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State v. Peterson

Court of Criminal Appeals of Tennessee, Jackson

April 25, 2018


          Assigned on Briefs November 7, 2017

          Appeal from the Criminal Court for Shelby County No. 14-04005 Paula Skahan, Judge

         The defendant, Deandrey Peterson, appeals his Shelby County Criminal Court jury convictions of aggravated rape, aggravated robbery, aggravated burglary, and possessing a firearm with the intent to go armed during the commission of a dangerous felony, claiming that the trial court erred by admitting certain evidence and that the evidence was insufficient to establish his identity as the perpetrator. Because the trial court erred by admitting evidence that the defendant had committed crimes other than those for which he was on trial and because the error cannot be classified as harmless, we reverse the defendant's convictions and remand the case for a new trial.

         Tenn. R. App. P. 3; Judgments of the Criminal Court Reversed and Remanded

          Robert Brooks, (on appeal); Charles Gilchrist, Jr., (at sentencing), Memphis, Tennessee, and Deandrey Peterson, appellant, pro se (at trial).

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, 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.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr., JJ., joined.



         The Shelby County Grand Jury charged the defendant with the February 12, 2014 aggravated rape and robbery of the victim, T.M., as well as the aggravated burglary of her apartment and possessing a firearm with the intent to go armed during the commission of a dangerous felony.[1]

         At the defendant's November 2016 trial, T.M. testified that at approximately 12:00 p.m. on February 12, 2014, she was resting in her bedroom in the apartment she shared with a roommate when she heard footsteps in the kitchen. Because her roommate was at work, the victim became concerned, so she dressed quickly and went to investigate the source of the footsteps. She encountered a man dressed in black jeans, an orange t-shirt, plaid jacket, and baseball cap walking from the kitchen toward her bedroom. The man wore gloves and had "a white handkerchief scarf . . . up to his nose." The man pointed a black and gray gun in her face and said "don't scream."

         The man walked the victim to her bedroom, forced her onto the bed, and removed her boots and clothing. He blindfolded the victim with a blue dress he took from her bed. The man then left the victim's bedroom and "started roaming around" the apartment "looking through stuff." The victim said that she could hear the man rifling around in her roommate's room and pouring change from a bottle into a bag. T.M. identified a large, empty bottle that had previously been filled with loose change.

         When the man reentered the victim's room a short time later, he rubbed his penis against her body and asked her "to jack him off." She recalled that the man spoke to her very gently and that "he wasn't mean or nothing." The victim said that she did not scream or try to resist the man because she was scared. The man placed her hand on his penis, and she rubbed it. The man asked if he could perform cunnilingus on her but did not do so. She related what happened next: "[H]e told me that he was going to f*** the s*** out of me and laid me on the bed and then he put a rubber on." The man penetrated her vagina with his penis. She said that after the man raped her, "he went to the restroom and flushed the condom down the toilet."

         When the man returned to her room after going into the bathroom, the man emptied the victim's purse onto the bed and took approximately $45 from it. The defendant demanded "the money . . . and stuff" and told her that he would kill her if she telephoned the police. He then got the victim's cellular telephone and asked for the security code. After she provided it, "he went through" her telephone "looking for pictures" of the victim naked. She said that she asked the defendant if she could telephone her sister who was due to arrive any minute to take the victim to a job interview. The victim said that she was scared for her sister, who was eight months pregnant at the time. The man allowed her to make the call. She said that he got behind the victim and lifted the blindfold just enough for her to dial the number. He also demanded that she put the call on speakerphone. When her sister didn't answer, the man replaced the blindfold, took the telephone, and continued "looking for stuff in the apartment."

         As the man prepared to leave, he told the victim that if she reported the rape "he was going to shoot the s*** out of" her. She said that the man's calm, gentle demeanor was menacing. He told her to remain on the bed until "five to ten minutes" after hearing the door shut. She then heard the door open and shut but did not get off the bed. The defendant, who had not left the apartment, repeated that she was to stay on the bed. Shortly thereafter, she heard the door open and close a second time. The defendant again repeated his warning that the victim should remain on the bed. She recalled that he did this "four or five times" before finally leaving for good.

         After the man left, the victim telephoned her sister, T.C., and waited on her to arrive.[2] T.C. took the victim to the tire shop where her roommate worked, and the victim called the police from there. After the police arrived, they took the victim back to the apartment. The victim said that she did not telephone the police from her apartment because she believed the defendant's warnings. The victim provided the police with a description of the perpetrator, and she viewed a photographic array but was unable to identify any of the men in the array as the man who had raped her.

         Shortly after the offenses, the victim began receiving telephone calls from telephone number 901-649-1200. She did not answer the calls because she did not recognize this number.

         On April 11, 2014, the victim viewed a second photographic array. This time she asked the officer showing the array to place a sheet of paper over the bottom half of each photograph to approximate the handkerchief that had covered the bottom portion of the perpetrator's face. She identified the defendant as the perpetrator. The victim said that she was "very sure" that the defendant was the man who had raped and robbed her. The victim identified a photograph of a gun as the gun that the defendant had held to her face during their encounter.

         During cross-examination, the victim testified that the defendant remained in her apartment "[a] couple of hours."

         On redirect examination, the victim testified that, after hearing the defendant, who was representing himself, speak, she recognized his voice as that of the man who raped her.

         T.C. testified that on February 12, 2014, the victim asked T.C. to drive her to a job interview later that day. The victim later called T.C. back and asked how long it would be before she arrived. T.C. recalled that the victim's voice was cracking, so T.C. asked if everything was okay. The victim did not say anything and "just hung up the phone." When T.C. arrived at the victim's house, the victim "ran out [of] the house and got in the car and told [T.C.] to hurry up and pull off." T.C. said that the victim's "face was red" and that "[s]he was crying and she was yelling." The victim told T.C. "that she had just got raped" and that the perpetrator had told her "if she called the police that he was going to come back and kill her." T.C. drove the victim to the tire shop where her roommate worked so that the victim could call the police.

         Memphis Police Department ("MPD ") Officer Jerome Johnson responded to the victim's 9-1-1 call and "met with the victim at the intersection" near a tire shop in his patrol area. The victim told him that she had been raped by a black man, and she provided a detailed description of her assailant. "She said that he was a male/black, medium to dark complexion, he had on white bandana covering his face, orange T-shirt, plaid jacket of burgundy and gray color, faded black jeans. And he had [a] black fitted ball cap on his head." The victim told Officer Johnson that the perpetrator "was armed with a black handgun." The account of events that the victim provided to Officer Johnson mirrored her testimony at trial. Officer Johnson recalled that the victim was visibly distressed and frightened while providing her statement. After speaking to the victim, Officer Johnson secured the apartment. As he did so, he "noticed an unlocked window next to the back door."

         Lieutenant Margaret Houston of the MPD acted as the lead investigator assigned to the victim's case. Lieutenant Houston created the first photographic array using the photograph of a man she had learned was a potential suspect. The victim was unable to make an identification from this array. Later, Lieutenant Houston developed another suspect and prepared a second photographic array. As she was viewing the second array, the victim told Lieutenant Houston "that since the bottom part of his face was covered that it was difficult for her." At that point, Lieutenant Houston "took ...

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