### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs F eb ru ar y 10, 200 4

S T A T E O F T E N N E S S E E v . L E N ZO S H E R R O N a ka S A L A A M S H A B A ZZ

Direc t Appeal from the Circ uit Court for Dyer County

No. C02-393 Lee Moore , Judge

No. W2003-01222-C CA-R 3-CD - F iled March 15, 2004

The de fenda

nt was convicted of ag g ravated robber y , a Class B felony , and sente nced to ten y ear s as a standa rd off ender . The de fenda

nt has filed a pro se appea l of rig ht of his conviction, posing the following issues for our r eview: 1) Whether the evidenc e was sufficie nt bey ond a rea sonable doubt to s u p port the d e f e n d an t ’ s c o n v i c t i o nf

o r a g g r a v a t e d

r o b b e r y; 2) Whether the State improperly withheld exculpatory and impeachme nt evidence ; and 3 ) Whether the trial c ourt f a il e d to in v e s ti g a te a c o n f li c t o f interest befor e
a pp oin tin g ne w c ouns e l. After car eful re view, we aff

irm the conviction.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the cour t, in which J OE G. R I L EY and R O BERT W. W EDEMEYER , J J ., joined.

L enzo Sherron aka

Salaam Shabazz, Tiptonvi lle, Tenne ssee, Pro Se.

Pa ul G . Summe rs , A tto rn e y

Ge ne ra l and

Re po rt e r; Jenn if

e r L . Bl e ds oe , Ass ist ant A tto rn e y Ge ne ra l; and C. Phill ip Bivens, District Attorne y Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION
Mary Ann Prince w as workingat Wils on’s Mini-Mart in Dy ersbur g on t he nig ht of September 29, 2002, w hen a ma n arme d with a shotg un enter ed the store at appr ox imately 10:45 p. m. H is f

a c e wa s w ra

pp e d in a scar f, and

he wa s w e ari nga

blu e ja c ke t, b lue pa

nts , g lov e s,
sung la sse s, and

a wh ite vis or

. Th e man de mand e d mone y fr om Ms. Pr inc e and he r c o- wo rk e r, Sa die J ackson. The money

from the cash r eg ister, as we ll as a F irst Cit izens bagcontaining money , wer e pla c e d in a Wal -M a

rt sa c k pr e se nte d by

the man. Th e tw o c le rk s w e re take n to a ba c k r oo m and

tol d-2-

to stay there . The man the n remove d the phone ha ndset and took i t as he lef t the store. Ms. Prince activate d an ala

rm button and ca lled 911 from a c ordless phone.

Mike Dovice , a member

of the Dy ersbur g Police Depa rtment, was the f

irst office r to respond and wa s later joined by

other officer s, including I nvestig ator Chris Hamm. After taking a desc ription of the robbe r, Off

icer Dovice beg an a sear ch in the ar ea a round the store . He f

ound a .410 shotg un and a Wal-Ma

rt sack c ontaining mone y

and g loves, all behind an air-c onditioning unit for a c hurch located a djace nt to the store. Under neath the Wal-Ma

rt sack, he found a two- way pag ing de vice.

I nside an a ir-conditioning unit behind the Mini-Mart, O f f ic e r D o v ic e d is cover ed a blue jacke t containing four .410 shotg un shells. I nside an outbuilding of the Mini-Mart, he found bl ue jog g ing pants and the phone handset take n from the store

.
L ater , Offic ers Dovic e and H amm examined the pag er a nd located the signature pag e which contained the words, “L il Sparky .” This was c ompare d with a data base of nicknames a

nd street names whic h the police de partment maintaine d. “Sparky” matche d the name of L enzo Sher

ron, the de fe nd ant.

