### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jun e 5, 200 7

STA TE OF TEN NES SEE v. TOM MY RO SC OE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 05-01808 Chris B. Craft, Judge

No. W2006-01605-C CA-R 3-CD - F iled Jul y 11, 2007

Th e de fe nd ant, To mmy

Ros c oe , w a s c on vic te d o f r ob be ry , a Clas s C f e lony , a nd se nte nc e d a s a Rang e I I I , persistent off

ender to twelve y ear s in the Depa rtment of Corre ction. He r aises two issues

on a pp e a l: ( 1) wh e the r a

pr e tr ia l ph oto g ra

ph ic ide nti fi c a tio n p ro c e dure wa s im pe rm iss ibl y sug g estive; and (2) the suffic iency of the e vidence

. Following our re view, we aff irm the judg ment of the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J
., delivere d the opinion of the cour t, in which J OHN E VE R E TT W I L L I AMS and J.C. M C L IN , J J ., joined.

J ames M. Gulley

and De ena K

nopf, Memphis, Tenne ssee, f or the a ppellant, Tommy

Roscoe.

Rob e rt E. Coo pe r, Jr., Attor

ne y Gen eral and

Re po rt e r; J. Ros s D y e r, As sis tant A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Miche lle Parks, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

Testifying thr oug h an int erpr eter , the vi ctim, Mario Mejia, said that on October 3, 2004, he went to visit a friend at an apa rtment complex located at 1400 Court Avenue in Me mphis. After he g ot out of his gr een pickup truck, he was approa ched by two Afric an-A merica n men. One of

the men g ra bb e d h im b y

the ne c k a

nd sh ir t, p us he d h im a g a ins t a

wa ll, and too k h is wa lle t c on ta ini ng$7 0 to $80 and his key s. The two men then spe d off in Mejia’ s truck. Mejia said that he paid $3,900 f or the truck a

nd had owne d it for “six to seven months.” The poli ce later recove red Mejia’s truck, a nd it was retur

ned to him undamag ed the nig ht after the robbe ry , but a hy draulic ja ck wa s missi n g. Me jia g a ve a state me nt at the po lic e statio n a nd vie we d a ph oto g ra ph ic lin e up bu t w a s una

ble to-2-

make an id e nti fi c a tion. The po lic e su bs e qu e ntl y

br ou g ht a

no the r p ho tog ra

ph ic lin e up to h is apar tment, and he wa s able to identify the def endant as the man who “g rabbe d” him by the nec k and robbed him of his truck.

Mejia said that, whe n his attacke r g rabbe d him by the nec k, they

wer e fa ce- to-fac e and that he re c og nize d th e ph oto g ra phof the de fe nd ant a s so me on e he pr e vio us ly ha d s e e n in

his neig hborhood. Mejia wa s unabl e to m ake a courtroom identific ation of the de fenda nt. Howeve r, at a c ourt proce eding on Dec ember 2, 2004, Mejia identified a differ ent man as the perpe trator.

Al so tes ti fy in gthr ou g h a n in te rp re te r, Mari o O rt iz sa id t hat on Oc tob e r 4 , 2 00 4, his
roommate a

wake ned him at about 10:00 p.m. and told him that “he found a n Americ an who wa s selling [ a] truck.” Ortiz met with the s eller w hom he desc ribed a s a short, white man a bout “40 y ear s old or older.” The truc k was a g ree n 1995 Nissan, a n d Or t i z t h oug ht it was stolen beca use “the Am e ri c an” wa s selli ng it f or a ve ry low pr ic e and

did no t ha ve a tit le of ow ne rs hip . O rt iz w ro te down the vehic le identification number and g ave it to a f riend who c ontacted the police. The police subsequently

arr ested the se ller.

