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State v. Gergish

Court of Criminal Appeals of Tennessee, Knoxville

August 11, 2017

STATE OF TENNESSEE
v.
MARCUS GERGISH

          Session December 20, 2016

         Appeal from the Criminal Court for Washington County No. 38781 Lisa Rice, Judge

         Defendant, Marcus Gergish, was found guilty by a jury of one count of criminally negligent homicide and two counts of attempted aggravated robbery and was sentenced to serve an effective twenty-one-year sentence in the Department of Correction. In this appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the prosecutor committed prosecutorial misconduct by destroying evidence; (3) that the prosecutor committed prosecutorial misconduct by misleading the jurors and misstating evidence; (4) that the trial court's denial of a motion to continue, motion for expert funding, and refusal to allow the defense to call a witness on Defendant's behalf denied Defendant a fair trial; (5) that the trial court failed to instruct the jury on the issues of dying declarations and lost or destroyed evidence; (6) that the trial court failed to act as the Thirteenth Juror; and (7) that the cumulative effect of all the errors denied Defendant a fair trial. Following a careful review of the record, we find that Defendant's motion for new trial was not timely filed. Therefore, all of Defendant's issues except for sufficiency of the evidence are waived, and we decline to exercise our discretion to review the waived issues for plain error. Defendant's convictions are affirmed.

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

          David L. Robbins, Johnson City, Tennessee, for the appellant, Marcus Gergish.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Anthony Wade Clark, District Attorney General; Erin D. McArdle and Justin Bradford Irick, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Norma McGee Ogle, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Background

         Officer Jeff Legault of the Johnson City Police Department testified that he was dispatched to a shooting at the Westgate Village Apartments around "midnight-ish" on the night of April 2-3, 2013. Officer Legault saw the victim, Timothy Peregoy, lying on the ground with a gunshot wound. The victim's wife, Dawna, and his two sons, Brandon and Timothy Peregoy, Jr. (Timbo), were also there. Officer Legault described the scene as "kind of in chaos, chaotic trying to - just screaming and hollering."

         Officer Legault testified that the victim was still breathing, and he attempted to speak but Officer Legault said that the "victim was not saying anything of any relevance to me, and if he was, I wasn't understanding because other people were screaming at the same time."

         Officer Legault spoke to the victim's sons who told him that they got into the car and were preparing to leave "when a couple of subjects came up and attempted to rob them, and then there's a short scuffle or fight or something and [the victim] got shot." The victim's sons also described the shooter as a white male wearing dark clothing. After the victim was shot, the suspects ran away, and the victim's sons pointed across the street in the direction in which they ran. Officer Legault was unable to get much information from the victim's wife because she was "very, very hysterical [.]"

         Officer Legault, who was also a canine handler, used his dog, Rhino, to help track the shooter. Rhino was able to detect a scent in the area where the victim's sons had said that the shooter ran. At some point, Rhino lost the scent near the road. This indicated that "either there's a car there, someone possibly picked him up, in this case one of those two probably happened because there was nobody there at the end." Officer Legault later spoke with Investigator Whitlock and gave him all of the information.

         R.G. (we will refer to the minor witness by her initials in order to protect her privacy) testified that she was 13 years old and had lived at the Westgate Apartments for approximately eight years. She knew the Peregoy family because she lived across the street from Timbo Peregoy and Karla Thacker, and she played with their son. R.G. testified that she had also seen the victim and Dawna Peregoy at the residence. R.G. testified that she had seen Defendant a couple of times when he came to the apartment complex to visit his brother.

         On the night of April 3, 2013, R.G. was in her bedroom with her grandmother. Her window was slightly open, and she heard arguing and cursing, and the victim's wife said, "Leave us alone, leave us alone." R.G. said that the victim, Timbo Peregoy, and three other men were also there, and they were arguing and fighting. The three men were wearing black hoodies, and she could not see their faces. She said that one of the men was a little taller, and one was short and skinnier. R.G. testified that the victim "was just arguing with them and he seemed like he was trying to get it like to just go away and backup because of his hand motions and stuff but I couldn't really make out what they were saying." One of the three men turned around and shot the victim. After the shooting, the three men ran away. One ran behind the building, and she did not remember where the other two ran. Karla Thacker ran back inside the house, and the victim's wife was screaming and said something about her head. R.G. said that they were running back and forth out of the apartment. RG saw "some" of the three men get into a car. Police then arrived on the scene.

         On cross-examination, RG testified that she spoke with Investigator Whitlock and told him everything that she had seen. She agreed that she told Investigator Whitlock about a red car with a black stripe. R.G. testified that she heard Timbo Peregoy say the name "Adam, " and she "[k]ind of" remembered him also saying, "Don't hit me, don't hit me, it was Adam []" during the argument with the three men. R.G. testified that Timbo Peregoy was standing near the victim when the shooting occurred. She saw Brandon Peregoy after the shooting. R.G. testified that she could not identify any of the three people wearing the hoodies. She did not see a gun but she heard it.