M ary An nP ri n ce l i v edac ro s s t h e s t re et fr o m t h e Mi n i -M ar t

. S h e sa i d t h at l at er t h at ev en i n g,

“ [a]r ound a

bo ut on e , lit tle a ft e r, ” sh e wa s sittin g on he r po rc h w ithhe r f ri e nd Mari ssa An dr e ws . M s. Prince stated she saw a man riding a bicy cle in the are a of the store. She descr ibed him as a “ [k] inda small-fra med black guy

with a white sun visor, g ray sweatshirt and jeans.” She stated t hat the man laid his bicy cle down be tween the Mini-Mart and Ke tchum’s and a ppear ed t o b e “[ l ]ooki ng for

s tu ff

. ” A ft er t h e m an l ef

t , M s

. P ri n ce p l ac eda c al l t o 9 1 1 t o re p o rt t h e s i gh t i n g.

Of fi c e r D ov ic e re tur

ne d to the Min i- Ma

rt and to ok a des cripti on

of the bic y c lis t. H e a lso went to the ar ea w here he had f ound the items rec overe d and ther e he sa w bicy cle pr ints in t he dew

. On c ro ss- e xami natio n, he a dmi tte d h e did no t se e any

fo otp ri nts in t

he are a . H e state d th a t Ms

. Pr inc e and

Ms. An dr e ws de sc ri be d the bic y c lis t as we ari nga wh ite sun v iso r a

nd a g ra y t- sh ir t w ith

a co l o red de sign on the front. While speaking with the women, Dovice was notified of the defe ndant’s appr ehension at the intersec t i o n of Rey nolds and Ba

rney . When Dovice we nt to that location, he stated that the defe ndant was w ear ing a g ray sweatshirt with a Mickey Mouse emblem on the front a

nd had bee n riding on a bicycle.

Dea nna Ya ncy , a dispatche r for

the Dy ersbur g Police Depa rtment, was on her w ay

to work for the 11:00 p.m to 7:00 a.m. s h i ft o n S eptember 29th. At the intersec tion of Shelby and KW Streets, she saw

a blac k male we aring a gra y sweatshirt and riding a chr ome-c olored bicycle. She stated that he w as riding fast and lookingback.

After the robbe ry , M ar i s s a Andre ws was sitting w ith her fr iend, Mary Ann Prince, on the porch of the Prince home acr oss the street from the M ini-Mart. At sometime after midnight, she saw

a man we aringa gra

y sweatshirt with “something on the front” and a white visor, riding a bicy cle. Ms. Andrew s witnessed “the g uy on the bike g o back a

round towar ds the bac k of the store and lay-3-

h is b ik e d o w n an d s ta

rt s c r o u n g in g an d lo o k in g f o r s o me th in g

. ” A f

te r th e ma

n le f t, the women repor ted their sig hting to 911.

Chr is H a mm, a me mbe r of the Dy e rs burg Cr imi na l I nv e sti g a tio n De pa rtme nt, re sp on de d to the ro bb e ry

a larm iss ue d at th e Min i- Mart

. He vie we d the se c ur ity c a me ra ta pe bu t wa s una

ble to see the offe nder’ s fac e due to its cove ring . Offic er D ovice notified H amm of evide nce disc overe d outside. Hamm stated that be hind the air-c onditioning unit at East Dy ersbur g Methodist Church, there was a

shotgun, a

pair of w hite work g loves, a Wal-Mar t sack containing money , a g ree n money ba g , tw o . 41 0 s ho tg un

sh e lls , a nd a tw o- wa y pa g e r. Th e pa g e r w a s w ith ou t a bat te ry c ov e r. He a lso descr ibed finding the name “L il Spar ky ” on the pag er display and matching “Sparky” on the police databa se to L enzo Sherron. The rec overe d sum o f $ 2 0 9 3

. 0 0 was re turned to Johnny Wil son of Wil son Mini-Mart. Hamm enume rate d other items fo und near the store sc ene a s: a heavy blue denim coat, a

pair of blue jogg ing pa

nts, a phone re ceive r, a lig ht-colore d t-shirt, and a sun visor.

