# FILED
June 18, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

1999 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9712-CR- 0 056 1 ) vs. ) Davidson County ) DENNY JAM ES McABEE, ) Hon. J. Randall Wyatt, Judge ) Appellant. ) (Aggravate d Robbery) )
FOR THE APPE LLANT: FOR THE APPELLEE: S. RAY WHITE

(on appeal) JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter 9856 S. Windrow Rd. Rockvale, TN 37153 TIM OTH Y F. B EHAN Assistant Attorney Gener al RAY CULP (at motion for ne w trial) 425 Fifth Ave. N., 2d Floor Attorney at Law Nashville, TN 37243-0493 439 Battle Ave. Franklin, TN 37064 VICTOR S. JOHNSON, III District Attorney General PAUL BRUNO

(at trial) Attorney at Law LILA STA TOM 222 Second Ave. North, Ste. 350 Asst. District Attor ney General Nashville, TN 37201 222 Second Ave North, Ste. 500 Nashville, TN 37201 RAYBURN McGOWAN, JR. (at trial) Attorney at Law 222 Second Ave. North, Ste. 41 6 Nashville, TN 37201 OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE2 OPINION T he defendant, Denny James McAbee, st ands convicte d o f aggravatedrobbery for the carjack ing of Earl Gl en "Bubb a" Lacke y, Jr. on April 19, 1996. McAbee received his c onviction at the conclus ion of a jury trial in the Davi dson County Criminal Cour t. He was subsequentl

y sentenced to serve four tee n years in the Department of Correcti on consecut ively t o a previously impos ed sentence of six year

s and one day for an aggravated burglary conviction. In this direct appeal, McAbee raises tw o issues of alleged error. First, he claims the photogra phic l ineup conducted was improper. Second, he claims prosecutor ial misconduct in witness intimidation and in failing to disclose exculpatory i nformation during discovery. Fol lowing a review of the record, the briefs and oral arguments of the parties, and the law, w e affirm the judgment of the trial cour t.

I In his first issue, McAbee alleg es th e trial court erred in failing to suppress evidence regarding a photographic lineup from w hich the victim select

ed him as the perpetrator of the cri me. The essence of his complaint is that

the lineup
was "a result of the efforts of an office r with a personal sc ore to settle" who manipulated the photographs to the defendant's prejudice.

A patrol officer assigned to th e ar e a in which the crime took place conducted an investigation which led him to susp ect the defendant as the perpetrator. With the assistance of a det ective, the patrol o ffic er assembled a photographic lineup consisting of pictures of the defendant an d five other individuals who shared similar characte ristics with the de fendant. This was approximatel y the seventh photographic lineup the patr ol officer had assembled. The officer took the lineup to the vic

tim's home

and asked the victim whether anyone in it looked familiar from the robbery. The victim immediately selected the defendant's photograph.1 The victim testified at the suppression hearing and at trial that he initially

described the perpetrator's hair as dark brown or

black, which is con sistent with the defendant's photograph from th e lineup. Other physical characteristics described by the vic

tim match the defendant's photograph. However, as

3 At the supp ression hearing, the defendant c laimed that his photograp h
was much more recent than those of the other individuals r epresented. He argued that the officer put the lineup together himself, rather than le aving that to the detecti ve assigned to the case, to ensure that the victim made an identification of the defendant.

"To be admissible as

evidence, an identification must nothave been conducted in such an impermissi bly suggestiv e manner as tocreate a substantial likelihood of irreparable misidentification." St ate v. Cribbs , 967 S.W.2d 773, 794 (Tenn.) (citing Simmons v. United States , 390 U.S. 377, 88 S. Ct. 967 (1968)), cert denied , --- U.S. ---, 119 S. Ct. 343 (1998). In Neil v. Biggers , 409 U.S. 188, 93 S. Ct. 375 (197 2), the Su preme Co urt ident ified f ive factors for assessing rel iability of
an identif ication. They are: (1) t he opportunity of the witne ss to view the pe rpetrator

at the time of the offense, (2) the witness' degree of attention, (3) t h e accuracyof the witness' prior description of the perpetrator, (4) the l evel of certainty demonstrated by the witness a t the confrontation, and (5) the ti me between the crime and the identification.

The victi m's id entification of the defendant via photog raphic lineup easilypass es the Neil v. Biggers assessment. The victim had an opportunity to observe the defendant for a period of time at close range. The crime too k plac e during daylight hours. The victim's testimony indicates he paid attention to the perpetrator, who was making him nervous

and ultimately threatened hi m with a gun. The initial description th e victim gave of the per petrator supports

the identification he made of the def endant from the lineup. 1 By all accounts, the v ictim chose thediscussed in section II.B.below, the police repor t completed by the first officer to respond to the crime scene recounted that the perpe trator had "BL" hair, which the reporting officer testified stood for "blo nd." The information from the po lice report was not introduc ed until trial, and accor ding to the defense, never revealed during pre-

trial discovery

. See section II.B., infra . Even if the evidence from the police report had been av ailable to the defense at the time of the suppression hearing, the victim was positive in his lineup identification. Further, use of th e abbrevia tion "BL " could be ambiguou s, as it rep resents t he first two letters of both "blond" and "black."

2 Furthermore, the verdic t may be viewed as s ignifying that its veracity was discoun ted by the jury.

3 We acknowledge our supreme court's r ecent ruling that the appell ate courts may consider ev idence presented at trial, a s well as at the suppre

ssion hearing, in evaluatin g the propriety of a tri al court's ruling that a search warrant was validly ex

ecuted. See State v. Henning , 9 75S. W.2 d 2 90 (Ten n. 19 98 ). We decline, however, to apply that case to the situation at bar. First, the defendant does not seek the benefit of the Henning ruling; he has wholly ignored the fact 4 defendant from the lineup quickly and was confident in his identification. The lineup was conducted on May 7,1996, a brief time after the April 19, 1996 crime.

In this appeal, the defendant argues that the officer who prepared and
c onducted the photo lineup had a vendetta against the defen dant that sh ould b e considered in assessing the fair nes s of the procedure. The problem with this argumentis that the defendant offered no proof whatsoever at the suppression hearing of any vend etta. It wa s not until trial that the defendant presented this evidence through an admitted drug-abu s ing witness who claimed she had been intimate with the officer. She testi fied that the officer freq uently de nigrated the defendant and the witness' friendshi p with him. She claimed the officer

asked her questionsabout the defendant and made statements that he was g oing to see the defendant put in jail.

This evidence came too late to benefit the defen dant in his quest for suppression. 2 If the defendant desired to have the trial court consider the officer's alleged vendetta against the defendant i n conjunction withthe motion to suppress, he should have presented thi s evid ence at the sup pression hearin g. 3 In fact, thethat the evidence of the alleg ed vendetta was not prese nted until trial. Second,

Henning dealt with a search w arrant, not pretrial ide ntification. Third, the tria l evidence considered in Henning was used by the appell ate court to support the correctn ess of th e trial cou rt's rulin g, not to gi ve the non -prevailin g party a second chance to make his case for suppression.

4 Sims is cited in the Tennessee Supreme Court's Henning decision discussed supra at note 3. See Henning , 975 S.W.2d at 298. 5 evidence was not presenteduntil the defendant's case-in-chief, after the evidence of the victim's identific

ation of the defendant from the photo lineup had already been admitted. Cf

. State v. Si ms , 952 S.W.2d 286, 290 (Mo. App. 1997) (in deter mining propriety of trial court's ruling on suppression motion, appellate court may consider evidence presented at hearing on motion to suppress and introduced at trial prior to introduction of evidence of pretrial identification sou ght to be suppressed). 4

Notwithstanding

the defendant's failure to present the evidence of the alleged vendetta in t ime for it to be considered in conj unction with the motion to suppress, the evidence adds nothing to the defendant's argument for suppression. Even assuming theofficer may ha ve been unusua lly zealous in prepari ng a photo lineup and presenti ng it to the victim, there is no indication the officer suggested that the victim should pick the defendant from the lineup. Moreover, we di sagree with the defendant's characterizati on that the officer otherwise manipulated the process through the selection of photographs. Contrary to the defendant's arguments, his picture is not distinctive as co mpared with the others in the lineup due to age of the photographs, presence of acne, and hair color.

Accordin gly, the trial court did not err in denying the defendant's motion to suppress the pretri al lineup.

II

The defendant raises tw o claims of prosecutori al misconduct. The first5 The state's argument, consisting of lengthy quotation from the trial court's

order, a cursory sta

tement that "the trial court i s correct," and lacking citation to authority other than that contained in the quoted material f rom the trial court's order, is of little assi stance to this court in pr obing the merits of this is sue. 6 is an appropriate issue to be v iewed through the framew ork for prosecutorial misconduct claims. The second is more properly considered as a potential violation of Brady v. Maryl and

.

A

The defen dant contends that prosecutorial miscond uct occurred whe n a potential defense witness was intimidated and ulti mately changed her prospect ive trial testimony after she was visited in jail by the investigating police officer. 5

When an issue of prosecutorial mi sconduct is presented, the pr oper inquiry is "whether the improper conduct could have affected the v erdict to the prejudice of the defendant." Harrington v. State , 215 Tenn. 338, 340, 385 S.W.2d 758, 759 (1965).

At the motion for new trial, the defendant's lead trial attorney t estified that he had met with the inc arcer ated witness prior to trial, and she had corroborated another defense witness' report of having had an aff airwith thepolice officer in question. Further, counsel testified that the incarcerated witness told him the officer had pulled her over on many occasionsto inquire about the defendant's whereabouts. Defendant's lead counsel vi sited the incarcera ted witnes s a few days later, at which time she said the officer had been to see her since c ounsel 's l ast visit. Counsel t estifie d that th e wi tne ss said she would not g ive testimony unfavorable to the of ficer beca use she had pending charges and thought he had influence over the disposition of thes e charges. Becaus e he was uncertain after this meetin g how this witness would testify, lead counsel elected not to call this7

witness at trial. Counsel also testified that the witness told him the officer had taped their conversation. Despite counsel's requests to the state for a copy of the tape, he had never received on e.

The defendant's trial co-counsel testified that hewas present during lead counsel's latter conv ersation with the incar

cerated witness. H e testified that although the incarcerated witn ess did not per se recant what he unders tood her prospect ive testimony would be, s he minimi zed h er knowledge of relev ant information.

The inc arc erated witness testified at the motion for new trial.She
a cknowledgedhaving told the defendant's t rial counsel that the defense w itne ss ha d confided that she and the investigating officer had a sexual relationship. However, the incarcerated witness testified that she never believed anything the defense witness told her. The incarcerated w itness testified that

she had seen a police car at the defense witnes s' hous e only two times, and one of those times she was certain that the officer present was not the investigating officer. She denied that the investigating

officer had ever stopped her to inquire about the defendant 's whereabouts. She admitted that the investigating officer visited her in jail; however, she denied th at she felt threatened by him. To the contrary, she claimed she did not want to testify because she knew the defendant was guilty and did not want to assist his defense.

The officer in question testified that he met with the incarc erated witness in keeping with his normal practice of interviewing al l witnesses. He tal ked with the witness about he r prospec tive testimony; however, he denied threatening her. He testified he told the witness to tell the truth. The officer testified that a tape recording was made of his conversation with this wi tness. He gave the tape t o the6 The tape was not received as evidence at that hearing nor is it a part of the record on appeal. 8 assistant district a ttorney a ssigned to the case b ut had no knowl edge of i ts whereabouts at the time the moti on for new trial was heard. 6

From this evidence, the tri al court found "nocredible evidence of
coer cion or intimidation by the investigating officer . . . and no evid ence o f misconduct by

the district attorney ." Specifically, the court found no evidence that the officer threatened the incarcerated witness or co e rced her into changing her testimo ny. Furthermore, the court found that the defendant had failed to demonstrate any prejudice from any of the foregoing allegation s.

On appellate review, the defendant has not convinced us of the error of the trial court's rul ing. The evidence presented at the hear ing on the motion for new trial, whil e unusual, fails to demonstrate any wrongdoing by the state.

B The def e ndant also claims the prosecution withheld exculpatory evidence in the form of a police report indicati ng the perpetrator's hair was blond, rather than the dark brown color of the defendant's ha ir.

In Brady v. Maryl and , 373 U.S. 83, 83 S. Ct. 1194 (1963) , the United States Supreme Court held that the prosecution has the duty to furnish exculpatory evidence to the accuse d upon re quest. Any "suppressi on by the prosecution of evidence favorable to an accused upon r equ est violates due process where the evidence is m aterial either to guil t or to punishment, irrespec tive of the good faith
or bad faith of the prosecution." Brady , 373 U.S. at 87, 83 S. Ct. at 1196-97. The duty to dis clo se extends to all "favorab le information" regardless of whether the9

evidence is admissible at trial. State v. Marshall , 845 S.W.2d 228, 232-33 (Tenn. Crim. App. 1992); Branch v. State , 4 Tenn. Crim. App. 164, 168, 469 S.W.2d 533, 536 (1969). In United St ates v. Bagley , 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985), the Supreme

Court held that both exculpatory and impeachment evidence fall under

the Brady

rule. Cf

. Giglio v. United S tates , 405 U.S. 150, 92 S. Ct. 763 (1972) (nondisclosure of state's deal with witness violated defendant's due process rights).

Before an accused is entitled to relief under Brady , he must establish several prerequisites: (a) the prosecution must have suppr essed the evidence; (b) the evide nce suppre ssed must have been favorable to the accused; and (c) the evidence must have been material. See Bagley , 473 U.S. at 674-75, 105 S. Ct. at 337 9-80; Bra dy , 373 U.S. at 87, 83 S. Ct. at 1196-97; Workman v. State , 868 S.W.2d 705, 709 (Tenn. Crim. App. 1993); State v. Marshall , 845 S.W.2d 228, 232; Strouth v. St ate , 755 S.W.2d 819, 828 (Tenn. Crim. App. 1986). In State v. Spurlock , this court recogniz ed a fourth

prereq uisite

to reli ef, that "the accused must make a proper request forthe production of the evidence, unless the evidence, when viewed by the pr osecution, is obviousl

y exculpatory i n nature and will be helpful to the accused." State v. Spurlock , 874 S.W.2d 602, 609 (Tenn. Crim. App. 1993) (citations o mit ted). The defendant bears the burden of prov ing a Brady violation by a preponderance of the evi dence. State v. Edgin , 902 S.W.2d 387, 389 (Tenn. 1995).

In the case at bar, the initial police report indicated the suspect's hair
was "BL." The

off icer who p repared the report testified "BL" stood for blond and that the victim had described th e perpetrator's hair as "b londish." On the other hand, the victim testified that he had initially descr ibed the perpetrator's hair as dark brown or black. The defendant's hair is dark brown

.10 During the investigation, th e victim ide ntified two individuals whom he suspected may have been involv ed. B oth of thes e individuals have blond hair. Further, an officer testified that he had arrested these individuals for stealin g a vehicle and burning it prior to the victim's car being stolen and burned. The victim testified, however, that he gr ew up with oneof these individuals and w as sure that this person had not been the carja cker, alt hough he thought t his perso n might ha ve had someone else comm it t he crime. An officer interviewed the individuals identified by the victim as potential suspects, and h e received information implicating the de fendan t from one of these individuals. Based upon this information, the office r pre pared the photo lineup, choosing a photograph of the def endant and five individuals who shared similar ch aracteristics with th e defendant

. Each of the individuals depicted in the lineup had brown hair.

At the motion for new trial, McAbee's trial counsel testified that he did not learn about the police report describing the suspect's hair with the abbreviati on "BL" until the trial was underway. As a result of the belated disc losure, he claimed he was unable to investigate.

The trial court fou nd that the defense failed to carry its burden of proving a Brady

violation.

We begin our analysis with the fourth prerequisite for relief. It appears that discovery was

conducted in this case; how ever, i f "a proper

request for the production of the evidence" was made by the defense, it has not been included in the record on appeal. See Spurlock , 874 S.W.2d at 609. Thus, we direct our inquiry to whether "the evidenc e, when viewed by

the prosecution, is obviously exculpatory in natur

e and will be helpful to the accused." Id . The evidence in the
cas e at bar doe s not fulfill this criter ia. The victim's hair

color was only one

of11

several physical characteri stics described by the victim on the day

of the crime. The descr iption he recounted at trial that he had given on the day of the crime is remarkably similar to the defendant 's p hotograph in the lineup. The victim's testimony

that he described the perpetra tor as having dark brow

n or black hair was at odds with the officer's testimon y that the victim had said the perpetrator had blond hair; however, the victim’s testimony that he described the

perpetrat or as having possibly black

hair was not contradi cted per se by the report, which depic ted the perpetrator’s hair as “ BL ”. The inconsistent evidence of the perpetrator's hair color was fully

probed by the defense at trial . The defendant claims on appeal that he was "denied . . . the possi bility of developing other credible suspects" at trial by the non-disclosure of this ev idence. Although he had the opportunity at the hearing
on the motion for new trial t o prove that such evidence could have been developed, he failed to carry that bur den.
Furthermore, although the evidence w as suppressed, the

information in the report is not material. See Bagley , 473 U.S. at 674-75, 105 S. Ct. at 3379-80. In that regard, "the question is not whether the defendant would more likely than not have received a different ver dict with t he evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitle y, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566 (1995). In this case, the juryhad before it evidence of the inconsistency between the police report and the victim's account of a susp ect with da rk brown or black hair, as well as evidence that the possible suspects named by the victim had blo nd hair. Notwithsta nding, the jury convicted the defendant. At the motion for new tri al, the defendant had the opportunity

to prove any matter which the state's failure to disclose the police report deprived him of proving at trial, yet he offered no evidence supporting a finding of materiality and undermini ng confidence in the verdi ct.12 It bears repeatingthat the evidence of hair col or wasbut a portion of the victim's physic

al description of the

perpetrator. In addition, the victim chose the defendant from a photographic lineup. Vi ewed in context of all of the evidence presented, the report indicating the perpetrator had "BL" hair w as not material under the standar

d of Kyles . Cf. State v. Beal , 614 S.W.2d 77, 80-81 (Tenn. Crim. App. 1981) (due pr

ocess r ule of Brady

not violated where minor inconsistencies in initial description of perpetrator not disclosed during dis

covery but reveal ed during pretrial suppression hearing and ex posed by defense counsel at tri al).

The trial court correctlydetermined that no Brady violation had been demonstrated.

Finding no error requiring reversal, we affirm the

judgmentof the trial court.

________________________________ JAMES CURWOOD WITT, JR., JUDGE
CONCUR:

_______________________________ DAVID G. HAYES, JUDG E

_______________________________ JOHN EVERETT WILLIAMS, JUDGE