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McKissack v. State

Court of Criminal Appeals of Tennessee, Nashville

August 31, 2017


          Assigned on Briefs May 10, 2017

         Appeal from the Criminal Court for Davidson County No. 2010-B-1016 Mark J. Fishburn, Judge

         The Petitioner, Michael Terrell McKissack, filed a petition for post-conviction relief from his convictions of especially aggravated robbery, aggravated robbery, and facilitation of attempted carjacking. In the petition, the Petitioner argued that his trial counsel was ineffective (1) by failing to call two of his co-defendants to testify on his behalf; (2) by failing to inform him that his third co-defendant would testify against him; and (3) by failing to adduce proof during the guilt phase regarding his lack of education and mental health issues. The post-conviction court denied relief, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

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

          Ryan C. Caldwell, Nashville, Tennessee, for the Appellant, Michael Terrell McKissack.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Brian Ewald, Assistant District Attorney General, for the Appellee, State of Tennessee.

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



         I. Factual Background

         The Petitioner was charged with especially aggravated robbery, aggravated robbery, and attempted carjacking. On direct appeal, this court summarized the proof adduced at the Petitioner's trial as follows:

After joining a group of four young men intent on committing a robbery, the [Petitioner] participated in robbing one victim and then robbing and shooting another. The five men were apprehended as they drove away from the crimes, and ski masks such as those used in the robberies, along with property stolen from the shooting victim, were found in the car. . . .
Officer Hoadley testified that at 6:20 a.m. on January 20, 2010, he received a call regarding a robbery at Lincoya Bay Apartments . . . [, and the] dispatch informed Officer Hoadley that the suspects were driving a light blue or light tan Honda Civic hatchback with tinted windows. . . .
. . . .
Officer Hoadley was about to turn into the entrance to the apartments when he saw a vehicle generally matching the description of the suspects' car. The vehicle was a light-colored silver, two-door Honda with tinted windows. Because his siren was already on, he shut the siren off and honked his horn, and the car stopped at the intersection. He could see two men up front and could tell there were passengers in the back. He could tell the occupants were black. He stopped his patrol car with the nose pointing to the driver's side, and he walked behind the car to the passenger's side as another officer approached the driver. . . . At this point, he could see that there were five black men in the car and that at least one had dreadlocks. Officer Hoadley testified that he was receiving dispatches contemporaneously with the stop and that at some point, he was alerted there had been a second robbery and shooting where the suspects were black men with dreadlocks wearing dark clothing. The 911 recordings indicated that a bystander from a bus stop had called regarding the shooting, describing a black man dressed in white screaming and running from a black man wearing black and with a gun. The bystander heard a gunshot after escaping to his home. The second victim's girlfriend also described the shooting, telling the 911 operator that two very young-looking black men wearing black had shot her boyfriend, Roman Sanders, and that she had seen them run.
Officer Hoadley asked the passenger to open the window, and the passenger rolled the window partially down. Officer Hoadley could see that the majority of the men were wearing all dark clothing. The men stated that they did not live in the complex but were on their way to school. Officer Hoadley elaborated that they said that they were picking up someone to go to school, which did not make sense given that the car was full and none of the occupants lived in the complexes. They appeared nervous and were "not telling [Officer Hoadley] a whole lot."
Because he knew that the perpetrators of the crimes were armed and because he could not keep an eye on all five of the car's occupants at once, Officer Hoadley asked the men to get out of the car. They were immediately patted down and handcuffed. . . . They were separated and placed in patrol cars due to the rain. After they stepped out, he saw a brown wallet on the floorboard behind the passenger's seat, two ski masks, and one dark bandana. He testified that one of the dispatches had stated that masks were used. After an officer told him that a wallet had been taken, Officer Hoadley picked up the wallet and discovered it belonged to the second victim. A cell phone was also recovered.
. . . Kevin Boone, a co-defendant, testified that in the early morning hours of January 20, 2010, he, his twin brother Keith Boone, Kortez Potter Woods, and Mr. Woods's brother, Keith Potter, had been socializing at a basketball game and at clubs. He and Mr. Potter had court in the morning, so they were planning to sleep at the same house. Around 1:00 or 2:00 a.m., they went to Mr. Potter's house in Donelson, where the [Petitioner], known as "Ratchett, " was apparently asleep. The four men were in Kevin Boone's car, which was a silver, two-door Honda Civic with tinted windows. Mr. Boone's twin, Keith, was driving, and according to Mr. Boone's testimony, Mr. Potter decided to pick up the [Petitioner] and go on a robbing spree.
When they pulled up to Mr. Potter's house, three of the men stayed in the car while Mr. Potter went to wake the [Petitioner]. The two spoke at the front of the house, and the [Petitioner] initially refused to participate in the robberies but eventually relented to Mr. Potter's pressure and went to change clothes. According to Mr. Boone's testimony and photographs of the men at the time of their arrest, the twins were wearing white tops and the other three men were dressed in all black clothing. Mr. Boone's twin had a .38 special pistol under the passenger's seat, but Mr. Boone did not see any other guns until after the first robbery. The men chose to go to an apartment complex on the theory that there would likely be someone walking around in the early morning hours.
At the complex, the men saw a woman who would become the first victim, and Mr. Potter instructed Mr. Boone's twin to stop the car. The [Petitioner], Mr. Potter, and Mr. Woods got out, while the Boone twins remained in the vehicle during both crimes. Mr. Woods had a zip-up ski mask, and the [Petitioner] had a camouflage bandana. Although it was still mostly dark, Mr. Boone could see that someone had drawn a gun and aimed it at the first victim, but he could not tell who had the gun. He then saw one of his companions get into the woman's car and start it. Apparently, they could not operate the stick shift, and Mr. Boone saw the ...

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