# FILED
October 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9707-CC-00270 Appellee, ) ) WILLIAMSON COUNTY VS. ) ) HON. DONALD P. HARRIS, EDDIE L. COLEY, JR., ) JUDGE ) Appellant. ) (Aggravate d Robbery)

FOR THE APPE LLANT: FOR THE APPELLEE:
JOHN HENDERSON JOHN KNOX WALKUP Public Defender Attorney General & Repor ter VANE SSA P ETT IGR EW B RYAN KAREN M. YACUZZO LARRY D. DROLSUM Asst. Attorney General Asst. Public Defenders John Sevier Bldg. P.O. Box 68 425 Fifth Ave., North Franklin, TN 37065-0068 Nashville, TN 37243-0493 JOE D. BAUGH District Attorney General MARK P URYE AR DEREK SMITH Asst. District Attor

neys General P.O. Box 937 Franklin, TN 37064

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge1 The defendant request ed permission to late-f ile hi s notice of appeal, whi ch this Court granted. 2 

### O P I N I O N

The defendant was indictedfor aggrava ted robb ery, a class B felony. His first trial resulted in a hung j ury. Upon retrial,the jury convicted him as charged. Followinga sentencing hearing, he was sentenced as a Range I standard offender to twelve years incarceratio n, the maximum sentence. The defendan t now appeals, 1 arguing that the trial court err ed in excluding ex

pert testimony reg ardi ng eyewitness identification, that the convicting evidence was insufficient as a matter of law, and that his sentence was excessive because the trial court failed to give due weight to certain mitigating

factors. We affirm.

On July15, 1995, the victims, Sarah Blumberg and Jennifer McMillen, were workingat a Baskin-Robbins ice cream sho p in Brent wo od. Around 1:00 p.m., the defendant, a nineteen-year-o ld African-American ma n, entered the store, looking no more suspiciousthan an y cu stomer. Ms. McMill en commented to Ms. Blumberg that the defendant’s black t-shirt wi th unusual writing across it was “cool.” While the victims were preparing the defendant’s order, the defendant pointed a gun at them and ordered them to the ground. Thedefendant stood only a few feet from the v ictims, both of whom were afraid they would be kill ed. One of the victims w as instructe d to put th e store’s money into a bag. The defe ndant then ord ered both vi ctimsto the walk-in freez er in the back of the s tore, telling them that if they c ame out of the freezer while he was still there, he would shootthem. The victims remained i n the freezer until they hear d a customer enter the store and call for a clerk, atwhich point they went to the store next

door and called the police.

The police failed to find an y fi ngerprints or other phy sical evidence at the2 Ms. Blumberg, who is 5 '6", t estifi ed that t he robber was a few i nches tall er than she, and Ms. McM illen testified that th e robbe r stood 5 '9". 3 crimescene. Howev

er, that afternoon, each of the victims gave separate descri ptions of the robber as an obe se Afric an-American man around 5'9" 2 and in his twenties, and
e ach he lped the police pre pare sep arate com posite pi ctures of the robbe r. Nine days afterthe robbery, Ms. Blumberg identified the defendant in a photo graphic li ne-up. Fi ve months after the robbery, Ms. McM illen identified the defendant in the sam e photographic line-up.

At trial, the sole issue of dispute was one of identification. The State’s case rested on the victims ’ testim ony and their pre-tri al and in-court identificati ons of the defendant as the robber. On cross-ex amination, both of the victims a dmitted that in the photographic line-up, the defendant was theonly one wearing an unusual black t-shirt. Ms. Blumberg also testified that she expected to find a pictur e of the robber in the photographic line-up, and Ms. McMi llen conceded that prior to looking at the photographic line-up, she knew a suspect was already in custody awaiting trial.

The defendant presented an alibi de fense a nd maintained that another suspect, whom the police failed to adequately investi gate, committed the robbery . The defendant’s uncle t

estified that he

was with the d efendant the day of t he robbery, including the time

it o ccurred. Another defense wi tness, Brandon Duhon, testified th at he was working at

a store near Baskin-Robbi ns at the time of the robbery. Ac cording to his testimo ny, he had seen an o ld yellowish car drive by his store thirty minutes before the robbery. He th en watched t he two African-American mal es who were in the c ar approach the Baski n-Robbin s store. Af ter the ro bbery, he reported to the police what he had seen, describing the car and describing the driv er as a tall, slender man w ith braided hair. He could not describe the p assenger. He told poli ce that the car had looked4

“suspicious” as if the dr iver and the passenger were “casing” the area. Upon further examination, he admitted that the car seemed “suspicious” only after he had heard about the robb ery.

