Assigned on Briefs February 03, 2015
Appeal from the Criminal Court for Shelby County No. 0803684 Chris Craft, Judge
Terrell L. Tooten, Memphis, Tennessee, for the appellant, Gary Bohannon.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Chris Lareau, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTS AND PROCEDURAL HISTORY
This post-conviction appeal arises from the petitioner's fatal shooting of the victim in an automobile repair shop. On direct appeal, this court set forth the following facts of the case:
On October 17, 2007, Ronald Moore was shot to death at Allstar Auto Repair, a Memphis auto-body shop. He suffered seven gunshots wounds and died on the floor of the shop before the paramedics arrived. Tashe Disroe, who had met the victim for the first time that day and knew him by his nickname, Twin, recalled that the victim was helping her friend, Larry Ambrose, transport some new tires and wheel rims to the shop to see if they matched Ambrose's car that was being painted. She and Mr. Ambrose arrived at the shop at 8:00 in the evening, and she sat in a chair while everyone else spent time "talking [and] mingling." After spending about an hour and a half at the shop, the victim "finally showed up" with two sets of the tires and wheel rims. The men rolled the tires and rims to the car to see how they matched. About 10 minutes after the victim's arrival at the shop, "this guy walked in" and "grabbed" another man's sunglasses or hat like he was "just ... playing around, and then it turned into a different scene after that."
Ms. Disroe described the "guy" as tall and slim with a dark complexion. She said he was "not stocky at all." The man called to the victim from across the shop and said, "Twin, you need to come holler at me, " and motioned for the victim to come outside with him. The victim refused to go talk to the man. The man then said to the victim, "[I]f [you] don't come holler at [me, I'm] going to kill everybody in [the shop] ... shoot everybody in [the shop]." At that point, Ms. Disroe knew that "something [wa]sn't right" and that "something was fixing to go wrong." She soon realized that "everybody was getting out of there and running because [the man] had a gun."
Ms. Disroe, Mr. Ambrose, and the victim were standing near the roll-up door of the shop when the man entered the shop. When the victim saw the man, he began to move around the car to get away from the man. For some time, both men circled the car. The man asked the victim to come outside with him several times, but the victim continued to try to get away from him. Ms. Disroe said that the victim "charged" the man in an attempt to disarm him. Within two to three seconds, Ms. Disroe heard gunshots that sounded like they "were going inside someone." Ms. Disroe was in shock, and Mr. Ambrose told her to "come on." They both fled through the roll-up door. As they ran away, Ms. Disroe heard up to eight gunshots. She saw the man run from the shop and saw the victim lean against a door frame before falling to the floor.
Ms. Disroe telephoned 9-1-1, but she was shaking so badly that Mr. Ambrose took the telephone from her and spoke to the 9-1-1 dispatcher. She recalled Mr. Ambrose's walking to the front of the shop to tell the dispatcher the address of the shop. Mr. Ambrose told Ms. Disroe not to go inside the shop because he did not want her to see the victim's condition. She heard someone say that the victim was still breathing. Because no one was helping him, she entered the store and followed a trail of "blood dots" to find the victim fallen in a corner trying to breathe. She tried to move him but was unable. The victim took one deep breath. Ms. Disroe "just ran out [and] left."
When Ms. Disroe ran outside, the police had just arrived. She and other witnesses were placed in separate patrol cars and questioned. She told a male officer that she thought she could identify the shooter. Memphis Police Department (MPD) officers took Ms. Disroe to the police station, where she gave a statement and drew a diagram of the scene. Ms. Disroe identified the defendant as the shooter from a photographic array although the defendant's hair was different on the night of the offense than in the photograph. She said that she "looked at [his] face and [she] knew exactly who it was" and that the defendant was the man she "saw in the shop that night with a gun."
On cross-examination, Ms. Disroe acknowledged that she said the defendant and the victim "walk[ed]" around the car in her initial statement to the police. She explained that "[w]alking, running fast, [the victim] was trying to get away from [the defendant]. Same thing." She reiterated that the victim tried to disarm the defendant, that the two men "tussled, " and that the gun went off "[a] couple seconds after" the struggle began. She said that she was "shaky" and "discombobulated" after the incident. Regarding the defendant's insistence on talking to the victim, she recalled that "something was going to happen that night whether it was going to inside that shop or on the outside."
Marcus Moore was working at Allstar Automotive on the night of the shooting. He was busy painting Mr. Ambrose's car when Mr. Ambrose and a female friend who he had never met came by the shop to deliver some new tires and wheel rims for the car. Some time later, the victim showed up with the other two sets of tires and wheel rims. Within five minutes, the defendant arrived. Mr. Moore had never met either the defendant or the victim. Mr. Moore said that there seemed to be a dispute between the two men, and when he turned from his painting tasks, he saw that the defendant had a gun that looked like a black nine millimeter. Mr. Moore never saw the victim with a weapon. The defendant tried to get the victim to come outside, but the victim resisted. As Mr. Moore ran from the store, he heard seven rapid shots. He then waited outside for ...