# FILED
March 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 02C01-9704-CR- 0 015 0 ) vs. ) Shelby County ) TORRANCE R. JOHNSON, ) Hon. Joseph Dailey, Judge ) Appellant. ) (Felony Murder)

FOR THE APPE LLANT: FOR THE APPELLEE: A.C. WHARTON, JR. JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter EDWARD G. THOMPSON (on appeal) PET ER M . CO UGH LAN RONALD S. JOH NSON (at trial) Asst. Attorney General LOYCE D. LAMBERT (at trial) 425 Fifth Ave. N., 2d Floor Asst. District Public Defenders Nashville, TN 37243-0493 201 Poplar Ave., Ste. 201 Memphis, TN 38103-1947 WILLIAM L. GIBBONS District Attorney General DAVID HENRY TERRELL DAVIS Asst. District Attorney s General 201 Poplar Ave., Third Fl oor Memphis, TN 38103

OPINION FILED:________________ AFFIRMED A

ND REMAND ED JAMES CURWOOD

WITT, JR., JUDGE1 Our opinion will address the issues in a different order than presented in

the defen dant's b rief. 2 OPINION The defe ndant, Torrance R. Johnson, stands con victed of felony murder committed in the perpetration of a r obbery following a j ury trial in the Shel by County Criminal C ourt. Th e jury decli ned to im pose the death pe nalty, and Johnson is prese ntly serving his sentence of life without possibility of parole in th e Departmentof Correction. In this appeal, he raises numerous all egationsof error in the pro ceedings below. 1. Whether the trial court correctlydenied the defendant's pretrial motion for access to the polic e inv estigative report. 2. Whether the cumu lative effect of the i dentification evidence was unduly sugg estive of t he defendant as the perpetrator of the crime. 3. Whether the trial court erred in instructing the jury that the law presumes that every witness is sworn to the truth. 4. Wh eth er

the court erred in allow ing the state to offer evidence of an earlier robbery c ommitted by the defendant

as identificati on proof. 5. Whether the trial c ourt corre ctly excl uded the defendant's alibi evidence. 6. Whether the e viden ce is sufficient to support the defendant's conviction. 7. Whether the ju ry's verdict imposing a life sentence without the possibility of parole is inconsis tent. 1 Having reviewed the recor d, the briefs of

the parties and t he applic able law, we affirm the judgment of the trial cour t.3 On January 26, 1994, at approx imately 9:30 p.m., BeverlyJ. Terrell
was shot while engaged in a financial transaction at an automat ed teller machine (ATM) at a Boatmen's Bank branch in Memphi s. At approximately the same time, 15-year-old Laqw

anda Lee and her grandmother were turning into the Boatmen's Bank parking lot as a blackmale wearing a gray or white hooded sweatshirt and a blackjacket ran across in front of them. The individual turned his face toward Ms. Lee for a brief period, andshe noticed that he had some gol d teeth. Upon pulling into the parking lot, Ms. Lee and her grandmother discovered the mortally wounded victim collapsed outsi de the ATM enclosure.

Julie Ca radine, who worked at a Chec kers restaurant across the street from Boatmen's Bank, saw an indi vidual in a dark jack

et and a light, white

or gray hood-like sweater running from the bank about9:30 p.m. She did not, however, see this person's face.

Followingpolice investigati on, the defendant emerged as the primary suspect. According to the testimony of Laqwanda Lee, she identified the defendant with 90 percent certainty in a photographic li neup and with absolute cert ainty in a physical lineup. Her testimony was corroborated by

Detective John Cherry of the San Diego, California Sheriff’s Department, who condu cted the photographic lineup, Sergeant

O. W. Stewart of the Memphis Poli ce Department, who was present at the phy s ical lineup, and Jerri Lee, the w itness’s grandmother and g uardian who was present at the physical l ineup.

