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Peoples v. State

Court of Criminal Appeals of Tennessee, Nashville

January 6, 2017

RIVERA L. PEOPLES
v.
STATE OF TENNESSEE

          Assigned on Briefs December 1, 2015

         Direct Appeal from the Criminal Court for Davidson County No. 2010-B-1177 Cheryl A. Blackburn, Judge

         The Petitioner, Rivera L. Peoples, filed in the Davidson County Criminal Court a petition for post-conviction relief from his conviction of first degree murder, alleging that his trial counsel was ineffective. The Petitioner also filed a petition for a writ of error coram nobis, alleging that newly discovered evidence in the form of recanted testimony entitled him to relief. The trial court denied both petitions. On appeal, the Petitioner challenges the rulings of the trial court. Upon review, we affirm the judgments of the trial court.

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

          Harry A. Christensen, Lebanon, Tennessee, for the Appellant, Rivera L. Peoples.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn Funk, District Attorney General; and Bret Gunn and Megan King, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         After a trial on August 9-11, 2010, the Petitioner was convicted by a Davidson County Criminal Court Jury of first degree felony murder, and he received a life sentence. On direct appeal, this court summarized the proof adduced at trial as follows:

The evidence at trial established that Linburg Thompson ("Victim Thompson"), a fifty-three-year-old father of four, was killed on the night of December 10, 2008, while working at Ace's Market in Nashville. Gift Wilford Bonwe, another individual working at Ace's Market that evening, testified that Victim Thompson had taken out the trash, and, while Victim Thompson was outside, Bonwe heard loud noises that sounded like the slamming of the dumpster lid. As Bonwe walked toward the door, a lady rushed inside and told him that there had been a shooting outside. Bonwe then called the police. Shortly thereafter, a neighbor ran into the store and told Bonwe that Victim Thompson had been shot. Bonwe ran outside and found Victim Thompson on the ground "gasping for his life." Unbeknownst to Bonwe, the lady who reported the shooting had also been shot, and when Bonwe returned into the store, he found her crawling on the floor and asking for help.
. . . .
Antoinette Bell ("Victim Bell") testified that she was shot at Ace's Market on December 10, 2008. She lived within walking distance of the store, and she was at the market that night buying beer and cigarettes. Standing outside, she observed a silver car across the street and noticed two men get out of the car and walk toward the store. As one of the men walked into the store, Victim Bell asked him for a lighter. He told her that he did not have one, but as he later walked back out of the store, he handed her a lighter. At approximately the same time that the man with the lighter exited the store, Victim Thompson walked out of the store with garbage. Once Victim Thompson walked around the corner toward the dumpster, Victim Bell heard someone say, "go get the money out of the register." She then heard Victim Thompson respond, "I'm not going to get s**t, you go get it yourself." Immediately thereafter, she heard shots fired near the dumpster, and she ran into the store. About a minute or so after running into the store, Victim Bell became dizzy and realized that she herself had been shot. On cross-examination, Victim Bell stated that she did not notice how many people were in the silver automobile. She did not see the face of any other individuals involved in the shooting except for the person from whom she asked for the lighter.
Trey Mosby testified that in December of 2008, he lived within close proximity to Ace's Market. On the night of December 10, 2008, he was at home and observed a silver Chevrolet Impala parked in front of his house. He noticed that there were four black males sitting in the vehicle. Two of the men in the vehicle stepped out and walked toward the store. He noticed that the vehicle's rims were not typical hubcaps but were alloy wheels with emblems. Mosby did not witness the shooting because he and his roommate left their residence right after he observed the men getting out of the vehicle.
Brian Beech testified that he lived directly across the alley from Ace's Market on December 10, 2008. At the time of the shooting, Beech was asleep at home, but he awoke to the sound of four gunshots. He jumped out of bed and ran toward the back of the house to look out the window, at which point he observed a silver Chevrolet Impala driving up the alleyway. The Impala stopped long enough for an individual to enter the back passenger seat and then continued driving up the alleyway. Beech noticed that the vehicle had a "drive-out tag, " "some factory rims or some polished rims, " and a "spoiler." After the car drove away, Beech walked outside and noticed that Victim Thompson was on the ground. Later, the police escorted Beech to view a vehicle which he identified as the vehicle he had seen in the alley.
Beverly Landstreet testified that on December 10, 2008, she lived next to the alley near Ace's Market. That evening, she heard some gunshots, and when she looked outside, she observed a silver Impala driving slowly up the alleyway. She called the police and spoke with officers once they arrived at the scene. Later, an officer escorted her and her roommate to a location where they identified a vehicle as the one they saw driving in the alley.
. . . .
