IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 5, 2007

STATE OF TENNESSEE v. TOMMY ROSCOE

Direct Appeal from the Criminal Court for Shelby County

No. 05-01808 Chris B. Craft, Judge

No. W2006-01605-CCA-R3-CD - Filed July 11, 2007

The defendant, Tommy Roscoe, was convicted of robbery, a Class C felony, and sentenced as a

Range III, persistent offender to twelve years in the Department of Correction. He raises two issues

on appeal: (1) whether a pretrial photographic identification procedure was impermissibly

suggestive; and (2) the sufficiency of the evidence. Following our review, we affirm the judgment

of the trial court.

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

ALAN E. GLENN,J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and J.C.

MCLIN, JJ., joined.

James M. Gulley and Deena Knopf, Memphis, Tennessee, for the appellant, Tommy Roscoe.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

Testifying through an interpreter, the victim, Mario Mejia, said that on October 3, 2004, he

went to visit a friend at an apartment complex located at 1400 Court Avenue in Memphis. After he

got out of his green pickup truck, he was approached by two African-American men. One of the men

grabbed him by the neck and shirt, pushed him against a wall, and took his wallet containing $70 to

$80 and his keys. The two men then sped off in Mejia’s truck. Mejia said that he paid $3,900 for

the truck and had owned it for “six to seven months.” The police later recovered Mejia’s truck, and

it was returned to him undamaged the night after the robbery, but a hydraulic jack was missing.

Mejia gave a statement at the police station and viewed a photographic lineup but was unable to
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make an identification. The police subsequently brought another photographic lineup to his

apartment, and he was able to identify the defendant as the man who “grabbed” him by the neck and

robbed him of his truck. 

Mejia said that, when his attacker grabbed him by the neck, they were face-to-face and that

he recognized the photograph of the defendant as someone he previously had seen in his

neighborhood. Mejia was unable to make a courtroom identification of the defendant. However,

at a court proceeding on December 2, 2004, Mejia identified a different man as the perpetrator. 

 Also testifying through an interpreter, Mario Ortiz said that on October 4, 2004, his

roommate awakened him at about 10:00 p.m. and told him that “he found an American who was

selling [a] truck.” Ortiz met with the seller whom he described as a short, white man about “40 years

old or older.” The truck was a green 1995 Nissan, and Ortiz thought it was stolen because “the

American” was selling it for a very low price and did not have a title of ownership. Ortiz wrote

down the vehicle identification number and gave it to a friend who contacted the police. The police

subsequently arrested the seller. 

Stephen Thornton testified that he was arrested while trying to sell the victim’struck to Ortiz

and charged with theft of property over $1000 as a result. Thornton said that he got the truck from

the defendant the night he was arrested and identified the defendant in the courtroom. Thornton

explained that he had been “panhandling” in a Kroger parking lot when the defendant “pulled up”

and asked him if he wanted “to make some money” by selling the truck. The defendant told him that

he had gotten the truck “from somebody off of Court Street.” Thornton and the defendant then drove

the truck to the Macon Manor Apartments on Macon Road. As Thornton talked to Ortiz and tried

to negotiate a price for the sale of the truck, the defendant waited nearby. After agreeing to take

$800 for the truck, Thornton wrote out a “bill of sale” stating “I, Stephen Thornton, sell my truck

to Mario Ortiz,” and copied the vehicle identification number onto the document. However, before

he gave the “bill of sale” to Ortiz, “something didn’t feel right,” so he decided “not to do it.” As

Thornton walked away, he was apprehended by the police. 

Officer Joseph Johnson of the Memphis Police Department testified that he arrested Thornton

at the apartment complex and that Thornton said he had gotten the truck from “a male black.” 

Sergeant Robert Scoggins of the Memphis Police Department Robbery Bureau testified that

he was the investigator in charge of the robbery. On October 5, 2004, he took a statement from the

victim and showed him a photographic lineup from which no identification was made. Sergeant

Scoggins also took Thornton’s statement the day after he was arrested for attempting to sell the

victim’s truck to Ortiz. Thornton told him that he got the truck from a man named “Roscoe” near

the intersection of Poplar and Cleveland. Scoggins prepared a photographic lineup for Thornton who

identified the defendant as the man from whom he had received the truck. Subsequently, on October

11, 2004, Sergeant Scoggins showed the same photographic lineup to the victim who also identified

the defendant. 
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Officer Roosevelt Coleman, a communications supervisor for the Memphis Police

Department, testified for the defense that an event chronology document is created when citizens call

the police department and speak with dispatchers. Officer Coleman confirmed that an event

chronology was created twenty minutes after midnight on October 3, 2004,regarding an automobile

theft at 1400 Court Avenue.

