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State v. Peterson

Court of Criminal Appeals of Tennessee, Jackson

March 15, 2018

STATE OF TENNESSEE
v.
DEANDREY PETERSON

          Assigned on Briefs December 5, 2017

         Appeal from the Criminal Court for Shelby County No. 14-04006 Paula L. Skahan, Judge

         The Defendant, Deandrey Peterson, appeals his convictions for aggravated rape, aggravated robbery, aggravated burglary, and possession of a firearm with the intent to go armed during the commission of a dangerous felony, and his effective thirty-year sentence. The Defendant contends that the evidence is insufficient to support his convictions and that the trial court violated Tennessee Rule of Evidence 404(b) in admitting evidence of other offenses. We affirm the Defendant's convictions but remand the case to the trial court for a new sentencing hearing for the firearm conviction.

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

          Robert Brooks (on appeal) and Charles W. Gilchrist, Jr., (at trial), Memphis, Tennessee, for the appellant, Deandrey Peterson.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton and Abby Wallace, Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Alan E. Glenn and J. Ross Dyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL BACKGROUND

         The evidence presented at trial established that during the early morning hours of March 27, 2014, the Defendant broke into the victim's apartment, raped her multiple times, and took money and an iPad. On March 26th, a dog that the victim had been watching for a friend barked throughout the evening, and the victim and her young daughter slept in the victim's bedroom with the door closed to drown out the dog's barking. The victim testified that at approximately 2:30 a.m., she awoke when the dog's barking became "uncontrollable." The victim walked out of her bedroom and into the kitchen where she saw a man holding a gun. The man pointed the gun at her and asked her where money and "kush" were. The victim denied having any knowledge of money or "kush."

         The victim testified that the man had "really bright brown eyes" that were "distinct" and had "kind of a brownish black look." The victim described the man as skinny, African-American, and five feet, seven inches, or five feet, eight inches tall and said he was wearing dark clothing, a "skully hat, " and a hood over his hat. She identified the Defendant as the perpetrator both at trial and in a photographic line-up following the offenses.

         The Defendant instructed the victim to return to the bedroom where her daughter was crying. The Defendant followed the victim to her bedroom while pointing the gun at her. He instructed the victim to get into the bed with her daughter and to cover their heads with the sheets, and the victim did as instructed. He took the victim's cellular phone and removed the battery. He left the bedroom for ten to fifteen minutes, during which time the victim could hear the Defendant moving around items in either the living room or the kitchen.

         When the Defendant returned to the bedroom, he instructed the victim to come with him to the living room and to leave her daughter in the bedroom. He threatened to hurt the victim's daughter if the victim did not ensure that her daughter remained quiet. The victim told her daughter to be quiet and remain in the bedroom until the victim returned. As the victim and the Defendant were walking into the living room, the Defendant said he knew someone had been to the victim's apartment earlier because his friend told him that he saw someone come to the apartment with a large bag. The victim denied having any knowledge of the Defendant's claims. She testified that based on the Defendant's comments, she believed that the Defendant had been watching her because her friend had brought the dog to her apartment in a large bag.

         While in the living room, the Defendant began touching the victim's chest and her body while making statements such as, "you are so fine" and "you shouldn't be by yourself like this." Although the lights were not on inside the apartment, a bright outside light was shining into the apartment, and the victim was able to see the Defendant's figure and his dark clothing. She said she was too scared to pay attention to the details of the Defendant's clothing, but she observed that the top portion of the Defendant's gun was silver.

         The Defendant instructed the victim to sit on the couch, and she did so. He spoke to her for approximately five minutes, asking her multiple personal questions such as whether she was married. He instructed the victim to remove the pajama pants that she was wearing, and he used them to cover the victim's face like a mask and tied them around her head. The Defendant asked if he could perform oral sex on the victim and then performed oral sex on her without her consent. The victim stated that although she did not know how long it lasted, it appeared to last a long time. The Defendant removed the covering from his face while performing oral sex on the victim.

         The Defendant covered his face, removed the pants from around the victim's eyes, and instructed her to stand up and bend over. He then raped her vaginally while wearing a condom. He instructed her to get onto the couch where he raped her vaginally again. He then went into the bathroom and cleaned himself. He instructed the victim to wipe herself off in the bathroom and to bring him the towel that she used. After cleaning herself in the bathroom, the victim brought the Defendant a blue towel, which he put in his pocket.

         After hearing the victim's daughter crying from the bedroom, the Defendant instructed the victim to go tell her daughter to be quiet and to return with a condom. The victim did so and returned to the living room. The Defendant asked the victim whether she had any other cellular phones and whether she had any nude photographs on her cellular phone, and the victim responded that she did not. The Defendant directed the victim to the kitchen by the washing machine, placed his gun on top of the refrigerator, and vaginally raped the victim while using a condom.

