Assigned on Briefs March 3, 2015
Appeal from the Criminal Court for Shelby County No. 0906562 James M. Lammey, Judge No. W2014-00513-CCA-R3-CD - Filed April 20, 2015
Joseph A. McClusky (on appeal) and Scott Hall (at trial), Memphis, Tennessee, for the appellant, Talmadge Hurt.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Robert H. Montgomery, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE
The underlying facts are set forth in this Court's opinion in the direct appeal of the co-defendant, Adrian Chaney, as follows:
In September of 2009, [Chaney] and [Defendant] were indicted for one count of aggravated robbery and one count of attempted aggravated robbery for events that took place at La Playita Mexican Restaurant in Memphis on April 7, 2007.
At trial, Whitney Horton and Melissa South, the victims, both testified that they were working at the Memphis Humane Society on April 7, 2007. They left work around noon to get lunch at La Playita Mexican Restaurant. As they entered the restaurant to place their take-out orders, they noticed two African-American men outside. One of the men was described as larger than the other, wearing a black letterman jacket with orange sleeves and a baseball cap over his long, twisted hair. The other man was described as smaller, wearing a dark gray hooded sweatshirt.
The victims walked into the restaurant, ordered their food, and sat down on a small bench near the entrance to wait for their order. After about five minutes, one of the men from the parking lot came inside. He looked briefly around the restaurant when he entered. The other man followed soon thereafter, wearing a "red" bandana with white skulls and crossbones outlined in black over his face. The second man "did not hesitate" when he entered the restaurant. He was carrying a silver gun, went straight to the victims, and pointed the gun at Ms. Horton. The gun was about six inches away from her face. She was "scared for [her] life if not more." The assailant mumbled something before grabbing her purse. Ms. Horton described the purse as "[w]hite with multicolored hearts on it and bright pink straps." Inside the purse was Ms. Horton's wallet, checkbook, twenty dollars in cash, an iPod, and car keys.
The assailant next approached Ms. South; she refused to relinquish her purse. At that point, the assailant attempted to cock the gun. Ms. Horton screamed. Restaurant employees ran toward them and the men left the restaurant. Ms. Horton stayed inside while Ms. South ran outside to call 911 and try to see in which direction the assailants had escaped. Ms. South and other witnesses from a nearby nail salon saw the two men run to a large, gold sedan that looked like a Crown Victoria or Buick Regal with dark tinted windows. The car took off at a normal speed.
Ms. Horton's purse was later returned to her but the contents were missing. The victims were presented with photographic lineups during which they independently identified both [Chaney] and [Defendant]. [Chaney] was identified as the smaller assailant with the gun.
. . . .
Both victims identified [Chaney] and [Defendant] ...