IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 19, 2002

STATE OF TENNESSEE v. MARK A. GRIFFIN

 Direct Appeal from the Criminal Court for Anderson County

No. 99CR074B James B. Scott, Jr., Judge

No. E2001-02006-CCA-R3-CD

January 22, 2003

The appellant, Mark A. Griffin, was convicted by a jury in the Anderson County Criminal Court of

first degree murder committed in the perpetration of an aggravated robbery and was sentenced to life

imprisonment without the possibility of parole. On appeal, the appellant raises several evidentiary

questions, contests the jury charge, and challenges the sufficiency of the evidence supporting his

conviction. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial

court. 

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

NORMA MCGEE OGLE,J., delivered the opinion of the court, in which DAVID H.WELLES,J., joined.

GARY R. WADE, P.J., concurring in results only.

Mart S. Cizek, Clinton, Tennessee, for the appellant, Mark A. Griffin.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Factual Background

On March 2, 1999, an Anderson County Grand Jury indicted the appellant on one

count of first degree murder committed in the perpetration of an aggravated robbery. The indictment

arose from the murder of Fred Brown in Clinton on February 17, 1999. The guilt/innocence phase

of the trial resulted in the appellant’s conviction of first degree murder. At the conclusion of the

sentencing phase, the jury imposed a sentence of life imprisonment without the possibility of parole,

finding that the murder was knowingly committed or aided by the appellant while he had a

substantial role in committing a robbery and that the appellant had been previously convicted of

aggravated robbery and attempted aggravated robbery. 
-2-

At trial, the State first presented the testimony of the victim’s wife, Geneva Brown.

Geneva Brown testified that her husband, Fred, was a former Tennessee State Trooper and

electrician. On February 17, 1999, the victim was working at his used car lot, F&G Auto Sales,

which was located on Clinch Avenue in Clinton. The victim also owned a one-half interest in MidSouth Auto Auction and frequently purchased used cars for the businesses. He usually paid cash for

the cars and accordingly kept large sums of money in his possession. Geneva Brown cautioned the

victim about carrying such large sums of cash, but “he didn’t take it seriously.” However, in

response to his wife’s concerns, the victim began placing a small amount of money in his shirt

pocket with a larger amount of cash rolled up in the pocket of his pants. The victim also placed a

video camera in the car lot’s office in order to record the activities on the parking lot.

Geneva Brown last saw her husband alive on February 17, 1999. On that day, in

response to a telephone call, she went to the car lot, arriving as emergency personnel were taking the

victim from the office. Although she was unable to speak with the victim, she heard “muffled

sound” and noticed that he was moving. After the victim’s death, police returned to her

approximately six thousand dollars which they had found in a roll in her husband’s pants pocket.

Sometime before trial, Ronald Austin spoke with the appellant regarding the offense.

At trial, Austin testified that the appellant told Austin that he was charged with “shooting an ex-cop.”

According to Austin, the appellant and another individual were together and “in the context of it the

guy got shot.” The appellant related that the other individual was caught and “he tried to put

everything on [the appellant].”

Wendy Carroll lived next door to F&G Auto Sales. She knew the victim and would

occasionally chat with him. On the day of the offense, at approximately 5:30 p.m., the attendant

from the car lot came to her house and told her that the victim needed an ambulance. Carroll did not

know the attendant’s name but knew that he worked at the car lot. The attendant “acted dazed,

confused, rambling,” and Carroll noticed a knot on the back of his head. Initially, Carroll thought

that the victim had experienced a heart attack. Carroll did not have a telephone in her home.

Accordingly, she immediately went to the car lot office where she found the victim “laying in the

corner of the business.” Carroll identified herself and told the victim that he had been shot. When

she asked the victim if he knew the identity of his attackers, he responded that he did not know who

they were, but related that the attackers were black. Carroll did not immediately realize the severity

of the victim’s injuries. She noted that “[o]n his face, one of his eyes, the cornea of his eye- it was,

it looked like it had been torn off or partially torn off.” Carroll’s twelve-year-old son, who had

accompanied her to the office, called for assistance. 

Jason Taylor, a firefighter and emergency medical technician, responded to the 911

call from F&G Auto Sales. Taylor explained that the initial report indicated that the problem was

related to chest pains. However, upon arrival he was advised that the owner of the business had been

shot. Taylor immediately called the Clinton Police Department. Taylor testified that the victim was

found lying behind a desk. He had two gunshot wounds, one on the left chest and one “towards the

neck.” The victim was conscious and informed Taylor that he had been shot with a small caliber
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weapon. The victim also advised Taylor that his attackers had left the scene. Taylor noted that blood

was coming from the victim’s chest wound as well as from his mouth and nose. The victim was

having trouble breathing and was placed on oxygen. In order to treat the victim, his clothing was

removed and left on the floor of the office.

Scott Campbell, a paramedic with the Anderson County Ambulance Authority, also

responded to the 911 call at F&G Auto Sales. When Campbell arrived, the Fire Department, the

Clinton Police Department and the Anderson County Sheriff’s Department were already on the

scene. Campbell saw the victim lying behind a desk and noticed that he had several gunshot

wounds. Campbell helped cut the victim’s clothing from his body and confirmed that the clothing

was left at the scene. The victim was transported to Lakefront Park in Clinton to await the arrival

of the Lifestar helicopter. Campbell related that the victim had blood in his mouth and was having

difficulty breathing. Campbell testified that the Lifestar helicopter was landing as they arrived at the

park with the victim.

