Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 22, 2015
Appeal from the Criminal Court for Davidson County No. 2011B1911 Mark J. Fishburn, Judge
Joshua L. Brand (on appeal), and Mark Kovach (at trial), Nashville, Tennessee, for the Appellant, Roderick Dewayne Crosby.
Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sarah Davis and Robert McGuire, Assistant District Attorneys General, for the Appellee, State of Tennessee.
John Everett Williams, J. delivered the opinion of the Court, in which Alan E. Glenn and Roger A. Page, JJ. joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTS AND PROCEDURAL HISTORY
This case arose after the defendant and two others invaded the victims‟ home. T.B. testified that at the time of the incident, she was living with her grandmother, B.M., her mother, P.M., and her younger brother, J.C. B.M. slept on a couch in the living room, J.C. had his own bedroom, and T.B. and P.M. shared a bedroom ("T.B.'s room"). On the evening of the incident, after the rest of the family had gone to sleep, T.B. was awake in her bedroom when she heard several loud kicking noises at the door. She started screaming at her mother that someone was kicking the door, and the two rushed into the living room.
T.B. and P.M. saw three men in the living room. All three men were wearing dark "hoodies, " had bandanas covering their faces, and were holding guns, which the victims testified were visible for the entirety of the incident. T.B. testified that the victims‟ cell phones were all on a dresser and that the men took the cell phones as soon as they entered the residence. The first man was later identified as Kirk Pointer, the second man was identified as the defendant, and the third man was identified as "Pop." T.B. described the defendant as an African-American male who was "kind of short" with "shoulder length" dreadlocks. She believed that the defendant's hood was down because she was able to see his dreadlocks. She testified that the defendant had his sleeves rolled up, and she saw that he had a sizeable tattoo of the letter "C" on his left arm. He wore a bandana tied around his mouth and nose, but the bandana slid off of his nose several times, allowing T.B. to partially see his nose. T.B. recognized him as a person whom she had previously seen at a store in North Nashville, but she did not know him by name. P.M. described the defendant as an African-American male who had dreadlocks that fell just beyond his shoulders. She also testified that his sleeves were rolled up and that he had a "very visible" tattoo of the letter "C" on his left arm. P.M. saw that the defendant had other tattoos, but she did not attempt to identify them because the "C" was the most distinguishable tattoo. T.B. and P.M. both identified a photograph of a tattoo of a "C" as the tattoo that they saw on the defendant.
T.B. believed that the men were intending to rob her sister's boyfriend, whom they mistakenly believed lived at the residence. She testified that the defendant, after seeing a picture of her sister's boyfriend, informed Mr. Pointer and Pop that they were "in the right house, " although J.C. testified that it may have been Pop who identified the boyfriend. The men asked if anyone else was in the house, and P.M. informed them that J.C. was there.
J.C. testified that he was in his bedroom asleep when he heard shouting in the living room. He went to investigate the commotion and saw T.B., P.M., and B.M. in the living room with three armed men. J.C. attempted to return to his bedroom, and the defendant followed him into the room. J.C. described the defendant as an African-American male who was 5‟8" or 5‟9" tall with dreadlocks "past his shoulders." At one point, the defendant grabbed J.C.'s arm and ordered him to go into T.B.'s bedroom. J.C. was able to look at the defendant's arm, and he saw a large, green letter "C" tattooed on the defendant's left arm. He saw that the defendant had other tattoos, but he could not identify them. He testified that the defendant wore a blue bandana tied around his face that fell down several times, allowing J.C. to see the defendant's face from the top of his lip to his eyes at times during the incident. J.C. testified that he was attempting to pay close attention to the defendant's face "[t]o see if I could see who he was or could I remember who he was."
The men took all of the victims into T.B.'s bedroom and ordered T.B., P.M., and J.C. to lie on their stomachs on the bed and to place their hands behind their backs. Mr. Pointer then put duct tape on their hands, ankles, and mouths. B.M. was in the bedroom, but the men did not duct tape her. As Mr. Pointer was binding the victims, the defendant and Pop started to ask the victims where the money was, with the defendant stating, "[W]here is the money; ya‟ll know where the money is." T.B. testified that while the defendant was demanding the money, Pop "was just standing around just watching everything" and that he appeared to be using a phone or a walkie-talkie to narrate the unfolding events to someone outside of the residence. All of the victims testified that the defendant was in close proximity to them while they were in the bedroom and that he was holding his gun.
Shortly after duct taping the victims, the men began ransacking the house. T.B. testified that the men were "going through everything, pulling everything out." P.M. testified that the defendant was "[u]sing a lot of profanity, asking us where the money [was] and mostly he was just tearing up the house." The defendant found P.M.'s purse, and she saw him empty the contents onto the floor. P.M. testified that $400 and a cell phone were taken from her. Each of the victims testified the defendant was primarily responsible for the search of the house.
While the defendant was scouring the residence, Mr. Pointer took P.M. into J.C.'s bedroom. He removed the tape from her mouth and started to kiss her. He pulled off her pajamas and kissed her breasts. He then took down his pants and demanded that P.M. perform oral sex on him. When she was finished, Mr. Pointer told her that "he was going to do [her] daughter the same way" if P.M. did not tell him where the money was. Mr. Pointer returned P.M. to T.B.'s room and took T.B. to J.C.'s room. When P.M. returned to the room, Pop was the only man in the room.
