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Malone v. State

Court of Criminal Appeals of Tennessee, Jackson

April 18, 2017


          Session: December 6, 2016

         Appeal from the Criminal Court for Shelby County No. 08-02332 James C. Beasley, Jr., Judge

         The petitioner, Aaron Malone, appeals the denial of his petition for post-conviction relief from his conviction for first degree felony murder. He asserts that the court erred in denying relief because he received the ineffective assistance of counsel and his due process rights were violated by the State's failing to preserve unedited footage from "The First 48" television show. After review, we affirm the denial of the petition.

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

          Lance R. Chism (on appeal) and TeShaun D. Moore (at hearing), Memphis, Tennessee, for the appellant, Aaron Malone.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kenya N. Smith and Karen Cook, Assistant District Attorneys General, for the appellee, State of Tennessee.

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


          ALAN E. GLENN, JUDGE.


         The petitioner was indicted along with a co-defendant, Calvin Nelson, for first degree felony murder committed during an attempted robbery. The petitioner filed two motions to suppress prior to trial, both of which were denied by the trial court, and the case proceeded to trial. The jury convicted the petitioner as charged, and the trial court imposed a sentence of life imprisonment as a violent offender. The petitioner appealed, challenging the trial court's rulings on his motion to suppress his statement, the admission of the victim's teeth at trial, and the State's use of an expert witness in rebuttal. This court affirmed the trial court's judgment, and the Tennessee Supreme Court denied the petitioner's application for permission to appeal. State v. Aaron Malone, No. W2009-02047-CCA-R3-CD, 2011 WL 1005487, at *1 (Tenn. Crim. App. Mar. 22, 2011), perm. app. denied (Tenn. July 13, 2011).

         The underlying facts of the case were recited by this court on direct appeal as follows:

