Assigned on Briefs July 11, 2017
from the Criminal Court for Shelby County No. 15-04988 John
Defendant, Daniel Perez, was convicted of one count of
aggravated robbery. The Defendant argues: (1) that the
evidence was insufficient to support his conviction, and (2)
that the trial court erred in allowing the State to reference
witnesses that the Defendant could have produced at trial.
Following our review, the judgment is affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Stephen C. Bush, District Public Defender; Tony N. Brayton,
Assistant Public Defender (on appeal); and Neil Umstead,
Assistant Public Defender (at trial), for the appellant,
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Counsel; Amy P. Weirich, District Attorney
General; and Olivia Brame, Assistant District Attorney
General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
KELLY THOMAS, JR., JUDGE.
case arose following the July 4, 2015 robbery of the victim,
Jose Murguia. Thereafter, the Shelby County Grand Jury
charged the Defendant with one count of aggravated robbery.
See Tenn. Code Ann. § 39-13-402. A trial began
in the Criminal Court for Shelby County on September 12,
victim testified that he was robbed "in the
afternoon" on July 4, 2015, at the Prescott Place
Apartments. He explained that he was "walking toward the
store" located in his apartment complex and "turned
around because" the store "didn't have the food
that [the victim] ordered." The victim stated that he
saw a "Ford F-150 black" truck near his apartment
when he walked to the store and that the Defendant "was
in the truck with his partner." The victim said that he
"didn't think anything" about seeing the truck.
However, as the victim was "walking back to [his]
house[, ]" the Defendant and another individual
"jump[ed] out from the bushes[.]" The Defendant
told the victim, "Don't move or we f-k you up."
The victim said that he knew one of the individuals was the
Defendant because the victim "turn[ed]" and looked
"over [his] shoulder" and saw the Defendant. The
victim said that he observed the Defendant holding a gun and
that the Defendant placed the gun against the victim's
head. The victim testified that he feared for his life and
that he believed the two men would kill him. The victim
claimed that one of the individuals removed his wallet from
his pocket and took $150.00 from it. The victim explained
that the two indivduals were standing behind him, so he was
not able to see which one reached into his pocket. When asked
what happened after the Defendant "put a gun to [the
victim's] head and after someone took [his] wallet[,
]" the victim stated, "They got into a truck. [The
Defendant] drove -- and they drove off." The victim said
that it was the same Ford truck he observed when he
originally left his apartment.
victim stated that he knew the Defendant prior to this
incident. He explained that the Defendant was "around
the apartments" where the victim lived "on Fridays
and Saturdays[.]" The victim said that he had seen the
Defendant at the apartment complex approximately three times
prior to the robbery. Furthermore, the victim testified that
the Defendant "was always driving" the black truck.
Regarding the truck, the victim asserted, "It's [the
Defendant's]." On-cross examination, the victim
agreed that he had seen the Defendant "more than three
or four times" at the apartment complex and agreed that
he had never spoken to the Defendant.
the victim admitted that the only time he saw the
Defendant's face was "when [he] turned around for
those couple of seconds" during the robbery. Counsel for
the Defendant asked the victim if he remembered being asked
the following question during the preliminary hearing:
Defense counsel: "After they threw the wallet down they
then turned and ran away from you toward their truck; is that
The victim: "Yes, yes, because I saw them when they went
toward the truck."
Defense counsel: "Okay. Your answer to that question
was: Okay. They turned the truck on. I walked toward the
hallway and I see them in the truck when they quickly pulled
away. I saw his face."
The victim: "Yes. When they passed by with the truck and
they came around, yes, I saw his face. I saw his face
Defense counsel: "Okay. But you testified the only time
you saw him that day was when you turned your head and then
when they ran off you never saw them again."
The victim: "When he put the gun toward my head . . . I
turned around, I saw his face. And then when they drove off
yeah, they passed by and I saw [the Defendant]."
victim explained that after the robbery, he called the
police. The following day on July 5, 2015, the victim went to
the police station and gave a formal statement. While at the
station, the victim identified the Defendant in a
photographic lineup. The State provided the victim with a
document, and the victim identified it as the photographic
lineup he viewed on July 5, 2015. He agreed that he had
circled a photograph of the Defendant and that his signature
appeared on the document under a statement reading,
"This is the person that robbed me with another person
Vasquez testified that he was living at Prescott Place
Apartments on July 4, 2015. Mr. Vasquez said that he
remembered calling the police on July 4, 2015, due to the
fact that he "saw a truck that seemed suspicious to
[him] because it was driving around, coming in and out"
of the apartment complex and "sometimes [the truck] sped
up." Mr. Vasquez said that this occurred in the
afternoon some time after 4:00 p.m. and that the truck was a
black F-150. He explained that he took note of the
truck's tag number and gave this information to the
police that day when they arrived at the apartment complex.
When asked if he observed any individuals in the truck, Mr.
Vasquez responded, "The[re] were [a] few of ...