The defendant did not testify, and the jury convicted him as charged.

ANALYSIS

I. Constitutionality of Photographic Lineup

On appeal, the defendant argues that the pretrial photographic identification procedure used

by Sergeant Scoggins with the victim violated his constitutional rights. He contends that:

The pretrial photographic identification procedure was so impermissibly or

unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable

misidentification of [d]efendant as the perpetrator of the robbery in violation of the

Due Process clauses of the Fourteenth Amendment of the United States Constitution

and Article I, Section 8 of the Tennessee Constitution.

Specifically, the defendant claims that the photographic lineup shown to the victim at his apartment

by Sergeant Scoggins on October 11, 2004, was impermissibly suggestive because it contained “a

fatal defect as[d]efendant’s photograph isthe only picture of a black male with a noticeable lazy eye

and scar on his face.” Moreover, the defendant asserts that Sergeant Scoggins “severely heightened

the suggestiveness of the identification procedure by alluding to the fact that the suspect was pictured

in the photographic array.” As such, he argues that “the testimony and evidence pertaining to the

pretrial photographic identification itself should not have been admitted into evidence at trial and

the judgement should be reversed.” 

The trial court held a pretrial suppression hearing where Sergeant Scoggins testified that the

victim gave a description of the robbers prior to viewing the photographic lineup. The victim

described the first robber as an African-American male between thirty and thirty-five years old,

approximately five feet, eleven inches tall, and weighing 160 pounds, with dark skin, a goatee, and

“short, natural hair.” The victim described the second robber as an African-American male about

twenty-seven years old and the same height and weight as the first robber. The victim did not

mention a “lazy eye” or any facial scar in his descriptions. 

Based on that information and the statement Thornton provided after his arrest, Sergeant

Scoggins used a computer program to create the spread of photographs. He told the victim prior to

the viewing that he “had a photographic lineup of possible suspects that he could choose from” but

did not assist him in any way in making an identification. He instructed the victim that “there were

six pictures in [the] photographic lineup so he was to look at [it] and if he saw the person
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responsible, that he was to make an identification. If not, he was not to make an identification.” The

victim did not hesitate in identifying the defendant from the lineup. 

The trial court concluded that neither the photographic lineup itself nor the identification

procedure was constitutionally infirm:

Well, looking at Exhibit A, which is the photograph, I don’t see a scar and I

really don’t see a lazy eye. I’m looking at [the defendant’s photograph], which is

circled. I can’t see a scar. I’m looking at the eyes. The only thing I see different in

the eyes is one of the eyes there’s a little white dot in one pupil, as a light reflection,

and there’s not a dot in the other eye. 

Looking at picture six, that person is the same – his eyes are the same way.

In the other four photographs, they either both eyes have little white dots or they

don’t have little white dots, but I just don’t see – looking at this picture if you’d

asked me to describe this person, I wouldn’t have described a scar. I would not have

described one eye being smaller than the other eye. It just doesn’t appear that way.

In looking at the defendant in court, I don’t see from here I don’t see a scar

or a lazy eye. He may have one but I don’t see one. They’re not distinctive.

As far as telling people they’re possible suspects, Ijust – I think that everyone

who looks at a photo spread would know that, otherwise the police are just spinning

their wheels. They shouldn’t say we’ve caught someone who is in here, see if you

can identify him. That would be wrong. But saying there are possible suspects and

making it plural, I think is not suggestive. It doesn’t suggest which of the six, and

it doesn’t make someone pick someone out because they use the word “possible.” 

. . . .

I don’t see that this photo spread is unfair at all. Now whether or not – I

mean, [defense counsel] is free to argue that to the jury and whether or not the victim

in this case identified the defendant in the courtroom or not is one thing. But as far

as these pictures, it just seems to me to be a fair photo spread and it’s not suggestive.

If you were to show this to me and say pick out the robber, I wouldn’t be able to pick

any particular person because they all have different characteristics. . . .

If you look at picture number five, you could argue that there’s some kind of

scar on his face because he has kind of a scarred face. Number six, there’s a scar –

appears to be a slight scar over his left eye. I don’t know where the scar is on the

defendant’s picture other than there seems to be an extra dimple on his left cheek, but

there are dimples on the left cheek of number five and also number one.
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So, for that reason I’m going to find that it’s not so suggestive. Looking at

case law at our Simmons versus United States 1968 case, . . . convictions based on

eyewitness identification at trial following a pretrial photographic identification will

be set aside only if the photographic identification was so impermissibly suggestive

as to give rise to a very substantial likelihood of irreparable misidentification. And

I can’t see that in this case. . . .