Ste ph e n Th or

nto n te sti fi e d that he wa s arr e ste d wh ile tr ying to se ll the vic tim ’s tr

uc k to Or tiz and cha rg ed with theft of pr operty over $1000 a s a re sult. Thornton said that he g ot the truck fr om the def endant the nig ht he was a rre sted and identified the defe ndant in the cour t ro o m. Thornton explained that he had be en “pa nhandling ” in a Kr og er pa rking lot whe n the def

endant “ pulled up” and aske d him if he wante d “to make some money ” by selling the truck. The defe ndant told him that he had g otten the truck “ from som ebody off of Court Street.” Thornton and the def endant then dr ove the truck to the Ma con Manor Apar tments on Macon R oad. As Thornton t alked to Or tiz and tried to neg otiate a pr ice f

or th e s al e o f t h e truc k, the def endant wa ited near

by . After ag ree ing to take $800 for the tr

uck, Thornton wr ote out a “bill of sale ” stating “I , Stephen Thornton, se l l my truck to Mario Ortiz,” and c opied the vehic le i dentification number onto the doc ument. Howeve r, bef ore he g ave the “bill of sale” to Ortiz, “s o mething didn’ t fee l rig ht,” so he de cided “ not to do it.” As Thornton walke d awa

y , he wa s appre hended by the police.

Offic er Jose p h

Jo hn s o n o f th e M e mp h is Po li ce D epar tment testified that he ar

rested T hornton at the apa rtment complex and that Thornton said he ha d g otten the truck f rom “a male blac k.”

Serg eant Rober

t Scogg ins of the Memphis Police Depa rtment Robbery

Bur eau te stified that he wa s the investigator in char g e of the robber y . On Octobe r 5, 2004, he took a statement fr om the victim and

s h o w e d h im a p h o to g r a p h ic li n e u p f r o m wh ic h n o id e n ti f

ic a ti o nw a s ma d e

. Se r g eant Scog g ins also took Thornton’s statement the da y afte r he w as ar

rested fo r at t em p t i n g to sell the victim’s truck to Ortiz. Thornton told him that he g ot the truck fr om a man name d “Roscoe” near the intersec tion of Poplar and Clevel a n d

. Sc o g g ins prepar ed a photog raphic lineup for Thor nton who identified the de fenda

nt as the man fr om whom he had r ece ived the truc k. Subsequently , on October 11, 2004, Serg eant Scog g ins showed the same photogra phic l ineup to the victim who also identified the def endant.-3-

Offic er Rooseve lt Col eman, a communications supervisor f or the Memphis Police De pa rtme nt, te sti fi e d f

or the de fe ns e that an e ve nt chro no log y do c ume nt is cr e a te d whe n c iti zen s c a ll
t h e p o l i ce depar

tment and speak with dispatchers. O ffice r Coleman conf irmed that an e vent

c hr on olo g y

wa s c re a te d tw e nty

min ute s a ft e r m idn ig ht o n O c tob e r 3 , 2 00 4, re g ard ingan a uto mob ile theft at 1400 Court Ave nue.

The de fenda

nt did not testi fy , and the jury convicted him as c harg ed.

AN AL YSI S

I. Co nst it ut ion ali tyof P hot og r aphi c Line up
On appe al, the def

endant a rg ues that the pre trial photog raphic identification proc edure used by Se rg e ant S c og g ins wi th t he vic timvio late d h is c on sti tut ion a l r ig hts . H e c on te nd s th a t:

The pre trial photog raphic ident i fi ca t ion proce dure w as so impermissibly or

unne c e ssa

ri ly su g g e sti ve a s to g ive ri se to a ve ry su bs tanti a l lik e lih oo d o f i rr e pa ra ble misidentification of [d] efe ndant as the pe rpetrator of the r obbery in violation of the Due Proc ess clause s of the F ourtee nth Amendment of the U nited States Consti tution and Ar ticle I , Section 8 of the Te nnessee Constit ution.

Specifica lly
, the defendant claims that the phot og raphic lineup shown to the victim at his apartment by Serg eant Scog g ins on October 11, 2004, w as i mpermissibly sug g estive because it contained “ a f a t a l d e f e c t a s [ d ] e f

e n d an t ’ s p h o t o g r a

p h i s t h e o n l y p i c tu r e o f a b l a c k m a l e w i t h a n o t i c e a b l e l a z y e ye and sca r on his fac e.” Moreove r, t he defenda nt asser ts that Serg eant Scog g ins “sever ely heig htened the sug g estiveness of the identification proc edure by alluding to the f

act that the s uspect was pictured in the photogr aphic a

rra y .” As such, he argues that “t h e testimony and evide nce pe rtaining to the pretria l photogr aphic identific ation itself should not have bee n admitted into ev i d en ce at trial and the judg ement should be re verse d.”

