IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 11, 2005

STATE OF TENNESSEE v. BILLY RAY SANLIN

Direct Appeal from the Criminal Court for Shelby County

No. 01-03455, 56, 57, 58 Joseph B. Dailey, Presiding Judge

No. W2004-00841-CCA-R3-CD - Filed 6, 2005

The defendant, BillyRaySanlin, was convicted by jury of two counts of aggravated robbery and two

counts of especially aggravated kidnapping. On appeal he contends that: (1) he was substantially

prejudiced when the trial court improperly allowed the State to call his codefendant to testify after

the codefendant previously indicated his unwillingness to testify; (2) the trial court erred in refusing

to allow his defense counsel to argue the difficulties inherent in cross-racial identification in closing

argument; and (3) the evidence relating to the defendant’s identification as the perpetrator of the

offenses was insufficient to support his convictions. Because we determine that reversible error

occurred in the State’s direct examination of the codefendant as a witness, we reverse the judgments

of the trial court and remand for a new trial consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and

Remanded

J.C. MCLIN, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT

WILLIAMS, JJ., joined.

Robert Wilson Jones, Chief Shelby County Public Defender and W. Mark Ward, Assistant Shelby

County Public Defender, for the appellant, Billy Ray Sanlin.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts

The defendant was convicted by jury of two counts of aggravated robbery and two counts of

especially aggravated kidnapping. The proof presented at trial established that on July 11, 2000,

around 10:30 p.m., Kevin Houlihan was approached by a black man wearing a black nylon doo-rag,
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a white t-shirt, and blue jeans. At the time, Houlihan was heading from the parking lot of his

fiancee’s residence to her apartment. As the man approached, the man raised a gun and told

Houlihan to get on the ground or his head would be blown off. After taking Houlihan’s wallet and

other valuables from his person, the man asked Houlihan who was in the apartment. Houlihan told

the man that his fiancee, Vicki Lloyd, and her two children were in the apartment and pleaded with

the man not to enter the apartment. The man then ordered Houlihan to unlock the door of the

apartment. Inside the apartment, the man encountered Vicki Lloyd on the telephone. Lloyd was told

to get off the phone, and everyone was ordered to lie on the floor. The man then rummaged around

the apartment, eventually robbing Lloyd of some jewelry and her purse. After the man left the

apartment, Houlihan called the police. 

On July 11, 2000, around 11:00 p.m., the police were involved in a chase which resulted in

a collision not far from Lloyd’s apartment. It was reported to the investigating officer that a white

male and a black male had left the collision scene and had fled on foot. Lloyd’s purse was found in

the wrecked vehicle. Also, a gun which had been discarded by one of the fleeing suspects was found

in a nearby field. While the black male suspect escaped, the white male suspect was caught and

identified as Michael Barnes. The evidence established that the wrecked car belonged to Barnes.

The gun and ammunition found at the collision scene were also attributed to Barnes. However, the

purse and gun were not processed for fingerprints.

The next day, Houlihan and Lloyd were asked to identifythe perpetrator from a photographic

lineup prepared by police. Houlihan selected the defendant’s photograph from the lineup which

showed six individuals, circled the photograph, and wrote, “This is the man that put a gun to my

head, took my wallet, ring, and money and said if I try to look at him, he will blow my head off.”

Though more tentative, Lloyd also identified the defendant from the photographic lineup and

selected the picture of a man who “looked similar to the man who robbed [her] with a gun.” Both

Houlihan and Lloyd positively identified the defendant at trial.

On July 21, 2000, the police received information that the defendant was hiding in an

apartment complex. After the police surrounded the apartment, the defendant was observed jumping

from a second-story window. The defendant then ran to a car and fled. The police gave chase and

eventually stopped the car. The defendant exited the car and began to run. A foot chase ensued

whereupon the defendant was found hiding under a couch in a nearby house and arrested. 

Police Officer Bart Ragland testified that he was responsible for the photographic lineup.

Ragland stated that Houlihan and Lloyd were separated before looking at any suspect pictures. Both

Houlihan and Lloyd circled the defendant’s picture. Ragland also stated that he interviewed Michael

Barnes but did not further elaborate. During the course of Ragland’s testimonyBarnes was referred

to as codefendant. 