Two detectives involv ed i n inve stigating the robbery were called by the defense. Accordingto theirtestimony, when the poli ce found a car matching the description Mr. Duhon gave them, they discovered the c ar wasregistered to Demetri us Robinson, who livedone to one and one-half miles from the sc ene of the robbery. Even th ough Mr . Robinson was a tall, slender African-American man with braided hair, Mr. Duhon could not positively identify him. When questioned, Mr. Robinson said his brother, TonySmith, had lived with him. The investigating office r believed “T ony Smith” was a fake name because it was “generic,” and a report later obtained by the police indicated that Mr. Rob inson did not have a brother. The police staked out Mr. Robinson’s apartmentin the hopes of spotting Tony Smith, but to no avail. Finally, state record s disclosed that an “Anthony DeWayne Smith,” born in M arch 1975, lived at Mr. Robinson’s address. Although the investigating officer

knew a picture of

Anthony DeWayne Smith
was on file with the Metro- Nashville police depar tment, he did not include it in any photographic line-up shown to the victims. He justified this decision on the gr ounds that he could neith er confirm no r controv ert the infor

ma tion Mr. Robinson supplied and because the victims repor ted seeing only one robber, not two.

The defendant also sought to introduce the testimo ny of Dr. Michael G. Johnson. According to the defense proffer, Dr. Johnson would testif y r egarding the process of eyewitness identific ation; the relationship betw een stress and memory for an event; cross-racial identi fication; the relat ionship b etween th e confid ence witne sses have in the accuracy of their ide ntifications and the actual accu racy of their identifications; the effect time has on the accuracy of remembering s omething seen; and the sugges tibility5

of the photographic line-ups used in the instant case. The State objected to his testimony
on the ground that it was unnecessary to help the jury decide the issue of identification. The tria l court agr eed, exclu ding Dr. Jo hnson’s testimo ny.

Based on the evidence presented to it, the jury found the defendant g uilty of aggravated robbery. At the sentencing hearing, the defendant testifie d, but di d not dispute anything in the present ence report. The defendantadmitted he was arrested a s a juvenile on a we apons charge and was arrested and convicted for shoplifting in July 1994. He also admitted he was a rrested for and convicted of three aggr avated robberies in Davidson County in early 1995, although he tes tified he actually committed robbery with a gu n in Davidson County five to ten different times from late 1 994 to early 1995. He acknowledged he was on ba il for the Da vidson County robber ies at the time of the B askin-Robbi ns robbery in the inst ant case, and a t the time of t he sentencing h earing, he was in the process of serving twenty years in prison for three of those robberies. He admitted to previously experimenting with mari juana, but he maintainedthat the las t time he had used it was when he was seventeen year

s old. He also stated th a t he had gr aduated high school in two years, had been a good student , and had a good pas t employment record.

The defendant’s parents also testified. Acc ording to them, the

defendant
was not a disc iplinary proble m while growing up, had been a good student, and had a satisfactory work

record upon graduating high sc hool. Both parents maintained that the defendant’s r

ecent crimi nal behavio r was “out of character

” for him.

The defendant

submitt ed seve ral mitigatin g fa ctors f or the trial court’s consideration, including the followi ng: (1) that the defen dant h ad the capacity to adjust to law-abiding behav

ior; (2) that the charact er, habits, mentality, propensities,and6

activities of the defendant indi cated he was unlikely to commit another offense; (3) that the defendant had an excellent employ ment record; (4) that the defendant’s educational background, homelife, sobriety, or satisfactory social ad

justment suggestedleniency; (5) that t here was a strong poss ibility of successful tr eatment and training, and tha t th e defendant was likely to c omply with the terms of pr obation; and (6) that the defendant had
a good prior performance on probation. The trial court, how ever , found no mitigating factors and found the following enhancing factors: (1) that

the defendant had a previous historyof criminal conduct; (2) th at the offense involved more than one victim; and(3) that the defendant was on bail at the ti me of the offense. As such, the trial cour t sentenced the defendant as a Range I offender to twelve yearsin prison, the maximum senten ce for
a Class B felony, to run c onsecutively to the t

wenty-year sentence the defendant is currently serving for the Davidson County robberies. The defendant now appeals.

The defendant first argues that the tri al court e rred by excluding Dr. Johnson’s expert testimony on the process of eyewitness identification and that this er ror prevented him from rebuttin g the victim s’ eyewitne ss testim ony. The defendant recognizes

that trial judges ret

ain discreti on to admit such expert testimony, but he maintai ns th at this Court’s opinions in State v. Wooden , 658 S.W.2d 553 (Tenn . Crim. App. 1983), and State v. Ward , 712 S.W.2d 485 (Te nn. Cr im. App. 1986), unfairly discourage such testimony

.

