### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 2000 Session
STATE OF TENNESSEE v. SAMUEL WAYNE LOVEDAY
Direct Appeal from the Criminal Court for Knox County

No. 60107 Ray L. Jenkins, Judge

No. E1999-01090-CCA-R3-CD September 18, 2000

The defendant, who w

as convicted of a

ttempted aggr

avated rape, a

ggravated se

xual b attery, an d aggravated

assault, appealed these convictions, presenting as issues whether the out-of-court showup identification of

the defendant wa

s impermissibly

suggestive and

whether the subsequent in-court identification was tainted as a result. Based upon o ur revie w, we conclude that these issues are without merit and, t

hus, affirm the jud

gment of the tria

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

A LAN E. G LENN , J., delivered the opinion of the court, in which T HOMAS T. W OODALL , J., joined. J OSEPH M. T IPTON , J., con curr ing i n res ult s on ly.

D. David Sexton, II (on appeal) a nd Thomas Slaughter (at trial), Knoxville, Tennessee, for the app ell ant , Sa mue l Wa yne Lo ved ay.
Paul G. Summers, A t torney Gen eral and Reporte

r; R. Stephen Jobe, As sistant Attorney General; Randall E. Nichols, District Attor ney Ge neral; and G. Scott Green, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

The defendant, Samue

l Wayne L

oveday, wa

s convicted by

a Knox County

jury of attempted aggravated

rape, aggravated sexual battery, a nd agg ravated assault. The trial court sentenced the defendant as a Range I, standard offender to eleven y ears for the attempted aggravated rape, eleven yearsfor the aggravated sexual battery, and f ive years for

the aggrava

ted assault,with all terms to be served concurrently.

In this appeal as of right, the defendant raises two, related, constitutional due process issues for our review:-2- I. Whether the o ut-of-cou rt showup identification of th e defendant was impermissibly

suggestive, and thus testimony
con cerning the identification itself should not have been admitted into evidence;

II. Whether

the in-court iden

tif ication mad e by the vict

imwas tainted by the

showup and thus shou

ld not have been admitted into evidence.

The defendant

did not file a motion t

o suppress the identification evidence, either as to the out-of-court showup or the in-court identification. F

ailure to raise

these issues pretrial constitutes
a waiver of his rig

ht to attack the ide

ntification evide

nce on appeal. See

Tenn. R. Crim. P. 12(b)(3);
see also State v. Strickland , 885 S.W.2d 85, 88 (Tenn. Crim. App. 1993). We, nevertheless, elect to address the issue

s on the merits. Having reviewed the entire record and found no reversible error, we affirm the jud

gment of the tria

l court.
FACTS

The evidence at trial showed that the defendant fi

rst approached

the victim, Kelly

Hatmaker,
as she wa s walking alone i n the early

morning hours of

June 15, 1995. Hatma

ker had gone wi

th Tony Frye and t

he couple’s s on, to the resid ence of a frien

d of Frye’ s in Christenberry Heights in Knoxville, f

or a cookout. At some poi nt, Hatmaker and

Frye eng aged in an arg

ument that led to Hatmaker’s walking out of the house, in her sock

feet, in search of a pay pho

ne so that she could

call her mother-in-law to

come pick her up.

While walking along Central Avenue near a railroad trestle, she saw an individual walking towards her. She crossed to the other side of the street to avoid the individual. As they passed, h e cal led out, proposition

ing her. She res

ponded that she wa

s “not a prostitute” and kept walking. He also kept walking, but the victim then heard something and turned to see the individual running up behind her. At first he offered to help her, but once she dropped a rock that she was carrying

to ward off dogs , he grabbed he r by her pon

ytail and dr

agged her te

n to fifteen feet down the railroad tracks. There were str

eet lights in the a

rea, so the victim w

as able to get a good look at the defendant’s face.

