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Winn v. State

Court of Criminal Appeals of Tennessee, Jackson

May 19, 2017

KELVIN WINN
v.
STATE OF TENNESSEE

          Assigned on Briefs May 2, 2017

         Appeal from the Criminal Court for Shelby County No. 09-04902 James C. Beasley, Jr., Judge

         The Petitioner, Kelvin Winn, was convicted of first degree felony murder and received a life sentence. He filed a petition for post-conviction relief, which the post-conviction court denied. On appeal, the Petitioner argues that trial counsel's performance was deficient for failing to: (1) obtain an enhanced version of the surveillance video of the gas station; (2) proffer actual evidence of the Petitioner's height to the jury; (3) submit the Petitioner's clothing to be tested for blood; and (4) investigate the State's jailhouse informant for possible impeachment evidence. The Petitioner asserts that he was prejudiced by trial counsel's deficient performance because, absent these deficiencies, the jury would not have convicted the Petitioner. Discerning no error in the post-conviction court's decision, we affirm.

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

          Bryan R. Huffman, Covington, Tennessee, for the appellant, Kelvin Winn.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Amy P. Weirich, District Attorney General; and Michael McCusker, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         Jury Trial

         At the Petitioner's trial, the following proof was presented, as summarized by our court in its opinion on the Petitioner's direct appeal:

This case arises out of the attempted robbery and shooting of the store clerk, Abdallah "Zack" Assaedi, at Sam's Food Market in Memphis on November 21, 2008, for which the [Petitioner] was charged with one count of first degree felony murder.
State's Proof
Faheid Alsidi testified that the victim was his brother, and he was notified on November 21, 2008, that his brother had been shot and killed.
Dr. Marco Ross, a forensic pathologist with the Shelby County Medical Examiner's Office, testified that he performed the autopsy on the victim. Dr. Ross noted that the victim suffered a gunshot wound to his left upper eyelid, with the bullet perforating the skull in the brain, which he determined to be the cause of death.
Sergeant Andrew Brown with the Memphis Police Department testified that he was assigned to uniform patrol the day of the shooting and was dispatched to the scene. When he and his trainee partner arrived, Sergeant Brown met with three witnesses who said that the store clerk had been shot. He went behind the counter and felt that the victim had "a very light pulse." He secured the scene and talked briefly with the witnesses before separating them to insure "the integrity of their information." None of the witnesses could identify the shooter or provide any descriptive information aside from a description of the clothing the shooter was wearing.
Myron Jones testified that he was a graduate student living in Memphis at the time of the shooting. He went to Sam's Food Market the morning of the shooting to purchase a newspaper and some food, and two other customers were in the store at that time. An individual wearing a Halloween mask came into the store, ran up to the front counter, and said, "It's a robbery . . . ." As the victim raised his hands, the gunman shot him in the head, and Jones dropped to the floor. The gunman then demanded money from Jones, and Jones gave him the two five-dollar bills in his hand. When the gunman stepped behind the counter to go to the cash register, Jones got up and ran out of the store to his home. Jones talked to his pastor and then called the police and later gave a statement. Jones identified portions of the surveillance video and still photographs taken from the footage. On cross-examination, Jones said that he only got to look at the gunman for "a minute[ ] or two" and that his face was covered with "a Halloween mask with slits over his eyes." In looking at one of the photographs, Jones noted that the gun was in the gunman's left hand. However, he acknowledged that he had incorrectly stated in his statement to the police that the gun was in the gunman's right hand.
The video showed the suspect approach Sam's Food Market but stop in the alcove next to the entrance for several minutes. The masked man then entered the store, shot the victim, took cash from Jones, tried to open the cash register, and fled the scene. Still photographs taken from the video detailed that the man was wearing dark clothing, a mask, and white gloves and that he shot the victim with a gun held in his left hand.
Joseph Mario Williams testified that he worked at Sam's Food Market in November 2008. On the morning of November 20, the day before the shooting, Williams and the victim were working in the store, and Williams started to exit the store to clean up the grounds outside. As he was walking out the front door, Williams noticed "a guy with a dark sweater, or coat on, and he had the hood up, he had his hands in his pocket and his head down . . . . [H]e lift[ed] up his head and he had a mask on." When the masked man saw Williams, he turned around and walked away from the store. The mask was clear plastic, allowing Williams to discern that the man was African-American, and had a "smiley face on it." Williams estimated that the man was 5'8". He called the police and reported the encounter that day.
Williams testified that, the following morning, he arrived at the store shortly after 7:00 a.m. He was working in the deli area around 8:30 when the robbery and shooting occurred. As he was hiding after the shooting, Williams observed that the gunman was the same man who had been at the store the previous day, noting he had on "[t]hat mask, the clothing, same clothing, hood on and that mask, that clear mask with that smiling face on it[.]" He saw the man trying to open the cash register. When the register would not open, the man stepped over the victim's body, picked up some money off the floor, and ran out of the store. Williams identified portions of the store's surveillance video and still photographs taken from the footage in his testimony.
Patricia Jean testified that she lived next door to Sam's Food Market at the time of the shooting and was walking to the store around 8:30 a.m. on the day thereof. As she passed an alcove between her house and the store, she noticed a man wearing a black hooded sweatshirt, jeans, and black shoes sitting in the alcove with his hands in his pockets. She was only able to see the front part of the man's face because he had his hood up, but she saw that he had a "little spot, " such as a birthmark or freckle, on the right side of his face. The man asked her for a quarter, to which she responded that she would see if she had one when she returned from the store.
Jean testified that she went in the store and saw Williams, the victim, and a man she knew as "Brother." When she came out and passed the alcove, the man again asked her for a quarter, but she told him that she did not have one. She said that the second time, the man "raised his head up a little bit more, so [she] could see a little bit better, but that's it. Everything else [wa]s the same." She returned to her house after talking to a friend, and the police arrived a couple of hours later to investigate the shooting at the store. Jean was taken to the police station, where she spoke with Sergeant James Terry Max and relayed her encounter with the man outside the store. After giving her statement, Sergeant Max gave her a ride home from the station, during which she recalled the birthmark on the man's face and told the officer that she could identify the man who asked her for money.
During the course of the investigation, officers showed Jean five different photographic arrays, on November 24, 2008, two on November 29, 2008, January 9, 2009, and January 11, 2009, each containing six pictures. Jean did not observe the individual who had asked her for money in any of the first four arrays; however, she was able to make an identification from the final array. Jean identified the [Petitioner] ...

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