Michael Barnes was called to testify for the State. However, prior to calling Barnes to the

stand, the trial court and the prosecutor for the State were informed that Barnes was unwilling to

testify. Barnes stated that he thought it was against his interest to testify and wanted to speak with
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his lawyer. At this time, the defendant objected to the state prosecutor calling Barnes to testify. The

objection was predicated on the basis that the State was calling Barnes for the sole purpose of

attempting to impeach Barnes. The trial court found that Barnes no longer had a right against selfincrimination because he already pled guilty to the crimes. After denying the defendant’s request

to voir dire Barnes, the trial court permitted the State to examine Barnes as a witness. 

Once Barnes was called to the stand, he refused to testify and told the state prosecutor that

“with all due respect, I’m not going to say anything.” At this time, the trial court told Barnes to

answer the question. The following colloquy occurred: 

Prosecutor: Is your name Michael Barnes?

Barnes: Ms. Weirich, I hear you, ma’am. I’m not going to say anything.

Prosecutor: Why? Are you afraid?

Defense Counsel: Objection, Your Honor.

Prosecutor: Judge, I think this jury has a right to know why he’s not going to

cooperate.

Court: Mr. Barnes, you, at this point, don’t have the option of not testifying, and so

you’re required to answer the questions, and I’ll overrule the objection. You may

ask.

Prosecutor: Thank you, Your Honor. Is your name Michael Barnes?

Barnes: I understand I don’t have any rights, that I’m a criminal and I’m an inmate

at TDOC. I’ve got twenty-five years, though. That’s my part in this, and I can’t

testify. I’m not going to. I’m sorry.

Prosecutor: You’re twenty-five years in this. What do you mean in this?

Barnes: I’m not saying anything.

Court: All right. Ladies and gentlemen, I’m going to ask you to return to the jury

room. 

Once the jury was out, the trial court told Barnes that he would be found in contempt if he

refused to testify. The trial court also found that the jury was entitled to hear Barnes’ convictions;

therefore, the trial court stated that it would inform the jury of the fact that legally, Barnes had no

right to refuse to testify. In addition, the trial court found that Barnes might have a change of heart

and testify. In response, the defense counsel objected, explaining that forcing Barnes to testify was

prejudicial to the defendant. The defense counsel argued that by calling Barnes with knowledge that

he won’t testify, “the [S]tate is allowing inferences . . . to [be] put before the jury which [are]

actually not even presented.” The defense counsel also asked for mistrial. After a recess period,

Barnes was again called to testify. Again, he refused.

The state prosecutor then called Carry Preston and Brad Gilmartin from the criminal court

clerk’s office. Preston explained the booking process and introduced Barnes’ records. Gilmartin

testified that both the defendant and Barnes were indicted for the same offenses. Gilmartin testified

that according to Barnes’ guilty pleas, he had pled guilty to two counts of especially aggravated

kidnaping and two counts of aggravated robbery as reflected in the indictments.
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At the close of the State’s proof, the defense moved for a motion for judgment of acquittal

and again requested a mistrial. With regard to the defense counsel’s request for a mistrial, the

defense counsel gave the following argument:

Your Honor . . . Ragland was called and testified that Mr. Barnes gave a statement;

and then Mr. Barnes was called as a witness, refused to testify, refused to answer

questions. Therefore, by connecting these two witnesses together, the only

implication that can be derived from that is that Mr. Barnes gave a statement

implicating [the defendant] in this matter, and this is . . . before the jury by

implication without any proof.

. . . .

Also, I made an objection to [the prosecutor’s] questioning of Mr. Barnes

about . . . the fact that he was afraid. And while that may be very well true . . . why

he’s not testifying here today, the improper implication . . . that goes to the jury in

that is that somehow [the defendant] has threatened or is threatening Mr. Barnes, and

that’s why he’s not testifying, and I think that’s an improper conclusion that can be

reached from that question that Mr. Barnes subsequently failed to answer.

The trial court found no undue prejudice and denied the defendant’s request for a mistrial and

motion for judgment of acquittal. The defendant did not testify and was subsequently convicted of

two counts of aggravated robbery and two counts of especially aggravated kidnaping.