The defendant slung

the victim

to the ground

and told her he was going to have both vaginal and oral sex with her. She fought back and escaped, only to be run down and re captured. Upon recapturing her, the defendant tried to place his penis in her mouth and told her, “I’m going to kill you, you bitch.” Th e victim fought back again and managed to free herself. The defendant then picked up a

piece of concrete and threw it at her, hitting her in the chest. The defendant again tried to puthis penis in her mouth, but she kicked him in the groin and escaped. She ran screaming for help across a vacant lot to a nearby house. The whole enco unter lasted some thirty to forty-five minutes. The victim testified that the defendant was wearing jeans and a very light blue T-shirt the night of the attack. She further testified that she was able to clearly see him several times during the attack because “[h]e was in my face a lot.”1 Defense counsel a sked Offi

cer Trentha

m if “Miss

Loveday” eve

r mention

ed the har

elip, a nd T re ntham answered,

“Refused to speak to m e.” This res ponse m akes sense o nly i f Trentham understood that he was being questioned

concerning what the defen dant, Love day, said, no t the victim, Ha tmaker. T his was, in f act, what he clarifi

ed on redi rect, that is, t hat he had res ponded to

defens e couns el’s

quest ion as it re lated to the defenda nt not the vi ctim.
-3- Carl Reynolds hea

rd the victim

screaming, “Help, help, he’s gonna kill me; he’s gonn

a kill me.” Reynolds jumped out of his bed, looked outthe window, and sa

w a female runnin

g across a vacant lot. Reynolds put on some clothes and then opened his door, telling the victim to get inside his gate. From his porch, Reynolds finally saw the individual that the victim kept pointing out , telling Reynolds, “There he is; there he is.” Rey nolds was not close enough to see the face of the
man who was standing on the railroad tr ack before the

man turned and “to

ok off in a fast

haste, you know, walkin’ fa

st.” Reynold

s did see that the in

dividual was wear

ing jeans and a T

-shirt.

Officer Ron Trentham with th

e Knox ville Police Department was among the four officers responding to a 911 dispatcher’s alert to be on the lookout for a suspect in an attempted rape who
was last seen near th

e tracks on C entral Avenue around the Southern Foundry. Trentham and the other officers were

given a general description of a white male with long

brown hair, wea

ring a white shirtand blue jean pants who was int oxicat ed. For about an hour, the office

rs carried out a

“grid search” of the area without finding anyone. Officer Tr entham testified that the fou r officers had regrouped

on Central Avenue to discuss where the suspect could have gone when a white male with long brown hair, wearing a white shirt and jeans, emerged from bushes gr owing against the wall of the Southern Foundry. He started running acros s the street with his head down. When he looked up and saw the police cars and the four officers standing there, he veere d off to the left. Officer Trentham went after him an

d apprehended h

im, tackling him to the ground. In court, Officer Trentham identified the man he caught as the defendant. According to Trentham, “He had a strong odor of alcoholic beverage coming from his breath and his person. He had long, unke pt [sic] hair. He was violent at the time of the arrest by elbowing and basically

resisting, try

ing to get away from us.” Furthermore, the

defendant was dirty, “all of his clothes were dirty ,” and he was “real sweaty.”

The officers put the

defendant i

n handcuffs and placed him in the back seat of one of the police cars. Trentham t

estified further

that the defenda

nt was taken imm

ediate ly to the hospital where the victim was being treated. The victim was brought out in a wheelchair

to the carport of the emergency

roomof the hospital. Officer Trentham had the defendant step o

ut of the police ca

r, some six feet from the vic

tim, and the victim

didnot hesitate in identifying the defendant as her attacker. This confrontation occurred within approximately two hours of the attack.

The defendant has a

dist i nguishing physical characteristic, a hare lip. According to the testimonyof Tony Fry

e, who followed th

e ambulance that

took the victim to

the hospital,the victim told a police office

r that her attack

er had a harelip . The exchange a t trial between Tr

enth am an d counsel for the defense

fails to clarify

whether it was Tr

entham whom the vic

tim to ld about the harelip. 12 During questioning, th e defenda nt was given the dat e, “July 15,

1995,” apparently as

the offens e date. However, in doing s o, th e attorney misspoke, and the defendant responded as if the date about which he was being question ed was June 14,

1995.

