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McNutt v. State

Court of Criminal Appeals of Tennessee, Jackson

September 8, 2017

LARRY MCNUTT
v.
STATE OF TENNESSEE

          Assigned on Briefs February 7, 2017

         Appeal from the Criminal Court for Shelby County No. 11-02363 Glenn Ivy Wright, Judge

          Andrew S. Deshazo, Memphis, Tennessee (on appeal) and Warren Campbell, Memphis, Tennessee (at trial) for the appellant, Larry McNutt.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Charles Summers, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Camille R. McMullen, and J. Ross Dyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         Petitioner, Larry McNutt, appeals the post-conviction court's denial of relief from his convictions for reckless endangerment and aggravated assault. On appeal, Petitioner argues that he received ineffective assistance of counsel. After a thorough 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

         Background

         The facts of Petitioner's underlying offenses were set out by this court on direct appeal:

At trial, the parties presented the following evidence: Jessie Lewis, the victim, testified that, at approximately 9:00 p.m. on October 29, 2010, he was "shooting craps" on "Dexter" near his home in Memphis, Tennessee. The victim recalled that he won between eight and ten dollars that night. After collecting his winnings, the victim began his walk home.
The victim testified that, as he walked, the Defendant approached him, asking for money. The victim explained to the jury that he had known the Defendant "all [his] life." In response to the Defendant's request for money, the victim told the Defendant, "[N]o, I don't have it like that." The victim said the Defendant then cut the victim twice with a box cutter. After he was cut, the victim continued to his home where he called for an ambulance.
The victim testified that he spoke with the police at his home about the incident before emergency responders transported him to the hospital for medical treatment. He said that he received four stitches for the wound on his head and twenty stitches for the wound on his neck. The victim said that, several days later, he met with a police sergeant and once again recounted the encounter between him and the Defendant. The victim identified the Defendant in a photographic line-up for police. He also identified photographs of his scars taken at the police station.
On cross-examination, the victim agreed that he and the Defendant had engaged in a fight earlier in the day. The victim denied smoking crack with the Defendant on the day of this incident or attacking the Defendant with a baseball bat.
Tion Shabazz, a Memphis Police Department officer, testified that he responded to an assault call at approximately 9:30 p.m. on October 29, 2010. When Officer Shabazz arrived at the victim's residence, he observed a large cut on the victim's neck and another cut on his head. Officer Shabazz said that the victim did not appear to be under the influence of drugs or an intoxicant and that the victim communicated the events surrounding his injuries. Officer Shabazz recalled that the victim told him that the Defendant approached the victim and asked for two dollars. When the victim refused, the Defendant cut the victim with a box cutter.
Kimberly Hearn, a Memphis Police Department officer, testified that, while responding to a disturbance call on November 8, 2010, she was approached by the victim, who was not involved with the disturbance call. The victim told Officer Hearn that the Defendant, who was responsible for attacking him on October 29, was in the area. The victim showed Officer Hearn the scar on his neck and then pointed out the Defendant. Officer Hearn confirmed the information with the supervising officer, Sergeant Kevin Williams, and then the Defendant was transported to the bureau.
Kevin Williams, a Memphis Police Department sergeant, testified that he participated in the investigation of an aggravated assault against the victim. Sergeant Williams said that he met with the victim, on
November 5, 2010, approximately a week after the incident. He showed the victim a photographic line-up containing a picture of the Defendant, and the victim positively identified the Defendant as the perpetrator. Sergeant Williams recalled that the victim told him that the Defendant approached the victim after a dice game and asked for money. When the victim refused to give the Defendant money, the Defendant cut the victim with a box cutter. Sergeant Williams confirmed that he observed the injuries to the victim during their meeting a week after the incident.
Sergeant Williams testified about the Defendant's arrest in this matter. He said that Officer Hearn contacted him on November 8, 2010, about the victim's accusation that the Defendant had cut him with a box cutter. Sergeant Williams said that he instructed Officer Hearn to take the Defendant into custody and transport him to the "Robbery Office." Once there, Sergeant Williams advised the Defendant of his Miranda rights. The Defendant's statement, which was recorded in the ...

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