Mike Norris was a nurse onboard the Lifestar helicopter on February 17, 1999. The

helicopter arrived in Clinton at approximately 6:02 p.m. Norris explained that due to the nature of

the victim’s injuries “[w]e were going to plan on hot loading the victim. In other words, we weren’t

going to shut the aircraft down.” When Norris saw the victim, the victim “was in respiratory, cardiac

arrest, or he was eventually heading in that direction.” According to Norris, the victim was not

getting oxygen into his system. Norris noticed areas of injury to the victim’s face, the right neck and

the right chest. Also, “there was a lot of contusions, abrasions, some swelling, depressions.” The

victim remained unconscious during the flight. When the flight landed, approximately eight minutes

after take-off, the victim showed no signs of life; specifically, he had no heart rate or blood pressure.

Dr. Blaine Enderson of the University of Tennessee Medical Center pronounced the victim dead on

arrival at the hospital.

On February 17, 1999, Bobbie Riggs was living at 2740 West Wolfe Valley Road in

Anderson County. When Riggs arrived home at approximately 5:30 p.m., she found a video tape

in her driveway. Riggs noticed that the tape appeared to be broken. She took the tape into the house

and placed it on a counter. Later that evening, Riggs discovered that the police were searching for

a video tape that was missing from F&G Auto Sales. Riggs called the home of her neighbor, Avery

Johnson, who was employed with the sheriff’s department. Riggs spoke with Johnson’s wife who

called police. Shortly thereafter, an officer was dispatched to Riggs’ home to retrieve the video tape.

Riggs testified that she did not attempt to play the video tape and relinquished it to police exactly

as she found it.

Officer Rick Scarbrough, an officer with the Clinton Police Department, testified that

at approximately 8:00 p.m. on February 17, 1999, he went to Riggs’ residence to obtain a video tape.

Officer Scarbrough testified that he became involved after receiving a telephone call from Judy

Johnson. After obtaining the video tape, Officer Scarbrough placed it in a brown paper bag and took

it to Assistant Chief David Queener of the Clinton Police Department. Assistant Chief Queener

instructed Officer Scarbrough to take the video tape to the Movie Station, a movie sales and rental
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business. Janine Starnes, an employee of Movie Station, repaired the video tape. Officer

Scarbrough observed Starnes remove the video tape from the damaged casing, cut approximately

one-half inch of the video tape from either side of a tear in the video tape, splice the tape back

together, and wind it into a new casing. After the repairs, Officer Scarbrough returned the video tape

to Assistant Chief Queener.

Officer Donald McClendon of the Knoxville Police Department testified that on

February 17, 1999, he participated in the arrest of the appellant at the appellant’s home on Valley

View in Knox County. Officer McClendon explained that the officers entered the appellant’s

residence, obtained custody of him, and placed the appellant in the back of the police cruiser. At the

time of the appellant’s arrest, the appellant’s girlfriend and her daughter were also in the home.

While in the cruiser, the appellant told the officers that he was cold and asked for his coat. The

officers asked the appellant’s girlfriend to go back into the residence and get the appellant’s coat.

However, after the girlfriend obtained the coat, Officer McClendon did not give the coat to the

appellant. At trial, he explained that it was warm inside the cruiser and the appellant did not need

the coat. Officer McClendon maintained that the officers were attempting to accommodate the

appellant. Officer McClendon stated that they “were not in the business of being harsh or mean to

anybody. It’s his coat. He wanted to take it with him. . . . So we accommodated him and got his

coat.” The coat was placed in the trunk of the police cruiser. Officer McClendon recalled that upon

arrival at the police department, “[W]e were taking it back up to be put in [appellant’s] properties.

As we walked in, we ran into Mr. Douglas and some other officer . . . so in turn we turned this coat

over to them.”

On February 17,1999, Robbie Phillips was employed as a mechanic at F&G Auto

Sales. He had worked for the victim for approximately one year. Phillips testified that the victim

had a video camera in the window of the office and also a television which allowed them to monitor

activity on the car lot. The video tapes were changed daily. On the day of the offense, at

approximately 4:00 to 4:30 p.m., Phillips looked out the glass door of the office and observed two

black men looking at a red Ford car. One man was wearing a black jacket and the other man was

wearing a green jacket. Shortly thereafter, the men came into the office. The man in the black jacket

approached the victim while the man in the green jacket approached Phillips. The man in the black

jacket advised the victim that “it was a robbery.” Phillips was then struck twice, once in the right

eye and once on the back of his head, rendering him unconscious.

When Phillips regainedconsciousness, he was lying on the floor with his hands bound

behind his back with duct tape. The victim, who was lying on the floor behind the desk, told Phillips

that he had been shot, and asked Phillips to call 911. Realizing that the office telephone had been

jerked from the wall, Phillips ran next door for assistance. He then returned to the office with

Carroll. 
1

 This video tape was not included in the record for our review.

2

 Gallaher was also indicted in this offense, but was not tried in the instant case.

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Phillips testified that he had watched the video tape of the offense and had also

listened to the audio which was recorded inside the office.1 Phillips identified the voices on the tape

as his own, that of the victim, and the perpetrators. He had never heard the voices of the perpetrators

prior to the day of the offense. Phillips said that the victim had been to the bank earlier in the day

and that the victim carried cash in his shirt pocket. Phillips identified the appellant and Joe Gallaher.

