Court of Criminal Appeals of Tennessee, Nashville
Session July 15, 2014
Appeal from the Circuit Court for Montgomery County No. 41101125 Michael R. Jones, Judge
Stephanie D. Ritchie, Clarksville, Tennessee, for the appellant, Antoine Cardet Smith.
Herbert H. Slatery, III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Lee Willoughby, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.
THOMAS T. WOODALL, JUDGE
On October 4, 2010, Veronica Parson was working as a store clerk at Cirilla's on Fort Campbell Boulevard in Clarksville. At approximately 8:00 p.m., Defendant entered the store. He was wearing construction overalls, "work boots, " a "beanie, " and bifocals. Ms. Parson testified that she was able to see Defendant clearly. Ms. Parson asked Defendant if she could assist him, and Defendant replied that he was looking for something for his girlfriend. Defendant chose an article of lingerie and took it to the counter. Ms. Parson testified that Defendant spoke with a Jamaican accent. While Ms. Parson was ringing up the merchandise, Defendant put a paper bag on the counter and "pulled out a gun partially out of his pocket to kind of show [Ms. Parson] and he said put the money in the bag." Ms. Parson testified that it was a handgun and "[i]t looked silver." About the gun, Ms. Parson testified, "I saw it partially. But, yeah, I know what a handgun looks like." She testified that the register contained approximately $170 in cash. She put the money inside the bag, and Defendant "kind of leaned over the counter and was like was that all[?]" Ms. Parson backed away to allow Defendant to see that the register was empty. Defendant "grabbed the bag and snagged the lingerie and left." Ms. Parson testified that the encounter lasted approximately five minutes. A store surveillance video of the incident was played for the jury.
Ms. Parson subsequently viewed a photographic lineup. She did not identify anyone in the lineup as the perpetrator. Several months later, Ms. Parson viewed another photographic lineup. She identified Defendant as the perpetrator in the second photographic lineup. About the second photographic lineup, Ms. Parson testified, "I've always been good with remembering faces, and it just – once I saw it it clicked." She testified that Defendant's nose was recognizable to her, and she was immediately able to identify him as the perpetrator. She testified, "[i]t was the way he looked. It was the way he's – like I said, the way his nose was shaped, the way his face was shaped. He kind of had – kind of like a small kind of rounded head."
Officer Raymond Carroll, of the Clarksville Police Department, responded to a report of an aggravated robbery at Cirilla's store. He was the first officer to arrive at the scene. He spoke to Ms. Parson, and she described the perpetrator as "[a] black male, mid-thirties, a hundred eighty to two hundred pounds[, ] wearing a gray hoodie, tan overalls, [and] she said he had a Jamaican accent." Officer Carroll found lingerie, tan overalls, a black "golfer style hat, " and a cigarette butt in the alleyway beside the store. There was a bifocal lens inside the pocket of the coveralls. Officer Carroll testified that he subsequently had a conversation with Defendant, and Defendant told him that he was from Jamaica.
Special Agent Mark Dunlap, of the Tennessee Bureau of Investigation (TBI), performed DNA analysis on the overalls, golf cap, and cigarette butt recovered from the crime scene. Agent Dunlap testified that blood stains on the overalls were tested for DNA and attributed to an unknown male. Agent Dunlap testified that the overalls were also tested for "touch DNA, " and "the profile was a mixture of genetic material." Agent Dunlap testified that "the major contributor, in other words, the person who has more DNA there than – than anyone else was consistent with unknown male one, that – that is the same DNA from the blood stain." The minor contributor was consistent with Defendant. A partial DNA profile was taken from the golf cap/beanie, and it also matched Defendant.
Hunter Greene, of the TBI, examined latent prints taken from a plastic coat hanger, a plastic store bag, and a bifocal lens recovered from the crime scene. He compared the prints with those of Defendant and determined that the prints did not match.
Detective Andrew Hurst, of the Clarksville Police Department, was the lead investigator in this case. Detective Hurst testified that the items collected at the crime scene were submitted to the TBI for DNA analysis. Detective Hurst received a call from a TBI lab technician stating that "there were three individuals' DNA . . . on the clothing." Two of the individuals were Caucasian, which led Detective Hurst to eliminate them as suspects in the aggravated robbery. Detective Hurst acquired driver's license photographs of the other two men to confirm they were Caucasian.
Detective Hurst testified that when he called Ms. Parson and asked her to view a second photo lineup, he told her that a new suspect had been developed. Detective Hurst did not tell Ms. Parson that DNA or fingerprint evidence had been obtained. Regarding the second lineup, Detective Hurst testified,
I brought her into an interview room. Again, I explained to her that I developed another suspect, I had another six pack lineup that I would like her to view. I handed her the – or showed her the – I sat the lineup on the table and she immediately went to [Defendant], without a doubt and then she explained to me that there was no doubt in her mind that that was the individual.
At a pretrial hearing on Defendant's motion to suppress Ms. Parson's identification of him during the photographic lineup, Ms. Parson testified that the first time she met with Detective Hurst, he showed her a photographic lineup, and Ms. Parson did not identify anyone in the lineup. She testified that she met with Detective Hurst again a "few months" after the incident. Detective Hurst showed her another photographic lineup, and Ms. Parson immediately identified Defendant as the person who robbed the store. Ms. Parson testified on cross-examination as follows:
Q And when you went back to view this lineup, did Detective Hurst make any statements along the lines of a suspect?
A No, not really, not that I can remember.
Q Did he make any mention of DNA?
A Not at that time.
Q When did he mention it?
A The second time after I picked out the person on it.
Q What did he say to you?
A As far as I can remember, he said that they had some DNA evidence, other than ...