Addition ally, the defendant wasimplicated in a very similar robbery of2 The defendant was ultimately c onvicted of that crime, State v. Torrance Johnson , No. 02C01-9610-CR-00350 ( Tenn. Crim. App., Jackson, Jan. 30, 1998), perm. app. denied (Tenn. 1998), but evidence of the conviction was not admitted until the sentencing phase of the trial. 4 Nedra Sm ith at the same ATM machine only six days before the victim’s murder. 2 According to Ms. Smith’s testimony , she identified the defendant in a physical lineup
as the man who robbed her. Inv estigator Alan Pinnow ’s testimon y con firmed Smith’s identification of the defendant i n a physical lineup.

The state introduc ed photogr aph s taken by the bank's surveillance equipment during the course of the Smith robbery and the victim's murder. In the photographs, the perpetrator o f both cr imes is wearing a l ight colored hooded sweatshirt which is pulled up over the perpetrator's head. The perpetrator is also wearin g a dark, leather or leather -type jacket. Althoug h the perpetrator is at a n angle away from the camera, the l ower part of his face is v isible in one of the photographs.

The defendant wasinterviewed by law enforcement. At first, he claimed he had been wor king o n the nights of the Terrell mur der and the Smith robbery. This claim was re butt ed by information received from the defenda nt's employer. The defendan t als o claimed he had been home and that he had been at a doctor's office being treated for pneumonia. The defendant's mother refused to talk to the a uthorities. The defendant gave no specific information about the alleged medical treatment s o that law enforcement officials c ould confirm it; however, the defendant offered medical records at trial indicating tha

t he had been treated for pneumonia at Regional Medical Center on January 28 , 1994, t wo days after the victim's murder.

At the close of proof, the d efendant was convicted of murder in3 The record does not bear out the defendant's assertion that the motion

was overruled. R

ather, it reflects that the tr ial court reserved r

uling on the motion prior to trial. After th e lead investigator t estified on direct examinati on at trial, the defense moved the court for an order requiring the state to tend er the witness's statements pursuant to Rule of Cr iminal Procedure 26.2. The cour t denied the motion because the state claimed and the de fendant acknowledged that all such information had been tendered in advance. The court allowed the defense additional time to revie w the previously

tendered materials. The defense did no t ask the court to revisit its reservation of ruling on the motion to require disclosure of the police report. 5 perpetra tion of a robbery.

During the sentencing phase of the trial, the state presented evidence that the defendant had a previous co nviction f or aggravated robber y. The defendant present

ed evid ence of his up bringing by a sing le parent, hi s problems performing in school, h is p sychological difficulties, his low intelligence, and his historyof alcohol and drug use. The defendant claim ed that he had never killed anyone in his life, and his credi bility was impeached with his prev ious convictionfor criminally negli gent homicide and sale of an imita tion controlled substance.
The jury returned a sentence of life without possibili ty of parole.

From the determinations of guilt and sentencing, the defenda nt appeals.

I

In his first issue, the defendant q uestions whethe r the trial court correctlydenied his pretrial motion for access to the police inv estigative report. 3 In his argument, the defendant has failed to make appropriate citations to the record
or to authority which

supports his very

general claim that he shoul d have received these reports because the inves tigating officer "testified w ith a selective memory." He has stated nolegal basis for his al leged entitlement to the report, and we decl ine4 The technical record contains only a general reci procal discovery motion which make s no speci fic reque st for no tice of a n alibi de fense. However, we evaluate the trial court's exclusion of the alibi evidence in light of the defenda nt's concession that the notice w as properly filed.
5 In his appellate brief, the defendant complains that the trial court excluded his mother's tes timony regarding hi s alleged alibi. How ever, his mother did not testify at this hearing. We presume he is aggrieved of the trial court's decision to exclude his aunt' s testimo ny. 6 to speculate in that regard.Additionally, this issue was not raised in the defendant's motion for new trial. Our c onsideration of

this issue has been wai ved. Tenn. R. Ct. Crim. App. 10(b); Tenn. R. App.P. 3(e), 27.

II The defendant challenges the trial court's pre-trial ruling excluding his alleged alibi evidence. He c laims, without expl anation, that the ruling amounte d to
an infringement of his state and federal constitutional rig hts because it deprived him of the opportunity to present a defense.