3 We note tha t the phrase “ve ry substantial likeliho od of irrep arable misid entification” ha s been ap plied by court s
as the st andard for determin

ing admis sibil

ity of both in-court ide

ntifi cations and out-of-co urt identificat ions in the context of unnecessa rily and impermissibl y suggesti

ve procedures. The Biggers Court sugg ested a distinc tion by the deleti on o f the word “i rreparable” when t

he question is

the admissi

bility of testi mony concerning an out -of-co ur t identification. See Neil v. Biggers , 409 U .S. 188, 1 98, 93 S . C t. 375, 38 1, 34 L. E d. 2d 40 1 (1972 ). While it is theoretically possible

that an out-of -court identi

ficat ion could be

suppressed but “repa

ired” by a

n in-cou rt ident ifica tion by the same person, Professor LaFave has described such a scena rio as “unlikely.” W ayne R. LaF ave & Je rold H. Isre al, Criminal Procedure § 7.4(c) ( 2d ed. 199 2). Wh ether or no t an identification can be rep aired by oth er testimony, b oth in-court and out-of-court id entifications pre sent issues that are analyzed usin g the same ele ments.
-4- The defendant testified that he was not the perpetrator of the attac k on the victim. He testified that on the day in question 2 he had gone dire

ctly from his

job to the hospital to v

isit h i s terminally

ill brother and be with his mother. He left the hospita l around 7:30 p.m. a

nd went with his brother-in-law and nephew to Jack’s Bar which is located on Central Avenue, about two and a half blocks from whe re the a ttack took place. According to the defendant, he drank three or four bee rs and left the bar at approximately 9:30 p.m. He left the bar alone to walk home. I nstead, he stopped on a

grassy hill near the trestle and fell asleep. When he awoke, he was in handcuffs. The defendant admitted to being asleep some twenty-five to fifty feet from the location of Hatmaker’s attack but testified that he heard and saw nothing. He admitted that the grid search conducted by police covered the a rea where he cl aimed to ha ve been sleep ing. He denied runningfrom the bushes. He admitted that he was wearing a white T-shirt and jeans and that he has a harelip. He claimed that when he was taken to the hospital for thevictim to identify him, the victim was some seventy-five to one hundred y

ards away from him.
ANALYSIS
I. Out-of-Court Identification

In the trial of this ca

se , no i ssue was raised q uestioning wheth

er the assault of

Kelly Hatmaker occurred in the early hours of June 15, 1995. The only issue was whether the defendant
was the perpetrator. The defendant argues first that evidence concer ning the victim’s identification of him at the hospital shortly after the attack should have been excluded because the identification procedureviolated his constitutional due process rights. Specifically, the defendant asserts that the compelled con fro nta tio n at the hos pit al’ s em erge ncy ro om carport was carried out under circumstances,

including the fact that he was pres ented in handcuffs, that unfairly focused the victim’s attention on him as the man the police believed to be her attacker.

Due process is violate

d if an identification

procedure is: (1 ) unnecessarily or impermissibly suggestive; and (2) gives rise to a “very substantial likelihood of irrepara ble misidentification. ” 3 Simmons v. United States , 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). Since “reliability

is the linchpin in

determining the admissibility of identification testimony,” Manson v.4 Our supreme cour t has a dopted the “ totali ty of t he circu mstances ” rule f

or evalua

ting t he reliabilit

y of identifications

made wh ere suggestive confrontatio n proced ures were em ployed. See Bennett v. State , 530 S.W.2d 511, 515 (Tenn. 1975).

5 Our su preme court has adopted t he Biggers factors as those that shoul d be considered in evaluating the reliability of an ide ntification. See Rippy v. Sta te , 550 S.W.2d 636 , 640 (Tenn. 1977).

6 A “showup” is a one-on-one confron tation where a single individual is “presented as a suspect to a viewing eyewitness.” United States v. Sanders , 547 F.2d 1037, 1 040 (8th Cir. 1976 ), cert

. denied , 431 U.S. 956,97 S. Ct. 2679, 53 L. Ed. 2d 273 (197 7).
-5- Brathwaite , 432 U.S. 116, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977), the central question is “whether under

the tota lity of the circumstances the identification was reliable even though the confrontation procedure was suggestive.” Neil v. Biggers , 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972) (inte rior quotations omit

ted); see also Stovall v. Denno , 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967) (stating that “a claimed violation o

f due process

of law in the conduct of

a confrontation depends on the totality of the circumstances surrounding it”). 4

The factors to be considered in evaluating the reliability of an identification include the following: (1) the opportunity of the witness to v iew the criminal at the time of the crime; (2) the witness’s degree

of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty

demonstrated by

the witness at the c

onfrontation; and

(5) the length of

tim e between the crime and the c onfrontation. 5 See Biggers , 409 U.S. at 199, 93 S. Ct. at 382. The corrupting effect of the suggestive procedure is weighed ag

ainst these facto

rs. See Manson , 432 U.S. at 114; see also State v. Strickland , 885 S.W.2d 85, 88 (Tenn. Crim. App. 1993) (“The degree of reliability of the identification, as indicated by [the Biggers ] factors, should be assessed in

light of the suggestiveness of the identification procedure . . . .”).