At trial, Phillips identified the appellant as the perpetrator who hit the victim.2

Dr. Cleland Blake performed the autopsy on the victim on February 18, 1999. Dr.

Blake concluded that the cause of death was “aspiration asphyxia.” At trial, he testified that the

victim had sustained two gunshot wounds. “One of [the wounds] was clearly not lethal and one

would have been lethal had he not suffered severe injuries to his face which caved in the left side of

his facial bones and broke vessels going into the sinuses.” The “nonlethal” bullet entered around the

right side of the victim’s neck and came out just above the breast bone. The second bullet entered

the chest near the right nipple, traveled down through the chest and abdomen, “causing gradual

bleeding into the abdomen,” and eventually “came to rest over the hip bone.” This wound, left

untreated, would have been fatal. However, death was actually caused by “severe injuries to his face

which caved in the left side of his facial bones and broke vessels going into the sinuses.” The facial

wounds resulted in the victim “aspirating, sucking the blood from his caved[-]in face down into his

bronchial passages into his lungs causing asphyxia or failure to get oxygen.” Essentially, the victim

choked to death on his own blood. Dr. Blake opined that the facial wounds were caused by 

a broad heavy or flat object. These are not inflicted by fists. They are

not inflicted by, I don’t think that they are the butt of a gun unless it’s

a very broad butt of a gun. It could have been a piece of timber.

Some of these could have been inflicted by crashing into a table, a

wall, a piece of furniture, or indeed the floor, but . . . a simple fall did

not cave in the left facial bones and cause the hemorrhage which bled

into that.

At the time of trial, David Queener was the Assistant Chief of the Clinton Police

Department. On February 17, 1999, Assistant Chief Queener was a Captain in charge of the Patrol

and Detective Division of the Clinton Police Department. He testified that he had known the victim

for approximately fifteen years and was familiar with his voice. Prior to the date of the offenses, he

did not know Phillips. However, he did know the appellant and Gallaher and was familiar with their

voices. After listening to the voices on the tape, Assistant Chief Queener recognized the voices of

Gallaher and the appellant as those of the perpetrators. Assistant Chief Queener also determined

after viewing the video tape that the appellant entered the office first and was wearing a green jacket;

Gallaher followed the appellant into the office and was wearing a black jacket. Assistant Chief

Queener maintained that Phillips was mistaken in stating that the appellant wore a black jacket

during the offense. 
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Assistant Chief Queener later requested that the Knox County Police Department

compile computer-generated photographic line-ups,specifically asking that photographs of Gallaher

and the appellant be included. Two line-ups were created; one for the identification of Gallaher and

one for the identification of the appellant. A computer randomly placed both Gallaher and the

appellant in the number two position. Assistant Chief Queener asserted that because the line-ups

were generated by a computer located at the Knox County Police Department, he was unable to

change the position of either man. From these line-ups, Phillips positively identified Gallaher and

the appellant as the perpetrators. Additionally, Assistant Chief Queener noted that the video tape

revealed that the perpetrators drove a 1979 yellow Mercury automobile to the car lot. The car shown

in the video tape was registered to Daphene Crowley. 

George Wilson testified that he also worked at F&G Auto Sales. Through various

familial relations, Wilson was acquainted with Gallaher and the appellant. Both men had been to

Wilson’s home on various occasions. Wilson believed that Gallaher and the appellant were cousins

because they typically called each other “cuz.” Wilson viewed the video tape and identified the 1979

Mercury on the tape as the vehicle that Gallaher was driving at the time of the offenses. From the

video tape, Wilson recognized Gallaher and the appellant as the perpetrators. Moreover, he

positively identified their voices after hearing them call each other “cuz” on the tape. Wilson also

related that the victim normally carried around one hundred dollars ($100) in his shirt pocket and

also carried money in his pants pocket. 

Billy Paul Brown testified that he, Gallaher, and the appellant were cousins. On

February 22, 1999, Gallaher was arrested at Billy Paul Brown’s trailer. The black jacket seized by

the police belonged to Gallaher. Billy Paul Brown stated that Daphene Crowley was Gallaher’s

girlfriend. Moreover, after reviewing the video tape he recognized the voices and faces of Gallaher

and the appellant as the perpetrators.

Eldridge Douglas testified that, prior to his retirement in October 1999, he was a

detective with the Clinton Police Department. Douglas had known the victim, the appellant, and

Gallaher for years. Initially, Douglas was in charge of the investigation of the robbery and shooting

of the victim. He was called to the scene and noticed that Phillips appeared to have been hit with

something. Douglas ultimately retrieved a roll of six thousand dollars ($6000) from a pocket of the

victim’s pants. On February 17, 1999, after viewing the tape, Douglas visually identified Gallaher

as one of the perpetrators. He also recognized the voices of the victim, Gallaher, and the appellant.

Specifically, Douglas stated that “I had talked to [the appellant]. But the day that we went to . . .

interview him, I was absolutely positive that it was his voice.”

Douglas explained that he obtained a black jacket that was in Gallaher’s possession

when he was arrested. Additionally, when Douglas saw the green jacket in the possession of the

Knoxville officers, he recognized it as the one worn by the appellant during the robbery and took

possession of the jacket.
3

 We will address the appellant’s issues in a different order than they were raised in the appellant’s brief.

