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Yancey v. State

Court of Criminal Appeals of Tennessee, Jackson

March 26, 2015

TRUTONIO YANCEY
v.
STATE OF TENNESSEE

Assigned on Briefs January 6, 2015

Appeal from the Criminal Court for Shelby County No. 10-02855 J. Robert Carter, Jr., Judge

The petitioner, Trutonio Yancey, was convicted of aggravated robbery, especially aggravated kidnapping, carjacking, and employing a firearm during the commission of a dangerous felony and received an effective sentence of twenty years. On direct appeal, this court affirmed the petitioner's aggravated robbery and especially aggravated kidnapping convictions but reversed the carjacking and firearm convictions and remanded for a new trial.[1] The Tennessee Supreme Court denied application for permission to appeal. State v. Trutonio Yancey and Bernard McThune, No. W2011-01543-CCA-R3-CD, 2012 WL 4057369, at *1 (Tenn. Crim. App. Sept. 17, 2012), perm. app. denied (Tenn. Jan. 14, 2013). Subsequently, he filed a pro se petition for post-conviction relief, alleging he received the ineffective assistance of counsel at trial. Counsel was appointed and, following an evidentiary hearing, the post-conviction court denied the petition. Based upon our review, we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

John Scott, Memphis, Tennessee, for the appellant, Trutonio Yancey.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Amy P. Weirich, District Attorney General; and Meghan Fowler, Assistant District Attorney General, for the appellee, State of Tennessee.

Alan E. Glenn, J., delivered the opinion of the Court, in which Camille R. McMullen and Roger A. Page, JJ., joined.

OPINION

ALAN E. GLENN, JUDGE.

FACTS

On direct appeal, this court set out the facts resulting in the petitioner's convictions:

The victim, Demario Brown, testified that on September 19, 2009, he was visiting his friend, appellant McThune, who was wheelchair bound. The victim said appellant McThune was "[j]ust hanging out, " and the victim asked him if he wanted a drink. Appellant McThune told the victim to purchase a bottle of liquor from the store. As the victim was leaving to go to the store, a man whom the victim knew as "Blow, " arrived at appellant McThune's house and spoke to appellant McThune. After Blow left, the victim told appellant McThune that Blow "wasn't straight." The victim explained that meant Blow was not "cool to kick [it] with."

The victim went to the liquor store, purchased a bottle of Crown Royal whiskey, and returned to appellant McThune's house. When he returned, [the petitioner], whom the victim knew as "Blue-Black, " and another man, whom appellant knew as "Beball, " were at appellant McThune's home. The victim stated that he met [the petitioner] through appellant McThune and had known him for "a couple of years." The four men went inside appellant McThune's house and entered his bedroom. The victim took a couple of sips from the bottle of whiskey and passed it to appellant McThune.

Appellant McThune began discussing the victim's comment about Blow not being "straight." [The petitioner] and Beball were sitting behind the victim. As the victim and appellant McThune were discussing Blow, [the petitioner] and Beball attacked him. The victim said, "[T]hey just came up with the guns, laid me down on the bed, choking me, started shooting the gun in the house, pulling my clothes off, going in my pockets, throwing my money, my phones and everything on the bed." The victim testified that [the petitioner] was on top of him and "in [his] face" while he was on the bed. He further testified that Beball had a ".45 gun." He did not know what type of gun [the petitioner] had. The victim had previously seen [the petitioner's] gun laid on the dresser and bed in the room, and he surmised that it was a ".9 or a .45." [The petitioner] shot his gun on the side of the victim's head. According to the victim, the men apparently thought he said they were the police. The victim said he and [the petitioner] were on the bed. Beball, who was standing beside the bed, took off the victim's shoes and pants and patted him down. The victim stated that he had two cellular telephones and approximately $2, 600 in cash in his pockets. He explained that he had such a large amount of cash because he had cashed two payroll checks that day. According to the victim, the men did not know he had the money.

Beball threw the victim's belongings onto the bed as he took them, and appellant McThune picked them up off the bed and placed them on his lap. The victim asked appellant McThune, who was sitting in his wheelchair at the edge of the bed, if he was going to allow the men to rob him. Appellant McThune responded that he did not have anything to do with what was occurring, and the victim should not have said what he had said. The victim said during the robbery, [the petitioner] "shot at least three or four times beside [the victim's] head and dropped the clip. . . ." After dropping the clip, [the petitioner] asked appellant McThune to get another clip for his gun from the kitchen table. Appellant McThune wheeled into the kitchen, retrieved the clip, and gave it to [the petitioner].

[The petitioner] and Beball lifted the victim off the bed and walked him outside at gunpoint. Appellant McThune's girlfriend, who was in the house during the robbery, told the men that the victim had locked his vehicle and that the keys were inside the vehicle. The victim explained that he left the car keys inside of the car and only carried the keyless entry device inside appellant McThune's house. The men went back inside to get the keyless entry device, and [the petitioner] unlocked the vehicle. They then forced the victim, who was wearing boxer shorts and a t-shirt, into the trunk at gunpoint; started the victim's car; and began driving.

The victim testified that he was nervous and started feeling around in the trunk for something with which to hit the lock. The victim said they were driving on interstate 240 when the men turned down the radio volume, and he heard them "saying something like I'm probably going to have to kill him or something." The victim found a four-way lug wrench in the trunk and beat the lock with it. The victim said [the petitioner] and Beball must have heard him hitting the lock because one of them fired a gunshot into the backseat.

The victim said it got "quiet and still" inside the vehicle. He felt around the trunk with his hand and pulled a wire, which caused his trunk release to open. No cars were behind them, and the victim jumped out of the trunk and rolled a few times. The vehicle was still moving when the victim jumped from it. When the victim arose, he saw that the driver of the vehicle had applied the vehicle's brakes, so he ran to an Exxon station. He tried to borrow a cellular telephone at the Exxon, but nobody would allow him to use one. An Exxon employee noticed the victim and called the police. The victim said he had a few scars on his arms, legs, and ankles from jumping out of the vehicle.

The victim identified photographs of [the petitioner] and BeBall that the detectives showed him and stated that they were the men who robbed him. The victim also identified photographs of his vehicle and the four-way lug wrench. The victim said investigators found shell casings on the floorboard of his vehicle that he did not leave there.

On cross-examination by [the petitioner's] counsel, the victim testified that he arrived at appellant McThune's house around 5:00 p.m. He stayed for approximately three or four minutes before he left to go to the liquor store. He said it took him approximately three minutes to get to the liquor store, and he stayed at the store for about three minutes. The victim said the robbery started about ten minutes after he entered appellant McThune's house. He denied that he smoked marijuana while at the house. When asked whether he recalled stating to the police that "we [were] all sitting in the house getting high and drinking[, ]" the victim answered, "No. I said we [were] drinking. They . . . they [were] all getting high." He said the officers probably left a couple of words out of his statement. He knew that he had not been smoking marijuana that night because he was on probation at that time and ...


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