The state a nd th e defendant agree that the state filed a pre-trial motion seeking disclosure of the defendant's alibi evidence pur suant to Rul e of Criminal Procedure 12.1. 4 The def endant a cknowledg es that h e failed to give proper notice of his intent

to offer an alibi defense. On the day the trial began, the defense brought thepro posed witnesses to the court's attention. The court conducted a hearing, at which Tawana Collins, the defendant's aunt, 5 testified that she and the defendant's mother lived in the same apar tment building. Ms. Collins
was back and forth between her apartment and the defendant's m other's apartment all day on January26, 1994. The defendant was sick that day, and Collins' trips to the defendant's mother's apartment were to check on him. The defendant did not work that day because he was sick. Ms. Collins was certain about the date because the defendant had been at her apartment drink ing with a friend the pr

eviou s day,7

which was the friend' s birthday. Ms. Col lins further testifiedthat until recently s he had been in daily or almost daily contact with the defendant's mother. Howev er, she did notcontact defense counsel until the week before thedefendant's trial began.

TellyAlbright, t he defendant's cousin, testif ied the defendant had been drinking with a friend of Tawana Collins in the early morning hours of January 26. Mr. Albrig ht rememb

ered the date of J anuary

26 becau se the de

fe ndant "jus t got out for doing something -- they said he did something else. I had not seen him in
a long time." Mr. Albright recal led that the defendant borrowed M s. Collins' car on January 26 to take Dw

ayne Wells to the

emergency

room.

After Mr. Albright began his testimony, the defense announced its intention not to rely on this testimony; however, the defense persisted in its intention to call Ms. Collins. The trial court found that the request for notice of intent to rely
on alibi evidence had been fil ed almost two years ear lier. Further, the cour

t found that Ms. Collins had been at the defendant's disposal "virtually on a daily basis" up unti l approximately one month pr ior to trial. Accordi ngly, the court rul ed t hat Ms

. Collins' testimony w

ould be excluded.

Tennessee Rule of Criminal Procedur e 12.1 provides that upon wr itten demand by

the district attorney general, the defendant shall serve within ten days,
or at such other time as directed by the court, written noti ce of his intent to rely on
an al ibi defense. The notice shall cont ain specific information rega rding th e defendant's alleged location at the t ime of the offense and the names and addresses of the witnesses who the defendant will offer in su pport of his alibi defense. Tenn. R. Crim. P. 12.1(a). The duty of disclosure is c ontinuing. Tenn. R. Crim

. P. 12.1(c). Failure to comply with the rule may result in exclusio n of th e testimony

of an undisclosed witness. Tenn. R. Cr im. P. 12.1(d). However, the court8

maygrant an exception to th e rule upon good cause show n. Tenn. R. Crim. P. 12.1(e). On ap peal, we will not disturb the trial court's exclusion of alibi evidence based upon failure to comply with the r ule absent an abuse of discretion. State v. Shann on Blaylock , No. 03C01-9412-CR-00435, slip op. at 11 (Tenn. Crim. App. , Knoxville, Dec. 1 3, 1995) (Hayes, J. concurring and Turnbull, S.J. , dissenting); State
v. Terry Lewis Barr , No. 89-267- III, slip o p. at 8 (Tenn. Crim. App., Nashville, June 8, 1990), perm. app. denied (Tenn. 1990).

In this case, we find no abuse of discr etion. The defendant conceded at the hearing and in this appeal thathe failed to comply with the rule. Moreover, he made n o showing of good cause to excuse him from the rule's requirements. Although defense counsel did not speak to M s. Col lin s until the week before trial, Ms. Collins was in cl ose contact with the defendant's mother until themonth before trial. As the trial court correctly observed, "[T]his is not a witness [w

ho] ha s disappeared and . . . h adn 't been located or has been uncooper ative or caused problems. This is a witness [who] has been at the defendant's disposal for the past two years."
Moreover, we do not see a constitutional deprivation of due process from the trial court's exclusion of this testimony. When such an allegation is made, this court has considered: (1) the prejudice that resulted to the government from the failure to disclose; (2) th e p rejudice suffered by the defendant if the sanction of exclusion is employ

ed; (3) the reasons for nondisclosure; (4) the extent

that har

m fr om no ndisclosure is mitig ated by subsequent events; (5) the weight of evidence s upporting the defendant's guil t; and9 (6) any

other factors arising

out of the circumstances of the case. State v. Cory Lamont Gentry , No. 02C01-9708-CC-00304, slip op. at 6 (Tenn. Crim. App., Jackson, Sept. 14, 1998) (citations o mitted), applic. for perm. app. filed (Tenn. Nov. 10, 1998).