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Finally, Richard Whitt, an officer with the Clinton Police Department, testified that

he was well-acquainted with Gallaher and the appellant and knew that Gallaher and the appellant

were cousins. When Whitt viewed the video tape for the first time on the day after the shooting, he

recognized Gallaher and the appellant. He also recognized the appellant’s voice. Furthermore,

Whitt noted that the appellant entered the office first and was followed by Gallaher. Whitt

maintained that the transcript of the video tape accurately reflected the proceedings on the video

tape. Moreover, Whitt was aware that Gallaher and the appellant frequently called each other “cuz”;

however, Whitt conceded that the term is frequently used among friends and relatives. 

Following his conviction the appellant timely appealed, raising the following issues:

(1) whether the trial court erred in allowing the State to introduce testimony of a witness whose

identity was not revealed to the defense in compliance with discovery rules; (2) whether the trial

court erred in allowing the State to introduce into evidence a video tape and purported transcript of

the video tape of the alleged crime and whether the court erred in allowing the State to introduce

testimony of witnesses who testified that they recognized the voice of the appellant; (3) whether the

trial court erred in failing to suppress the jacket seized from the residence of the appellant; (4)

whether the trial court erred in failing to suppress the suggestive photo line-up; (5) whether the trial

court erred in failing to charge the jury with the lesser-included offense of facilitation of first degree

murder committed in the perpetration of an aggravated robbery; and (6) whether the evidence was

sufficient to support the appellant’s conviction for first degree murder committed in the perpetration

of an aggravated robbery.3

II. Analysis

A. Suppression of Evidence

The appellant contends that the trial court erred in denying his motions to suppress

evidence. Findings of fact made by a trial court during an evidentiary hearing on a motion to

suppress must be given the weight of a jury verdict and an appellate court need not set aside the trial

court’s findings unless the evidence preponderates against them. State v. Jackson, 889 S.W.2d 219,

222 (Tenn. Crim. App. 1993). Questions of the credibility of witnesses, the weight and value of the

evidence, and the resolution of conflicts in the evidence are matters entrusted to the trial judge as the

trier of fact. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this court will review the

trial court's application of law to the facts purely de novo. State v. Walton, 41 S.W.3d 75, 81

(Tenn.), cert. denied, 534 U.S. 948, 122 S. Ct. 341 (2001). Moreover, “in evaluating the correctness

of a trial court’s ruling on a pretrial motion to suppress, appellate courts may consider the proof

adduced both at the suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn.

1998).

1. Jacket

The Fourth Amendment to the United States Constitution provides that “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” Likewise,
-8-

Article 1, section 7 of the Tennessee Constitution provides that “the people shall be secure in their

persons, houses, papers and possessions, from unreasonable searches and seizures.” In relation to

this issue, our supreme court recently noted:

It is well settled that the Fourth Amendment's procedural safeguards

do not apply to police investigative activities unless those activities

constitute a “search” within the meaning of the Fourth Amendment.

Since Katz v. United States, 389 U.S. 347, . . . , 88 S. Ct. 507 (1967),

the Supreme Court has declined to define the term “search” in a literal

fashion, and it has instead chosen to define a search as an invasion of

a reasonable or legitimate expectation of privacy. 

State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001) (citation omitted). 

In the instant case, the appellant maintains that the trial court erred by finding that the

jacket seized from his residence was not obtained as the result of an illegal search. At the

suppression hearing, Officer Robert A. Soloman and Officer Donald McClendon testified that they

were present when the appellant was arrested on February 26, 1999. After the appellant was taken

into custody and placed in the back of the police cruiser, the appellant asked for his jacket because

he was cold. As a result of the appellant’s request, the officers asked the appellant’s girlfriend to

retrieve the appellant’s jacket from inside the residence. After being given the jacket by appellant’s

girlfriend, Officer McClendon searched the jacket and discovered a bottle of pills in a pocket.

Further investigation revealed that the appellant had a valid prescription for the pills. However, the

jacket was not given to the appellant but was placed in the trunk of the police car. When asked why

the appellant was not given the jacket, Officer McClendon explained:

Well, sir, he was in handcuffs. We weren’t making it convenient.

We just gave him his jacket. And if he wanted his jacket down the

road and they wanted to give it back to him, it was his jacket. He

didn’t need a jacket in the car, because it was warm. And we weren’t

going to unhandcuff him. We just made it convenient to him to get

him his jacket.

Thereafter, the officers took the jacket to the Knox County Intake Center to be placed with the

appellant’s personal effects. Upon arrival, they met two investigators from the Clinton Police

Department who took possession of the jacket. At trial, Douglas, who was one of the investigators,

testified that he immediately seized the jacket upon seeing it because after viewing the video tape

he recognized that it was “obviously worn in the robbery.” At the suppression hearing, the appellant

denied that he was cold on the day of his arrest and further denied that he asked the officers for his

jacket. Instead, the appellant claimed that while he was in the back of the police cruiser he witnessed

the officers go into his home and return with the jacket. 

Based upon this evidence, the trial court found that “the jacket came into police

custody in a lawful manner and not as a result of a search.” The record reflects that the credibility

of the witnesses was the determinative factor. Obviously, the trial court accredited the testimony of

the officers. The evidence does not preponderate against the trial court’s findings. Based upon the

testimony of the officers, no search took place. The appellant did not have a reasonable expectation
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of privacy in a jacket that he specifically asked the officers to retrieve. The appellant asks this court

to “infer” another motive for the retrieval of the jacket. However, the trial court is the trier of fact,

not this court. Odom, 928 S.W.2d at 23. The appellant is not entitled to relief on this issue.