The trial c ourt held a pretria l suppression hearing wher e S erg eant Scogg ins testified that the vic timg a ve a

de sc ri pti on

of the ro bb e rs pr ior

to v ie wi ngthe ph ot ograph ic li ne up . T he vic tim descr ibed the first robbe r as a n Afric an-A merica

n male betwe en thirty

and thirt y -f

i v e y ear s old, approximately

five fe et, eleve n inches tall, and w eig hing 160 pounds, w ith dark skin, a g oatee , and “short, natural hair.” The victim descr ibed the sec ond robber as an A frica

n-Amer ican male about twenty -seve n y ear s old and the same he ight a nd weig ht as the first r o b b er. The victim did not mention a “lazy

ey e” or any fac ial scar

in his descriptions.

Ba sed on that information and the statement Thor nton provid ed af

ter his ar rest, Serg eant Sc og g ins us e d a

c omp ute r p ro g ra

m to c re a te the sp re a d o f p ho tog ra ph s. He tol d th e vic timpr ior to the viewingthat he “ha d a photog raphic lineup of possible suspects that he c ould choose fr om” but did not assist hi m in any way in making an identification. He instructe d the victim that “there wer e six pictures in

[th e ] p h o to g r a

p h ic li n e u

p s o h e w a s to lo o k

a t [ it ] an d

if h e s aw th e person-4-

responsible, that he was to ma ke an identification. I f not, he wa s not to make an identification.” The victim did not hesit ate in identifying the defe ndant from the lineup.

Th e tr ia l c o u rt c o n c lu d e d th a t n e it h e r th e p h o to g r a

p h ic li n e u

p it s e lf n o r th e id e n ti fica tion pr oc e dure wa s c on sti tut ion a lly inf ir m:
Well, looki ng at Ex hibit A, which is the photog raph, I don’t see a

scar and I

re a lly do n’ t se e a

la zy e y e . I ’m loo kin g a t [th e de fe nd ant’ s p ho tog ra ph ], w hic h is

c ir c le d. Ic an’ t se e a

sc ar. I ’m loo kin g a t th e e y e s. Th e on ly thi ng I se e dif fe re nt i n the ey es is one of the ey es there ’s a little white dot in one pupil, as a lig ht refle ction, and ther e’s not a dot in the other ey e.

L o o k i n g a tp i c tu r e s i x , t h a tp e r s o n i s t h e s a m e

– h i s e ye s ar e t h e s a m e w ay. I n the other f

our photog raphs, they

either both e y es have l i t t l e wh i t e dots or they don’t have littl e wh i t e d ots, but I just don’t see – looking at this picture if you’d asked me to describe this pe rson, I wouldn’t have descr ibed a sc ar. I would not have d e s c r i b e d o n e e ye b e i n g s m a l l e r t h an t h e o t h e r e ye

. It j u s t d o e s n ’ t a p p e ar t h a tw ay.

I n looking at the defe ndant in court, I don’t see from her e I don’t see a

scar or a la zy ey e. He may

have one but Idon’t see one . They ’re not disti nctive.

As far as telling people they ’re possible suspe cts, I just – I think that everyone who looks at a photo s prea d would know that, otherw ise the police a re just spinning their whe els. Th ey

shouldn’t say

we’ ve ca ug ht someone who is in here , see if you can ide ntify him. That would be wr ong . But say ing the re a

re possible suspec ts and making it plural, Ithink is not sug g estive. I t doesn’t sug g est which of t h e s ix , and it doesn’t make someone pick someone out beca use they use the wor d “possible.”

. . . .

Idon’t see that this phot o sprea d is unfair at al l

. No w whether or not – I

me an, [de fe ns e c ouns e l] is f re e to argue that to the jur

y and wh e the r o r n ot t

he vic tim in this case identified the defe ndant i n the courtroom or not is one thi ng

. But a s far as these pic tures, it just seems to me to be a fa ir photo sprea d and it’s not sugg estive. I f y ou wer e to show this to me and say pick out the robbe r, I

wouldn’t be a

ble to pick any particula r per son beca

use they all have dif

fer ent cha rac teristics. . . .

I f y ou look at picture numbe r five, you could ar g ue that ther e’s some kind of

scar on his face beca

use he has kind of a scar

red face

. Number six, there’s a scar – appea rs to be a slig ht scar ove r his left ey e. I don’t know whe re the scar i s on the defe ndant’s picture other than the re se ems to be an e x tra dimple on his left cheek, but there are dimples on the left che ek of numbe r five a nd also number one

.-5- So, for that rea son I ’m g oing to f ind that it’s not so sugg estive. L ooking a t

case law at our Sim mons versus United States 1968 ca se, . . . convic tions based on

e y e wi tne ss i de nti fi c a tio n at tri a l f oll ow inga

pr e tr ia l ph oto g ra

ph ic ide nti fi c a tio n w ill be set aside only if the photog raphic identification wa s so impermissibl y sug g estive as to g ive rise to a ve ry substantial likelihood of i rre para ble m isidentification. And Ican’ t see that in this case

. . . .

On a pp e a l , a tr ia l c ou rt ’s fi nd ing s o f f

a c t r e g a rd inga mot ion to s up pr e ss a

re c on c lus ive un le ss the evidenc e pre ponderates ag ainst them. State v. Reid, 213 S.W .3d 792, 825 (Tenn. 2006) (citing State v. Ros s, 49 S.W. 3d 83 3, 83 9 (T e nn

. 20 01 ))

. An y qu e sti on a bo ut t he “ c re dib ili ty

of wi tne sse s, the we i g ht and value of

the evidenc e, and a

resolution of conf

licts in the evidence are matters entrusted to the trial judge as the trier of fa ct.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Unless the def

endant de monstrates that “the evidenc e pre ponderates ag ainst the judg ment of the trial

c ourt , th is c ourt

mus t de fe r t o th e ru lin g of the tr ia l c ourt .” Re id, 21 3 S .W. 3d a t 82 5 ( c iti ngState

v. C ri b b s , 9 6 7 S.W .2d 773, 795 (Tenn. 1998) ). Howe ver, “ application of the law to the fa cts as deter mined by the trial cour t i s a question of law which is revie wed de novo on appea l.” State v. Dar rell Toomes, No. W2004-01739-CCA-R3-CD, 2005 WL 1541687, at *6 (Tenn. Crim. App. J une 27, 2005) (c iting State v. Ye arg an, 958 S.W.2d 626, 629 (Tenn. 1997)).

As our s up re me c ourt

ha s pre vio us ly ru le d, the “ [p]ho tog ra ph s c on ta ine d in

a ph oto g ra ph ic

arr ay do not ha

ve to mirr or the acc used. I nstead, the law simply require s that the police r efr ain from ‘sug g estive identification procedur es.’” State v. Hall, 976 S.W .2d 121, 153 (Tenn. 1998) (quoting Neil v. B igger s , 4 0 9 U. S . 188, 93 S. Ct . 375 (1972)) . Acc ording ly , a photog raphic identification only become s inadmissibl e, if, “ based upon the totality of the c ircumstances, ‘the c onfrontation conducte d . . . was so unnece ssarily sug g estive and conducive to ir repa rable mistaken identification that [t he ac cused] was de nied due pr ocess of law.’” Dar

rell T o o m es , 2005 WL 1541687, at *6 (quoting Stovall v. Denno

, 388 U.S. 293 , 301-302, 87 S. Ct. 1967, 1972 (1967)). The r isk of irrepa rable mistaken identification is heig htened if one of the photog raphs in the photog raphic li neup “is in some way

emphasized,” or if “the police indicate to the witness that they have othe r evide nce that one of the persons picture d committed the crime.” Simm on s v

. Un i t ed S tates, 390 U.S. 377, 383, 88 S. Ct . 967, 971 (1968).

Ba sed upon our revie w of the rec ord on appea l, inc luding the photog raphic arr ay from which the victim’s identification of the defe ndant was made, we c onclude that the e vidence supports the deter mination of the trial court that neither the lineup itself nor the proc edure by which it was view ed

was impermissibly sug g estive. Moreove r, the fac t that the victim made no mention of a “la zy ey e”

or fa c ia l sc ar i n h is s ome wh a t de ta ile d d e sc ri pti on of the de fe nd ant be fo re vie wi ngthe ph oto g ra ph ic lineup further

supports the trial cour

t’s denial of the motion to s uppress. This issue is there fore wi tho ut m e ri t.-6- II. Su ff iciency of the Evid ence
Additionally , the def