Although exclusion of alibiwitness testimony should be utilized only in extreme cases, C ory Lamont Gentry , slip op. at 7, the case at bar is such an extreme case. W e find certain of the facto rs particularly comp elling.

First, the risk of prejudice to the state is high. The state w as not given any semblance of proper notice of these w itnesses whi ch woul d allow it the opportunity

to investigate the w

itnesses and the veracity of their claims. "Given the
ease with which an alib i can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is bo th obvious and legitimat e." Willi ams v. Florida , 399 U.S. 78, 81, 90 S. Ct. 1893, 1896 (1970).

With respect to prejudice to the defendant, we find it t elling that the testimony

of the proffered witnesses was i nconsistent. While Ms. Collins said the defendant was very ill and in bed all day on January 26,Mr. Albright recal led the defendant driving someone else to the hospital that day. Thus, the impact of Ms. Collins' t estimon y, if offered by the defense, would cert ainly be erased by r

ebuttal evidence from the state that the defendant was well enough to drive someone else to the ho spital th at day.

Further, the defendant offered no satisfactory explan ation of why he had not disclosed the witne sses earlier. Apparentl y, Ms. Collins

did not come forward until shortly before the trial; however, s he admitted she was in da ily or almost daily contact with the defendant's mother during the time the defendant was6 As an aside, we note that the trial court properly instructed the jury

relative to eyew

itness identification. See State v. Dyle , 899 S.W.2d 607, 612 10 facing capital murder pros ecution.

We are also compelled by the strong evidence of the defendant's guilt to find no error

in the exclusionof this evidence. The defendant w as identified by
an eyewitness who saw him fleeing the scene. This witness a nd a s econd eyewitness described his clothing, which was the same as that wor n by the person who robbed Nedra Smith. Smith, too, identified the defenda nt. The jury had before it evidence that the defendant was treated for

pneumonia two days after the Terrell murder, yetit chose to accredit the state's theory that he killed the victim during the perpetration of a robbery on J anuary 26.

We find no error, constitutional or o therw ise, in the exclusion of this testimo ny.

III

Next, the def endant claims that the cumulativ e effect of the identification evidence w as unduly suggestiv

e of the defendant as the perpetrator of the crime. He challenges the identification evidence in five respects

-- the pretrial lineup identification of Smith base d upon the length of time betw een the crime and Smith’s identification, Smith’s subs equent in-court identifica tion, admission of evidence about the composite sketch w ithout requiring the sketch artist to test ify,

the bank security officer’s testimony about the similar ities of the perpetrator of the January 20 and January 26 crimes, and the trial court’s fail ure to give a j ur y instruction on voice i dentification. 6(Tenn. 1995). 11 With respect to i d entification evidence, the s tate presented the testimony

of Nedra Smith that she assisted law enforcement in develo ping a sketch of the person who robbed her. She also observed two phy sical lineups. In the first, she did not make an identification. In the second, she identified two individuals and asked that the subjects repeat, “Give me $200, b----, or I’ll kill the baby,” the phrase the robber said to her. After hearing the subjects’ voices, she positi vely identified the defendant. Officer Pinnow’s testimony confirmed Smith’s positiv e identification of the defendant.

Laqwanda

Lee test ified th at she was s hown two photoarrays, and she chose the defendant from the second array. She descr ibed her level of certaint yas 9 out of 10. Subseque ntly, Lee viewed a physical lineup from which she positively selected the defendant as the person she saw fleeing the scene of the murder. Her testim ony

was corroborated by

that of her grandmother and law enforcement officers who conducted the photographic and physical lineups.