Lieutenant Matt Pylkas, Metro Police Department ("MPD"), testified that he was working on the night of December 10, 2008. When he received the call about the shooting, Lieutenant Pylkas assisted in searching for the suspects instead of going to the scene of the incident. He received a description that the vehicle was "a silver Impala with a temporary tag" and "an air foiler [sic] on the back." Shortly after reaching the Edgehill area, he observed a vehicle parked alone that matched the description received over the radio. Lieutenant Pylkas exited his vehicle to peer inside the Impala. He observed a stocking cap and some bandanas in the interior of the vehicle, and he placed his hand in front of the engine area and noticed that it was "extremely hot, " indicating that the vehicle had been driven recently.
Officer George Bowton, a crime scene investigator for the MPD, testified that on the night of December 10, 2008, he responded to a call regarding a shooting at Ace's Market. As part of his responsibility at the scene, he drew a diagram depicting the scene of the shooting and the location of evidence obtained. Additionally, he collected one bullet and two shell casings as evidence. He identified the two shell casings as Winchester nine millimeter Luger cartridge casings.
Lynette Mace, MPD Crime Scene Investigations, testified that her involvement with the case included investigating the 1999 Chevrolet Impala identified by witnesses as the car used in the commission of the shooting. Her investigation included photographing the vehicle and articles located inside and obtaining those items to submit for analysis of deoxyribonucleic acid ("DNA"), gunshot residue, and fingerprints.
The State read into evidence the depositions of Officer Thomas E. Simpkins, MPD, and Officer Belinda Shea, MPD. Officer Simpkins stated in his deposition that he found fingerprints on approximately seven compact discs that he submitted for fingerprint analysis. In Officer Shea's deposition, she testified as an expert in latent fingerprint identification. She analyzed latent fingerprints submitted in this case by Officer Simpkins and Officer Mace. From the compact discs submitted, she found prints matching those of the [Petitioner] and an individual named Brian Moreland. From the prints lifted from an amplifier located in the trunk, Officer Shea matched a finger print to that of the [Petitioner]. Finally, on a box of dryer sheets, she identified prints as matching those of an individual named James Dowell. Officer Shea acknowledged that she analyzed several prints that she could not match conclusively to certain individuals. She also agreed that she could not discern the age of a fingerprint from her analysis.
Brian Moreland testified that he was involved in an attempted robbery at Ace's Market on December 10, 2008. He stated that the other individuals involved in the attempted robbery were the [Petitioner], Dowell, and Harris. He had known these other men for approximately a few months prior to the incident, and he identified the [Petitioner] and Harris as brothers. On the night of the shooting, the four men determined that they needed some money, so they decided to drive around the area until they found a place to rob. Moreland confirmed that they were riding in the [Petitioner's] car and that the [Petitioner] was driving. They took with them gloves, hats, bandanas, and two guns, and they eventually decided to rob Ace's Market.
Moreland further testified that upon reaching the store, Dowell exited the vehicle and walked toward the store. At some point, Dowell entered the store, and the [Petitioner] listened by cell phone from the car. When Dowell left the store, the [Petitioner] drove the car up to the side of Ace's Market to retrieve Dowell. As Dowell was about to get into the car, Harris jumped out of the car. Harris confronted a man standing outside, "and when the dude swung at [Harris], [Harris] shot" the man twice. Immediately thereafter, Harris approached the front of the store, and, although Moreland could not see Harris at this point, Moreland heard another gunshot. Harris returned to the vehicle, and the four men drove away to the Edgehill Housing Development, where Harris's girlfriend lived and where Harris was staying at the time.
Moreland stayed at Harris's girlfriend's residence for a few hours, and at some point, the four men saw police surrounding the [Petitioner's] vehicle from the window. The police eventually knocked on the door, but no one answered the door. Moreland acknowledged that he had been charged with the same crime as the [Petitioner], and, although he had not been promised anything for his testimony, he hoped that his testimony would be beneficial to the resolution of his case.
On cross-examination, Moreland agreed that he never intended for anyone to get shot or hurt. He also acknowledged that, when Harris jumped out of the vehicle, Harris was acting on his own accord and Moreland did not know what Harris was doing. However, on redirect examination, Moreland admitted that all of the men were planning to get out of the car but that Harris simply jumped out of the car sooner than Moreland anticipated.
Detective Jill Weaver, MPD, testified that she interviewed approximately fifteen individuals throughout the investigation of this case, including all four individuals allegedly involved in the attempted robbery. The State played a video that consisted of Detective Weaver interviewing the [Petitioner]. In the video, the [Petitioner] explained that on the night of the shooting he went to the mall with his brother in the [Petitioner's] vehicle. When they returned from the mall, he left his vehicle at his residence, and his daughter's mother picked him up and drove him to Fairview for the evening. The [Petitioner] also referred to his association in the "GD's, " which Detective Weaver explained was a reference to a gang called the Gangster Disciples.