The parties presented the following evidence at the [petitioner's] July 2009 trial. Joseph Zeller testified that he owned Tiger Truck Lines and that the victim began working for the truck line six to seven years before the trial. Mr. Zeller stated that the victim was in Memphis, Tennessee, between September 16 and September 17, 2007, because he was delivering a load of appliances to a warehouse. Mr. Zeller identified a picture of the victim's truck outside of a warehouse in Memphis, and he said that he was familiar with the truck because he bought it from the victim's widow after his death. He testified that a person standing on the ground would not be able to look into the truck's window, which was six and a half to seven feet off the ground. Mr. Zeller identified two Comcheck cards, which had "Tiger Truck Lines, New Albany, Indiana" on the front. He said that he knew the victim used those two cards because the card numbers matched the bill associated with the victim's truck and because the victim signed the receipts.
Ricky Cole testified that on September 17, 2007, he was working at Serpro, a warehouse located at 3835 Knight Road in Memphis, Tennessee. He said that he saw a truck parked at the warehouse that he recognized as belonging to a truck driver that regularly delivered to Serpro. Someone informed him that the truck had a broken window, so he went to investigate. He testified that he knocked on the door, and when no one answered, he opened the door and discovered the victim's body lying in the aisle of the truck. Mr. Cole said that he did not notice anything unusual about the truck other than the broken glass and did not notice signs of blood. He testified that he called 911 immediately after finding the victim.
Memphis Police Officer Shaun Tucker testified that he responded to a homicide call on September 17, 2007. He said that he secured the scene and located witnesses. Officer Tucker maintained the scene until his lieutenant, the homicide bureau investigators, and the crime scene investigators arrived.
Hardin Edwards, a truck driver, testified that he arrived at his point of delivery on Knight Road in Memphis at 1:20 a.m. on September 17, 2007. He said that he was sitting in his truck doing paperwork when he saw a car "come out from where a truck was parked further down in the warehouse area, " and he saw the same car return ten minutes later to park beside the rear tires of the truck on the driver's side. Mr. Edwards testified that he noticed the car because the rear window was broken and "had plastic wrapped around it." He said that when he went to bed at 1:50 a.m., the car was still parked in the same place. Mr. Edwards identified a picture of the car that he saw that day. When he awoke at 7:00 a.m., he saw a fire truck and police officers responding to the scene. After someone informed him that a truck driver had been killed, he told the police what he had seen earlier.
Theresa Rucker testified that in September 2007, she was working for Federal Express at 3835 Knight Road. She said that on September 17, 2007, she had to be at work at 2:15 a.m. Ms. Rucker testified that on that day, as she entered the parking lot, she noticed a turquoise car with the rear window broken because the car was driving fast and almost hit her. She said that she told police about the turquoise car later that day after seeing the police and the fire department around the victim's truck.
On cross-examination, Ms. Rucker testified that she saw a black male driving the car and a black person in the passenger seat, but she could not tell whether the passenger was male or female.
Memphis Police Officer Charles Cathey, a crime scene investigator, testified that he responded to the scene on September 17, 2007. He said that he observed a red tractor trailer with the driver's side window broken and saw glass on the truck's steps and small dent marks on the door, "like something had struck the truck." Officer Cathey testified that when he opened the door, he saw a red substance that appeared to be blood on the inside of the driver's door and broken glass on the driver's seat and the floor beside the seat. He also saw a substance that appeared to be blood on the outside of the driver's door and the steps of the truck. Officer Cathey found a human tooth on the floor of the truck. He said that there was a wire hanging down from the roof of the cab where a CB radio would typically be located. Officer Cathey testified that there was a large pool of blood between the front seats of the truck, and a small pool of blood and broken glass under the driver's seat. He located a second human tooth on the driver's seat, underneath a seat cover. Officer Cathey said that the victim's body was lying on the floorboard of the cab.
On cross-examination, Officer Cathey testified that another officer processed the truck for fingerprints after they towed it to the impound lot. He said that the officer did not find any usable prints on the outside of the truck. He did not recall the officer processing the interior of the truck for fingerprints. Officer Cathey testified that he completed a form in which he reported that another officer processed a turquoise Saturn for fingerprints and found that the car was negative for prints.
Suleman Shamsuddin testified that in September 2007, he owned the BP service station at 4161 Winchester Road. He said that the video surveillance system was working on September 17 and that the store had an automated teller machine (ATM), but the ATM was out of currency. The [S]tate published the surveillance video from September 17, 2007, to the jury.
