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Loverson v. State

Court of Criminal Appeals of Tennessee, At Jackson

January 30, 2017

TERRELL LOVERSON
v.
STATE OF TENNESSEE

          July 26, 2016 Assigned on Briefs

         Appeal from the Criminal Court for Shelby County No. 1003485 James C. Beasley, Jr., Judge

         The petitioner, Terrell Loverson, appeals the denial of his petition for post-conviction relief, arguing the post-conviction court erred by concluding that appellate counsel rendered effective assistance. According to the petitioner, appellate counsel should have raised, as an issue on appeal, the trial court's denial of his request for a self-defense jury instruction. Following our review, we affirm the judgment of the post-conviction court.

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

          Joshua B. Dougan, Jackson, Tennessee, for the appellant, Terrell Loverson.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Camille R. McMullen, and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This post-conviction appeal arises from a February 2010 altercation between the petitioner and a security guard at the Southland Mall in Shelby County, Tennessee that resulted in the security guard's death. The petitioner was indicted for one count of first degree premeditated murder, one count of assault by bodily injury, and one count of resisting arrest. After a jury trial, the petitioner was convicted of second degree murder, assault by provocative contact, and resisting arrest. The trial court sentenced the petitioner as a Range I, standard offender, and imposed an effective sentence of twenty- five years. The petitioner appealed, and in its opinion affirming the petitioner's convictions, this Court offered the following summary of the facts presented at trial:

Earl Jones, the security director for Southland Mall ("The Mall"), testified that he had twelve security guards working under him in February 2010, including the victim, Marques Rainey. The victim had been working at the Mall since May 2007. Jones described him as "a good employee, quiet, reliable . . . He was a huge man but he was very quiet and he was educated." As part of their job, the security guards, including the victim, wore uniforms consisting of a gray long-sleeve shirt with "security" designated on each shoulder and black slacks. The guards did not carry weapons but did each carry a radio.
On Saturday, February 27, 2010, the victim reported for duty, in uniform, at 2:00 in the afternoon. Jones described the Mall as "very busy" at that time. Shortly after 2:00, another security guard called in an emergency at the north entrance of the Mall. Jones stated that all of the guards were responding to that location and that, shortly thereafter, "they just called officer down." By the time Jones arrived a crowd had gathered. Jones found the victim "lying on the floor with a gunshot wound to his upper right chest." Jones stayed with the victim until the ambulance took him away.
Chantrice Rainey, the victim's wife, testified that they married in 2007. She identified a photograph of the victim on their wedding day.
Jerren Rutherford testified, identifying the [petitioner] at trial as his friend. On February 27, 2010, Rutherford and the [petitioner] went to the Mall to go shopping. They went in Rutherford's car and, after entering the Mall, "went their separate ways." Rutherford went to a shoe store and bought some shoes for his daughter. After he left the store, he saw the [petitioner] running toward one of the Mall exits. According to Rutherford, "[a]ll [of] a sudden the security grabbed [the petitioner] and pinned him up against the wall and was holding him." Rutherford told the security guard, "[L]et my N[*****] go." At that point, Rutherford testified, the guard "let him go, like he barely let him go. He released because he thought I was going to hit him or something. I don't know. It was like he was scared, I don't know." After the guard let the [petitioner] go, Rutherford saw "a gun go off." Rutherford explained that, four or five seconds after the guard let the [petitioner] go, the [petitioner] shot the guard. Rutherford stated that the shooting "was real quick" and that he "didn't have time to say [sic] stop or nothing. It was just so fast. It was like you couldn't like even try to stop it from happening." The [petitioner] fired one shot. Rutherford stated that, afterward, he stood there "in shock" and then he "ran to the car." The [petitioner] went with him, and they drove away together.
Rutherford testified that he had not known that the [petitioner] was armed. The [petitioner] still had the gun with him when the two men got in Rutherford's car. Rutherford stated that the gun was black but that he did not know what kind of gun it was other than an "automatic." After they had driven several minutes, Rutherford dropped the [petitioner] off near "Ballenshire" in Memphis. The [petitioner] took his gun with him. Rutherford then went home. He did not call the police.
Rutherford later gave a statement to the police and identified a photograph of the [petitioner] in a photograph array. On the array, Rutherford wrote, "This is Terrell[, ] this [is] who shot the security guard." Rutherford later learned that the incident had been videotaped by the Mall's security camera. He reviewed the video and acknowledged that it depicted what he saw. The video was admitted into evidence and played for the jury.
On cross-examination, Rutherford agreed that the security guard had thrown the [petitioner] "around like a rag doll." Rutherford wanted to stop the "man-handling" and told the guard to let the [petitioner] go. Rutherford testified that, after the guard let the [petitioner] go, and as the [petitioner] was backing up, the guard was "going after him again." At that point, the [petitioner] pulled a gun and shot the guard. According to Rutherford, the [petitioner] looked "like he had fear in his eyes."
Emory Hammonds testified that he worked in "the Barbershop" in the Mall, located across the aisle from Sweetness Sweets. Hammonds was at work on the 27th and, at about 2:30 that afternoon, he "heard like kind of a rumbling, a lot of people running, a little commotion and you could tell it was coming from a little distant." He saw several "guys" running and "saw one guy hit a guy while they was running." Hammonds described the commotion as looking "like a gang fight." Then he saw the victim "grab one guy by the arm and they kind of spun around." Hammonds heard a "pow" and saw the victim rolling on the floor.
On cross-examination, Hammonds explained that the man that the victim grabbed was headed out of the Mall.
James Allen testified that he worked at the Barbershop in the Mall and that Hammonds was his boss. At about 2:30 in the afternoon of the 27th, he was at work and saw several "guys" running out of the Mall. He then saw "another group of guys, " one of whom got into a "scuffle" with the victim. He saw the two men separate and then he "seen a gun raised up and pop pop and he got on out the mall."
Allen subsequently identified two men from photograph arrays, labeling one as "the guy who shot the man in the mall" and the other man as "with the shooter in the mall." Allen also identified the [petitioner] at trial as the shooter.
Oscar Quinn testified that he was working at the Barbershop when the victim was shot. He ...

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