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Bell v. State

Court of Criminal Appeals of Tennessee, Jackson

December 5, 2017

MONTERIOUS BELL
v.
STATE OF TENNESSEE

          Assigned on Briefs July 25, 2017, at Knoxville

         Appeal from the Criminal Court for Shelby County No. 11-02524 James C. Beasley, Jr., Judge

         The petitioner, Monterious Bell, appeals the dismissal of his post-conviction petition, arguing the post-conviction court erred in dismissing the petition as time-barred. Following our review, we conclude the petition was timely filed. The judgment of the post-conviction court is reversed and the matter remanded for consideration of the post-conviction petition in accord with the Post-Conviction Procedure Act.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Case Remanded

          Monterious Bell, Henning, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          J. ROSS DYER, JUDGE.

         FACTS

         This post-conviction appeal stems from the petitioner's participation in a home invasion on November 1, 2010. The petitioner hired trial counsel, and proceeded to trial where he was convicted of aggravated burglary and sentenced to fifteen years in confinement. Subsequent to trial, the trial court ordered trial counsel to represent the petitioner on direct appeal where counsel challenged the sufficiency of the evidence supporting the petitioner's conviction for aggravated burglary. This Court summarized the underlying facts leading to the petitioner's conviction as follows:

The State's proof at trial showed that on the morning of November 1, 2010, Odella McKinnon was at home preparing to take a bath when she heard the doorbell and then "intense beating" on her iron front door. Ms. McKinnon immediately began dressing. As she left the bathroom to open the front door, she heard someone "beating" on the back door, and she noticed a tan Toyota automobile backed into her driveway. Before she could react, she heard "cracking and breaking" on the back door. Ms. McKinnon then proceeded directly to her bedroom and retrieved her handgun. As Ms. McKinnon approached the back door, the door "flew open" and two men rushed inside. Ms. McKinnon fired a single gunshot, and the two men turned and fled. Ms. McKinnon testified that she got "a good quick look" at the two men, and she stated that she had no trouble seeing their faces because it was "a sunny day." At trial, Ms. McKinnon described the first man, later identified as the defendant, as having light skin and standing between five feet, eight inches, and five feet, ten inches in height, and she described the second man as heavier and bald with darker skin.
Ms. McKinnon called 9-1-1, and Memphis Police Department ("MPD") Officer Martrell Boswell arrived at the scene two to three minutes after receiving the call from dispatch. Upon his arrival, Officer Boswell observed a black male, the defendant, standing by the driver's door of the tan Toyota parked in Ms. McKinnon's driveway. When the man noticed Officer Boswell's unmarked police vehicle approaching, he "crossed the street and attempted to gently knock on the door" of a neighbor's house. Officer Boswell then detained the defendant in the front yard of the neighbor's house. After other officers arrived at Ms. McKinnon's residence, Officer Boswell had the defendant stand outside Ms. McKinnon's house, and Ms. McKinnon positively identified the defendant as the first of the two men who had just broken into her home. Ms. McKinnon admitted that, at the preliminary hearing, she initially misidentified the second male who had broken into her home, but, at trial, she was adamant that she had never misidentified the defendant.
MPD Officer Patricia Turnmire photographed, among other things, a footprint on the back door of Ms. McKinnon's house and the bottoms of the shoes the defendant was wearing on November 1. Based on the ridges on the defendant's shoes, Officer Turnmire believed the defendant's shoes "to be a match" to the footprint on Ms. McKinnon's back door. Officer Boswell, a self-described "shoe connoisseur, " testified that the defendant was wearing Nike "Air Force 1" athletic shoes when he was taken into custody and that the treads on those shoes matched the footprint left on the back door. Officer Boswell testified that, when the defendant's accomplice, Bryant Johnson, was arrested two hours later, he was wearing Nike "Air Max" shoes rather than "Air Force 1" shoes and that the treads on the two types of shoes were different.
Mr. Johnson testified that he had known the defendant since childhood and that, on November 1, the defendant picked him up in a tan Toyota Camry owned by the defendant's girlfriend. After the two men smoked some marijuana, the defendant drove through Ms. McKinnon's neighborhood looking for houses to burglarize. The defendant backed the Camry into Ms. McKinnon's driveway, and the defendant knocked on the front door. When he received no answer, the men proceeded to the back door and knocked. The defendant then "kicked the door in." Mr. Johnson entered the house just behind the defendant. Mr. Johnson "heard a shot, " and both men fled from the house. Mr. Johnson was arrested later that day, and he admitted that he was ...

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