The stat e a ls o p re se nt ed th e t esti mo ny of Ma ri tza Wi l liams, the Director of Security for Boatmen’s Bank, that she observed in secur ity photographs taken on the nights of the two cr imes thatthe perpetrator in both cases w as wearing
a white, hooded-type sw eatshirt and a dark leather jacket. She also observed that the physical stature of

both perpetrators was s imilar. Laqwanda Lee testified that the person she saw fleeing the scene was wearing a gray or whit e hooded12

sweats hirt und erneath a black jacket. She also saw that the individual was black and h ad some go ld teeth. Nedra Smith testifie d that the person who robbed her wore a gray and w

hite sweat suit, jeans and a black leather jacket.

A First, the defend ant challenges Smith's line up identification of the defendant based upon the 51-day time laps e b etween the crime and the identification.

In assessing

the reliabi lity of a li neup identifi cation, the period of time between the crime and the identificatio n is only one of the factors to be considered. In Neil v. Biggers , 409 U.S. 188, 93 S. Ct. 375 (1972), the Supreme Court i dentified five factors for

assessing reliability of an identification. They are: (1) the opportunity of the witness to view the perpetrator at the time of the offense , (2) the witness's degree of atten tion, (3) the accur acy of the wi tn ess's prior description of the perpetrator, (4) the leve l of certainty demonstrated by the witness at the confrontation, and (5) the time betw een the crime and the identificati on.

In the case at bar, Smithtestified she saw the defendant twice during the perpetr

ation of th e robbery -- once as he entered the ATM enclosure and a second time when she tu rned to tell him she could not withdraw the $200 he demanded. Additionally, the defendant s poke to Smith as he robbed her, and she heard his voice before identifying him from the lineup. Smit h test ified there was nothing obstructing her view of the defendant. Officer Pi nnow testified that Smith7 The defendant apparently confuses Smith w ith Laqwanda Lee. Lee w as shown the two photographic lineups.

8 The crime occurred in Januar y 1994, and the lineup at w hich Smith identified the defendant was in M arch 1994. Thus, any "December" hearing would have been after the li neup. 13 was an excellent witness in relatin g ident ifying information about the perpetrator. Further, Pinnow testified that a pic ture of the defen dant "jum ped out at me" as resembling the composite sketch Smith helpe d develop. Smith testified sh e was positive about her identification of the defe ndant at the lin eup. Finally, 51 days elapsed between the crime and thelineup at which Smith i dentified the defendant. Cf

. Forbes v. State , 559 S.W.2d 318, 32 3 (Tenn. 1977) (98 days). Considering, as we must, all of

these factors, we find Smith's identification of the defendant from the lineup highly reli able.

B

The defendant also claims Smith's in-court identificationwas tainted because she had seen two photo ar rays, been present at

two preliminary matters when the defendant was present,and made a "very tentativ e" identification of

the defendant in a physical lineup

.

In the first place, the recor d does no t reflec t that Sm ith was sho wn two photo arrays. 7 Second, the record reflects that Smit h testif ied at a suppression hearing in April 1995 and anoth er hea ring in "December." 8 However, the record does not reflect whether the de fend ant was present at these hear ings. In any event, both of these hearings took place after Smith's positi ve identification of

the defendant i n the l ineup. Finally, the record does not bear out the defendan t's assertion that Smith's identification of the defendant was "ver y t entative." Smith9 The record does not reflect w hether the defendant was a subject in the first lineup at which Smi th made no identification.

14 attended a lineup and identified no one as a s uspect. 9 She attended the second lineup and identified two of six individuals and asked to hear their voices.After the suspects repeated the phrase that the perpet rator said to her du ring the ro bbery, Smith positively i dentified the defendant.

The record is completely devoid of any evidence that Smith saw the defendant or his photograph any time between the crim e and her identification of him so as to suggest his identity as the perpetrator. Assuming s he wasexposed to him in later court proceedings, she had alre ady positively identi

fied him by this time.
Again applyin g th e Neil v. Biggersfactors discussed in secti on III.A. to the in-court identificati on following the pre-tr ial events described abov e, see State v. Brown , 795 S.W.2d 689, 694 (Tenn. Crim. App. 1990), we find no taint.

