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Moutry v. State

Court of Criminal Appeals of Tennessee, Knoxville

June 1, 2018


          Session March 27, 2018

          Appeal from the Criminal Court for Knox County No. 102203, 103020G. Scott Green, Judge

         The Petitioner, Quincy Moutry, appeals the post-conviction court's denial of his petition for post-conviction relief in which he challenged his convictions for carjacking, aggravated robbery, and possession of a firearm with the intent to go armed during the commission of a dangerous felony and his effective twenty-seven-year sentence. On appeal, the Petitioner asserts that he received ineffective assistance of counsel at trial. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

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

          Cullen M. Wojcik (on appeal) and Mary Ward (at hearing), Knoxville, Tennessee, for the appellant, Quincy Moutry.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Charme P. Allen, District Attorney General; and Takisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and J. Ross Dyer, JJ., joined.




         The Petitioner's convictions stem from his participation in a carjacking. The Petitioner was charged through a presentment, which stated that the offenses occurred on March 13, 2008. See State v. Quincy D. Moutry, No. E2011-02531-CCA-R3-CD, 2013 WL 3105616, at *1 (Tenn. Crim. App. June 17, 2013), perm. app. denied (Tenn. Nov. 13, 2013). After the jury was sworn on the day of trial, the prosecutor informed the trial court that she believed the State previously had filed a motion to amend the indictment to change the offense date to March 4, 2008, and that the trial court had not yet ruled on the motion. Id. Trial counsel stated that he had not been served with an amendment and objected to the amendment. Id. In response to questioning by the trial court, trial counsel stated that he did not file a notice of an alibi defense and maintained that the Petitioner was in custody on March 13, the offense date listed in the presentment. Id. The prosecutor responded that based upon the discovery provided to the defense, the defense was on notice that the offense date was March 4. Id. The trial court permitted the amendment, allowing the charges to be read as "a day in March." Id.

         The victim testified at trial that on the day of the offenses, she and the Petitioner arranged to meet at a nearby Burger King parking lot after the Petitioner called her and stated that he recently had broken up with his girlfriend. Id. at *2. When the victim arrived, the Petitioner exited a Dodge Durango and entered the victim's car. Id. The Petitioner exchanged text messages with someone and exited the victim's car. Id. Another man came from the Durango, entered the victim's car, and pointed a gun at her. Id. She tried to flee as the man was attempting to cock the gun. Id. Another individual came from the direction of the Durango and began pistol-whipping the victim in an attempt to force her back inside her car. Id. The men fled in the victim's car after seeing someone exit Burger King. Id.

         The victim called the Petitioner and then 9-1-1. Id. She then called the Petitioner again and was speaking to him when the police arrived at Burger King. Id. Officers located the victim's abandoned car near the scene. Id. A copy of the victim's cellular phone records and a printout of the 9-1-1 calls on March 4, 2008, were entered into evidence. Id. The victim later identified the Petitioner in a photographic array that she signed and dated March 14, 2008. Id. On cross-examination, the victim testified that she believed she met with the detective and viewed the photographic arrays on the day following the offenses. Id.

         Officers subsequently initiated a traffic stop of the Durango. Id. at *3. A passenger exited the vehicle and fled, evading arrest. Id. The officers located the Petitioner's cellular phone inside the Durango, and records established that the cellular phone had been used to call the victim just prior to the offenses. Id.

         On March 5, 2008, at approximately 1:00 a.m., the Petitioner called the police and reported that his Durango was missing. Id. When Officer Darrell Sexton went to the Petitioner's residence, the Petitioner refused to allow Officer Sexton inside the residence and spoke to him through a security door. Id. The Petitioner maintained that he allowed a friend to borrow the vehicle but that the friend failed to return it. Id. The Petitioner stated that his cellular phone was still inside the vehicle. Id. Officer Sexton testified that the Petitioner's clothes were "consistent" with the clothes of the person who had evaded arrest earlier in the evening. Id.

         Officer Joshua Shaffer interviewed the Petitioner about the offenses after the victim identified him in the photographic array. Id. Although the Petitioner admitted to knowing the victim, he denied participating in the offenses. Id. On cross-examination, Officer Shaffer testified that the Petitioner was arrested on March 10, 2008, on an unrelated charge and remained in custody until ...

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