It may no longer be true, as this Court has previ ou sly obs erved, that the “great weight of authority in this country is that the study of the reliability of eyewitness identification has not attained that degree of exactitude which would qualify it as a specific science.” Ward , 712 S.W.2d at 487. Even so, expert testi mony on the process o f eyewitness identification is not per se inadmissible in Tennessee. As with any proffered expert testimony,the admissi on of expert testimo ny on th e process of eyewitness7

identification remains a matter of the trial court’s sound discretion in each individual case. See id. ; see also McMullen v. State , 2 3 F la . L . We eklyS207 (Fla. Apr. 9, 1998)(acknowledging

that the majority of states h ave a dopted an “abuse of discretion” standard for reviewing the admissibility of expert testimony oneyewitness identification). I n the insta nt case, wh ile the ad mission o f Dr. John son’s tes timony mi ght have bee n helpful to some degree, we do not find abuse of discretion in the tri al court’s refusal to admit it. See Ward , 712 S.W.2d at 487.

In an issue closelyrelate d, the defendant contends that if the trial court would have admi tted Dr. Johnson’s expert testimony, as it should have, then the jury would have weighed the evidence differently and arrived at a not-g uilty verdict. Because the trial court wrongfully excluded Dr. Johnson’s expert test imon y, the defendant continues, the jury did not have sufficient evidence upon whi ch to ba se a v erdict. However, we have concluded that the trial cou rt did not abuse its discretion in excl uding Dr. Johnson’s expert testi mony. Moreover, w e conclude t hat the victims’ eyewitness testimony

sufficiently supports

the jury’s guilty verdict. Accordingly, this argument lacks merit.
Finally, the defendant argues that his sentence is excess ive. He disputes neither the applicability of the en hancing factors found by the trial cour t nor the
consecu tive nature of his sentence. Instea d, he contends that the trial court erred in imposing the maximum sentence in the applicable r ange without giv

ing due weight to the mitigatin g factors he presented. The State concedes that three of the suggested mitigatingfactors should have been consi dered, butcontends that the trial court’s failure to do so must be considered harmless error because the applicable mitigating f actors are entitled to so little weight that the sentence imposed is nevertheless proper.8 We agree with the State that suggested mitigating factors (1), (2), and (5), which concern the defendant’s potential for rehabilitation, are not appl icable. There was simp ly no evidence presented at the s entencing hearing that w ould suppo rt th e consideration of these mitigating factors. To th e contrary, the evide nce shows that the defendant’s likelihood of committing other similar crimes is rather high: In July 1994, he
was arrested for shoplifting, and then in late 1994 to early 1995, by his own admiss ion he committed a large number of agg ravate d robber ies in Davidson County. Then, just months later, while on bail for those aggravated r

obberies, he committed the aggravated robberycharged in this case. Given this, the trial court did n ot err in not considering suggested mitigating factors (1), (2), and (5).

The defendant also contends mitigating factors (3), (4), and (6) sh ould have been considered by the trial court. The State concedes the application of

each of these mitigating factors, but argues that the ap plication of these factors should not affect th e length of sentence imposed.

First, we question the applic ability of factor (6), that the de fendant has a good prior performance on probation, because the record is confusi ng as to whether the defendant was ever on probati on and is devoid of evidence that any prior probatio nary term was successfully c ompleted. At the sentencing hear ing, the defendant maintained he was placed on probation as a result of his arrest as a juvenile on a weapons charge, but he also testifiedthat charge was dismissed. According to the presentence report, a prior weapons charge as a ju venile could not even be verified. The def endant did not receive probation for any of his other prior conv

ictions. Without some other evidence that mightclarif

y whether the d efe ndant was placed on probation and if so, successfully complet ed it, we ar e relucta nt on this record to determin e that fa ctor (6) sh ould app ly.9 As to factors (3) and (4), even assuming that evidence of mitigation existed, the applicable enhancing factors ---which the tri al court obviously gave great wei ght and which the defendant does not dispute---s o strongly outwei gh the mitigating factor s that the mitigating factors pale in comparison. See generally State v. Ruane , 912 S.W.2d 766, 785 (Tenn. Cr

im. App. 1995)(stating, “Ev en if some evidence of

mitigation exists,the applicable enhancement factors so strongl y outweigh the miti gating factors that the maximum sentence is warranted.”). The fact that the defendant maintained a couple of jobs, was a good student, and did not cause his parents disciplinary problems as a child cannotcompete with the consider ation s that the defendant robbed two victimsat gunpointwhile on bail for numerous other aggravated

robberies. Considering that, the tr ial court’s decision to sentence the defendant to twelve years incarceration is not erroneous.

In sum, the trial court did n ot abuse its discretion in excluding the proffered expert testimony on eyewitness identification, and the evidence presented is sufficient to sustain t he jury’s guilty verdict. Moreov

er, the twelve-y

ear sentence imposed is not excessive under the circumstances of this case. The defendant’s convicti on and sentence is affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ DAVID G. HAYES, Jud ge