After unsucce ssfully

attempting to lift fing erpr ints from the shotgun a nd the blue and g ree n bag s, Hamm eve ntually

returne d to his precinct station. Th er e he r ece ived notice of the re ported sighting of an individual at the Mini-Mar t. Upon rec eiving further notice of the appre hension of a suspect, he proce eded to Re y nolds A venue. There Offic er Mann had stopped the defe ndant who was

wea ring a white visor, a g ray sweater with “something on the front,” and blue jea ns. The def

endant was standingby

a bicy cle.
Sharon Rene Mosley

had met the de fenda

nt i n J u n e or July

of 2002. She had g iven the defe ndant what she identified as a “T-900 beepe r.” She e x plained that messag es could be rela y ed betwee n other T- 900s by ty ping in the t ext. Ms. Mosley stated she had last communicated with the defe ndant by the page r t he we ek prior to his ar rest. Ms. Mosley

was a sked to display

the sig nature pag e on the pa g er in e vidence . After a benc h confe renc e, the tria l judge stated: The rec o r d

w il l r e f le c t t h a t o nth e M o to r o la

p a g e r , th a t i t h a s th e w o r d,

“ S i g n a tu r e , ” t h e na

c o l o nan d

u n d e r n e a t h t h a ts o m e s y

m b o l , an d t h e nt h e l e t t e r s “ IL ,” then “ Sparky .” S-P-A-R-K -Y. Ms. Mo sle y

sa id s he wa s c a lle d by

the de fe nd ant f

ro m ja il a nd wa s to ld t hat sh e sh ou ld g o a

nd c la im the pag er f

rom the police.

The State re sted, and the de fenda nt moved for a

judgme nt of ac quittal, which the trial cour t denied. The defe ndant then re called O ffice r Dovice to establish that the defendant was arr ested at 2:0 5 a .m.

Trac y Roberson wa s the mother of the defe ndant’s child. On the nig ht of September 29th, sh e wo rk e d th e 11 :00 p. m. t o 7:00 a .m. sh if t at Map le Rid g e Ma

no r. Th e de fe nd ant wa s at h e r h ome when she left for

work at 11:00 p.m. She had left the defendant her ca r, and he called he r at 1:00 or 1:30 a.m. to tell her the c ar ha d broken down. When shown the page r, she identified it and said she had found it in her c ar. U pon revie wing the m essag es between the defe ndant and another woma n, she threw the pag er f

rom her c ar w indow. On cr oss-examinatio n , s h e s t at ed she ha d known the-4-

defe ndant for f

ive y ear s and knew his nickname as “Sparky .” On t he morning of September 30th,

s h e f o u n d h er ca r i nt h e M i l l t o wn ar eao f D y er s b u rg.

The de fenda

nt denied any

participation in the robbery offe nse in question. He state d he wa s ke e pin g his c hil d b ut h a d le ft the c hild with h is m oth e r. Whil e he wa s d ri vin g to Wa l- Ma

rt , M s. Roberson’s c ar br oke down. The defe ndant walke d to his uncle’s house a nd obtained a bic y cle. He then rode around in sea

rch of someone to help him with the ca r. He sai d t he ca

r wa s left on Re y no lds Str e e t ne ar a

bigc hurc h. On c ro ss- e xami natio n, the de fe nd ant a dmi tte d th a t th e pa g e r i n
e v i d e n c e b e l o n g e d

t o h i m an d t h a t h e h a d

l a s ts e e nt h e p a g e r

o nS a tu r d ay, t h e d ay b e f

o r e t h e r o b b e r

y.

The State re called I nvestig ator Chris H amm in r ebuttal. Hamm stated that whe n arr ested on Re y no lds Str e e t, t

he de fe nd ant m a de no me nti on of a c ar b e ingdis a

ble d o n th a t stre e t.

Th e de fe nd ant, in h is pro se appea l of rig ht, poses the following issues for our r eview: 1) Whether the evidenc e was sufficie nt bey ond a rea sonable d o ubt to support the d e f e n d an t ’ s c o n v i c t i o nf

o r a g g r a v a t e d

r o b b e r y; 2) Whether the State improperly withheld exculpatory and impeachme nt evidence ; and 3 ) Whethe r th e tr ia l c o u rt f a il e d to in v e s ti g a te a c onflict of intere st befor e
a pp oin tin g ne w c ouns e l.
We note that the trial judg e ente red a written orde r deny ing the defe ndant’s motion for a ne w trial. The or der r efle cted that the def endant wa s advised ag ainst proce eding with an appe al without

c ouns e l. N e ve rt

he le ss, the de fendan t re

je c te d th e a ssi sta

nc e of the pu bli c de fe nd e r a

nd c ho se to proce ed pr o s e wi th t

his a pp e a l.