         Brandon Peregoy, the victim's son, testified that at the time of the offenses in this case, he had been living at his brother Timbo's apartment with the victim and Dawna Peregoy. The three had been staying at Timbo Peregoy's apartment for approximately one week while the victim was recovering from surgery after having a heart attack, and their utilities had been cut off. They had planned to go back home that night. Karla Thacker and Ms. Thacker's and Timbo Peregoy's young son also lived in the apartment.

         Brandon Peregoy testified that approximately 11:55 p.m. on April 2, 2013, there was a knock on the apartment door while everyone was eating dinner. Timbo Peregoy opened the door, and Defendant walked in. Defendant was wearing a red, white, and black shirt, and "he had a dark jacket on kind of black-ish, almost black, some dark pants." The jacket was a zip-up jacket with a hood. Defendant was also wearing a hat. Brandon Peregoy testified that Defendant asked Timbo Peregoy if he had any Suboxone, and Timbo told him that he did not have anything. Dawna Peregoy then retrieved some Suboxone from her wallet, and Timbo Peregoy gave it to Defendant. Brandon Peregoy noted that Defendant was "real frigid, kind of sweaty, nervous, trying to pace, just constantly moving." Defendant also said that he wanted the Suboxone because "he'd been out and he hadn't had any in a while, he'd been kind of sick." Brandon Peregoy testified that Defendant insisted "on trying to find something, any nature of what it was, and then my brother asked my dad trying to be confidential and tell him, no, don't say anything about it." The victim then said that "he had his Roxies and Opanas from that doctor visit prior [to] that day and he had them up in my grandmother's safe." The victim did not offer to sell anything to Defendant. Brandon Peregoy thought that Defendant was in the apartment a total of five minutes, and he left with the Suboxone.

         Brandon Peregoy testified that he, the victim, and Mrs. Peregoy left the apartment a few minutes later. He said:

We just got our things, started on our way to the truck, we had noticed a couple of gentlemen like walking but they was a pretty good distance away from us. We got into the truck, my dad started it, and the next thing I know, these two guys was knocking at the window with a gun.

         Brandon noted that there was one man at the driver's side window and one at the passenger window. The victim and Mrs. Peregoy both rolled their windows down, and the victim asked what was going on. The man at the driver's side window, whose voice he recognized as Defendant's, kept repeating, "Give me all your stuff." Brandon Peregoy testified that the man was "wearing a black hoodie zip-up, he had a hat on but it was turned around, a blue bandana on his face and he had dark pants and was kind of baggy, and white shoes." He was "pretty sure" that the man was holding a revolver, and he was the same size as Defendant. The man on the passenger side had a semi-automatic weapon. Both assailants were wearing gloves. The victim told the two men that he did not have anything. At that point, the man on the passenger side opened the door and attempted to pull the trigger on the weapon but it did not fire. Mrs. Peregoy began screaming for Timbo Peregoy, and the man began hitting Mrs. Peregoy with the gun. The victim then tried to force his way out of the vehicle. Brandon testified:

My mom was screaming. My brother had then come out and started up the hill because he heard my mom screaming. The person on my dad's side pulled the gun on my brother and told him he might as well just get back in the house, and that's when my dad opened the door, grabbed his arm and shoved him back on the car next to us.
* * *
And he casually raised up and shot him once in the knee. My dad fell back hit the truck, and when he raised up again, he shot him again.

         After the shooting, the three men ran "straight up to the laundromat and they started to curve between the buildings." Brandon Peregoy testified that he ran in the apartment and told Timbo Peregoy to call 9-1-1. He checked on the victim who was still breathing and talking. Brandon Peregoy testified that he began chasing the men but was unable to catch them.

         When Brandon Peregoy got back to the scene, Timbo Peregoy had come back out of the apartment and gotten into the victim's vehicle. Brandon got into the vehicle with him, and they pulled out in an attempt to find the men. However, they were unable to locate them. Brandon Peregoy testified that he was ninety percent sure that the voice of the person who shot the victim was that of Defendant.

         On cross-examination, Brandon Peregoy testified that the shooter's shirt was the same shirt that Defendant had worn in the apartment earlier that night. He also noticed part of a tattoo on the shooter's neck that looked like a flame. The shooter was also wearing a black hat with some writing on it. Brandon Peregoy admitted that he had told Investigator Whitlock that he thought his brother may have been involved in the shooting. This was based upon what other people were telling him at the time.