         When they returned to the living room, the Defendant showed the victim an application on his cellular phone with a radio transmitter that allowed him to hear any calls to the police. He told the victim multiple times that if she called the police, he would return and kill her and her daughter. The victim told him that she would not call the police and would go to her parents' house. She testified that the Defendant appeared afraid to leave because he did not know whether she could call the police. The Defendant asked the victim where her husband was because she had told him that she was married, and she told him that her husband was not there. As the Defendant was about to leave, he told her that he would bring her a gun so that she would be safe. He asked the victim for her telephone number. The victim testified that she gave it to him in the hope that it would assist officers in locating the Defendant if he called. The Defendant returned the victim's cellular phone and battery and took $200 from the victim's purse and her daughter's iPad. He hugged the victim in a "romantic" way and left the victim's apartment around 4:30 or 4:45 a.m. while wearing the victim's black and gold Chanel scarf around his face.

         After the Defendant left, the victim called her mother and told her that she had been raped. The victim asked her mother to not call the police because the Defendant would be able to hear the call. The victim and her daughter left the apartment, and the victim drove to a nearby convenience store where she flagged down a police officer.

         The victim testified that approximately one or two months prior to the attack, she met a man at a convenience store who had a distinctive voice and sounded like the same man who attacked her. She spoke to the man for five or ten minutes and gave him her telephone number. The man called the victim later that day, and she spoke to him for fifteen to twenty minutes but decided that she was not interested in him. However, the man continued to call her about twenty times that same day. The victim told the man that they could not talk because she was married and lived with her husband. The man did not call her after that. One day, the man showed up at the victim's apartment and asked her out for a date, and she declined. The victim stated that she had not told the man where she lived. The man told her where he lived, and the victim testified his home was within walking distance of her apartment.

         The victim said her attacker and the man who she met at the convenience store had the same voice and eyes. She stated that her attacker acted as if he had never met her and that she did not realize who he was while he was in her apartment. After the victim contacted the police, she realized that her attacker was the same man from the convenience store. She informed Sergeant Jashub Israel that she believed that she recognized the attacker's voice as the voice of a man whom she had met at a convenience store, and she gave a description of the man. The victim testified that she was "one hundred percent sure" that the man from the convenience store was the same man who raped her. She stated that when she identified the Defendant as her attacker in a photographic line-up, she also recognized him as the man from the convenience store and wrote on the line-up that "[b]ased on the guy's eyes and his voice[, ] this is the same person from the gas station I met one month ago."

         An officer later showed the victim a photograph of a gun, which the victim testified appeared to be the gun that the Defendant pointed at her. The victim recalled that the Defendant had a white Galaxy smart phone and identified a photograph of what the victim stated appeared to be the Defendant's cellular phone.

         On cross-examination, the victim acknowledged that while the gun and telephone matched the perpetrator's gun and telephone, she could not be certain they were the same. The victim stated that her apartment was dark and that the only light that was coming into the apartment was in the kitchen. When she initially saw the Defendant in her apartment, she was not paying attention to his hands or body but was focused on his gun. The Defendant was not wearing gloves, and the victim did not notice any tattoos on his hands. He was wearing a hoodie, and his face was covered so that the victim could only see his eyes. The victim did not notice any scars on the Defendant and did not recall him having any hair on his chest. Although the victim recalled that the Defendant was wearing dark clothing, she never saw the type of clothes that he was wearing. The victim stated that her mother had purchased the scarf that the Defendant had used to cover his face in Chicago and that she had never seen a similar scarf in Memphis.

         On redirect examination, the victim testified that the light shining into her apartment was sufficient to allow her to see the Defendant's eyes. The State requested that the trial court require the Defendant to make a statement to allow the victim to identify the Defendant's voice. The trial court granted the State's motion, and the Defendant stated, "My name is Deandrey Peterson. I'm from Memphis, Tennessee." The victim testified that she recognized the Defendant's voice as that of her attacker.

         The victim's mother testified that after 5:00 a.m. on March 27, 2014, the victim called her and told her of the attack. The victim was crying and afraid, and the victim's daughter was crying and screaming in the background. The victim's mother instructed the victim to leave the apartment with her daughter, and the victim's mother said she would call the police. The victim's mother testified that the victim stated that her attacker had warned her that he had an application on his cellular phone that allowed him to listen to all calls to the police. The victim's mother then went to a service station where she saw the victim speaking to a police officer.

         The victim's mother testified that she had previously purchased a black and yellow Chanel scarf for the victim during a trip to New York in early 2014. The victim's mother identified the scarf at trial but acknowledged that the scarf was not one of a kind.

         Officer Issac Coleman of the Memphis Police Department testified that the victim flagged him down at a convenience store while he was on patrol at approximately 5:20 a.m. The victim reported that at approximately 2:45 a.m., she was raped and robbed at her residence. Officer Coleman recounted the victim's summary of the attack, which was consistent with her testimony at trial. He stated that the victim described her attacker as an African-American man, who was around five feet, six inches or five feet, seven inches tall with a slim build and was wearing a black hat, a black coat, blue jeans, and a black and gold scarf around his face.

         Sergeant Jashub Israel testified that before he showed the victim a photographic line-up, the victim told him that she recognized the perpetrator's voice as if she knew him or had met him at some point. The victim also stated that the perpetrator's eyes looked familiar. She said that if she heard the perpetrator's voice, she would be able to recognize him. An investigator prepared a photographic line-up based on the victim's recollection of the perpetrator's eyes. The victim identified the Defendant in ...


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