Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 11, 2015
Appeal from the Circuit Court for Maury County No. 21421 Stella Hargrove, Judge
Michael Dale Cox (on appeal), and Douglas K. Chapman (at trial), Columbia, Tennessee, for the appellant, George Robert Hamby.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Daniel J. Runde, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.
ROGER A. PAGE, JUDGE
This case arises from the September 30, 2011 armed robbery of a Family Dollar Store in Columbia, Tennessee. Appellant was indicted for and convicted of aggravated robbery. Appellant's trial began on February 19, 2013.
I. Facts from Trial
Agent Vaygen Trimble, employed by the City of Columbia Police Department, testified that on Friday, September 30, 2011, at 8:15 p.m., he responded to reports of a robbery at the Family Dollar Store in the Northway Shopping Center in Columbia, Tennessee. Shortly after conferring with the people inside the store, Agent Trimble issued an alert for two individuals in a maroon, four-door Saturn. Agent Trimble processed the scene for latent prints, but he did not find any prints linking appellant to the scene, which he testified was common in a high traffic area like a store. Agent Trimble also testified that the surveillance cameras in the store did not capture video of the robbery.
Officer Brian Goats, a patrolman with the Columbia Police Department, testified that on September 30, 2011, he was serving as a detective in the investigative division. Officer Goats explained that he was assigned to investigate the Family Dollar Store incident in which money was taken from the cash drawer. After a Crime Stopper tip, Officer Goats's investigation focused on appellant, Donald Lankford, Christy Lankford, and Donald Trey Brymer. Officer Goats found a maroon, four-door Saturn at the home of Jacklyn Fuller, appellant's mother. Officer Goats identified appellant and described him as having a "close shaved haircut, a mustache[, ] and a small goatee." Officer Goats stated that appellant looked similar in his driver's license photograph, on the day of his initial interview in 2012, and at trial. Upon request from Officer Goats, Donald Brymer (Trey Brymer's father) brought a black air assault BB gun to the detective's division of the police department. Officer Goats explained that the BB gun looked similar to a real pistol.
During cross-examination, Officer Goats agreed that there was no DNA evidence or fingerprints linking appellant to either the scene of the crime or to the BB gun. Officer Goats also conceded that he was unaware that Ms. Fuller owned two red Saturns and that if true, he would be unable to definitively say that the red Saturn in the picture entered as evidence was the car used in the robbery. Officer Goats also conceded that the till from the cash drawer was never recovered and that the BB gun was not found at the crime scene.
Louis Realini testified that in September 2011, he was working as a cashier at the Family Dollar Store in the Northway Shopping Center in Columbia, Tennessee. At approximately 8:00 or 8:15 p.m. on September 30, 2011, Mr. Realini was working and heard the entrance and exit doors of the store open simultaneously, which caught his attention. Two men walked into the store wearing coats and ski-masks, and at least one of the perpetrators was wearing a hood. As the men entered the store, one of the men readjusted his mask, and Mr. Realini observed that the man was Caucasian and had a "goatee or facial hair on the bottom of his chin." Mr. Realini stated that the facial hair he observed on the day of the crime was "very close" in "shape and color" to appellant's facial hair at trial. After entering the store, the men walked to the cashier counter where Mr. Realini stood, and Mr. Realini saw the man with the facial hair holding a black matte finish semi-automatic handgun. Mr. Realini estimated that the gun was between a 9mm and a .40 caliber handgun. The man with the gun said, "'This is a robbery, '" and asked if Mr. Realini wanted to "'get shot.'" Mr. Realini responded, "'Absolutely not, '" and he scanned an energy drink so that his register would open. He then set the cash till on the counter and backed away. The men retrieved the cash till and exited the store. Mr. Realini described the men's demeanor as "very calm, very cool, [and] very collected" throughout the entire incident. After the men left the store, Mr. Realini gathered the remaining customers and the manager and went to the back of the store. Mr. Realini estimated that there was between $150 and $300 in the cash till when it was taken. At trial, Mr. Realini explained that the BB gun was the same black matte finish as the gun used by the perpetrators and that during the incident, he was unable to see if the barrel of the gun that was pointed at him would shoot a bullet or BB pellet. Mr. Realini explained that there were no surveillance tapes of the incident because the cameras had been turned from the cash register area to the clothing area due to suspected shoplifting. Mr. Realini explained that during the robbery, he felt nervous, scared, and in fear for his life. During cross-examination, Mr. Realini conceded that he could not positively identify appellant as one of the perpetrators of the Family Dollar Store robbery.
