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Jackson v. State

Court of Criminal Appeals of Tennessee, Jackson

March 6, 2018

DEANGELO JACKSON
v.
STATE OF TENNESSEE

          Assigned on Briefs February 6, 2018

         Appeal from the Criminal Court for Shelby County No. 13-01259 James M. Lammey, Judge

         The petitioner, Deangelo Jackson, appeals the denial of post-conviction relief from his convictions for especially aggravated robbery, attempted second-degree murder, and employing a firearm during the commission of a dangerous felony. On appeal, the petitioner alleges he received ineffective assistance of counsel due to trial counsel's failure to call material witnesses at trial. Discerning no error, we affirm the judgment of the post-conviction court.

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

          Kirk W. Stewart, Memphis, Tennessee, for the appellant, Deangelo Jackson.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Tyler Parks, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         A. Trial Proceedings and Direct Appeal

         A Shelby County jury convicted the petitioner of especially aggravated robbery, attempted second-degree murder, and employing a firearm during the commission of a dangerous felony. State v. Deangelo Jackson aka Deangelo Webb, No. W2014-01981-CCA-R3-CD, 2015 WL 7526949, at *1 (Tenn. Crim. App. Nov. 24, 2015). On appeal, this Court affirmed the petitioner's convictions. Id. When doing so, this Court rendered this summary of the underlying facts and procedural history:

At trial, Mr. Rivas testified that, around 11:00 p.m. on the night of the offense, he and two friends were pushing a car into a carwash parking lot. Mr. Rivas recalled that the area was dark but there were some street lamps. While they were pushing the car, two people approached them from behind, one of whom had a gun. The gunman fired a shot into the air, and Mr. Rivas' companions ran. The gunman placed the gun against Mr. Rivas' head and ordered him "to get down on the floor, right next to the car." Mr. Rivas complied to avoid being shot. The gunman then demanded Mr. Rivas' wallet. As Mr. Rivas was handing the gunman his wallet, he turned to see the gunman. The gunman said, "Don't look at me" and shot Mr. Rivas in the back. The gunman then demanded Mr. Rivas' phone. Again, Mr. Rivas handed the gunman his phone and turned to look at the gunman. The gunman said, "I told you, I'm going to kill you. Don't look at me." He then shot Mr. Rivas in the back a second time. The entire episode lasted "three to five minutes, " and the two robbers ran after they shot Mr. Rivas the second time. Mr. Rivas explained that he did not see the gun, but he saw the gunman "twice quickly." Mr. Rivas recalled that the gunman was wearing a hoodie that covered more of his hair and face, but Mr. Rivas saw the gunman's face. Mr. Rivas identified [the petitioner] as the gunman.
After the [petitioner] and his companion had left the scene, Mr. Rivas looked around and saw that his friends were gone. Mr. Rivas managed to get up and walk to a convenience store to find a phone. People in the store called the police and an ambulance for him. The gunshots went through Mr. Rivas' large intestine, coccyx (tailbone), and one of his testicles. Mr. Rivas underwent multiple surgeries and wore a colostomy bag for a year. At the time of trial, he still experienced pain from the injuries and could not sit for more than forty-five minutes to an hour.
About two weeks after the date of the offense, officers from the Memphis Police Department ("MPD") asked Mr. Rivas to view several photo lineups. Mr. Rivas viewed the lineups, circled the [petitioner's] photo, and wrote, "This is the one who robbed me and shot me." Mr. Rivas explained that he circled the [petitioner's] photo "right away" when he saw it. Mr. Rivas also stated that, although the street lights in the area were not consistently illuminated, there was a street lamp directly above his car, and he was able to get a clear look at the [petitioner's] face. Mr. Rivas said he was "a hundred percent" sure that the [petitioner] was the person who shot him.
Mr. Rivas also confirmed that he testified at a preliminary hearing in 2012. Mr. Rivas admitted that he had "a little bit of confusion that day" and had trouble identifying the [petitioner] because the [petitioner] was not wearing a hoodie and was wearing glasses at the time. As a result of his confusion, Mr. Rivas initially identified the [petitioner] as the person who shot him but then identified someone else who looked similar to the [petitioner] who was not wearing glasses. Mr. Rivas explained that the [petitioner] was not wearing glasses at the time of the offense and that, on the day of the preliminary hearing, Mr. Rivas was under the influence of pain medication.
On cross-examination, Mr. Rivas denied telling a police detective on the day after the offense that he did not see the robber's face. Mr. Rivas also recalled that, at the preliminary hearing, "they did make everyone take off their glasses." Mr. Rivas noted that he identified someone else at the preliminary hearing, but he stated that he switched his identification back to the [petitioner]. Mr. Rivas was permitted to listen to a recording of the preliminary hearing outside of the jury's presence in order to refresh his memory. After listening to the recording, Mr. Rivas admitted that he identified a person named Kendrick Brown as the robber at the preliminary hearing. However, Mr. Rivas insisted that he "came back to the defendant." On redirect examination, Mr. Rivas said he was "very positive" that the [petitioner] was the person who robbed and shot him.
Marion Hardy testified that, on the night of the offense, he was helping Mr. Rivas and Jeremy Holmes push Mr. Rivas' car out of a carwash parking lot. As the three men were moving the car, two other men, one of which Mr. Hardy knew, were standing on the sidewalk. Mr. Hardy thought that both men were carrying guns. Mr. Hardy stated that he recognized one of the men as a person he knew as "Mulah." Mr. Hardy identified the [petitioner] as "Mulah."
After Mr. Hardy had seen the two men, "all of a sudden" someone shot over Mr. Hardy's, Mr. Rivas', and Mr. Holmes' heads. Mr. Hardy and Mr. Holmes "stood back, " and Mr. Hardy saw someone "put [Mr. Rivas] in the car." Then he heard one gunshot and assumed someone had shot Mr. Rivas. After that, "two [additional] guys came from behind the building" and shot over Mr. Hardy and Mr. Holmes' heads. Mr. Holmes "took off running, " but Mr. Hardy lay down on the ground and gave the two other robbers his wallet. After surrendering his wallet, Mr. Hardy ran away. He did not see what happened with the [petitioner] and the man who was ...

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