Jerome Bonsu testified that he owns an automobile dealership on Dickerson Pike. He identified a bill of sale from his company bearing the name of the [Petitioner] as the purchaser of a gray Chevrolet Impala on November 24, 2008. Bonsu confirmed that he sold the vehicle to the [Petitioner]. He also identified a reference sheet included with the [Petitioner's] file that listed phone numbers for Antonio Harris, Brian Moreland, James Dowell, and Sham[e]ka Harris [Malone[1]. On the bill of sale, the [Petitioner] also provided his cell phone number.
Agent Richard Littlehale, Tennessee Bureau of Investigation ("TBI"), testified as a communications analyst in crime investigations. He received phone records for the cell phone numbers of the [Petitioner], Moreland, Dowell, and Harris, which were admitted as evidence at trial. Each cell phone record included a reference to the cell tower used to transmit each call. He then calculated the distance from that tower to pertinent locations in the case. He explained that in an urban area, cell towers were approximately one or two miles apart. Calls customarily are transmitted from the cell tower that is closest to the location of the cell phone. From his calculation, a call made by the [Petitioner] at the approximate time of the shooting was transmitted from a tower point six four three (0.643) miles from the scene of the shooting.
Dr. Thomas Deering, a medical examiner and forensic pathologist with Forensic Medical Management Services, testified that he performed an autopsy on Victim Thompson. . . . Dr. Deering concluded that Victim Thompson died as a result of multiple gunshot wounds to the abdomen.
Cassaundra Waters testified that in December of 2008, she had been dating the [Petitioner] for about a month. She worked with Lisa Anderson, the girlfriend of Harris, and because Waters was separated from her husband at the time, she also lived with Anderson. According to Waters, on the evening of December 10, 2008, the [Petitioner] left with Harris to go to the mall. After they returned to Anderson's residence, police came to the door, but no one answered the door. Waters could not recall whether the [Petitioner] spent the night at Anderson's residence that night. The next day, Waters and the [Petitioner] observed a news story on television regarding the shooting at Ace's Market. The Defendant told Waters that the [Petitioner], Harris, Dowell, and Moreland went to the store that evening with the purpose of robbing it.
Jamesia Dowell, sister of Dowell, testified that she has had a relationship with the [Petitioner] and that they had two children together. In December of 2008, she lived in Fairview. Early one morning, the [Petitioner] woke Jamesia by calling her to request that she say that he was in Fairview if anyone asked her about his whereabouts on the night of December 10, 2008. She acknowledged that he was not, in fact, in Fairview on that date.
. . . .
Agent James Russell Davis, II, TBI, testified as an expert in the field of microanalysis. He explained that when a weapon is fired, gunpowder settles on all the objects in close proximity to the weapon. He tested gloves found throughout the [Petitioner's] Impala including: one glove from the trunk, two pairs from the rear seat area, and a pair located in the glove box. From his analysis, Agent Davis discovered that there was gunshot residue on all the gloves tested.
Agent Michael Turbeville, TBI, testified as an expert in the field of DNA analysis. He tested a number of items in an attempt to discover DNA profiles on the items. On a pair of black gloves recovered from the rear passenger area of the [Petitioner's] Impala was a mixture of DNA matching Harris, Dowell, the [Petitioner], and a female. He also matched the DNA found on a black bandana in the glove box to Harris. Regarding the pair of gloves found in the glove box, one glove had DNA consistent with that of Harris and Dowell, with the possibility of Moreland and a female as additional contributors. The corresponding glove contained DNA matching that of Harris and Dowell, with the possibility of the [Petitioner] and a female as additional contributors. A black bandana from the rear passenger area of the vehicle matched the DNA of Harris and Dowell. Based on the analysis of an additional pair of gloves retrieved from the rear passenger area of the vehicle, Agent Turbeville discovered DNA on one glove consistent with that of Harris, Dowell, and Moreland, with the possibility of a match to the [Petitioner] and a female. With regard to the corresponding glove, he discovered DNA consistent with that of the [Petitioner], Dowell, and Moreland, with the possibility of Harris and a female as additional contributors. From a bandana found in a pocket in the back passenger seat, Agent Turbeville discovered DNA matching that of the [Petitioner] and Moreland. Another bandana found in that pocket contained DNA consistent with that of Dowell. Agent Turbeville opined that tennis shoes found in the car matched the [Petitioner's] DNA as well as a female's DNA. A white shirt retrieved from the rear floorboard contained DNA consistent with that of the [Petitioner] and a female. Additionally, Agent Turbeville obtained nasal secretion from the shirt that matched the [Petitioner's] DNA.
. . . The [Petitioner] took the stand and testified that on the evening of December 10, 2008, he drove to the mall with his brother, Harris, and Dowell to buy shoes for his daughter. The State asked the [Petitioner] why he did not mention to the police that Dowell went with him to the mall. He responded, "I guess, when you tell one lie, you've just got to continue. You have to build on that lie. So when you tell one lie, you've got to continue to tell another lie to cover that first one up." After returning from the mall to the Edgehill area, Harris asked to borrow the [Petitioner's] car. According to the [Petitioner], Harris, Dowell, and Moreland then left for approximately fifteen to twenty minutes. When they returned, Harris told the [Petitioner] that someone had been shot.