2. Pretrial Identification

The appellant also contends that the trial court erred in failing to suppress the

photographic line-up, summarily complaining that it was suggestive. We note that the appellant has

not included the line-ups in the record for our review, thus waiving this issue on appeal. Tenn. R.

App. P. 24(b). Regardless, this issue is without merit. 

“The rule is that constitutional due process is violated if a pretrial identification is

influenced by suggestiveness by police officers to such degree as to render the identification

unreliable.” State v. Shanklin, 608 S.W.2d 596, 598 (Tenn. Crim. App. 1980). Tennessee courts

have adopted the five factors suggested in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382

(1972), for use in determining whether an identification is sufficiently reliable to withstand a due

process attack despite a suggestive lineup:

(1) the opportunity of the witness to view the criminal at the time of

the crime; (2) the witness’ degree of attention; (3) the accuracy of the

witness’ prior description of the criminal; (4) the level of certainty of

the witness at the confrontation; and (5) the length of time between

the crime and the confrontation.

Shanklin, 608 S.W.2d at 598; see also Bennett v. State, 530 S.W.2d 511, 514 (Tenn. 1975).

“‘Convictions based on eyewitness identification at trial following a pretrial identification by

photograph will be set aside on that ground only if the photo identification was so impermissibly

suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” State v.

Philpott, 882 S.W.2d 394, 399 (Tenn. Crim. App. 1994) (quoting Simmons v. United States, 390

U.S. 377, 384, 88 S. Ct. 967, 971 (1968)). However, if a court using the Biggers standard determines

that a pretrial confrontation was so impermissibly suggestive that it violated an accused’s right to

due process, both the out-of-court and the in-court identifications are excluded. Shanklin, 608

S.W.2d at 598. 

In the instant case, Phillips testified at the suppression hearing that even though the

offense was committed in February, the police did not contact him to view a line-up until September.

Assistant Chief Queener asserted that the line-ups containing Gallaher and the appellant were

generated by computer. He explained that “I found it’s better to let the computer pick it out. It gets

a whole lot closer than me trying to pick it out. That and the fact that you have color photographs

and you have black-and-white photographs, and it’s just hard to get a photograph being the same.”

The computer program placed Gallaher’s picture in the second position in his line-up and the

appellant’s picture was also placed in the second position in his line-up. Assistant Chief Queener

did not know “why they both spit out No. 2. It’s the way the computer done it.” 

Before showing Phillips the line-ups, Assistant Chief Queener advised Phillips that

he needed to be “a hundred percent sure” of his identification. Within approximately one minute,
4

 At trial, Phillips claimed that the appellant wore a black coat and stood by the victim and Gallaher wore a

green coat and stood beside Phillips. However, the officers testifying at trial agreed that the appellant stood near the

victim but asserted that the appellant wore a green jacket and Gallaher wore the black jacket.

5

 In his brief, the appellant contends that he did object to allowing Austin to testify. However, he also notes

that 

the transcript does not reflect he objection and [the appellant] is unsure why. [The

appellant] would state, that the transcript picks up a discussion about [the appellant]

not having had an opportunity to meet with the witness, but the State indicates in

their discussion that they are now making the witness available for an interview.

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Phillips examined the line-ups and identified Gallaher and the appellant as the perpetrators. See

Philpott, 882 S.W.2d at 400. In response to the appellant’s questioning at the suppression hearing,

Phillips admitted that in February he told the police that he could identify only one of the

perpetrators. The record is not clear as to which perpetrator Phillips could identify. However, he

explained that “after I sat around and thought about it, then I could identify ‘em [both].” Phillips

asserted that he never saw the appellant’s picture on television or in the newspaper. At the

suppression hearing, Phillips further maintained that he could identify both perpetrators even if the

police had not shown him the photographs and he proceeded to point out the appellant and Gallaher.

Furthermore, at trial Phillips explained that he had observed both perpetrators in the

car lot and viewed them more closely when they entered the office. One of the perpetrators stood

beside the victim and the other perpetrator stood beside Phillips. The perpetrator standing near the

victim, whom Phillips identified as the appellant, “told Fred that it was a robbery.”4 Phillips stated

that he was “certain” of his identification of the appellant and Gallaher from the photographic lineups. He also contended that no one suggested that he choose a specific photograph. See State v.

Howell, 672 S.W.2d 442, 445 (Tenn. Crim. App. 1984). The trial court determined that “police

photographic lineup procedure was proper and not suggestive.” In light of the foregoing, we

conclude that the trial court did not abuse its discretion in denying the appellant’s motion to suppress

Phillips’ pretrial identification of the appellant. 

B. Witness not Disclosed in Discovery

At trial, the State called witness Ronald Austin to testify regarding a conversation he

had with the appellant prior to trial. The appellant argues that the trial court “erred in allowing the

State to introduce into evidence the testimony of [Austin] who claimed that Appellant made a

jailhouse confession.” Initially, we note that the appellant provided little citation to the record or to

supporting authority. See Tenn. R. App. P. 27(a)(7). Accordingly, the appellant arguably waived

this issue. See State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988). Moreover, the

appellant failed to object to the testimony of this witness at trial, providing additional support for the

premise of waiver.5 Tenn. R. App. P. 36(a). Nevertheless, this issue is without merit. 

