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State v. Agnew

Court of Criminal Appeals of Tennessee, Jackson

March 30, 2017


          Assigned on Briefs March 7, 2017

         Appeal from the Criminal Court for Shelby County No. 13-04046 Chris Craft, Judge

         Julian Agnew ("the Defendant") was convicted by a Shelby County jury of one count of aggravated robbery. The trial court sentenced the Defendant to ten years and six months in the Department of Correction with release eligibility after service of eighty-five percent of the sentence. On appeal, the Defendant argues that the trial court abused its discretion by allowing prosecutorial misconduct in closing arguments and that the evidence at trial was insufficient for a rational juror to have found him guilty of aggravated robbery beyond a reasonable doubt. After a thorough review of the record and case law, we affirm.

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

          Stephen Bush, District Public Defender, and Phyllis Aluko, Assistant District Public Defender, Memphis, Tennessee, for the appellant, Julian Agnew.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Lora Fowler, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and James Curwood Witt, Jr., J., joined.



         I. Factual and Procedural Background

         Jury Trial

         Ashley Patterson testified that on April 11, 2013, she was working at the Check Into Cash store on Getwell Road around 10:00 a.m. Ms. Patterson stated that she had gone to a bank to withdraw $3, 000 for the business' daily expenses and transactions. When she returned to the store from the bank, she "stepped out of [her] truck and locked [her] truck, walked to the back of [her] truck and [a man] popped out from the truck that was beside [her] and pointed the box [cutter] blade in [her] face and said [']give me the money.[']" Ms. Patterson described the man as wearing a black hoodie and being slightly taller than her height of 5 foot 2 inches. When Ms. Patterson refused to give the man the money, they began "tussling." The man "grabbed [her] purse and it got wrapped around [her] arm. And then he pushed [her] to the ground and stuck his hand in [her] purse, grabbed the money out and took off." Ms. Patterson stated that she was cut on her finger and on her head during the robbery. She testified that the weather that day was "cloudy and rainy" but that it was light outside. She stated that he was approximately one arm's length away and that she could see the man's face as he approached her. At trial, Ms. Patterson identified the Defendant as the man who committed the robbery.

         After the Defendant and Ms. Patterson "tussled" over her purse, the Defendant "took off." Ms. Patterson saw the Defendant run between the buildings but then lost sight of him. Ms. Patterson was taken to a local hospital for treatment, and she later gave a statement to police. She also viewed a photographic lineup while at the police station. Ms. Patterson testified that she read and signed a statement called "advice to witness viewing photographic display" before viewing the lineup. She stated that, on the lineup, she "circled [the Defendant's] picture, put the date, put what happened and signed [her] name." Ms. Patterson explained that she was asked to identify the Defendant from a group of five or six men during the preliminary hearing. Ms. Patterson stated that she could not identify the Defendant during the preliminary hearing because the Defendant "had on glasses and shaved off his goatee, " and she did not recognize him. She stated that, as soon as she sat down, she realized she had made a mistake. Ms. Patterson stated that she was sure the Defendant was the individual who robbed her and the individual whom she picked out in the photographic lineup.

         On cross-examination, Ms. Patterson testified that the Defendant held a box cutter in his right hand while he robbed her. She admitted that, after the offense, she told the police that the Defendant could have had a knife, but she stated that she believed it was a box cutter because the cuts she sustained were so shallow. Ms. Patterson stated that the Defendant held the weapon near her face, but she explained that the Defendant had a jacket on and that "the jacket was covering most of it but the blade." On redirect-examination, Ms. Patterson agreed that she never informed the police that the Defendant did not have a weapon. She agreed that she described the weapon as a box cutter, and she explained that she was cut by the blade during the struggle with the Defendant. Ms. Patterson explained that, after the altercation with the Defendant, she felt shocked and was "just really scared and didn't know what to do."

         Officer Lernard Bowens testified that on April 11, 2013, he worked the day shift for the Memphis Police Department. He stated that, around 10:00 a.m., he arrived at the scene of the robbery on Getwell Road. He observed that Ms. Patterson was "nervous and scared[, ]" that she "seemed disheveled[, ]" that "[h]er clothes were all messed up[, ]" and that "she had a cut on her hand and on her head." Officer Bowens stated that Ms. Patterson was bleeding "a little bit, " so "[s]he was transported to Delta Medical in noncritical condition." Officer Bowens testified that Ms. Patterson informed him that a man "approached her from the street and she had her money in her purse [for] Check Into Cash." Ms. Patterson told Officer Bowens that the man "came up to her [and] was shaking her trying to get the purse from her[]" and that "she held onto the purse and that's when he start[ed] hitting her with his fist and cut her with a knife." Ms. Patterson also informed Officer Bowens that the man "went in her purse and got the money out and ran." Ms. Patterson informed Officer Bowens that $3, 000 was stolen from her purse.