Jessica Bucklew testified that in September 2011, she was the assistant manager at the Family Dollar Store in Northway Shopping Center. She stated that she did not know that anything was amiss until the cashier ran to the back of the store. Ms. Bucklew stated that she gathered everyone remaining in the store and took them into the stockroom. She also called the police and the store manager, Sarah Gibson.
Rosemary O'Quinn testified that she was in the Family Dollar Store on September 30, 2011, when she heard men's voices and heard someone demand money. She said the conversation drew her attention because it was abnormal. Ms. O'Quinn paid closer attention when she heard the cashier speak louder, stating that the men could have the money. Ms. O'Quinn saw two men standing at the cashier's counter. She described the men as Caucasians of average weight and stated that both men were wearing masks. One man was wearing a black, hooded sweatshirt and was taller than the second perpetrator. The shorter man had brown facial hair and was holding a gun. Ms. O'Quinn deduced from his appearance and clothing style that he was "young." She said the gun was a black semi-automatic, "Glock kind of style" pistol and agreed that the BB gun she was shown at trial was similar to the gun used by the perpetrators. Ms. O'Quinn explained that after the verbal exchange with the cashier, the two men took the cash till and left the store. During cross-examination, Ms. O'Quinn conceded that she could not definitively say that appellant was one of the perpetrators.
Ken Law, the store manager at Best Way Rent to Own in Northway Shopping Center, testified that on September 30, 2011, at 8:00 or 8:15 p.m., he was in front of his store, which was located beside the Family Dollar Store, smoking a cigarette. He saw two men walking toward the Family Dollar Store, and just before they entered the store, the men put masks over their faces. Mr. Law explained that one man was approximately 6′1 and that the second man was about 5′9 or 5′10. Mr. Law followed the men into the Family Dollar Store and saw both men standing at the cashier's counter. The shorter man had a pistol in his pocket and said, "'Give me the money or get shot, '" to the cashier. Mr. Law said that as he "lunged forward" to retrieve the pistol, the taller perpetrator turned around and saw him. After having been seen, Mr. Law changed course and fled from the store. Mr. Law returned to Best Way, locked the doors, and called 9-1-1. Mr. Law saw the two men leave the Family Dollar Store; enter a burgundy, four-door Saturn; and exit the parking lot. The car left the shopping center, turning south on Nashville Highway, and passed a police officer who had pulled over another vehicle. Mr. Law informed the 9-1-1 operator of the car's description, the direction it was going, and the officer's proximity.
Sarah Gibson, the store manager of the Family Dollar Store in September 2011, testified that on the night in question, she received a telephone call from Ms. Bucklew after 8:00 p.m. informing her that the store had been robbed at gunpoint. Ms. Gibson arrived at the store at approximately 8:30 p.m., and after the police had finished processing the scene, she "counted down the register" to determine how much money had been taken. A final accounting showed that $246.77 was missing. Ms. Gibson agreed that there was no surveillance video of the robbery.
Lisa Mealer, the fiancée of Donald Brymer, testified that she was at home on September 30, 2011, and that Trey Brymer was at the home of his mother, Christy Lankford. That evening, Trey and appellant came inside Ms. Mealer's house, while Ms. Lankford, a male named "Donald, " and one of Trey's sisters waited in a maroon Saturn outside. Ms. Mealer assumed that Trey went to his bedroom. Appellant was intoxicated when he arrived, and after he made inappropriate sexual remarks to one of Ms. Mealer's friends who was visiting, Ms. Mealer asked appellant to leave. When appellant refused, Ms. Mealer requested Ms. Lankford's help in removing appellant from her home. Ms. Lankford retrieved appellant, and Trey exited the house. Ms. Mealer did not see Trey carrying anything. Ms. Lankford told Trey's sister that she needed to stay at Ms. Mealer's home because they had something to "take care of and that she would return later. Ms. Lankford, "Donald, " appellant, and Trey left the residence. When Donald Brymer, Trey's father, returned home, Ms. Mealer informed Mr. Brymer that Trey had visited, and due to Trey's habit of stealing, Mr. Brymer checked his bedroom and noticed that a BB pistol was missing. Mr. Brymer, Ms. Mealer, ...