At trial, the following colloquy occurred prior to the State calling Ronald Austin to

testify:
6

 Additionally, Tennessee Code Annotated section 40-17-106 (1997) controls the “duty of the district attorney

general to endorse on each indictment . . . the names of such witnesses as the district attorney general intends shall be

summoned in the cause.” However, this duty is directory, not mandatory. State v. Harris, 839 S.W.2d 54, 69 (Tenn.

1992). 

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Court: [State], this witness that you plan to call, it is my

understanding that [the appellant] has not had an opportunity to

interview this witness. It is also my understanding that you have not

given this witness any instructions to not talk with [the appellant].

State: I haven’t seen or talked to this witness myself.

Court: But basically speaking, you have given [the appellant] this

statement that is referred to and that’s the information that you have

as to what this witness would testify to. Is that correct?

State: That’s correct.

Court: [Appellant], at this time I am going to allow you to go back to

the jail to talk with this individual. 

Initially, we note that both the State and the appellant cite Tennessee Rule of Criminal

Procedure 16 as determinative of this issue.6 Such rule provides:

Upon request of a defendant the state shall permit the defendant to

inspect and copy or photograph: . . . the substance of any oral

statement which the state intends to offer in evidence at the trial made

by the defendant whether before or after arrest in response to

interrogations by any person then known to the defendant to be a lawenforcement officer.

Tenn. R. Crim. P. 16(a)(1)(A). However, “[t]he comments to the Rule make no explanation why the

revelation of the substance of oral statements is limited to those made during interrogation and not

extended to any oral statements made which are incriminating.” State v. Balthrop, 752 S.W.2d 104,

108 (Tenn. Crim. App. 1988). Accordingly, because the remarks in question were made by the

appellant to a civilian and not to an officer during an interrogation, “they are not excludable because

the state did not reveal them.” Id.; see also State v. Cyrus Deville Wilson, No. 01C01-9408-CR00266, 1995 Tenn. Crim. App. LEXIS 892, at *8 (Nashville, Nov. 15, 1995) (concluding that the

statement was not subject to disclosure because it was not made to a member of law enforcement).

Furthermore, we observe that the dialogue quoted supra indicates that the State did reveal Austin’s

identity and the substance of his testimony prior to his being called as a witness; however, the record

is unclear as to when the State made this revelation. “‘In this context, it is not the prejudice which

resulted from the witnesses' testimony but the prejudice which resulted from the defendant's lack of

notice which is relevant to establish prejudice.’” State v. Kendricks, 947 S.W.2d 875, 883 (Tenn.

Crim. App. 1996) (quoting State v. Jesse Eugene Harris, No. 88-188-III, 1989 Tenn. Crim. App.
-12-

LEXIS 449, at *11 (Nashville, June 7, 1989)). Even if the identity of the witness should have been

disclosed, the appellant has demonstrated no prejudice resulting from his lack of notice regarding

this witness. Id. The trial court determined that the proper remedy for the alleged error was for the

appellant to have the opportunity to interview Austin outside of trial prior to the State calling Austin

as a witness. The appellant could have requested a continuance, but failed to do so. This issue is

without merit. 

C. Video Tape

The appellant raises two closely related complaints regarding the admission of the

video tape of the robbery and shooting. The appellant complains that the trial court erred in allowing

witnesses to testify that they recognized the appellant’s voice and further erred in allowing the State

to introduce into evidence at trial the purported transcript of the tape of the alleged crime. At the

outset, we note that trial courts are accorded broad discretion in ruling upon the admissibility of

evidence; we shall not overturn such rulings absent an abuse of that discretion. State v. Dellinger,

79 S.W.3d 458, 487 (Tenn. 2002). 

1. Voice Identification

As to the issue of voice identification, the appellant specifically argues that the

testimony of witnesses who recognized the appellant’s voice should have been inadmissible because

the State failed to lay a proper foundation. “The only foundation that was laid by the State in the

recognition of these voices was that [the witnesses] knew [the appellant] through the course of their

work.” First, we observe that the appellant failed to cite to any relevant authority in support of this

issue. See Tenn. R. App. P. 27(a)(7). Thus, the appellant has waived this issue. See State v.

Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Regardless, the appellant is not entitled

to relief. 

Tennessee Rule of Evidence 901 governs the authentication of evidence. Specifically

regarding voice identification, the rule provides that authentication may be made by “[i]dentification

of a voice, whether heard firsthand or through mechanical or electronic transmission or recording,

by opinion based upon hearing the voice at any time under circumstances connecting it with the

alleged speaker.” Tenn. R. Evid. 901(b)(5). Specifically, one authority has noted that 

if the witness has, at the time of testifying, adequate familiarity with

the speaker’s voice, he or she may opine whether the disputed

testimony is the alleged speaker’s voice, Rule 901(b)(5). Familiarity

can be gained in a relatively short period of time, and as the result of

conversations occurring before or after the conversation that was

identified.

Neil P. Cohen, et al., Tennessee Law of Evidence, § 9.01[7], at 9-11 (LEXIS Publishing, 4th ed.

2000). Additionally, in State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980), our supreme court held

that

tape recordings and compared transcripts are admissible and may be

presented in evidence by any witness who was present during their

recording or who monitored the conversations, if he was so situated
7

 The appellant did object to the admission of the transcript at trial; however, the record is unclear as to the

exact basis of the appellant’s objection.

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and circumstanced that he was in a position to identify the declarant

with certainty, and provided his testimony in whole, or in part,

comports with other rules of evidence. 