II. Analysis

The paramount issue raised on appeal is whether the defendant sustained prejudicial error

because the State was permitted to question a codefendant in the presence of the jury after the trial

court and the State were informed that the codefendant would refuse to testify. Thereafter, the State

was permitted to introduce testimony indicating the codefendant was indicted with the defendant and

pled guilty to the same offenses. The defendant contends that the trial court committed reversible

error violating his constitutional right to confront witnesses against him. The State contends that the

trial court properly allowed the State to question the codefendant because he was already convicted

of the charges named on the joint indictment; and therefore, had no basis to assert his privilege

against self-incrimination.

To begin, we note both federal and state courts have recognized the potential prejudice to the

defendant that results from calling a witness who invokes the Fifth Amendment as well as prejudice

resulting from the denial of the defendant’s right to confrontation. See generally Annotation:

Propriety and Prejudicial Effect of Prosecution’s Calling as Witnesses, To Extract Claim of SelfIncrimination Privilege, One Involved in Offense Charged Against Accused. 19 A.L.R.4th 368. 

Looking at the principles discussed in Namet v. United States, 373 U.S. 179, 187 (1963), and

Douglas v. Alabama, 380 U.S. 415, 420 (1965), we note that the practice of eliciting the Fifth

Amendment privilege against self-incrimination from a witness closely associated with the defendant
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in relevant criminal activities requires reversal in two situations: (1) when the prosecutor consciously

attempts to influence the jury by building its case out of inferences arising from use of the

testimonial privilege, thus depriving a defendant of due process of law; or (2) when inferences from

a witness's refusal to answer add critical weight to the prosecutor's case in a manner which denies

opportunity for cross-examination, and thus unfairly prejudices the defendant by precluding him

from exercising his Sixth Amendment right to confrontation. See id.

In determining whether prejudicial error was committed by the trial court, this Court has

considered the following factors:

(1) the prosecutor's intent in calling the witness; (2) the number of questions which

elicit an assertion of the privilege; (3) whether either side attempted to draw adverse

inferences, in closing argument or at any time during trial, from the witness' refusal

to testify; (4) whether the inferences relate to central issues or collateral matters; (5)

whether the inferences constitute the only evidence bearing upon the issue or are

cumulative of other evidence; and (6) whether the trial court provided curative

instructions.

State v. Maraschiello, 88 S.W.3d 586, 608 (Tenn. Crim. App. 2000) (citing United States v. Victor,

973 F.2d 975, 979 (1st Cir.1992); United States v. Crozier, 987 F.2d 893, 901 (2nd Cir.1993)).

In Maraschiello, this Court concluded that the trial court erred in permitting the State to call

an accomplice to testify in light of his previously stated intention to invoke his privilege against selfincrimination. See id. at 608. Nevertheless, this Court determined that such an error did not

mandate reversal of the defendant’s convictions because (1) the prosecutor asked only a few

preliminary questions, which did not associate the accomplice with the defendant prior to eliciting

from the accomplice the privilege against self-incrimination; (2) the prosecutor refrained from

mentioning the invocation of privilege in closing argument; and (3) the impermissible inference

when viewed cumulatively did not affect the outcome of the trial due to the overwhelming evidence

of the defendant’s guilt, including the defendant’s own statements and testimony. See id. at 608. 

In the instant case, the record reflects that the prosecutor had specific knowledge that

codefendant Barnes did not want to testify and desired to invoke his Fifth Amendment privilege.

The record further reflects that the trial court was informed of Barnes unwillingness to testify.