         On redirect examination, Brandon Peregoy testified that he had mentioned Jeb Adam Clay as being one of the three assailants because "the gun on my father's side had resembled a gun" that Mr. Clay had brought to Timbo Peregoy's apartment to sell. He noted that Mr. Clay was a family friend, and Mr. Clay came to the hospital shortly after the victim was shot. Brandon Peregoy read into evidence his statement that was given to Detective Whitlock on April 3, 2013. In the statement Brandon Peregoy identified Defendant as the person who shot the victim, and he also stated that Defendant was wearing the same clothes that he wore to Timbo Peregoy's apartment five minutes earlier.

         Karla Thacker testified that on the night of April 2-3, 2013, she was living on Nathaniel Drive at the Westgate Village Apartment Complex with Timbo Peregoy and their three-year-old son. At the time the victim, Dawna Peregoy, and Brandon Peregoy had been staying with them because the victim had had a heart attack and surgery, and their "utilities were off." They had planned to return home later that night. Ms. Thacker testified that while they were eating a late dinner, Defendant came to the apartment asking for Suboxone. She said that Timbo Peregoy told Defendant that he did not have anything, but Mrs. Peregoy said that she had a Suboxone strip in her wallet. Ms. Thacker testified that the victim "woke up off the couch for a second and told [Defendant] if he was still sick tomorrow that he would bring his roxies that he didn't have them on him." Ms. Thacker testified that Defendant was shaking and "acting weird" when he came to the apartment. She said that there was a discussion while Defendant was in the apartment that the victim, Mrs. Peregoy, and Brandon Peregoy would be leaving shortly. Defendant left the apartment after purchasing the Suboxone strip from Mrs. Peregoy.

         Ms. Thacker testified that the victim, Mrs. Peregoy, and Brandon Peregoy left the apartment approximately five minutes later, and Ms. Thacker and Timbo Peregoy remained in the apartment with their son. Ms. Thacker testified that she "heard a commotion which was [Mrs. Peregoy] screaming." Timbo Peregoy ran out the door, and Ms. Thacker and her son ran out immediately behind him. She said:

I made it to the front window in front of our apartment and Timbo made it up to a bush that's close to the steps out there and I said, "Gun." And as soon as I drew attention to us, the person standing on [the victim's] side, drew the gun towards Timbo.

         Ms. Thacker could not see the passenger side of the truck from where she was standing. Timbo Peregoy ducked when he saw the gun, and Ms. Thacker turned around and heard two shots fired as she walked toward her son. She then ran inside the house with her son, and someone told her to call police. Ms. Thacker testified that she was so frantic that the dispatcher could not understand her, and she gave them someone else's phone number. She was running in and out of the apartment during the call. She eventually gave the phone to Timbo Peregoy, and he talked to the dispatcher.

         Ms. Thacker positively identified Defendant as the person who came to her apartment asking for Suboxone. She gave a statement to police on April 3, 2013. In the statement Ms. Thacker said that Defendant was wearing "a hat backwards, a black hoodie and he had a tattoo on the left side of his neck. He had black hair." She also said in the statement that Timbo Peregoy told her that Defendant was the brother of Josh Gergish who also lived on Nathaniel Drive. At trial, Ms. Thacker testified that she saw a black Honda car parked in front of the apartment when Defendant first came inside. She had seen the headlights of the car when Defendant arrived at the apartment, and she saw the headlights disappear when Defendant left. She also saw the black Honda leaving the scene after the shooting.

         On cross-examination, Ms. Thacker testified that Jed Adam Clay stopped by their apartment a couple of days earlier. She explained that Mr. Clay was a good friend of the Peregoy family. Ms. Thacker said that Mr. Clay had stopped by the apartment to visit and sell some guns. She saw one of the guns, and she thought that it was a black semiautomatic weapon. Ms. Thacker agreed that Mr. Clay's name was mentioned by Brandon Peregoy on the night of the shooting. However, Ms. Thacker did not feel that Mr. Clay would be involved in the shooting.

         Rachel Peters testified that at approximately 3:00 to 4:00 p.m. on April 3, 2013, she and her boyfriend Junior were in Johnson City and stopped to visit his friend "Paul." Ms. Peters testified that Paul's two children were also there, and Paul introduced her to Defendant. She said that Paul, Junior, and Defendant were talking in the living room, and she went to a back bedroom to play with the children. Ms. Peters testified that at some point, the men asked her to get them some beer while they went on the front porch to smoke a cigarette. As she was going to use the restroom, Ms. Peters noticed "cars outside, the Charger and stuff." Ms. Peters testified:

. . . We could tell it was like police cars, and I even made the statement that there was, you know, something going outside because I could see a lot of vehicles parked along the outside of the house or on the street, and we all came inside. That's when they had wanted me to get the beer and I said, "The police are outside, " and I said, "Something's going on." I said, "I wonder what it is." [Defendant] made the reply, he just said, "They're probably here for me." So then everybody started communicating, you know, saying, "Why would they be here?" ...

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