, Mr. Jones and the victim spent a lot of time together in the area of Memphis where the victim lived with his mother. He said that they went to Mitchell's Grocery almost every day. At approximately eight o'clock p.m. on December 3, 2005, Mr. Jones met the victim on Mount Olive Street and they walked to his mother's house where the victim used the telephone. They then walked to "Candyman Joe's" house to buy cigarettes and then to Mitchell's Grocery. Mr. Jones stated that while he was at the store he saw "David Bibbs, Michael Smith, [and] Peanut." Mr. Jones explained that "Peanut" was the [petitioner's] nickname. Mr. Jones said that he had seen the [petitioner] around the neighborhood and only knew him by his nickname. According to Mr. Jones, Mr. Bibbs, Mr. Smith and the [petitioner] were members of the Bloods gang and were wearing red clothes on the night of the shooting. The [petitioner] had the initials "CK" tattooed on his face. Mr. Jones explained that "CK" meant "Crip Killer."
After Mr. Jones bought cigarettes, he and the victim left the store, but they remained outside. The [petitioner], Mr. Bibbs, and Mr. Smith followed them out of the store and the [petitioner] approached the victim and asked "[w]here the birds at?" As the [petitioner] stood in front of the victim, he held a beer in his right hand and held his side with his left hand. Mr. Jones said that the victim asked the [petitioner] what he meant and the [petitioner] "just walked off." The [petitioner], Mr. Bibbs, and Mr. Smith headed down Chelsea Street, but they returned to the store about fifteen minutes later. The [petitioner] walked up to the victim and stood in front of him holding his side with his right hand and holding the bottom of his coat with his left hand. Mr. Smith and Mr. Bibbs stood on each side of the [petitioner]. The [petitioner] asked the victim "where it's at?" Mr. Jones said that the victim "just started laughing at him" and the [petitioner] pulled a twelve gauge sawed off shotgun out of his coat and shot the victim. Mr. Jones ran into the store and "told Ms. Sarah [Mitchell] to call the police." As he was running into the store, Mr. Jones heard two or three more shots, but does not know what gun was used. After he asked Sarah Mitchell to call the police, Mr. Jones returned to the victim and a crowd of people had started to gather at the scene. He remained with the victim until the paramedics arrived. Mr. Jones said that nothing was taken from or left at the scene while he waited for the police.
On the night of the shooting, Mr. Jones was brought to the police station where he gave a statement. The police showed him photospread sheets and he identified Mr. Smith on one of the sheets and wrote on the sheet, "Mike Smith[, ] he was the person that I saw at the shooting with Peanut." Mr. Jones also identified Mr. Bibbs on a photospread sheet and wrote on the sheet, "[t]his was the person with Peanut." On the following day, Mr. Jones identified the [petitioner] as "Peanut" on a photospread sheet.
Mr. Jones stated he was unaware of any gang involvement by the victim and denied that he was in a gang. He further denied that the victim was armed or had given the impression that he had a weapon while they were at Mitchell's Grocery. He stated that the victim did not threaten the [petitioner]. On cross-examination, Mr. Jones testified that the area "was a gang neighborhood" with an even split of Crips and Bloods. Regarding his statement to police that the victim was a Crip, Mr. Jones stated that the victim "used to be around" the Crips, but he claimed that he did not know that the victim was a gang member.
Sarah Mitchell, the owner of Mitchell's Grocery, testified that at eight o'clock p.m. on December 3, 2005, the victim came in the store and asked for a cheeseburger. Ms. Mitchell told him the kitchen was closed and he left the store. Three or four minutes after the victim left, she heard one shot outside and she ran towards the back of the store. Ms. Mitchell stated that she "heard some shots, and when [she] came back out and headed back to the front [Mr. Jones] met [her] coming in the door and told [her] to call 9-1-1[.]" She stated that Mr. Jones was not armed. On cross-examination, Ms. Mitchell stated that the victim came in the store only one time that day, right before the shooting.
Officer Tyont Shabazz with the Memphis Police Department testified that on December 3, 2005, he went to Mitchell's Grocery Store in response to a "shot fired, man down" call. Officer Shabazz stated that when he and his partner arrived to secure the scene, they found the victim of the shooting lying on the ground in a pool of blood and unconscious. Officer Shabazz did not see any weapons near the victim nor did he notice anyone at the scene wearing gang colors. Officer Shabazz stated that his report indicated that "Mr. D. Jones" came forward as a witness and provided information about the shooting.
Gary Gordon, EMT with the Memphis Fire Department, testified that on December 3, 2005, he responded to a call reporting a gunshot victim at Mitchell's Grocery. Mr. Gordon accompanied a paramedic to the scene where they found a "young African-American male lying on the ground with a gunshot wound." Mr. Gordon rolled the victim over and placed "his intestines . . . back on his stomach" so they could load him into the ambulance. He stated that he did not observe any weapons around the victim. On cross-examination, Mr. Gordon stated that eight minutes passed from the initial call until they arrived on the scene.
Officer Delmar Wells with the Memphis Police Department testified that he collected evidence from the crime scene. Officer Wells stated that he photographed the scene and tagged two piles of clothing found at the scene that appeared to be wet with blood. Officer Wells identified a photograph of a blue jacket and a blue and white shirt soiled with what appeared to be blood. As part of his investigation, Officer Wells searched a dumpster located next to Mitchell's Grocery and the area around the store, but he did not find a weapon. On cross-examination, Officer Wells reviewed his report and stated that he tagged other clothing stained with what appeared to be blood. He identified a photograph that he took of the area around the store and stated the photograph depicted two areas on the ground that appeared to be wet. He agreed that the photograph did not indicate that there was anything on the ground by the corner of the store.
Hersell Seabrooks testified that the [petitioner] was her nephew. Ms. Seabrooks stated that she lived in Gainesville, Florida. She said that years ago, the [petitioner] lived with her family in Florida for a short period of time, but Ms. Seabrooks' mother sent him back to Tennessee. On December 14, 2005, Ms. Seabrooks contacted the sheriff's department to request information on a warrant that had been issued on the [petitioner]. She found the [petitioner's] belongings at her mother's house and found the [petitioner] down the street from her mother's residence. Ms. Seabrooks stated she took the [petitioner] to her house and called the sheriff's department. Officers came to her home and arrested the [petitioner].
Officer William Merritt with the Memphis Police Department testified that on December 27, 2005, he accompanied the case officer, Sergeant Justice, to a jail in Florida to retrieve the [petitioner]. Officer Merritt stated that the [petitioner] was advised of his Miranda rights, and that he voluntarily made a statement. Referring to the [petitioner's] statement, Officer Merritt testified that the [petitioner]:
told us that he had been threatened or been involved in some type of feud with [the victim] and other people that [the victim] knew. He told us that the day the shooting occurred that he had gone up to the store where the shooting occurred on Chelsea earlier in the afternoon, and when he was up there he noticed [the victim] and people that [the victim] knew up there.
He felt uncomfortable because he left the store after making a purchase and went about his way. [The petitioner] [t]old us later on that evening he went back up to the store once night fell, once again he saw [the victim] up there, and as he came out of the store [the victim] and some other people that were with him appeared like they were going ...