However, the trial court found that Barnes had no basis for a claim of privilege against selfincrimination because Barnes had already pled guilty to the charges of especially aggravated

kidnaping and aggravated robbery. As the State contends, generally a witness who has already been

convicted of the crimes relevant to the criminal episode need not fear incrimination because no

adverse consequences can be visited upon that convicted person. See Mitchell v. United States, 526

U.S. 314, 326 (1999); Reina v. United States, 364 U.S. 507, 513, (1960). Therefore, a witness who

is not a criminal defendant has no valid basis to claim self-incrimination and may be compelled to

testify. See generally, Mitchell, 526 U.S. at 326. However, this general principle is premised upon

the fact that there can be no further incrimination. Id. According to the record, Barnes pled guilty
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to the same charges the defendant was indicted for, as well as other offenses occurring around the

same time. Barnes indicated that testifying would be against his interest. While we will not

speculate as to why Barnes refused to testify, we do note that the issue surrounding the validity of

Barnes’ claim of privilege is not as untenable as believed. In addition, we question whether the

validity or invalidity of the witness’s claim of privilege has any bearing on the prejudice to the

defendant resulting from the witness’s refusal to testify. See People v. Poma, 294 N.W.2d 221, 222

(Mich. App. 1980); Commonwealth v. Davenport, 308 A.2d 85, 87 (Pa. 1973). 

Of more significance to the issue is the prejudicial effect to the defendant when the State

called Barnes to testify knowing he would not cooperate. Of course, the practice of calling a witness

with the advance knowledge that the witness may claim the privilege of self-incrimination does not

automatically constitute prosecutorial misconduct or result in prejudice to the defendant. See

Namet, 373 U.S. at 188 ("[T]he prosecutor need not accept at face value every asserted claim of

privilege, no matter how frivolous."). Nonetheless, when a prosecutor consciously calls a witness

who is substantially related to the criminal episode for the purpose of eliciting a claim of privilege,

the defendant is likely to be prejudiced by the adverse inference drawn from such action. See id. at

187; Douglas, 380 U.S. at 420; United States v. Compton, 365 F.2d 1, 5 (6th Cir. 1966) ("It is an

unfair trial tactic if it appears that counsel calls such a witness merely to get him to claim his

privilege before the jury to a series of questions not pertinent to the issues on trial or not admissible

under applicable rules of evidence."). These inferences are admitted without opportunity for the

defendant to engage in necessary confrontation and cross-examination. See Namet, 373 U.S. at 188;

see generally, Bruton v. United States, 391 U.S. 123 (1968); Pointer v. Texas, 380 U.S. 400 (1965).

Therefore, the circumstances surrounding this case must be examined to determine the prosecutor’s

motivation, and the likelihood that the jury drew inferences prejudicial to the defendant.

From the record, it is readilyapparent that the prosecutor’s case was enhanced by the adverse

inferences that arose when Barnes refused to testify. First, the prosecutor specifically referred to

Barnes as the codefendant during direct examination of Officer Ragland. Second, the prosecutor

called Barnes twice to testify, knowing he would not cooperate. Third, some of the prosecutor’s

questions and statements during the brief examination of Barnes were suggestive of an inference that

Barnes’ refusal to testify was a product of fear and that Barnes’ testimony would link the defendant

to the crimes. Fourth, the prosecutor had a witness read an indictment naming Barnes as co-indictee

with the defendant. Fifth, the prosecutor impeached Barnes with testimony of Barnes’ recent

convictions, though Barnes’ limited answers did not give occasion for impeachment. Finally, the

prosecutor made several comments in closing argument, emphasizing the inferences brought to the

jury’s attention during the examination of Barnes. The below excerpt of the prosecutor’s comments

in closing arguments is illustrative.

We caught the [white] male . . . Michael Barnes.

 . . . . 

We found a gun. Michael Barnes led us to a gun nearby where he was caught

in the back of a yard. 

What a coincidence. Is it a coincidence or is it guilty as charged? 
 The trial court offered the following curative instruction: “[T]he proof regarding Mr. Barnes’ convictions in 1

this case before you today was allowed in for the purpose of explaining why he was told that he no longer had a right

to refuse to testify. An individual loses his fifth-amendment right against self incrimination once he is convicted of that

offense. No other inference may be drawn from the proof of those convictions.” 

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Take all this evidence back and look at it. Is it a coincidence that the

[victims] were robbed here – the car wrecked here that Michael Barnes, the

codefendant who you saw today – you saw that fine citizen take the stand in front of

you this afternoon – the car that he was driving wrecked right here. The male black

that was in the car with him got away – never apprehended that night. And a gun –

a gun was found right there . . . where Michael Barnes [was] arrested – the same

Michael Barnes that you saw today doing twenty-five years for what he called this.

