Court of Criminal Appeals of Tennessee, Knoxville
Session December 20, 2016
from the Criminal Court for Washington County No. 38781 Lisa
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
L. Robbins, Johnson City, Tennessee, for the appellant,
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
T. Woodall, P.J., delivered the opinion of the court, in
which James Curwood Witt, Jr. and Norma McGee Ogle, JJ.,
T. WOODALL, PRESIDING JUDGE
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."
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."
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 [.]"
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.
(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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
. . . 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?" ...