Ana lys is

I. Su ff iciency
When an accused challeng es t he sufficiency of t he evide nce, the standard is whe ther, a fter

re vie wi ngthe e vid e nc e in t he lig ht m os t f

a vo ra ble to t he pr os e c uti on , any ratio na l tr ie r of fa c t c ou ld have found the e ssential elements of the crime be y ond a re asonable doubt. See J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. C t. 2781, 2789 (1979). In its review of the evidenc e, an a

ppellate c o u rt must afford the S t at e “the strong est leg itimate view of the e vidence as we ll as all rea sonable a nd leg itimate infere nces that may be dra wn there from.” State v. Tug g le, 639 S .W.2d 913, 914 (Tenn. 1982). Que stions concer

ning the cre dibilit y of t he witnesses, the weig ht and value to be g iven the

e vid e nc e , a s we ll a s a ll fa c tua l iss ue s ra ise d by the e vid e nc e , are re so lve d by the tr ie r of fa c t, n ot t his Court. See State v. Morris, 24 S.W .3d 788, 795 (Tenn. 2000). A g uilty verdic t can be based upon direc t evidence , circ umstantial evidence , or a c ombination of direct a nd circ um s t anti al evidenc e. See State v. Penderg rass, 13 S .W.3d 389, 392-93 (Tenn. Crim. App. 1999). F urthermor e, while a g uilty verdic t may result from purely circ umstantial evidence , in order to sustain the c onviction, the fac ts and circ umstances of the offe nse “must be so strong and cog ent as to exclude eve ry other-5-

re a so na ble hy po the sis save the g uil t of

the de fe nd a

nt, and that be y on d a

re a so na ble do ub t.” State v. Crawf ord, 470 S.W.2d 610, 612 (Tenn. 1971).
Robbery is the intentional or knowing theft of pr operty from the p er s on of anothe r by violence or

putting the pe rson in fea

r. Tenn. Code Ann. § 39- 13-401(a ).
Ag g ravated robbe ry

is robbery

as def ined in section 39-13- 401: (1) Ac complished with a d ea d l y wea pon or by

display of any article used or fashioned to lea d the victim to reasona bly believe it to be a

deadly wea pon[.] Tenn. Code Ann. § 39- 13-402(a )(1)

.
The de fenda

nt contends that the lac k of def inite identification of him as the robbe r, his alibi de fe ns e , a nd the a lle g e d lo ss o f h is pa g ing de vic e pr ior to t he e ve nt a ll c omb ine d to c re a te re a so na ble doubt and re nder th e evide nce insuff icient to support the g uilty verdic t. The State asse rts that the

e vid e nc e is s uf

fi c ie nt t o p ro ve the de fe nd ant’ s g uil t be y on d a re a so na ble do ub t.

Our re view indicate s that there is a larg e seg ment of evide nce w hich was undispute d. On September 29, 2003, at approxim ately 10:45 p.m., a masked man armed with a shot g un robbed the Wil son Mini-Mart in D y ersbur g

. Mary Ann Prince, one of two cler ks at the store, te stified that the experience scar ed her . Be tween 10:50 a nd 11:00 p.m., a witness noticed a black male wea ring a g ray
sweatshirt, ri d i n g a bicy cle f ast, and looking back. T his sighting was made at the interse ction of Shelby and KW. Offic ers who r esponded to the store found numerous c lothing items, worn by the

ro b b e r , h i d d e n i n t h e i m m e d i a t e v i c i n i t y o f t h e M i n i