‘I’m doing twenty-five years on this . . . . I don’t want to talk.’ Fine.

Is it a coincidence or is it guilty as charged that, ten days later, officers . . .

devised a plan to get [the defendant] into custody . . . .

Given the prosecutor’s reliance on Barnes’ refusal to testify, we cannot but conclude that the

prosecutor consciously intended to enhance its case out of the adverse inferences that arose when

Barnes refused to testify.

Turning to the question of prejudice, we determine that the defendant sustained prejudice.

The record indicates that the questions posed to Barnes, the reading of the joint indictment, the

reading of Barnes’ convictions, and the comments by the prosecutor in closing argument created the

unfavorable inference that the defendant was guilty of the same criminal activity to which Barnes

had already pled guilty. With these incriminating irregularities in mind, it is difficult to conclude

that the prosecutor’s case was not significantly strengthened or that the defendant was not unfairly

prejudiced. Nor are we convinced that the trial court’s curative instruction neutralized the prejudice.1

We note that the United States Supreme Court has commented on such curative instruction stating,

“The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all

practicing lawyers know to be unmitigated fiction.” Bruton, 391 U.S. at 129 (citations omitted). 

Moreover, we note that the manner in which the codefendant was impeached via evidence

of the codefendant’s indictment and guilty pleas raises additional Sixth Amendment concerns. It is

well-settled that the right to cross-examine falls within the Sixth Amendment’s ambit of protection.

See Pointer, 380 U.S. at 404. This constitutional guarantee is applied to the states via the Fourteenth

Amendment. See id. at 403. In addition, Article I, Section 9 of the Tennessee Constitution

guarantees the accused the right “to meet the witnesses face to face.” Although the two provisions

are not identical, the Tennessee Supreme Court has previously applied the standards of the United

States Supreme Court under the Sixth Amendment in determining whetherthere has been a violation

of the accused’s constitutional right to confront witnesses against him under Article I, Section 9. See

State v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992); State v. Causby, 706 S.W.2d 628, 631

(Tenn. 1986); State v. Armes, 607 S.W.2d 234, 237 (Tenn. 1980). 
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Recently in Crawford v. Washington, 541 U.S. 36, 124 S.Ct.1354 (2004), the United States

Supreme Court held that the Confrontation Clause prohibits the admission of testimonial hearsay

against a criminal defendant without a showing that the witness who made the statement is

unavailable, and that the defendant had a prior opportunity to cross-examine the witness. Crawford,

124 S.Ct. at 1374. Although the Supreme Court expressly refused to clearly and comprehensively

define what constitutes testimonial or non-testimonial hearsay, the Supreme Court did explain that

the term testimonial applied generally to the following categories: 

[E]x parte in-court testimony or its functional equivalent . . . such as

affidavits, custodial examinations, prior testimony that the defendant was

unable to cross-examine, or similar pretrial statements that declarants would

reasonably expect to be used prosecutorially, . . . extrajudicial statements

contained in formalized testimonial materials, such as affidavits, depositions,

prior testimony, or confessions . . . statements that were made under

circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.

Id. at 1364 (citations and internal quotations omitted). The Supreme Court also mentions plea

allocutions when discussing the core testimonial statements that would trigger a Confrontation

Clause problem. Id. at 1372-73.

As previously stated, after Barnes refused to testify, the prosecution was permitted to bring

in a witnesses from the criminal court clerk’s office, who testified that the defendant was indicted

along with Barnes, and that Barnes pled guilty to two counts of aggravated robbery and two counts

of especially aggravated kidnaping – the same offenses for which the defendant was being charged.

Such evidence is of dubious relevance and is prejudicial. Because Barnes refused to testify, no basis

was established to admit Barnes’ indictment and guilty pleas. Moreover, close examination of

Crawford, indicates that a codefendant’s guilty pleas are testimonial in nature. See id. at 1372-73;

see also, United States v. Massino, 319 F.Supp.2d 295, 298 (E.D.N.Y. 2004); People v. Carrieri, 778

N.Y.S.2d 854, 871-72 (N.Y. Sup. 2004); Morten v. United States, 856 A.2d 595, 600 (D.C. 2004).