In J.C.'s bedroom, Mr. Pointer began to sexually assault T.B. During the assault, the defendant opened the bedroom door, and Mr. Pointer stopped his assault and pretended as though he was simply talking to T.B. The defendant immediately closed the bedroom door, and Mr. Pointer resumed his sexual assault. The defendant later opened the bedroom door a second time and caught Mr. Pointer in the midst of his assault. The defendant entered the bedroom and said to Mr. Pointer, "[W]hat are you doing, come on out of there" and exited the bedroom. Mr. Pointer then returned with T.B. to her bedroom.
Once the three men and the victims were back in T.B.'s room, T.B. heard the men telling a fourth party that they could not find anything and asking if they should leave the residence. J.C. heard the men say "'that the house was clean, ‟" and he observed them ripping the telephones out of the wall. Pop was speaking with an individual on a walkie-talkie, and this person told the men to exit the residence. J.C. testified that before the men left, they instructed the victims not to leave until the men were gone. The men made off with J.C.'s cell phone and several dollars off of his dresser, P.M.'s cell phone and $400 from her purse, and a cell phone belonging to T.B.
After the men left, the victims began to assist each other in removing the duct tape. T.B., whose hands had been freed when Mr. Pointer took her into J.C.'s bedroom, called the police. Several officers, including Detective Edmond Strickling, arrived at the scene. Detective Strickling testified that in 2009, he was working for the Metro Nashville Police Department in the sex crimes unit. He arrived at B.M.'s residence and interviewed P.M., T.B., and J.C. He interviewed the three separately, and each provided the same general description of the defendant as a African-American male who wore a black "hoodie", had dreadlocks "[p]ossibly down to his shoulders, " and a tattoo of the letter "C" on his forearm. After the interview, P.M. and T.B. went to the hospital for a medical examination. Detective Strickling took DNA swabs from P.M. to the Tennessee Bureau of Investigation ("TBI") to put in the CODIS system for testing. However, he was not able to develop any other leads in the case, and the case "kind of went cold."
Nearly a year and a half after the robbery, on February 14, 2011, T.B. saw the defendant when both were being booked into jail. The defendant had already been booked, and T.B. was beginning the booking process. When T.B. saw the defendant, she immediately recognized him as one of the men who broke into her house. His tattoos were not visible, but she was able to recognize him based solely upon his facial features. When the defendant saw her, he "did a double take, " and he approached T.B. to speak with her. He asked T.B. to make a phone call for him, and T.B. told him that she could not use the phone. The defendant continued to try to speak to her, and eventually a guard locked the defendant in a separate cell.
T.B. estimated that she was with the defendant for an hour in jail. When she left, the defendant handed her a slip of paper with "a lot" of names and telephone numbers. He asked her to call the numbers to help him get out of jail "before his probation violation c[a]me up in the system." T.B. told her mother that she saw the defendant in jail, but she did not contact Detective Strickling because she did not know how to reach him.
In April of 2011, Detective Strickling learned that there had been a CODIS match from the DNA swab of P.M. that identified Mr. Pointer. Detective Strickling subsequently contacted P.M. and T.B. and met with them to show them a photograph lineup that included Mr. Pointer. Each victim viewed the lineup separately. Before showing them the lineup, Detective Strickling explained "that the suspect may or may not be in this form, in these photos, don‟t assume that the guilty party is in the photos, the photo lineup is used in a way to also free up and prove someone's innocence as long as – as well as guilt." T.B. corroborated these cautionary instructions, testifying that Detective Strickland told her prior to showing her the lineup that "it's a page of people, they may or may not have committed this crime, it may just be that they‟re eliminating someone off of here." Both T.B. and P.M. identified Mr. Pointer from the lineup.
After viewing the lineup, T.B. informed Detective Strickling that she may have seen the suspect with a "C" tattooed on his arm while she was in jail. T.B. had attempted to locate a "Face It" magazine, which contained the mug shots of people who had been arrested, to find the defendant's mug shot, but she was unable to do so. She was unable to provide Detective Strickling with the piece of paper containing the names and numbers that the defendant had given her because she had lost it. However, the defendant had given T.B. his phone number, and Detective Strickling testified that T.B. was able to provide him with that phone number. Detective Strickling retrieved the records for all of the African-American males arrested on the same day as T.B. By cross-referencing the phone number provided by T.B. with the arrest records of February 14, 2011, Detective Strickling was able to discover that the defendant gave that phone number when he was booked. Detective Strickling looked through the historical photos of the defendant and saw that he had a tattoo of the letter "C" on his forearm. He agreed that the photograph of the defendant matched the description given to him by the victims.
After finding the photograph of the defendant, Detective Strickling interviewed Mr. Pointer about the crime. He showed Mr. Pointer a lineup that contained the defendant's photograph, and Mr. Pointer picked the defendant's photograph out of the lineup. Mr. Pointer voluntarily provided information about the defendant, using the defendant's first name. He described the defendant as a black male with ...