The identification procedure carried out in this case, commonly called a “show up,” 6 has long been con sid ered to b e “i nhe rent ly suggestive and unfair to the accused.” State v. Thomas , 780 S.W.2d 379, 381 (Tenn. Crim. App.), perm
. app
. denied(Tenn. 1989). For this reason, Tennessee courts have repeatedly condemned the use of showups as a means of establishing the identity of an individu al suspect ed of commi tting a crime, unless “(a) there are imperative circumstances which necessitate a showup, or

(b) the showup occurs as an on-the-scene in

vestigatory

procedure shor

tly after the commission of the crime.” Id . (citations omitted ). As to imperative

circumst ances, the United States Supreme Court has identified not only circumstances such as the possible death of the witness/victim,

as was the case in Stovall , where a suspect was brought

to the hospital room of the knife-attack

victim, but also circumstances such as noted in Simmons, including the facts that: “A serious felony had

been comm

itted. The perpetrators were still at large. The inconclusive clues which law enforceme

nt officials posse

ssed led to

[the suspects]. It was es sential for the FBI agents swiftly to determine whether they we re on the right track . . . .” Simmons , 390 U.S. at 384-85, 88 S. Ct. at 971.-6-

In thi s cas e, t he o ne-o n-o ne s how up w as i nhe rent ly su gges tiv e, p art icu lar ly because th e de fendantw as in handcuffs and pulled from the police car for identification. The practice of presenting a handcuffed su spect in a one-on

-one confronta

tio n has bee n condemned. See , e.g. , Webb
v. Havener , 549 F.2d 1081 (6th Cir. 1977); State v. Beal , 614 S.W.2d 77, 81-82 ( Tenn. Crim. App.), pe rm
. app
. denied (Tenn. 1981) (describing such practices as “creating a substantial likelihood of misidentification and are thus to be shunned unless absolutely unavoidable”).

We consider

next whether the showup was unnecessarily or impermissibly suggestive. Here there was no concern about whether the victim was in a critical state. Officer Trentham was unaware of her condition prio

r to the showup. On the other hand, a serious felony had been committed. The police had chased and ta

ckled a fleeing

suspect who fit

the description of the attacker and was found in the very area

of the attack. It was important that the police either continue the search, knowing tha ta violent criminal was still at large, or confirm that they were on the rig ht track wi th th e defendant in custody. The attack had taken place within two to three hours of the confrontation, and the victim was still in the emergency room, so her experience was vivid. We conclude that the showup in this case was suggestive, but it wa s not unnecessarily or impermissibly

so, given the fact tha

t it was essential for law enforcement officers to determine quickly whether they were on the right track or whether a w ider alert and renew

ed search need

ed to be undertaken and

the showup was in th

e field shortly afte

r the commission of t

he crime. Even if
we were to conclude to the contrary, that is, that the showup was not only suggestive but unnecessarily

and impermissibly

so, our analy

sis would not end the

re. We would then g

o on to determine whether, under the totality of the circu m stances, the identification was reliable even though the confrontation procedure was unnecessarily and impermissibly sugg estive. The Biggers factors would guide this a nalysis of identification reliability, which we here undertake for the sake of thoroughness

. First, the victim here did

have the opportun

ity to view the defendant at the time of the crime. The victim

testified that she

first encounter

ed the defendan

t under street lig

hts. She was in clo s e proximity to the defendant t

hroughout most

of the thirty to forty-five minute attack. She faced him directly a nd intimately

during the attack. Second, the victim was not a casual or passing observer butwas being subjected to one of the most personally humiliating of all crimes. See Forbes v. State , 559 S.W.2d 318, 322 (Tenn. 1977) (quoting Neil v. Biggers , 409 U.S.188, 200, 93 S. Ct. 375, 382- 83, 34 L. Ed. 2d 401 (1972)). Her attention was focused on the perpetrator. Third, the victim gave
a description of he

r assailant that w

as accurate in m

ost details. Although the defendant made much of the fact that the victim described his T-shirt as “very light blue” at trial rather than white, such a dissimilarity

is inconsequential in view of the overal l acc uracy of her description, including her attacker’s race, clothing, hair color and styl e, intoxicated condition, and distinguishing facial feature. The description was given shortly after the attack, and, as Officer Trentha m testified, the original 911 description, whi ch woul d have been taken directly from the victim’s call, described the T-shirt a s white. Fourth, the victim’s level o f certainty at the confrontation was high. She identified the defendant without hesitation a

t the hospital,

showing, according to Officer Trentham, absolutely no7 The defendant argues that some four

to five hours

had passed, whil

e theState ar

gues that no more than two and a half hours passed. The record supports the State’s positi on.
8 W e note, as did t

he State in i

ts brief, that no contemporaneous objection was made by t he defense to th e positive, in-court identification m ade by the v ictim. Accor ding to T ennessee R ules of App ellate Proc edure, a p arty is not entit led to reli

ef who “invi

ted error, wai

ved an error, or f

ailed to take whateve r steps were re asonably av ailable to
cure an error.” Tenn. R. App. P. 36, Advisory Commissi on Cmts. We have, neverth eless, chose

n to address thi

s issue. (continued ...)
-7- hesitation. Fifth, the time between the crime and th e confronta tion, alt hough disputed as to amount 7
was well within a reasonable time frame to support reliability. This court has previously found acceptable

a span of seven

days between crime and confrontation. See Wadley v. Stat e , 634 S.W.2d 658, 662-63 (Tenn. Crim. App.), perm
. app
. denied (Tenn. 1982).

We conclude, therefore, that, even if the confro ntation were unne cessarily and impermissibly suggestive, our review of the Biggers factor s supports our conclusion that, under all the circumstances of this case, there is no substantial likelihood of irreparable misidentification. “Short of that point, such evidence is for the jury to weigh.” Manson , 432 U.S. at 116, 97 S. Ct. at 2254. The trial court properly admitted evidence concerning the out-of-court, showup identification of the defendant.
II. In-Court Identification

The defendant also challenges the admissibility of the victim’s in-court identification of the defendant on the grounds that it was tainted by the illegal out-of-court, showup identification procedure. The State argues that there was no illegal out-of-court identification of the defenda nt by the victim, but, even if

there were, the

State established

that the in -courtidentification was sufficientl

y reliable such that its admission as evidence did not constitute a violation of t h e defendant’s due process rights. According to the above anal ysis in sectio

n I, th e showup identific

ation in this case,

while suggestive , was not so unnecessarily or impermissibly sugg estive as to give rise to a substantial likelihood of irreparable misidentification. Even if the showup procedure had risen to that le

vel, it would not “trigger the

application of a per se rule of exclusion.” State v. Beal , 614 S.W.2d 77, 82 (Tenn. Crim. App. 1981). Ra th er, the State may elicit in-court identification testimony if it can establish an “independent basis for the in-court identification.” See State v. Thomas , 780 S.W.2d 379, 382 (Tenn. Crim. App.), perm
. app
. denied (Tenn. 1989). That is, the prosecution must show that the in-court identification testimony has not been tainted by the illeg al pretrial identification procedure. See Beal , 614 S.W.2d at 82. The test of reliability is the same as that for testimony concerning an out-of-court showup identification: whether the identification is reliable under the totality of the circumstances, based upon the Biggers factors. See id

. A ccording to t he preceding analysis of the Biggers factors, in light of the totality of the circumstances in this case, we fi nd no error in

the admission of

the victim’s in-court identification. 88 (...continue d)

-8-

CONCLUSION Having chosen to addres s the defendant’ s issues on the merit s, inspiteof clear waive

r of both issues, we conclude that testimony concerning the victim’s out-of-court identification of the defendant and the victim’s in-court identification testimony were sufficien

tly reliable

to withstand the defendant’s due process attack, despite the suggestiveness in the identification procedur e.

___________________________________ ALAN E. GLENN, JUDGE