- M art

. A l o n g w i t h t h e c l o t h i n g , o f f ic e rs a lso fo un d a .4 10 sh otgun , s he lls , and a tw o- wa y pa g e r. Th e pa g e r’ s sig natur e pa g e ha d a name of “ _il Sparky .” I t was asc erta ined that “Spar ky ” is the def

endant’ s nickname, a

nd the def endant a dmitted t h e p a g e r b e l o n g e d t o h i m

. T h e d e f

e n d an t a d m i t t e d h a v i n g t h e p a g e r t h e d ay b e f o r e t h e r o b b e r

y

. In the ear ly morning hours of September 30th, f ollowing the robber

y , two witnesses, Mar

y Ann Prince and Mar issa Andre ws, saw a black male on a bicycle g o behind the Mini-Mart, dismount, and appe ar to se arc h for something. They descr ibed him a s wea ring a white visor a

nd a g ray t-shirt or sweatshirt with an emble m o n t h e fr o nt. After the man rode awa y , the women c ontacted the police. The defe ndant was a

rre sted shortly

there afte r, at 2:05 a.m. When appr ehende d, th e d ef en d ant was
wea ring a g ray

sweater o r s we at s h i rt and a w hite visor. Acc ording to one offic er, the front of the defe ndant’s shirt was a dorned w ith a Mickey Mouse emblem. Although the def endant c laimed later that his girlf

riend’s car was disabled on the same street on which he was appre hended, he made no mention of this at the time of arr est. All of the fore g oing evidenc e was undisputed. We conce de that it is l arg ely

circ umstantial; however, it is strong circ umstantial evidence

.
T h e d e f e n d an t ’ s g i r l f

r i e n d t e s t i f i e d t h a t t h e d e f

e n d an t w a s w i t h h e r a tt h e t i m e o f t h e r o b b e r

y. She also stated that she ha d thrown aw ay the def en d an t’s pag er w ithout his knowledg e. The defe ndant testified in his own behalf that he was riding the bi cy cle in sear ch of a ssistance to re start the disabled c ar. The jury , by their ver dict, reje cted this testimony as they wer e entitled to do. Wil son v. State, 574 S

. W

. 2d 52, 55 (Tenn. Crim. App. 1978) . The ve rdict of guilt removed the-6-

defe ndant’s pre sumption of innocence and raised a presumption of g uilt. S tate v. Eva ns, 838 S.W .2d 18 5, 19 1 ( Te nn . 199 7) . We c on c lud e that th e e vid e nc e wa s su ff ic ie nt t o p ro ve the de fe nd ant’ s g uil t be y on d a re a so na ble do ub t.
II. Exculp atory and Im peachm ent Evidence

Th e de fe nd ant c on te nd s th a t by fa ili ngto int

ro du c e the c lot

he s h e wa s w e ari nga t th e tim e of his arr est, the State was suppressing impeachme nt evidence . The de fenda nt contended that the clothing w ould show that Offic er Do v i ce was lying a bout his description of the clothes. The defe n d an t also contends that the State w ithheld fing erpr int analy sis from the shotg un, shells, and p a g e r

. T h e d e f

e n d an tc l a i m s t h i s e v i d e n c e w o u l d b e e x c u l p a t o r

y.

I n B ra dy v. Mary land , 3 73 U. S. 8 3, 83 S. Ct . 1 19 4, 10 L

. Ed

. 2d 21 5 ( 19 63 ), the Sup re me Court he ld that “su

pp re ssi on by the pr os e c uti on of e vid e nc e fa vo ra ble to an a c c us e d u

po n r e qu e st violates due proc ess wher e the e vidence is material e ither to g uilt or to punishm ent, irre spective of g oo d f a ithor ba d f a ith of the pr os e c uti on .” 37 3 U .S. a t 87 , 8 3 S. Ct. a t 11 96 -9 7; s e e a lso Sampl e
v. State , 8 2 S. W.3 d 2 67 , 2 70 (T e nn

. 20 02 ). Th e du ty to d isc los e e xten ds to a ll “ fa vo ra ble information” reg ardle ss of whether the evidenc e is a dmissibl e at trial. J ohnson v. State, 38 S.W .3d 5 2 , 5 6 ( T e n n

. 2 0 0 1 )

. In U n i t e d S t a t e s v

. B a g l e y , 4 7 3 U

. S

. 6 6 7 , 6 7 6 , 1 0 5 S

. C t

. 3 3 7 5 , 3 3 8 0 , 8 7 L. Ed

. 2d 48 1 ( 19 85 ), the Sup re me Court he ld t hat bo th e xcu lpator

y and imp e a c hme nt e vid e nc e fa ll under the Br ady

rule.

