Assigned on Briefs October 7, 2014
Direct Appeal from the Criminal Court for Shelby County No. 13-00174 Carolyn Wade Blackett, Judge
Andrew R. E. Plunk (at trial and on appeal) and Claiborne Ferguson (at trial), Memphis, Tennessee, for the appellant, Desmond Sykes.
Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Katie Ratton and Anita Spinetta, Assistant District Attorneys General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
The appellant does not contest the sufficiency of the evidence. Nevertheless, because we may consider the proof at trial in our evaluation of the trial court's ruling on the motion to suppress, we will summarize the evidence presented at trial.
Diante Galmore testified that he met the appellant when they were young boys living in Mississippi and that they "used to hang." At some point, Galmore's family moved to Memphis. In early 2012, the appellant came to Memphis, and he and Galmore "went looking for jobs together." Galmore obtained employment at a Zaxby's restaurant, and the appellant started working at Dunkin Donuts. Subsequently, the appellant began living with Galmore and Galmore's mother.
Galmore testified that on the night of August 27, 2012, he worked in the kitchen at Zaxby's and wore basketball shorts and a shirt that was "kinda dark." The restaurant closed at 10:00 p.m., but cleanup took "40 minutes or more." The appellant owned a white Grand Marquis with a Mississippi license plate and usually picked up Galmore from Zaxby's. However, that night, the appellant walked to Zaxby's. Galmore said that he assumed the appellant "ran out of gas or something" and that "some twins, " who worked at Zaxby's with Galmore, drove him and the appellant to the Stonebridge Apartments. Galmore and the appellant did not live in Stonebridge, but the appellant's car was parked there. The twins dropped off the appellant and Galmore at the appellant's car.
Galmore testified that the appellant said he had "robbed some people, " that he could not find his key to the Grand Marquis, and that he had left the key in "[t]he car he had got." The appellant did not say how he obtained the car. The appellant wanted to exchange clothes with Galmore, and Galmore agreed. Galmore said that he switched shirts and shoes with the appellant and that he did so because he "wasn't thinking at the time" and "didn't think we would get caught." Galmore said he told the appellant that he was not going to get into trouble with the appellant.
Galmore testified that after he and the appellant switched clothes, they walked to a nearby Citgo convenience store. When they came out of the store, three or four police officers "grabbed" them. The officers put them into separate patrol cars, and Galmore told the officers that he had not done anything. The police transported Galmore to the police department, he waived his rights, and he gave a statement.
On cross-examination, Galmore acknowledged that after he gave his statement, he was released, but the appellant was detained. He also acknowledged that he exchanged clothes with the appellant, knowing that the appellant had stolen a car. He said he thought he was helping the appellant. Galmore acknowledged that the appellant's girlfriend lived in Stonebridge and that the appellant "[hung] out" there. However, the appellant's car was not parked in front of his girlfriend's apartment on the night of August 27. Galmore said that he was "just getting off work a 10:40" and that he and the appellant did not arrive at the apartment complex "until 11 or something like that." He denied changing his story in order to make it appear that he arrived at the apartment complex after the crime. He acknowledged that in his statement to the police, he did not mention switching shoes with the appellant. He said he "told them about it though." He did not remember if he was wearing a hat that night. The appellant's Grand Marquis was unlocked, and Galmore and the appellant exchanged their shirts and shoes in the car, not the Citgo bathroom.
On redirect examination, Galmore acknowledged that in his statement to the police, he claimed that the appellant arrived at Zaxby's about 10:40 p.m. Galmore said he and the appellant left Zaxby's with the twins about 10:45 p.m. On recross-examination, Galmore ...