State v. Rivera L. Peoples, No. M2010-02162-CCA-R3-CD, peop, at *1-6 (Tenn. Crim. App. at Nashville, June 20, 2012) (footnotes omitted).

         Thereafter, the Petitioner filed a petition for post-conviction relief, listing the following instances of ineffective assistance of counsel:

1. The failure of [trial counsel] to investigate, subpoena, and secure the attendance at trial [of] Shameka D. Harris [Malone] as an alibi witness for [the Petitioner].
2. The failure of [trial counsel] to investigate, subpoena and secure the attendance, at trial, of the custodian of the cellular phone records for the number (615) 589-0741 to authenticate [the Petitioner's] cell phone records and calls during time periods and location in relation to the crime.
3. The failure of [trial counsel] to investigate, subpoena and secure the attendance, at trial, of co-defendant, James Dowell, as an exonerating witness for [the Petitioner].
4. The failure of [trial counsel] to investigate, subpoena and secure the attendance, at trial, of Joshua Ostein, as an exonerating witness for [the Petitioner].
5. The failure of [trial counsel] to object, at trial, to the playing of Detective Weaver's entire interview of Cassaundra Waters.
6. The failure of [trial counsel] to request jury instructions concerning what the trial court determined to be prior inconsistent statements of Cassaundra Waters.
7. [Trial counsel] provided ineffective assistance of counsel by failing to consult with [the Petitioner] regarding the overarching defense strategy which involved [trial counsel's] unilateral decision to concede [the Petitioner's] guilt in front of the jury.
8. Subsequent to [the Petitioner's] conviction, [trial counsel] received charges via the Board of Professional Responsibility regarding three prior clients for mishandling their cases and not proceeding in a timely fashion, resulting in a suspension of his law license. In addition, on May 20, 2013, [the Petitioner] received authorization from the Board of Professional Responsibility to file formal charges against [trial counsel] for his failure to handle [the Petitioner's] case in a professional and effective manner, (including never visiting [the Petitioner] to discuss his case while incarcerated pending trial). . . .

         The Petitioner also filed a petition for a writ of error coram nobis, alleging that Moreland had recanted his trial testimony and exculpated the Petitioner from any involvement in the murder. The trial court first held a hearing regarding the post-conviction claims. Immediately thereafter, the court conducted a hearing regarding whether the petition for a writ ...


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