As one court recently stated: 

[A] plea is precisely the kind of formalized confession that constitutes

quintessentially "testimonial" material under Crawford. Crawford explicitly included

affidavits, depositions, and confessions within the core definition of "testimonial"

statements. . . . Much like an affidavit, deposition, confession, or prior testimony, a

guilty plea provides substantial information about the accused's criminal conduct: a

guilty plea is an acknowledgment that a defendant committed certain criminal acts.

. . . [A] guilty plea is, at its heart, a confession by an accused that he or she (1)

committed specific criminal acts, (2) possessed the requisite criminal intent, and (3)

caused the results embodied in the elements of the charge.

 

Massino, 319 F.Supp.2d at 298. As testimonial evidence, Barnes’ guilty pleas were not admissible.
 The burden of showing unavailability of a witness typically rests upon the proponent of the witness. See 2

State v. Howard, No. W2002-01680-CCA-R3CD, 2004 WL 2715346, at *9 (Tenn. Crim. App. at Jackson, Nov. 18,

2004).

 Once constitutional error is established, the burden is upon the State to prove that the constitutional right 3

violation is harmless beyond a reasonable doubt. See Momon v. State, 18 S.W.3d 152, 167 (Tenn. 1999) (citations

omitted). A violation of the right to confrontation may be deemed harmless "if the reviewing court may confidently say,

on the whole record, that the constitutional error was harmless beyond a reasonable doubt." State v. Sayles, 49 S.W.3d

275, 280 (Tenn. 2001) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).

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“Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law

required: unavailability and a prior opportunity for cross-examination.” Crawford, 124 S.Ct. at 2

1374. Therefore, the gravity of the trial court’s error is one of constitutional dimensions insomuch

that the admission of the codefendant’s guilty pleas clearly violated the defendant’s right to

confrontation of witnesses. Accordingly, it cannot be said that inferences derived from the

codefendant’s refusal to testify, and the subsequent reading of the codefendant’s indictment and

guilty pleas did not prejudice the jury’s verdict. Consequently, we conclude that reversible error 3

occurred denying the defendant a fair trial, and therefore, the defendant must be accorded a new one.

Because of the possibility of further appellate review by our supreme court, we review the

defendant's remaining arguments on appeal. The defendant’s second challenge relates to whether

the trial court erred in refusing to allow the defense counsel to argue the difficulties inherent in crossracial identification in closing argument. 

During closing argument the trial court ruled that the defense counsel could not make

reference to cross racial identification studies because there was no proof of these studies submitted

by the defendant. The trial court stated that the defense counsel could argue the fact that the

defendant was black and the victim’s were white, but asserted that the defense counsel was to refrain

from mentioning any studies discussing cross-racial identification problems. 

Citing State v. Coley, 32 S.W.3d 831 (Tenn. 2000) for support, the defendant contends that

his counsel should have been given latitude to address the problems of cross-racial identification in

closing argument. According to the defendant, our supreme court suggested that closing argument

be the proper forum to address the problems of cross-racial identification. However, we determine

that the defendant’s reliance on Coley is misplaced. 

In Coley, our supreme court held that expert testimony regarding eyewitness identification

was misleading, confusing, and failed to substantially assist the jury as the trier of fact. Id. at 837-38.

Therefore, such expert testimony was per se inadmissible under Rule 702 of the Tennessee Rules

of Evidence. Id. at 838. In reaching its holding, our supreme court cited several cases from other

jurisdictions, which had also precluded expert testimony on eyewitness identification for various

reasons. See id. at 836-38. Our supreme court was specifically using the rationales of other courts

as a vehicle to explain its own rationale for excluding expert testimony on eyewitness identification.
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As illustration, our supreme court quoted the following language from the Kansas Supreme Court:

We believe that the problem can be alleviated by a proper cautionary instruction to the

jury which sets forth the factors to be considered in evaluating eyewitness testimony.

Such instruction, coupled with vigorous cross-examination and persuasive argument

by defense counsel dealing realisticallywith the shortcomings and trouble spots of the

identification process,should protect the rights of the defendant and at the same time

enable the courts to avoid problems involved in the admission of expert testimony on

this subject. 