endant a rg ues that the e vidence is insufficient to support his robbery

c on vic tio n. He c on te nd s th a t be c a us e the vic timwa s n ot a

ble to i de nti fy

him fr om a ph oto g ra ph ic lin e up or “ fa c e -t o-face” in t

he c ourt ro om, the e vid e nc e lin kin g him to t he a c tua l r ob be ry

is insufficient. As f

or Th o rn t o n ’s t es timony , the def endant a sserts that eve n if it is taken “as one hundred pe rce nt (100%) true , the evidence is still insufficient to allow a rational trier of fa ct to find [d] efe ndant g uilty of robber y .” Acc ording to the defe ndant, Thornton’s testimony that the def endant

sa id h e g ot t

he tr uc k “ fr om s omebo dy

of f o f C ou rt Str e e t” is n ot s uf

fi c ie nt t o e sta

bli shhis inv olv e me nt i n th e ro bb e ry . The de fe nd ant p oin ts t o th e la c k o f c or ro bo ratin g ph y sic a l e vid e nc e to support his argument and cla ims that “if the jury inferr ed that beca use [ d]efendant was in possession of the truck the next day

that he robbe d [t he victim] t he nig ht before , that the above infere nce w as not rea sonable in lig ht of the fa ct that t here was e x tremely poor identification evidence connec ting [d] efe ndant to the robbe ry .”

I n con s i d er at ion of this issue, we apply the rule that where sufficie ncy of the c onvicting evidenc e is cha lleng ed, the r eleva nt question of the re viewing court is “whe ther, a fter vie wing the evidenc e in the light most favora ble to the prosec ution, any rational trier of fact could have f ound the essential e lements of the c rime beyond a re asonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. A pp. P. 13(e); State v. Eva

ns, 838 S.W .2d 185, 19 0- 92 (T e nn . 1 99 2) ; State v. An de rs on , 8 35 S.W. 2d 60 0, 60 4 (T e nn

. Cr im. Ap p. 19 92 ). Th is r ule applies whe n the determination of guilt is based upon dire ct evidenc e, cir cumstantial evidenc e, or a combination of both dire ct and circ umstantial evidence . State v. Penderg rass, 13 S.W.3d 389, 392- 93 (Tenn. Crim. App. 1999) (citing State v. Dy kes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)).

All questions i n volving the c redibility of witnesses, the w eig ht and value to be g iven the evidenc e, and a ll factua l issues are r esolved by the trier of

fa ct. See State v. Pappa s, 754 S.W .2d 620, 623 (Tenn. Crim. App. 1987) . Our supre me cour t stated the rationale for this rule:

This we l l -s et t led rule r ests on a sound foundation. The trial judg e and the jury see the witnesses fa ce to f ace , hear their testimony

and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice
t o d e t e r m i n e t h e w e i g h t an d c r e d i b i l i t y t o b e g i v e n t o t h e t e s t i m o n y o f w i t n e s s e s

. In the trial for

um alone is there human atmosphere an d t h e t o t ality of the e vidence cannot be repr oduced w ith a written re cord in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Te nn. 1966) (c iting Carr oll v. St ate, 370 S.W.2d 523 (Tenn. 196 3 ) )

. A d d it io n a ll y , a ju r y c o n v ic ti o n r e mo v e s th e p r e s u mp ti o n o f inn o c e n c e w ith whic h a defe ndant is initi al ly

cloake d and re place s it with one of g uilt, so t hat on appe al, a c onvicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

.-7-

Robbery is define d by statute as “the intentional or knowing theft of pr operty from the pe rson of a n o t h er b y

violence or

putting the pe rson in fea r.” Te nn. Code Ann. § 39-13- 401(a) (2006). Viewe d in a light most favor able to the prosecution, the evidence pr esente d in this case is sufficie nt to support the defe ndant’s con v i ct i o n

. Although the victim was unable to make a cour troom identification of the defe ndant, he did ide ntify him a s the robber from a photog raphic lineup eig ht day s after the robbe ry , and the discr epanc y could re asonably

be attributed to the pa ssag e of time. I n addition, the victim’s ide ntification, when coupled with T hornton’s testimony that he rec eived the truck fr om the defe ndant, who cl ai m ed h e obtained it on the same stree t where the cr ime was committed, supports the rea sonable infere nce that the defe ndant was one of the men w ho robbed the vic tim . T his iss ue is w ith ou t me ri t.

CO NC LU SION

B a se d on the fo re g oin g a

uth or iti e s and re a so nin g , we a ff ir m the jud g me nt of

the tr ia l c ourt

.

___________________________________ AL AN E. GL ENN, JUDGE