C The third sub-issue is the defendant's complaint that the trial court admitted evidence regarding a composite sketch without requiring the sketch artist to testify. The defendant did not object at the

time this evidence w

as offered, nor did he raise theissue in his motion for new trial. Thus, the issue i s waived. Tenn. R. App. P. 3(e), 36(a).

In any event, there is no requirement that the sketch artist testify if the victim who assisted the sketch artist ident ifies the sketch as a fair and accurate representation. State v. Torrance Johnson , No. 02C01-9610-CR-00350, slip op. at 6 (Tenn. Crim. App., Jackson, Jan. 30, 1998), perm. app. denied (Tenn. 1998).15 D Next, the defendant challenges the bank security officer' s testimony about the similarities of the perpetrator of the

January 20 and January 26 crimes. He contend s that it wa s imprope r for a lay wi tness to offe r her opinion because identity was essenti ally the ultimate issue in the case.

Maritza Williams, Director of Security for Boatme n's Bank, testified that the ATM machine at which Smith was robbed and Terrell was kill ed is equipped with
a video camera. After the crimes, Williams r eviewed the videotapes from both dates. At trial, she identified s till photographs made from the v ideot apes. Ove r defense objection, the court all owed W illiams to testify that she saw certain sim ila ritiesabout the perpetrator in both s till photographs. Specifically, in both photographsthe perpetrator wore a white hooded-t

ype sweatshirt and a dark leather jacket and was of the same phy sical size. Williams did not testify that the perpetrator

in both photographs was the same person or that the defendant w as pictured in either or both photographs.

Tennessee Rule of Evidence 701(a) al lows opinion testimony of a lay witness which is "rationally based on the pe rception of the witness and .

. . helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." In this case, the witness testified about her obser vations in viewing the t wo photographstaken from her bank's security cameras. Her opinions that the clothing and stature of the individual(s) depicted were similar was ra ti onally based on her perceptions. She did not offer an opinion about the identity of the individual(s). We16

fail to see that

the trial court abused it s discretion in admitting this evidence. See, e.g. , State v. McCary , 922 S.W.2d 511, 515 (Tenn. 1996) (admission of evidence is matter for discretion of tr ial court).

E The def endant a lso comp lains tha t the tria l court sho uld have gi ve n a jury instructi on on voice identification. The defendant did not request such an instruction, nor

did he raise the issue

in his motion for new trial. Thus, the issue is waived. Te nn. R. App . P. 3(e), 36(a); State v. Haynes , 720 S.W.2d 76, 84-85 (Tenn. Crim. App. 1986) (alleged omissions in charge must be called to trial court’s attention at trial or be regarded as waived).

F Finally, we reach the defendant's clai m about the cumulative effect of admission of the evidence discu ssed above. In each instanc e, we have found either that the evidence was proper ly admitted or that the defendant fail ed to bring the matt er to the t rial court 's attent ion by obje ction or is sue in the motion f or new trial. Thus, there can be no preju dic ial cumulative effect of admission of th is evidence.

IV

In a related issue, the defendant cla ims thatthe trial court should not have allowed the state to offer a s identific ation evidence proof of a robbery committed by the def endant a t the sam e ATM mac hine six da ys before the murder.

Tennessee Rules of Evid ence 4 04(b) provides, “Ev idence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may, however, be admissible17

forother purposes.” Such other purposes include “issues such as identity (includi ng motive and common scheme or plan), intent, or rebuttal of accident or

mistake....” Tenn. R. Evid. 404(b), Adv isory Comm’n Comments. Before such e vid ence may be admitted, (1) the court must, upon request, hold a hearing outside the presence of the jury; (2) the court must determine that

a material issue other than conduct in conformity

with a chara c ter trait exists, an d upon request, must state the mate rial issue, its ruling thereon, and the reasons justifying

admission of

the evidence; and (3) th e court must nevertheless exclude the evidence if the danger of unf air prejudice outweighs its probative value. Tenn. R. Evid. 404(b)(1), (2), (3).

In t h e case at bar, the defendant made a pretr ial motion to exclude evidence th at the defen dant rob bed Nedra Smith at the same ATM only si x days before the victim was k illed. The trial court c

onducted a hearing as contemplat ed byR ule 404(b)(1), at which the defendant claimed that the un fair prejudice whic h would result fro m admission of the evidence outw eighed its probative value. Specifi cally, the d efendant claimed the evidence was so-called propensity evidence

. See State v. Hallock , 875 S. W.2d 285, 290 (Tenn. Cr im. App. 1993) (gen erally, evidence of prior conduct is inadmissible because it is irrelevant and invites the jury

to “in fer gui lt from propensity”). He also claimed the evide nce was irreleva nt because Laqw

anda Lee made a p

ositive i dentificati on of him.

In accepting proof, the

court reviewed the transcripts of testimony of Laqwanda Lee and Nedra Smith from a suppression hea ring and of Nedra Smith from the trial for the earlier crime. Those documents have not been made a part of the record in this case. The appellant, in this case the defendant, has the d uty “to prepare a record which conv eys a fair, accura te and complete account of what tra ns pired in the trial court w ith respect to the issues w hich form the basis of the18

appeal.” Tenn. R. App. P. 24(b). If the record is incomplete, this court is precluded from consideringthe merits of theaffected issue. State v. Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993). Thus, we are unable to consider this issue on its merits.
Moreover, we see no merit in the i ssue to the extent that we can assess it on the basis of the trial testimony of Lee and Smith which, in combination , palpably established identi ty through a common scheme or plan. Had the tr ial court been shown less palpable evidence at the 404(b) hearing and had he abused his discretion in allowing the evi dence, such error woul d have been harmless. Tenn. R. App. P. 36(b).

V

Next, we consider the

defendant's challenge to the suffici ency ofthe convictingevidence. When an accused challenges the sufficiency of the evidence, an appellate court’s standard of review is whether, after considering the evidence in the light most favorable to the pros ecution, a ny rational trier of f act could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applie s to findings of guilt base d upon direct evidence, ci rcumstantial evidence, or a combination of direct and circu mstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

Moreover, a criminal offense may be establi shed e xclusi vely by circumstantial evidence. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones , 901 S.W.2d 393, 396 ( Tenn. Crim. App. 1995); State v. Lequire , 634 S.W.2d 608 (Tenn. Crim. App. 1987). How ever, before an a

ccused m ay be co nvicte d of a criminal offense based upon circumstantial ev idence alone , th e facts and19

circumstances

"must be so strong and cogent as to exclude

every other reasonable hypothesis save the guilt of the defendant." State v. Crawford , 225 Tenn. 478, 470 S.W.2d 610 (1971); Jones , 901 S.W.2d at 396. In oth er word s, "[a] web of guilt must be woven around the defendant from which he cannot esca pe and from which facts and circumstances the jury could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt." Crawford , 470 S.W.2d at 613; State v. McAfee , 737 S.W.2d 304, 30 5 (Tenn. Crim. App. 1987).

In determin ing the su fficie ncy of t he evidence, this court s hould not reweigh or reevaluate the evi dence. State v. Ma tthews , 805 S.W .2d 776, 77 9 (Tenn. Crim. App. 1990). Questions concerning the credibi lity of the witnesses, the weight and value of the ev idence, as well as all factual is sues raised by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liakas v. State , 199 Tenn. 298, 3 05, 286 S .W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate

view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage , 571 S.W.2d at 835.

The defendant makes a unique and extremely brief argument that the evidence does not support a finding of the defendant's guilt beyond a reasonable doubt based upon erroneous admission of identification evidence, the trial court's failure to instruct the jury "on a vital element of the ide ntification," failure to allow alibi evidence and "other errors cited above." He makes no speci fic att ack on deficiencies in the state's p roof on one or more elements of the cri me.10 The defendant's argument is factually incorrect. The state's w itnesses were not the "only" w

itnesses who testified dur ing the guilt phase of the tr ial. The defendant presented two witn esses during his case- in-chief. 20 Nevertheless, the re cord overwhelming ly supports the conclus ion that the defendant is g uilty of the crimeof which he was convicted. La qwanda Lee identified the defendant as the per son she saw running from the scene. Nedra Smith identified the defendant as having robbed her at the same location a fewdays earlier. Security photographs taken during the Smith robbery reveal the perpetrator dressed in a hooded sweatshirt and a dark jacket, just li ke the perpetrato r in the security photograph from the Terrell murder. After M s. Lee picked the defendant from a lineup, the defendant told Officer Pinn ow he k new he w as going to be selected.

Addition ally, the security photographs fr om January 26 show the victim entering the ATM enclosure, anda hooded, jacketed man entering sev eral seconds later. From this evidence, the jury could rationall y infer that the defendant entered the ATM enclosure with the intent of robbing the victim, and he murdered her in the process o f carrying o ut the rob bery.

The evidence sufficient l y supports the defendant's gui lt beyond a reasonable doubt. VI

The defendant also complains that the trial court erred in instructing the jury that t he law p resumes tha t every witness is sworn to tell the truth. Specifi cally, he alleges that the instr uction "told that the

State's witnesses, the only witnesses

to testify at the trial,were presumed to be telling the truth[. ]" 10 Thereby, he claims, he was depriv ed of the presumption of innocence.21 The instruction was given in the context of the jury's duty to reconcile "conflicts in the statements of the different witnes ses" and assessing credi bility. We have previ ously u pheld th e constitutiona lity o f this ty pe of inst ruction, and the defendant has offered no compelling argument for depar ture from the established precedent. See, e.g. , Lundy v. State , 752 S.W.2d 98, 103 -04 (Tenn. Cri m. App. 1987).

VII

Finally, the def endant a lleges tha t the jury' s ve r dict im posing a life sentence without the pos sibility of parole is inconsistent and req uires remand. In all honesty, this court is unable to discern with confidence the rational e of the defendant's argument on this issue. In its entirety, the argument sta tes: The transcript of the record r eflects that th e ju ry found as an aggravating

circumstance justify

ing the sentenc e of life without parole that the crime was especial ly heinous, atrocious o r cruel. For purposes of fu r ther appellate review and possible post convic tion proceedings, the sentence of life without parole should be set

aside and the matter of the sentence remanded to the trial court. In addition, no citation to authority or the record has beenincluded . Theref ore, we could treat this issue as w aived. Tenn. R. App. P. 27(a) (7), (g), (h); Tenn. R. Ct. Crim. App. 10(b).

We note, however, that acc ording to the transcript

of the procee dings below and the written charg e contained in the appellate rec ord, the aggravating factor submitted to and found by the jury was that the defendan t was previously convicted of one or

more violent felonies. See Tenn. Code Ann. § 39-13-204(I)( 2) (199 7). As we h ave previously observed, “[w]hen ther e is a conflict between the court minutes or judgment and th e transcript, the transcript controls.” See, e.g., State v. Moore , 814 S.W .2d 381, 383 (T enn. Crim. App. 1991). Notwithsta nding, the trial court's minutes memorializ e that the jury found the agg ravating factor to be22

that the murder was heinous, atro cious or cr uel, even though this factor was not submitted to the jury. See Tenn. Code Ann. § 39-13-2 04(I)(5 ) (1997). Thus, we believe the defendant's argument may be that the senten ce is improper because the court imposed the life sentence wit hout possibility of parol e based upon an aggrava ting factor t hat was no t found by the jury. While we do not vie w th e sentence as impr

oper bec

ause of a cl erical error, the cour t minutes should be corrected. Tennessee Rule of Crimi nal Proc edure 36

provi des fo r corr ection of clerical mistakes at any time. See Tenn. Code Ann. § 39-13-204(I)(5) (1997); accord Moore , 814 S.W.2d at 383.

Accordingly, w

e order the remand of

this matter for

correction of the trial court's minutes to reflect that the defendantreceived his life sentence without the possibility of parole based upon the prior violent felony aggravator.

In sum, we find no error requiring rev

ersal. The judgment of the trial

court is affirmed, and the matter is remanded to the trial cou rt for correction of the court minutes.

_______________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_____________________________ JOE G. RILEY, JUDGE23

_____________________________ ROBERT W. WEDEMEYER, SPECIAL JUDGE