         On cross-examination, Officer Bowens agreed that, in the incident report he prepared, he wrote that Ms. Patterson informed him that during the struggle her purse was wrapped around her arm and that the man was armed with a knife. He also agreed that, in the incident report, he wrote that Ms. Patterson informed him that the man was cutting her with his knife and hitting her head with his fist. On redirect-examination, Officer Bowens explained that the incident report was prepared at the scene of the offense based on the witness's statements. However, Officer Bowens agreed that Ms. Patterson did not initial or sign the incident report that he prepared and that it was not her official statement.

         Angela Hunter testified that on April 11, 2013, around 10:00 a.m., she was driving "on Barron at the red light getting ready to make a right [turn] onto Getwell[.]" Ms. Hunter's daughter, C.M., was a passenger in the vehicle.[1] Ms. Hunter observed a man "standing out in the rain with a hood on his head." She stated that a truck "pulled in, " and the man "ran over toward the truck." Ms. Hunter saw a woman, whom she later learned was Ms. Patterson, exit the truck, and the man "ran toward her [and] like threw her down on the ground." Ms. Hunter stated that, by the time the traffic light changed and she turned right onto Getwell, the man "was tussling with the young lady[]" and she believed the individuals were involved in a domestic dispute. Ms. Hunter explained that she was approximately a car's length away from the altercation between the two individuals. After turning onto Getwell, Ms. Hunter observed the man "dragging" Ms. Patterson, like he was "trying to get something from her." She stated that she did not see the man take anything from Ms. Patterson. Ms. Hunter described the man as wearing "a black jacket with a hood tied tightly around his face."

         Ms. Hunter stated that she then pulled into the parking lot of the Check Into Cash store and observed that the man was "struggling" with Ms. Patterson. She stated that she "pulled up" and told the man to leave Ms. Patterson alone. She observed that Ms. Patterson was "sitting down[, ] bleeding and crying." Ms. Hunter stated that the man "managed to break away and took off running." Ms. Hunter followed him in the parking lot until he ran behind Walgreens. Ms. Hunter then pulled out of the parking lot and turned left onto Barron because she believed the man had run in that direction. She saw a white Nissan Maxima "sitting there with a young lady in it on the phone." Ms. Hunter stated that, by this time, she had called 9-1-1 and was speaking with the emergency dispatcher, who asked her for the make and model of the vehicle. Ms. Hunter stated that the vehicle "pulled off" but that the driver "kept hitting the brakes like she was looking for somebody." Ms. Hunter began to follow this vehicle until the emergency dispatcher told her to go back to the scene of the robbery. Ms. Hunter stated that, when she testified at the Defendant's preliminary hearing, she was unable to identify the Defendant as the man who committed the robbery. She also testified that, on the day of the robbery, the man was not wearing glasses and that she did not see him with a weapon.

         C.M. testified that on April 11, 2013, around 10:00 a.m., she and her mother were driving down Getwell when she saw "a man beating up on a woman." As Ms. Hunter "pulled into the shopping center, " C.M. saw that a man with a "black hood on" was "yanking at [] and hitting" a woman. C.M. believed she was witnessing a domestic violence incident. As Ms. Hunter drove closer, C.M. saw that the man "was . . . trying to get her bag . . . from her." She was close enough to the altercation to see "something in [the man's] hand that he was hitting her with that was causing her to bleed." C.M. was unsure what type of weapon the man was using, but she saw that "he had some type of weapon in his hand under his jacket sleeve." She observed that the woman "had gushing blood that was coming down the side of her face and . . . the back of her neck[.]" The man ran and she and Ms. Hunter "follow[ed] him through the shopping center and through a ditch down Goodman" until he came to "this house by a wooden fence[, ]" at which point they noticed a white Maxima that had also been following the man. C.M. noticed the white Maxima because "it was driving really slow by the guy . . . that [they] were following." The female driver of the white Maxima was talking on her cell phone, and C.M. believed the female driver saw her and her mother because "she tried to . . . turn around and get away[.]" C.M. called 9-1-1 and told the dispatcher what they had observed. The 9-1-1 dispatcher then asked them to stop following the white Maxima and to return to the scene of the robbery. According to her April 11, 2013, statement to the police, C.M. indicated that she would not be able to identify the man who committed the robbery.

         On cross-examination, C.M. testified that, during the robbery, she was approximately twelve to fifteen feet away from the man. She agreed that in her statement to the police she "said [Ms. Patterson] had a towel on the back of her neck and head and [that C.M.] saw the blood on the towel, but couldn't see where it was coming from." She explained that Ms. Patterson had "blood all over her hair" and that blood was "coming down in her face."

         Tiera Cobb testified that she knew the Defendant because they used to date and that their sisters were friends. Ms. Cobb stated that she was dating the Defendant from 2012-2013 and that she worked at the Check Into Cash store on Getwell Road from January 2012 to August or September 2012. Ms. Cobb's duties at the Check Into Cash included "pick[ing] up money in the morning if [she] worked the morning shift" and that, when she went to the bank in the morning, she always picked up $3, 000. After Ms. Cobb told the Defendant about going to the bank and picking up money for the Check Into Cash store, they decided that the Defendant would rob the employee picking up the money and that she would be the getaway driver. Ms. Cobb stated that the plan was for her to pick up the Defendant from his house on the morning of the robbery, drive to the Check Into Cash, drop off the Defendant, wait behind the store until the Defendant returned, and then leave.

         Ms. Cobb stated that on April 11, 2013, the Defendant called her around 7:00 a.m. "to see [whether] everything [was] still going to go as planned." Ms. Cobb informed the Defendant that she was getting ready to leave and pick him up. Ms. Cobb testified that at the time of the robbery, she was driving an older model white Maxima with non-tinted windows. It was raining when she arrived at the Defendant's house between 7:30 and 8:30 a.m. Ms. Cobb picked up the Defendant, and they "went across the street from the location" and "waited in the parking lot of a barber shop[]" until a Check Into Cash employee returned from the bank. She stated that the Defendant was wearing blue jeans and "a black hoodie or a black zip[-]up jacket" with the hood up, a red shirt, and white shoes. Ms. Cobb knew that a Check Into Cash employee routinely picked up money from a bank every morning, but she did not know that Ms. Patterson was picking up the money that day. After Ms. Cobb observed Ms. Patterson leave the Check Into Cash store, she drove to the back of the Check Into Cash store and "parked at a house on the right[-]hand side [of the street]."

         She stated that she waited for about ten minutes for the Defendant to return, but then she "got scared" and "started driving around." Ms. Cobb stated that she noticed that a vehicle was following her, so she called her cousin to ask for advice. She stated that she drove around the Check Into Cash store three times before she "kept straight on one of the streets" and again noticed that a vehicle was following her, and the occupants of that vehicle were "on the phone." Ms. Cobb guessed that the occupants of the other vehicle were speaking "with the police giving them a description of [her] car." Ms. Cobb drove back onto Goodman, heard police sirens, and pulled into a driveway. She waited in the driveway for two or three minutes but left when she did not see the Defendant returning. As she was backing out of the driveway, two police patrol cars "cut [her] off" and told her to put her phone down.

         Ms. Cobb testified that she gave a statement to the police later that day, but she did not "own up" to her involvement because she "was scared [and] trying to cover [her]self." She stated that, on the same day, she identified the Defendant in a photographic lineup and wrote on the lineup that she had dropped the Defendant off at Walgreens and that the Defendant had asked her to "pull up over the next street at his friend's house for him." Ms. Cobb stated that her written comment on the lineup was not truthful. She also testified that the Defendant did not wear glasses during their relationship, but she agreed that in her statement to the police, she stated that the Defendant did wear glasses. Ms. Cobb testified that she never discussed with the Defendant whether he would use a weapon in the robbery and that she did not see him with a weapon before the robbery occurred. She stated that she was arrested for her involvement in the offense and pled guilty.

         Officer Jonathan Gross testified that approximately a month after the robbery of the Check Into Cash store, he was assigned to the Crump Station Task Force of the Memphis Police Department. Around 12:00 p.m. that day, Officer Gross "was traveling westbound on Chelsea Avenue and [he] was following a 2005 white Buick Rendezvous that had a taillight that was defective." Officer Gross conducted a traffic stop, and the female driver informed Officer Gross that her driver's license had been revoked. Officer Gross placed the driver into custody, but "[his] partner couldn't identify the passenger later identified as [the Defendant]." Officer Gross stated that the Defendant gave him a false Social Security number and the last name and birth date of a man named Octavious Kelly. Officer Gross looked up outstanding warrants for the area of the traffic stop and "located a picture of [the Defendant] and at that point [the Defendant] continued to say that he was Octavious Kelly." Officer Gross transported the Defendant to the police station and while Officer Gross fingerprinted the Defendant, the Defendant made a comment similar to "you got me." Officer Gross then learned the Defendant's name and date of birth and that "he had a warrant for his arrest for aggravated robbery." The Defendant was placed under arrest based on that warrant. Officer Gross identified the Defendant in open court as the passenger who told Officer Gross that his name was Octavious Kelly.

         On cross-examination, Officer Gross stated that both he and his partner heard the Defendant say "you got me" while he was being fingerprinted. Officer Gross stated that he made a record of the Defendant's arrest under the outstanding aggravated robbery warrant but agreed that he did not include the Defendant's statement in the narrative section of the arrest record. He also stated that he did not include the false Social Security number that the Defendant originally gave him in the arrest record.

         After deliberations, the jury found the Defendant guilty of aggravated robbery. Following a sentencing hearing, the trial court sentenced the Defendant, as a Range I offender, to ten and one-half years in the Department of Correction with release eligibility after service of eighty-five percent of the sentence. The Defendant timely appealed the trial court's judgments.

         II. Analysis

         Prosecutorial Misconduct

         The Defendant contends that the prosecutor "vouched for the credibility of two eyewitnesses, argued facts outside the record, argued a misleading fact, essentially commented on the [D]efendant's decision to not testify at trial[, ] and asserted that the ...

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