Sheila Dixon testified that in September 2007, she lived in the Wooddale Condominiums on Winchester Road. She said that on September 17, 2007, her boyfriend had wired her money, but she could not pick up the money transfer because she could not find her identification. When she saw the [petitioner], with whom she was friends, in the condominium complex, she asked him if he could get the money transfer for her with his identification. Ms. Dixon testified that while they were waiting for a ride to pick up the money gram, the [petitioner] told her that he had shot a truck driver by mistake. She said that he offered her the truck driver's credit cards, and she said that the [petitioner] also had a telephone, some papers, and a wallet with him. She testified that she did not take the credit cards, but that "[t]hey ended up in [her] purse." Ms. Dixon testified that the person who picked them up to take them to get the money gram told the [petitioner] that he wanted "that hot CB" that the [petitioner] had. She recalled seeing the CB in the car, and she said that she was familiar with CB radios because her boyfriend was a truck driver. Ms. Dixon testified that the police searched her apartment, and she gave them her purse, in which they found the credit cards. Ms. Dixon identified the Comdata credit cards that the [petitioner] offered to her and which the police found in her purse. Ms. Dixon recalled that the [petitioner] and his co-defendant gave her a ride sometime before September 17, and she testified that there was a sawed-off shotgun in between the seats and that they told her that "they [were] going to check on a trap." She said that checking on a trap meant to her that they were trying to make some money. Ms. Dixon said that the co-defendant drove the car and the [petitioner] sat in the passenger's seat. She testified that she knew the [petitioner] as Big Daddy and the co-defendant as Unk.
On cross-examination, Ms. Dixon said that the police came to her apartment looking for the [petitioner]. She agreed that she told the police about the [petitioner's] alleged confession to her while incarcerated on a forty-eight-hour hold.
Scarlett Renee Banks testified that on September 17, 2007, from her back door, she saw the [petitioner] driving a burgundy truck and the co-defendant driving a turquoise car around the Wooddale Condominiums. She said that she went outside to where they had gotten out of their vehicles. Ms. Banks testified that the co-defendant handed her a gun and said, "'Huh go put this up.'" She took the gun inside of her home and put it behind her couch. Ms. Banks said that the gun was a short shotgun that had plastic and tape on it. She testified that she went back outside, and she saw the [petitioner] and co-defendant in an empty apartment. She said that they had "a lot of blood on them" and that they were washing money that had blood on it. Ms. Banks testified that she gave the police consent to search her apartment on September 20, 2007. She said that the gun was not in her apartment when they searched it, but the police came back later and found the gun somewhere else.
Marcus Nelson testified that the co-defendant was his uncle. He testified that he gave the co-defendant a sawed-off shotgun on a Saturday, which was the 15th of the month but he could not recall which month. Mr. Nelson said that he identified the gun for the police on September 20, 2007, and he agreed that he gave the co-defendant the gun on the Saturday before September 20.
Tennessee Bureau of Investigation Special Agent Cervinia Braswell, a forensic scientist in the firearms identification unit, testified that she examined the shotgun found by police in the course of their investigation in this case. She explained that the shotgun was a single shot, 12 gauge, model and that the barrel was sawed off. Agent Braswell said that Hopkins and Allen manufactured the shotgun between 1898 and 1917. She testified that the force necessary to pull the trigger was three pounds, but a person could also fire the weapon if he pulled the hammer back without cocking it all the way and then let the hammer fall forward. She said that if a person hit the back of the gun with a mallet-type hammer with enough force, that the gun would fire. Agent Braswell clarified that if the hammer is fully cocked, the person must pull the trigger to fire the gun. Agent Braswell identified photographs, labeled as Exhibits 40 and 42, which she said depicted, respectively, pellets consistent with coming from a shotgun shell and cardboard shotgun shell wad. She testified that she could not identify pellets as coming from any particular shotgun. Agent Braswell said that for the medical examiner to find a shotgun shell wad in a victim during an autopsy, the muzzle of the shotgun "would have to [have been] fairly close" because the wads lose momentum as they travel.
Memphis Police Sergeant Anthony Mullins testified that he participated in the investigation in this case. He identified the shotgun found by police on September 20, 2007, on Boxdale Street. Sergeant Mullins said that the shotgun "was inside a plastic bag behind a board that was used to board up a vacant building." He stated that the co-defendant told the police that he gave the gun to Renee Banks. When the police did not find the gun in Ms. Banks's apartment, they took the co-defendant to the area and allowed him to speak with Ms. Banks, who eventually led them to the location of the gun.