On appeal, a trial court’s findings of fact regarding a motion to suppress are conclusive unless

the evidence preponderates against them. State v. Reid, 213 S.W.3d 792, 825 (Tenn. 2006) (citing

State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001)). Any question about the “credibility of witnesses,

the weight and value of the evidence, and a resolution of conflicts in the evidence are matters

entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

Unless the defendant demonstrates that “the evidence preponderates against the judgment of the trial

court, this court must defer to the ruling of the trial court.” Reid, 213 S.W.3d at 825 (citing State

v. Cribbs, 967 S.W.2d 773, 795 (Tenn. 1998)). However, “application of the law to the facts as

determined by the trial court is a question of law which is reviewed de novo on appeal.” State v.

Darrell Toomes, No. W2004-01739-CCA-R3-CD, 2005 WL1541687, at *6 (Tenn. Crim. App. June

27, 2005) (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

As our supreme court has previously ruled, the “[p]hotographs contained in a photographic

array do not have to mirror the accused. Instead, the law simply requires that the police refrain from

‘suggestive identification procedures.’” State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998) (quoting

Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972)). Accordingly, a photographic identification

only becomes inadmissible, if, “based upon the totality of the circumstances, ‘the confrontation

conducted . . . was so unnecessarily suggestive and conducive to irreparable mistaken identification

that [the accused] was denied due process of law.’” Darrell Toomes, 2005 WL 1541687, at *6

(quoting Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967, 1972 (1967)). The risk of

irreparable mistaken identification is heightened if one of the photographs in the photographic lineup

“is in some way emphasized,” or if “the police indicate to the witness that they have other evidence

that one of the persons pictured committed the crime.” Simmons v. United States, 390 U.S. 377,

383, 88 S. Ct. 967, 971 (1968).

Based upon our review of the record on appeal, including the photographic array from which

the victim’s identification of the defendant was made, we conclude that the evidence supports the

determination of the trial court that neither the lineup itself nor the procedure by which it was viewed

was impermissibly suggestive. Moreover, the fact that the victim made no mention of a “lazy eye”

or facial scar in his somewhat detailed description of the defendant before viewing the photographic

lineup further supports the trial court’s denial of the motion to suppress. This issue is therefore

without merit.
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II. Sufficiency of the Evidence

Additionally, the defendant argues that the evidence is insufficient to support his robbery

conviction. He contends that because the victim was not able to identify him from a photographic

lineup or “face-to-face” in the courtroom, the evidence linking him to the actual robbery is

insufficient. As for Thornton’s testimony, the defendant asserts that even if it is taken “as one

hundred percent (100%) true, the evidence is still insufficient to allow a rational trier of fact to find

[d]efendant guilty of robbery.” According to the defendant, Thornton’s testimony that the defendant

said he got the truck “from somebody off of Court Street” is not sufficient to establish his

involvement in the robbery. The defendant points to the lack of corroborating physical evidence to

support his argument and claims that “if the jury inferred that because [d]efendant was in possession

of the truck the next day that he robbed [the victim] the night before, that the above inference was

not reasonable in light of the fact that there was extremely poor identification evidence connecting

[d]efendant to the robbery.” 

In consideration of this issue, we apply the rule that where sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e); State v. Evans, 838 S.W.2d 185,

190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). This rule

applies when the determination of guilt is based upon direct evidence, circumstantial evidence, or

a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-

93 (Tenn. Crim. App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)).

All questions involving the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d

620, 623 (Tenn. Crim. App. 1987). Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their demeanor

on the stand. Thus the trial judge and jury are the primary instrumentality of justice

to determine the weight and credibility to be given to the testimony of witnesses. In

the trial forum alone is there human atmosphere and the totality of the evidence

cannot be reproduced with a written record in this Court. 

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn.

1963)). Additionally, a jury conviction removes the presumption of innocence with which a

defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted

defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).
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Robbery is defined by statute as “the intentional or knowing theft of property from the person

of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2006).

Viewed in a light most favorable to the prosecution, the evidence presented in this case is sufficient

to support the defendant’s conviction. Although the victim was unable to make a courtroom

identification of the defendant, he did identify him as the robber from a photographic lineup eight

days after the robbery, and the discrepancy could reasonably be attributed to the passage of time.

In addition, the victim’s identification, when coupled with Thornton’s testimony that he received the

truck from the defendant, who claimed he obtained it on the same street where the crime was

committed, supports the reasonable inference that the defendant was one of the men who robbed the

victim. This issue is without merit.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.

___________________________________ 

ALAN E. GLENN, JUDGE