Id. at 837 (quoting State v. Gaines, 260 Kan. 752, 926 P.2d 641, 647 (1996)) (emphasis added)

(citations omitted). 

Looking at this quotation within the context of its holding, it is readily apparent that our

supreme court did not create or even suggest a rule where the trial court must permit reference to

cross racial identification studies in closing argument. In fact, as previously stated, Coley’s holding

rejects the admission of “general and unparticularized expert testimony concerning eyewitness

testimony, which is not specific to the witness whose testimony is in question . . . .” Id. at 838.

Therefore, if expert testimony concerning the reliability of eyewitness identification is inadmissible

per se under Coley’s holding, certainly it is within the trial court’s discretion to preclude any

comments based upon generalized studies of eyewitness identification difficulties. 

It has long been recognized that while both defense counsel and prosecutor have wide latitude

in making their arguments to the jury, the scope of closing argument is subject to the trial court’s

discretion and will not be reversed absent a clear showing of abuse of discretion. See State v.

Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998); Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).

Moreover, closing arguments “must be temperate, predicated on evidence introduced during the trial,

relevant to the issues being tried, and not otherwise improper under the facts or law.” State v.

Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). We conclude that the trial court did not abuse

its discretion when refusing to allow the defense counsel to comment on the difficulties inherent in

cross-racial identification based upon generalized studies. Therefore, this issue is without merit.

The defendant’s final argument on appeal is a challenge to the sufficiency of the

identification evidence presented at trial. When the sufficiency of the evidence is challenged on

appeal, the standard of review is whether, considering the evidence in favor of the State, any

reasonable trier of fact could have found all the essential elements of the crime beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Evans, 108

S.W.3d 231, 236 (Tenn. 2003). Once a jury finds the defendant guilty, his or her presumption of

innocence is removed and replaced with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175

(Tenn. 1991). As a result, the convicted defendant has the burden of demonstrating to this Court

why the evidence will not support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557 -58

(Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In contrast, the State is entitled

to the strongest legitimate view of the evidence along with all reasonable inferences which may be
-11-

drawn from that evidence. Id. The jury verdict approved by the trial judge accredits the States’

witnesses and resolves all conflicts in favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn.

1992); State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Questions concerning the credibility

of the witnesses, conflicts in trial testimony, the weight and value to be given the evidence, and all

factual issues raised by the evidence are resolved by the trier of fact and not this Court. State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the

evidence, nor do we substitute our inferences drawn from the circumstantial evidence for those

drawn by the trier of fact. State v. Elkins, 102 S.W.3d 578, 582 (Tenn. 2003); State v. Reid, 91

S.W.3d 247, 277 (Tenn. 2002); Bland, 958 S.W.2d at 659.

It is well-established that the identification of a defendant as the perpetrator of the criminal

offenses is a question of fact for the jury. See State v. Vaughn, 29 S.W.3d 33, 40 (Tenn. Crim. App.

1998); State v. Phillips, 728 S.W.2d 21, 25 (Tenn. Crim. App. 1986); White v. State, 533 S.W.2d

735, 744 (Tenn. Crim. App. 1975). Accordingly, the weight and credibility of the testimony of a

witness and the reconciliation of conflicts in testimony, if any, are matters entrusted exclusively to

the jury. State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981). Moreover, the

testimony of a victim identifying the defendant as the perpetrator is sufficient to support a

conviction. State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993). 

Looking at the evidence in a light most favorable to the State, we conclude that the

identification evidence was sufficient for a rational trier of fact to have found beyond a reasonable

doubt that the defendant committed the offenses. In the present case, both victims positively

identified the defendant as the perpetrator, first from a photographic lineup and later during the

course of the trial. In addition, the evidence established that both victims saw the defendant in welllighted areas. Furthermore, the defense counsel cross-examined the victims concerning the accuracy

and reliability of their testimony. Here, the jury, by its verdict, chose to accredit the testimony of the

victims. Accordingly, this issue is without merit. 

III. Conclusion

In accordance with the foregoing authorities and reasoning, we reverse the defendant's

convictions and remand the case for a new trial.

___________________________________ 

J.C. McLIN, JUDGE