Howeve r, the State is not re q u i red to disclose infor mation that the defe ndant alre ady possesses or is able to obtain, State v. Marsha ll, 845 S.W .2d 228, 233 (Tenn. Crim. App. 1992) , nor is the State require d to disclose information which is not possessed b y o r u n d er t he contr ol of the prosec ution or other g overnme ntal ag ency . I d.

B e f o r e an a c c u s e d is e n ti tl e d to r e li e f u n d e r th is th e o r y , h e mu s t e s ta

b li s h sever al prer equisites: (a) the prosec ution must have suppr essed the e vidence ; ( b) the evidenc e suppre ssed

m u s th a v e b e e nf

a v o r a b l e t o t h e a c c u s e d ; an d

( c ) t h e e v i d e n c e m u s th a v e b e e nm a t e r i a l

. S e e B a g l e y, 473 U.S. at 674-75, 105 S. Ct. at 3 3 7 9 -8 0 ; Br ady , 373 U.S. at 87, 83 S. Ct . at 1196-97; State v. Ed g in, 90 2 S. W.2 d 3 87 , 3 89 (T e nn . 1 99 5) . E vid e nc e is c on sid e re d ma te ri a l on ly if

the re is a

rea sonable proba

bility that, had the ev i d ence been disc losed to the defe nse, the re sults of the proce eding would have be en diffe rent. Kyles v. Whit ley , 514 U.S. 419, 115 S. Ct. 1555, 131 L . Ed. 2d 490 (1995); Edg in, 902 S.W .2d at 389.

I n reg ard to the de fenda

nt’s clothing, the defe ndant fails to show why he could not produce the clothing himself by

subpoena. The rec ord does not ref lect nor does the de fenda

nt establish any unavailability

of the c lothing. The S tate was under no oblig ation to introduce e vidence which the defe ndant himself could obtain. F urthermor e, he h as made no showingthat the clothing was favor able to his defe nse.-7-

Th e on ly re fe re nc e in t

he re cor d to fi ng e rp ri nt e vid e nc e wa s th ro ug h Inv e sti g a tor Chr is Hamm. He te stified that he wa s unable to find finge rprints on the shotg un, the Wal-Mart ba g , or the g ree n money bag

. There was no testimony conce rning an attempt to take pr ints from the pag er or t h e shotg un shells. The def endant, having f

ailed to prove the exist ence of fing erpr int evidence , c ann ot s a tis fy

the oth e r r e qu ir e me nts of B ra dy . We c on c lud e that th is i ssu e is w ith ou t me ri t.

III . C onfli c t o f Int e r e st

I n the final issue, the defe ndant maintains that his right to a f air trial wa s violated due to the trial court’ s fa i l u re to investigate a conflict of inter est befor e appointing substitut e counse l. The defe ndant alleg es that he w as or i gi n al l y appointed to the public def ender and that counse l was repla ced by an assistant from the same of fice . We are prete rmitted from consider ation of this issue in t wo re sp e c ts. Th e de fe nd ant, the a pp e lla nt he re in, ha s fa ile d to fu

rn ish any re c or d in

re fe re nc e to t h e substitut ion of counsel. I t is the duty of the a ccuse d to provide a r ecor d which conve y s a fa ir,

acc urate , and complete acc ount of what tra nspired with re g ard to the issues whic h form the ba sis of the appe al. Tenn. R. App. P. 24(b); se e State v. Ta y lor, 999 S.W .2d 941, 944 (Tenn. 1999)

.
I n addition, this i ssue was not include d in the defe ndant’s mot ion for a new tria l. The issue is thereby waived. T enn. R. App. P

. (3)( e); see S tate v. Walker, 910 S.W .2d 381, 386 (Tenn. 1995)

.
The c onviction from the trial c ourt is affir med.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE