Assigned on Briefs October 7, 2014
Appeal from the Criminal Court for Shelby County No. 05-08627 Glenn I. Wright, Judge.
Juni S. Ganguli, Memphis, Tennessee, for the Petitioner, Lamario Hill.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Charles Summers, III, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Timothy L. Easter, JJ., joined.
CAMILLE R. McMULLEN, JUDGE
In 2007, the Petitioner was convicted of first degree felony murder, attempted especially aggravated robbery, and aggravated assault and received an effective sentence of life imprisonment. State v. Lemario Hill, No. W207-01741-CCA-R3-CD, 2009 WL 1564806, at *1 (Tenn. Crim. App. June 4, 2009), perm. app. denied (Tenn. Oct. 19, 2009). On direct appeal, this court affirmed the judgments of the trial court, and the Tennessee Supreme Court denied the application for permission to appeal. Id.
The victim testified that on the night of August 23, 2005, he and his brother were working at a convenience store on Southern Avenue in Memphis, Tennessee. Id. As the victim exited the store's front door, he was confronted by two African-American men with white cloths covering their faces. Id. One of these men pulled a gun on the victim and told him to get back inside the store or he would kill him. Id. The victim walked back inside the store and told the men he would give them the money in the store. Id. As the men entered the store, the assailant with the gun fired two shots. Id. One of these shots hit the store's ceiling and the other shot hit and killed the victim's brother, who had approached the front of the store after hearing the confrontation. Id. at *1-2. After the two shots were fired, the assailants fled the store. Id. at *1.
Antonio Lampkins testified that the afternoon of August 23, 2005, he played basketball with the Petitioner, Nicholas Fletcher, and two other men whose names he did not know. Id. At one point, the Petitioner stated that he wanted to rob a store and asked Lampkins if he wanted to assist him, but Lampkins declined. Id. Later, Lampkins, the Petitioner, Fletcher, and a fourth man Lampkins did not know walked toward a store on Southern Avenue. Id. Lampkins did not see any of these men with a gun or with a white cloth covering their faces. Id. Before reaching the store, Lampkins turned around and went home. Id. He said there was no discussion about robbing the store, and he did not believe these men were going to rob the store. Id. Lampkins denied that his cousin Calvin Lyons, who was nicknamed Mookie, was with the Petitioner and Fletcher the night of the robbery or helped plan the robbery. Id. He did not know that an incident had occurred at the store until Fletcher disclosed the incident to him at a later time. Id.
Larry Jones testified that he had been at the store between 9:00 and 9:30 p.m. on August 23, 2005. Id. at *2. Jones left the store and was walking down Southern Avenue toward Boston Street when three men ran past him. Id. He observed the men from the back and saw that one of the men had a handgun at his side and that at least one of the men had a scarf or bandana around his neck. Id.
Sergeant William D. Merritt testified that he and another detective first interviewed the Petitioner in the presence of his mother on August 25, 2005, after the Petitioner and his mother signed a waiver of rights form. Id. He said he orally advised the Petitioner of his rights, presented the advice of rights form to the Petitioner and his mother, and had the Petitioner read the form to confirm that he could read it. Id. Sergeant Merritt stated that the Petitioner appeared to understand his rights, did not ask any questions about his rights, and was able to read the form aloud to him. Id.
Sergeant Merritt stated that the Petitioner first told him that he was not involved in the incident at the store. Id. The Petitioner claimed that he was in the parking lot of the store and saw several men running from the store. Id. Upon hearing this, the detectives told the Petitioner that they were interviewing other people involved in the incident and that they were going to compare what the Petitioner told them to what these other suspects told them in order to determine what actually happened. Id. At that point, the Petitioner offered a different version regarding the incident. Id. Sergeant Merritt denied that he and the other detective threatened the Petitioner into changing his statement. Id. In the second version of events, the Petitioner claimed that Lampkins, Fletcher, and someone by the name of Treyvaughn were at the Petitioner's house, and Treyvaughn started talking about robbing the store. Id. at *3. The Petitioner said that they all met at the store, put on their masks, and Treyvaughn ran into the store with a gun, although the Petitioner and Fletcher "didn't get a chance to run in." Id. The Petitioner and Fletcher remained at the door of the store and witnessed Treyvaughn shooting at the store clerk. Id. Then the Petitioner and Fletcher ran down Boston Street. Id. The Petitioner looked back to see Treyvaughn exit the store, and they left. Id. The Petitioner said that he wore a white t-shirt over his face during the incident and that Treyvaughn used a .357 Smith & Wesson handgun that he had gotten from the Petitioner's brother, Marqual Hill. Id. He said that two shots were fired during the incident. Id. The Petitioner said that his brother had gotten rid of the handgun the day he gave his statement to police. Id.
Sergeant Merritt said the Petitioner later asked to speak with him and the other detective, and on September 1, 2005, they met with the Petitioner and his court appointed special advocate in juvenile court. Id. The detectives advised the Petitioner of his rights, which he waived before giving a statement admitting that he shot the victim in the store and that the third person with him and Fletcher was not Treyvaughn but a man named Kentori. Id. The Petitioner stated that Kentori was present when the plan was made to rob the store and that Kentori stood outside the store while the Petitioner went inside. Id. The Petitioner said the shooting of the victim "was an accident." Id. Sergeant Merritt stated that officers later contacted Treyvaughn and discovered that he was not in Memphis the night of the shooting. Id.
Sergeant Merritt acknowledged that he had talked to a man named Cordarius Torrey, who had been interviewed by other officers the night of the incident. Id. He admitted that the Petitioner had mentioned someone by the name of Kentori during the first interview but was unsure whether Kentori was Cordarius Torrey or another person because Sergeant Helldorfer had investigated that part of the case. Id. Sergeant Merritt said the identity of the fourth man who was with the Petitioner, Lampkins, and Fletcher the afternoon prior to the shooting was never confirmed. Id.
Sergeant Merritt said that Sergeant Helldorfer had written the following note on the Petitioner's first waiver of rights form: "eighth grade, read aloud with difficulty, slow." Id. Sergeant Merritt denied telling the Petitioner that his first version of the events was "not right" and denied showing the Petitioner Fletcher's earlier statement to police. Id. He acknowledged that he and the other detective told the Petitioner that they were interviewing several suspects in the case. Id. He denied that they bullied the Petitioner into making his statement. Id.
Sergeant Merritt said Fletcher mentioned Treyvaughn's name and the Petitioner's name during one of the eight versions of events provided by him during his statement. Id. at *4. After the Petitioner mentioned a gun, the Petitioner's mother consented to a search of her house for the gun, although no gun was found there, and no gun was ever recovered in the case. Id. Sergeant Merritt said he was not aware that the Petitioner was mildly mentally retarded, but asserted, "We don't request tests to see if someone is competent to understand their rights. That's out of our realm." Id.
The Petitioner's mother, Betty Hill, testified that after arriving at the police station, the Petitioner initially told the detectives that he was not inside the convenience store when the shooting occurred, but rather was outside the liquor store next door to the convenience store. Id. at *5. Hill stated that although the Petitioner repeatedly told the detectives this version of events, the detectives consistently responded that the Petitioner was involved in the incident. Id. She said one of the detectives told the Petitioner, "I'm tired and I'm ready to go home so tell your mama you were involved. . . . [Y]ou're going to juvenile court anyway when you leave here." Id. At that point, Hill asked the detectives if the Petitioner had been charged with any crime, but the ...