Assigned on Briefs November 4, 2014
Appeal from the Criminal Court for Shelby County No. 11-06687 James M. Lammey, Jr., Judge
John Scott (on appeal) and James Jones, Jr. (at trial), Memphis, Tennessee, for the appellant, Marquez Williams.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Amy P. Weirich, District Attorney General; and Jessica Banti, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J. joined.
ROBERT L. HOLLOWAY, JR., JUDGE
On October 25, 2011, the Shelby County Grand Jury indicted Marquez Williams ("the Defendant") for aggravated robbery, a Class B felony. Following a trial on September 9 -11, 2013, a jury found the Defendant guilty as charged. At a subsequent sentencing hearing, the trial court sentenced the Defendant, as a Range I standard offender, to 11 years in the Department of Correction.
The Defendant filed a timely motion for new trial, which the trial court denied following a hearing. This timely appeal followed.
I. Factual Background
This case stems from the armed robbery of a pizza delivery driver in Memphis. At trial, Maurice Steele ("the victim") testified that he moved to Memphis in November 2010, after completing military service in Fort Hood, Texas. After moving, he was employed by Domino's Pizza as a delivery driver. The victim recalled that around midnight on May 24, 2011, he received a call to deliver an order of two large pizzas and a two liter bottle of Sprite to a house on Patte Ann Drive. When he arrived at the location, the victim did not see anyone, and it did not appear that anyone was at the residence. The victim parked his car on the street in front of the house and walked up the driveway carrying his pizza delivery bag. About halfway up the driveway, the victim was approached from behind by two men, who yelled for him to "stop right there." When the victim turned around, the men demanded the pizza order and the victim's money.
The victim testified that both assailants appeared to be young, African-American men. He recalled that the first man had on a dark hoodie with a purple bandana "underneath his nose down" and either dark blue or black jeans and the second man wore a light-colored hoodie and white bandana over his nose and the bottom of his face. The first man was holding a Beretta 9mm pistol–the same type of gun the victim used in the military. The victim also noticed that the front site post on the assailant's gun was orange in color. The victim testified that, when he realized that he was being robbed, he was shocked and afraid.
The victim recalled that the man with the gun grabbed the delivery bag out of his hands and then demanded cash. The victim denied having any money, but the assailant made him empty his pockets and took $90 from the victim. The assailant then asked the victim if there was anything else in his car. After the victim assured him there was not, the assailant instructed the victim to get in the car and leave. The victim testified that once he got into his car, it sounded like the assailant fired the weapon into the air. The victim drove away, and once around a corner, he called police and the pizza store.
The victim identified the Defendant as the assailant with the gun. He explained that although it was dark outside, he was able to see the Defendant's face by the lights from an elementary school across the street. The victim additionally stated that there was a motion sensor light on at the house next door.
A couple of days after the robbery, the police asked the victim to view a photo lineup. In this photo spread of six pictures, the victim was unable to identify anyone. A few days later, the victim returned to the police station to look at a second photo lineup. Before looking at the photo spread, he was instructed not to pick out anyone unless he was 100 percent sure of the identification. The victim testified that he looked carefully at the pictures and took his time to "make sure that [he] was picking the correct person." When looking at the photographs, the victim used a piece of paper to cover the bottom half of the faces so that he could focus on the top portion of the individuals' faces. After looking at the photos, the victim picked out the Defendant's picture and circled it. He also wrote on the bottom of the photo spread, "[The Defendant] was the first man with the gun. He pulled the gun on me and demanded the pizza order and the money I had. After I gave him what he wanted, he told me to drive off." The victim then signed and dated the form.
The victim testified that he was 100 percent sure that the Defendant was one of the men who had robbed him. The victim explained that he observed the Defendant for "a minute or so" during the robbery and he was able to positively identify the Defendant based upon a scar above the Defendant's eyebrow, the spacing of his eyes, and the size of the Defendant's nose. During trial, the victim pointed out to the jury where on the Defendant he had seen the scar.
On cross-examination, the victim explained that, at the preliminary hearing, the Defendant's attorney asked him if the gunman's bandana was "about midway of the nose, " and he replied, "yes, about." He also acknowledged that, during the same hearing, he testified that the gunman had a scar going through his eyebrow. The victim explained that he meant that the suspect ...