 In the instant case, the appellant’s voice was identified by Assistant Chief Queener,

Wilson, Billy Paul Brown, Douglas, and Officer Whitt. The appellant objected to the voice

identification made by Assistant Chief Queener, but failed to object to the voice identifications made

by the other witnesses. All of the witnesses stated that they could identify the voices of the appellant

and Gallaher because they had known both men for many years. See State v. Leonard Edward

Baugh, Jr., No. M2000-00477-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 415, at *29 (Nashville,

June 1, 2001), perm. to appeal denied, (Tenn. 2001). Specifically, Assistant Chief Queener testified

that he had known the appellant “[m]ost of his young adult life as a juvenile up,” and he further

asserted that he had conversations with the appellant prior to the February 17, 1999, offense.

Assistant Chief Queener recognized the appellant’s voice on the tape as being the voice of one of

the perpetrators. Wilson maintained that he knew Gallaher and the appellant because they had been

to his house on several occasions and they typically referred to each other as “cuz.” Due to his

familiarity with their voices, Wilson identified the voices of Gallaher and the appellant on the tape.

Billy Paul Brown testified that Gallaher and the appellant were his cousins and he recognized their

voices and faces on the tape. Douglas asserted that he recognized the appellant’s voice on the tape

because he was familiar with the appellant’s voice. Particularly, Douglas explained that “[i]t had

been a while but I had talked to [the appellant]. But the day that . . . I went to the Detention Facility

to interview him, I was absolutely positive that it was his voice.” Additionally, Officer Whitt

testified that he knew the appellant and Gallaher well and recognized their voices on the tape. “For

authentication purposes, voice identification by a witness need not be certain; it is sufficient if the

witness thinks he can identify the voice and express his opinion.” Stroup v. State, 552 S.W.2d 418,

420 (Tenn. Crim. App. 1977). Accordingly, we find no error. See State v. Steven Radley, No.

01C01-9311-CC-00382, 1994 Tenn. Crim. App. LEXIS 438, at *10 (Nashville, July 14, 1994). 

2. Transcript

The appellant also complains that the trial court erred in allowing the State to

introduce into evidence at trial the purported transcript of the tape of the alleged crime.7 As we

noted, Jones, 598 S.W.2d at 223, provides the standard for the admission of a transcript. Assistant

Chief Queener testified that he and Detective Hedden “listened to the tape and transcribed in words

and the person that was talking and we put these in words on paper.” However, the proof clearly

reflects that Assistant Chief Queener was not present during the recording of the tape nor did he

monitor the conversation as it was recorded. Accordingly, the trial court erred in admitting the

transcript.

Moreover, the appellant additionally complains that the trial court failed to give a

limiting instruction following the admission of the transcript. The record does not reflect that the
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appellant ever requested that a limiting instruction be given regarding the use of the transcript.

Because of the appellant’s failure to request such an instruction, the appellant has waived this

argument. See Tenn. R. App. P. 36(a); State v. William Lewis Houston, No. M1999-01430-CCAR3-CD, 2000 Tenn. Crim. App. LEXIS 936, at *23 (Nashville, Dec. 7, 2000). Nevertheless, we find

it important to note that, “[i]t is well-settled in Tennessee that a transcript of a tape may be given to

a jury where the jury is instructed that the tape, and not the transcript is the actual evidence.” State

v. Barnard, 899 S.W.2d 617, 623-24 (Tenn. Crim. App. 1994). Accordingly, the trial court should

have instructed the jury that the tape itself was the evidence to be considered, not the transcript.

However, even if the trial court erred by admitting the transcript, in light of the remaining

overwhelming proof against the appellant, namely the video tape itself and the positive identification

by Phillips, we conclude that this error was harmless. Tenn. R. App. P. 36(b). 

D. Lesser-Included Offense

Next, the appellant contends that the trial court erred in failing to charge the jury with

the lesser-included offense of facilitation of first degree murder committed in the perpetration of an

aggravated robbery (hereinafter “facilitation of felony murder”). The trial court instructed the jury

on the charged offense of first degree murder committed in the perpetration of an aggravated robbery

and on the lesser-included offenses of second degree murder, criminally negligent homicide, and

reckless homicide. Tennessee Code Annotated section 40-18-110 (1997) mandates that a trial court

must charge the jury as to the law of each offense which is “included” in an indictment, regardless

of a defendant’s request for such an instruction. Whether a lesser-included offense must be charged

in a jury instruction is a two-part inquiry. 

First, the trial court must determine whether any evidence exists that

reasonable minds could accept as to the lesser-included offense. In

making this determination, the trial court must view the evidence

liberally in the light most favorable to the existence of the lesserincluded offense without making any judgments on the credibility of

such evidence. Second, the trial court must determine if the evidence,

viewed in this light, is legally sufficient to support a conviction for

the lesser-included offense. 

State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999). Currently, Burns, 6 S.W.3d at 466-67, is the

controlling authority for determining when an offense may be considered a lesser-included offense

of an indicted offense. Again, the appellant contends that facilitation of felony murder is a lesserincluded offense of first degree murder committed in the perpetration of an aggravated robbery. “A

person is criminally responsible for the facilitation of a felony if, knowing that another intends to

commit a specific felony, but without the intent required for criminal responsibility under § 39-11-

402(2), the person knowingly furnishes substantial assistance in the commission of the felony.”