Sergeant Mullins further testified that he interviewed the [petitioner] on September 24, 2007. He said that the police had been actively looking for the [petitioner] for five to six days. Sergeant Mullins testified that he and his partner, Sergeant Mason, advised the [petitioner] of his rights prior to the questioning, and the [petitioner] signed a waiver form. Sergeant Mullins said that the [petitioner] did not appear to be under the influence of any intoxicants. The [petitioner] told them that he went to Nashville, Tennessee, on Sunday, September 16, with a friend because his friend had an appointment for a urine test in connection with his probation. The [petitioner] stated that they stayed in a hotel that night, went to the 9:00 a.m. test on Monday morning, and immediately returned to Memphis. Sergeant Mullins said that he showed the [petitioner] pictures of several individuals with the same name as the [petitioner's] friend with whom he allegedly went to Nashville as well as the pictures of the co-defendant and potential witnesses. Of all the pictures, the [petitioner] said that he only recognized Sheila Dixon. Sergeant Mullins showed the [petitioner] a still photograph taken from the BP station located at Winchester Road and Lamar Avenue that showed a "teal, blue-green Saturn [with] a big piece of plastic on the back windshield with tape on it, " and the [petitioner] stated that he recognized the vehicle. Sergeant Mullins could not recall whether the [petitioner] said how he recognized the vehicle. He showed the [petitioner] a second still photograph from the interior of the BP station that showed the [petitioner] inside the store, and the [petitioner] read aloud the time stamp on the photograph, which was September 17, 2007 at 2:26 a.m. The [petitioner] admitted that he had not been in Nashville the evening of September 16 through September 17. He said that he met a man called Unk at the BP station, and they ran a scam with credit cards that Unk had. Sergeant Mullins said that they questioned him further about "that version of events" and then took a break from the interview. When they returned, the [petitioner] told them that he wanted to tell them the truth. The [petitioner] identified a photograph of the co-defendant as the man he called Unk. He said that the co-defendant approached him about making money. The [petitioner] drove the Saturn, with the co-defendant as the passenger, to a truck stop on Knight Road. They approached a truck, and he let the co-defendant out of the car and drove away. After hearing a loud noise that he thought sounded like a gunshot, the [petitioner] looked back at the truck and saw the co-defendant get into the truck, leave the truck, and return to the car. Sergeant Mullins testified that they told the [petitioner] that they had previously talked to the co-defendant, who had told them his version of the events, and that they felt that the [petitioner] "was still being less than truthful with [them]." They told him that "[h]e could proceed and tell [them] the full truth, or go with what [they] had, so far." Sergeant Mullins said that, at that point, the [petitioner] admitted to being the passenger in the car and to firing the shotgun. The [petitioner] told them that "[h]e was just going to try to scare [the victim] out of his money with the gun, but it went off as soon as he tried to cock it." Sergeant Mullins testified that, after the [petitioner] gave his oral statement, they advised him of his Miranda rights a second time and memorialized his statement in writing. In his written statement, the [petitioner] admitted to being responsible for the victim's death and stated that he accidently shot him while trying to rob him. The [petitioner] further stated that his co-defendant drove them to the victim's truck in a blue-green car with a busted back window, which the co-defendant had stolen. He said that he took a phone and a wallet from the victim. They left the area but then returned to the truck and took a CB radio. The [petitioner] said that he was wearing a black shirt and blue jeans when he shot the victim, and he changed into a white shirt and jogging pants at the Wooddale Condominiums, leaving the black shirt and blue jeans in a vacant apartment. The [petitioner] said that he "attempted to use [the victim's Visa credit card] at BP, but [he] didn't get a chance to use it." He said that the clothes he had on during the interview were the same clothes he changed into that day, so Sergeant Mullins collected the clothes as evidence.
Dr. Lisa Funte, a forensic pathologist and an assistant medical examiner, testified that lacerations on the victim's body indicated that the shooter fired through an intermediate target, and she agreed that glass could have been the intermediate target. Dr. Funte said that because the pellets did not have an upward or downward trajectory, the shooter held the shotgun level with the ground, and because the victim was inside a truck, the shooter most likely had to stand on the steps of the truck. Dr. Funte testified that a shortened shotgun fired from close range caused the victim's injuries and that a shotgun wound to his neck and chest caused his death.
The [petitioner] offered into evidence Tennessee Bureau of Investigation reports showing that agents did not find blood on the [petitioner's] clothing.
The [S]tate called Sergeant Mullins in rebuttal, and the court qualified him as an expert in crime scene investigation. He opined that, based on his analysis of crime scene photographs, a person could have entered the victim's truck twice without getting blood on his clothes if he had moved the victim's body out of the driver's seat.

Id. at *3-7.

         In addition, this court described the proof at the suppression hearing that took place before trial as follows:

Prior to trial, the [petitioner] presented two motions to suppress his statement. His first motion alleged that he was under the influence of marijuana when interviewed by police; therefore, his waiver of his Miranda rights was not voluntary, knowing, or intelligent. His second motion alleged that the court should exclude his statement because it arose due to an improper arrest. On August 21, October 2, and ...

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