Merrilees v. State
| Decision Date | 08 May 2023 |
| Docket Number | M2021-01324-CCA-R3-PC |
| Parties | GREGG MERRILEES v. STATE OF TENNESSEE |
| Court | Tennessee Court of Criminal Appeals |
Session November 8, 2022
Appeal from the Circuit Court for Rutherford County No. 77445-C James A. Turner, Judge
In this post-conviction appeal, the Petitioner-Appellant, Gregg Merrilees, seeks relief from his original convictions of aggravated robbery and robbery in concert with two or more persons, for which he received an effective sentence of sixteen years' imprisonment. He subsequently filed a petition seeking post-conviction relief, which was denied by the postconviction court. The Petitioner now appeals and raises a stand-alone challenge to the sufficiency of the evidence. In addition, the Petitioner argues four grounds in support of his ineffective assistance of counsel claim: (1) trial counsel's failure to challenge the sufficiency of the evidence based on the lack of accomplice corroboration in a motion for judgment of acquittal or on direct appeal; (2) trial counsel's failure to request a jury instruction on accomplice corroboration; (3) trial counsel's failure to object based on speculation to the hotel clerk-victim's accusation that the Petitioner was involved in the offenses based on the hotel clerk-victim's "gut"; and (4) trial counsel's failure to object to "the unconstitutional show-up" identification of the Petitioner by the hotel clerk-victim at trial. Upon our review, we affirm.
Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Drew Justice, Murfreesboro, Tennessee, for the Petitioner-Appellant, Gregg Merrilees.
Jonathan Skrmetti, Attorney General and Reporter; Benjamin A Ball, Senior Assistant Attorney General; Jennings H. Jones, District Attorney General; and Dana Minor and Matthew Westmoreland, Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
The sufficiency of the evidence is central to several of the issues raised by the Petitioner; accordingly, it is necessary to engage in a full recitation of the evidence presented at the Petitioner's jury trial on August 13, 2018.
Dashaun Hickerson, an admitted drug addict who was in custody at the time of trial, testified that he moved to Tennessee in 2005, after Hurricane Katrina struck New Orleans, which earned him the nickname of N.O. He had been in different substance abuse programs to help with his drug problem and blamed his drug problem for why he was involved with the instant offenses. He knew the Petitioner, who Hickerson called "Peanut," and another individual named "Monk," but he did not know Monk's real name. Hickerson had only met Monk "maybe twice." Hickerson and the Petitioner were mutual friends and had the same drug addiction. Hickerson would contact the Petitioner on a weekly basis, and he considered their relationship to be "pretty close." On January 3, 2017, Hickerson met the Petitioner in Smyrna in the evening, after he got off work. Hickerson said he got in the Petitioner's car, and Katie, the Petitioner's ex-girlfriend, was also in the car.
They drove to the Home Depot, retrieved some items, and the Petitioner left him at the Home Depot. Hickerson waited at the Home Depot until it closed and then walked down the street to a gas station. Around 1:00 a.m., when Hickerson was about to leave the gas station, the Petitioner pulled into the gas station. Though angry, Hickerson got in the car with the Petitioner. Only the Petitioner, Hickerson, and Monk were in the car at this time. Hickerson did not know where they were going, but they eventually pulled into the parking lot of a hotel because the Petitioner had to use the restroom. Hickerson did not remember the name of the hotel, but he thought it may have been the Hilton. Hickerson testified that the Petitioner was inside the hotel for twenty minutes while he and Monk stayed in the car. While inside the car, Monk's girlfriend repeatedly called him because she was "dope sick," and Monk became agitated.