Tenn. Code Ann. § 39-11-403(a) (1997). Applying the criteria set forth in Burns, our supreme court

recently noted that, pursuant to part (c) of the Burns test, facilitation of felony murder is a lesserincluded offense of first degree murder committed in the perpetration of a felony, which felony in

the instant case is aggravated robbery. State v. Ely, 48 S.W.3d 710, 720 (Tenn. 2001). Thus, we

must proceed to the second part of our inquiry.
-15-

It is well-settled that “the mere existence of a lesser offense to a charged offense is

not sufficient alone to warrant a charge on that offense. Whether or not a particular lesser-included

offense should be charged to the jury depends on whether proof in the record would support the

lesser charge.” Burns, 6 S.W.3d at 468. Our supreme court also recently noted that “[t]he general

rule for lesser offenses under part (a) of the Burns test does not extend to lesser offenses under part

(c) of the test.” State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002). Accordingly, establishing proof

sufficientto convict under the greater offense will not necessarily prove the lesser offenses, including

facilitation, enumerated in part (c) of the test. Id.

The facts of the instant case closely resemble those in Ely. In Ely, our supreme court

concluded:

While there was some question as to whether it was Carden or Ely

who actually killed the victim, the evidence was clear that the

commission of the underlying felony of robbery was a joint

undertaking. Ely’s defense was that he was not present; therefore, he

was either guilty of some degree of homicide or wholly innocent of

any wrongdoing. . . . [Accordingly,] we find that no reasonable juror

could have believed that although Ely was present, knew that Carden

intended to commit the robbery, and furnished substantial assistance

in the commission of the robbery, he nevertheless did not intend “to

promote or assist the commission of the offense or to benefit in the

proceeds or results of the offense.” Therefore, no instruction on the

lesser-included offense of facilitation was warranted.

48 S.W.3d at 724. In the instant case, the proof the State adduced at trial established that the

appellant was active in the robbery, going so far as to inform the victim that he was being robbed.

The appellant was armed and assisted Gallaher in the commission of the robbery. In defense of the

charges, the appellant relied solely upon a theory of mistaken identity. Consequently, as in Ely, the

appellant “was either guilty of some degree of homicide or wholly innocent of any wrongdoing.”

Id. Based upon the proof at trial, the trial court was not required to instruct the jury on the lesserincluded offense of facilitation. This issue is without merit. 

E. Sufficiency of the Evidence

Finally, the appellant contests the sufficiency of the evidence supporting his

conviction. In Tennessee, appellate courts accord considerable weight to the verdict of a jury in a

criminal trial. In essence, a jury conviction removes the presumption of the defendant’s innocence

and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this

court why the evidence will not support the jury’s findings. State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). The appellant must establish that no “reasonable trier of fact” could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. State v. Williams, 657
-16-

S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and

the weight and value to be given the evidence, as well as all factual issues raised by the evidence,

are resolved by the trier of fact, and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561

(Tenn. 1990). 

The indictment against the appellant charged him with killing Fred Brown in the

perpetration of an aggravated robbery. See Tenn. Code Ann. § 39-13-202(a)(2) (1997). Aggravated

robbery is robbery “[a]ccomplished with a deadly weapon or by display of any article used or

fashioned to led the victim to reasonably believe it to be a deadly weapon; or [w]here the victim

suffers serious bodily injury.” Tenn. Code Ann. § 39-13-402(a)(1) and (2) (1997). “Robbery is the

intentional or knowing theft of property from the person of another by violence or putting the person

in fear.” Tenn. Code Ann. § 39-13-401(a) (1997).

The appellant specifically argues that 

the State only proved that the victim was killed by a blunt blow to the

head, the blunt object used was never identified, it was never testified

or proven that the Appellant struck the victim and further the only

item that conclusively places him at the scene is the videotape and the

ancillary testimony interpreting him as being on the videotape by non

experts giving expert testimony.

At trial, the appellant was positively identified by Phillips as one of the perpetrators who entered the

office of F&G Auto Sales. Phillips asserted that the appellant approached the victim and informed

him that they were committing a robbery. Gallaher struck Phillips in the head, rendering him

unconscious. When Phillips regained consciousness, the perpetrators were gone and the victim was

lying prone on the floor. Phillips freed himself from the duct tape binding his arms and went to the

aid of his boss. The victim instructed Phillips to call 911 because he had been shot by the

perpetrators. The autopsy revealed that the victim died as a result of massive facial injuries, but had

those injuries not been fatal, one of the gunshot wounds likely would have been. Dr. Blake opined

that the fatal facial injuries occurred just prior to the near fatal gunshot wound. 

Assistant Chief Queener, Douglas, Billy Paul Brown, Wilson, and Officer Whitt all

positively identified the appellant as one of the perpetrators shown on the video tape. The appellant

entered the office first and approached the victim. Testimony regarding the video indicates that a

struggle occurred as the victim resisted the attempts to take his money. The money typically kept

in the appellant’s shirt pocket was never discovered. Additionally, the perpetrators took the video

tape from the security camera. Furthermore, the audio portion of the video tape recorded the sound

of the appellant’s voice and the sound of gunshots. The victim was not injured prior to the

encounter with the appellant and Gallaher. We conclude that this evidence is more than sufficient

to sustain the appellant’s conviction. 
-17-

III. Conclusion

Finding no reversible error, we affirm the judgment of the trial court. 

 

___________________________________ 

NORMA McGEE OGLE, JUDGE