When the Petitioner returned to the car, he told them that only one person was in the hotel. Hickerson understood what the Petitioner and Monk were about to do. The Petitioner then told Hickerson that he was going to have to go inside the hotel with Monk. The Petitioner drove to the front of the hotel, gave Hickerson a roll of duct tape, and told him to use it if necessary. Hickerson put the duct tape in his pants and went into the hotel with Monk. Monk asked the cost of a room while Hickerson acted like he was on the phone. As the hotel clerk was looking at the computer, Monk approached him armed with a knife and demanded money. The hotel clerk appeared scared and gave Monk the money. Monk then brought the hotel clerk to "the back" behind the counter and asked where the hotel safe was located. Hickerson followed them. Once behind the counter, the hotel clerk told them that he could not open the safe. At this point, Hickerson told the clerk to sit down, calm down, and that no one was going to hurt him. Hickerson then put tape around the hotel clerk's hands, took the hotel clerk's phone, and left.
When Hickerson went outside the hotel, the Petitioner was in the front of the hotel getting the cash register. Monk was heading toward the front door. The Petitioner put the cash register in the trunk of his car. Hickerson explained that the cash register the Petitioner put in the trunk was from the front of the hotel and not the same cash register the hotel clerk used to give Monk money. All three men got in the car, with the Petitioner driving, Monk in the front passenger seat, and Hickerson in the back seat. They then went to Nashville, picked up Katie, and bought and used drugs. They went to a house, where they used the drugs, and the Petitioner eventually dropped Hickerson at his home in Antioch.
Hickerson agreed that he was later arrested for the instant offenses and provided a statement to Detective Jason Anderson. He agreed that the information provided in the statement was not entirely consistent with his trial testimony. Upon being shown photographs, Hickerson initially denied it was him in the photograph, and he also denied that he tied up the hotel clerk-victim. He was untruthful as to how he came to meet the Petitioner on the day of the offenses and the events following the offenses, stating that he went straight home. Hickerson nevertheless insisted he was truthful and consistent regarding the persons who committed the robbery with him, the Petitioner and Monk. Hickerson had also previously reviewed the surveillance videos of the instant offenses and confirmed they portrayed the events on the night of the offenses as he testified to at trial.
The surveillance videos were admitted as evidence and played for the jury at trial. The first video shows a view of the front desk and two individuals: one individual is seen walking past the front desk into the darker area of the hotel and another masked individual is seen later taking something from behind the desk. No faces are shown on the video. Hickerson had met with the State prior to his testimony, but he was not made any offers or promises of leniency. During their discussions, Hickerson was advised to tell the truth. Hickerson identified the Petitioner in court as the person who accompanied him on the night of the offenses.
On cross-examination, Hickerson agreed that he was a heroin addict at the time of the offenses, but he denied that it affected his ability to remember at that time. Hickerson explained that he was "sick" or had not had any drugs. He confirmed that the Petitioner went inside the hotel for twenty minutes, and that he waited about five minutes before he and Monk entered the hotel. Hickerson confirmed that the Petitioner was outside of the hotel when he and Monk went inside. Hickerson also confirmed that Monk held the knife to the hotel clerk-victim, that Hickerson tied him up, and that the Petitioner was not present at either time. Hickerson agreed that he originally did not tell the police that the Petitioner provided him with duct tape. Hickerson also agreed that while he did not have an agreement with the State, he hoped the State would take his testimony into consideration for a better offer.
Decari Cradle, the hotel clerk-victim in this case, testified that in January 2017, he was employed at the Hilton Garden Inn. At the time of the offenses, his duties were as a night auditor, and no one else worked in the same area of the hotel. As part of his job, he had access to surveillance videos and a monitor at his desk, and he identified several photographs of the same as evidence at trial. On January 2, 2017, the victim's shift began at 11:00 in the evening, but he arrived fifteen to thirty minutes late. He said the only other employees present were the front desk manager and the bartender. The victim explained these employees would typically leave after updating him on the happenings at the hotel. The victim said an individual came into the hotel that night asking to use the bathroom who The bartender told the bathroom-goer where the bathroom was located. The bathroom-goer wore "like a red or burgundy shirt, had a hat, kind of like a fedora on." Asked if he saw the person who asked to go to the bathroom that night in the courtroom, the victim identified the Petitioner.
The victim did not see the Petitioner "physically" leave the hotel, and the victim only assumed the Petitioner left based on a car that came there "kind of when he was there."...
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