### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J une 19, 2002

STATE OF TENNE SSEE v. MARK A . GRIF FIN

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 Ander son County Criminal Court of first degree murder committed in the perpe tration of an aggrava

ted robbery

and was sentenced to life imprisonmentwithout the possibility of parole. On appeal, the appellant raises several evidentiary questions
, contests the jury charg e, and c halleng es the suf ficienc y of

the evide nce supp orting h

is

co nvicti on. Upon review of the record and the pa rties’ briefs, we affirm the judgment of the trial court.

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID H. W ELLES , J., joined. G ARY R. W ADE , P. J. , c on cu rr in g i n r es ul ts on ly.

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

Paul G. Summers, Attorney Gene ral and Reporter; Renee W. Turner, Assistant Attorney Genera l; James N. Ramsey , District Attorne y General ; and Jan Hic

ks, Assista

nt Distric t Attorne

y General
, for the appellee, State of Tennessee.

OPINION

I. Fact ual Backgro

und On March 2, 1999, an Anderson Cou nty Gra nd Jury indicted the appellant on one count of first degree murder committed in the pe rp et ra ti on of

an ag gr av at ed ro bb er y. The indictment

arose from the murder of Fred Brown in Clinton on February 17, 1999. The gui lt/innoce nce pha se of the trial resulted in the app ellant’sconvicti o n of first degree murder. At the c onclusion of the sentencing phase, the jury imposed a sentenc e of life imprisonment without the possibility of parole, finding t hat the murder was knowingly committed or aided by the a ppellant while he h ad a substantial role in c ommittin g a robbery and that the appellant had been previously convicted of aggravated robbe

ry and attempted a

ggravated robber

y.-2- At trial, the State first presented thetestimonyof the victim’s wife, Geneva Brown. Geneva Brown testified that her husband, Fred, wa s a former Tennessee State Trooper a nd electri cian. On Feb ruary 17, 1999, t

he victim w as working at his u sed car lot, F&G Auto Sale s, which was loca

ted on Clinc

h Avenue in Clinton. T

he victim also owne d a one-h alf inter est inMidSouth 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 carry

ing such l arge sum s of cash , but “he d idn’t take it serious ly. ” Howev er, in response to his wife’s concerns, the victim began pl acing 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 a lso placed a video ca mera in th

e car lo t’s offic e in orde

r to rec ord the a

ctivities on the par

king lot.

Geneva Brown la st saw h er husba nd alive o n Febru ary

17, 1999. O n that day , in response to a telephone call, she

went tothe car lot, arriving as emerg ency pe rsonnel were taking the victim from the office. Although she was unable t o speak with the victim, she heard “muffled sound” and noticed that he was moving. Af terthe victim’s death, police returned to her approxima

tely six thousand

dollars w hich they had foun d in a roll in her husb and’s pa nts pocke t.

Sometime

before trial, Ronald Austin spoke with the appellant regarding the offe

nse. At trial, Austin testified that the appellant told Austin that he was charged with “shooting an e x-cop.” According to Austin, the appellant and another individual were together and “in the context of it the guy got shot. ” The ap

pellant r elated th at t

he other indi vidual was caught and “he tried to put everything

on [the appellant].”

Wendy Carr oll li ved n ext

door to F&G Auto Sales. She knew the victim and would occasio nally

chat with him. On the day of the offen se, 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. Ca rroll did not know the attendant’s name but knew tha t he work ed at the car lot. The attendant “acted da zed, 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. Ac co rd in gl y, she immediately went to the ca r lot office where sh e 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 re

late d tha t the a ttac kers were

black. Car

roll d id not immed iate ly real ize the seve

rity of the victim’s injuries. She noted that “[o]n his face, one of his eye s, the cornea of his ey e- it was
, it looked like it had been torn off or partially torn off.” Carrol l’s twelve-ye ar-old son, who had accompanied her to the office, ca lled for assistance.

Jason Taylor, a f

irefighter and emerg ency

medical technician, responded to the 911 call from F&G Auto Sales. Tay lor 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. Tay lor 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 con scious and informe d Tay lor that he

had bee n shot with a small ca liber-3-

weapon. The victim also advised Taylor that his attac kers had left the scene. Tay lor noted that blood

was coming from the victim’s chest wound as wel l as from his mouth and nose. The victim was having trouble breathing and was placed on oxy gen. In orde

r to t reat the victim, his clothing was removed and left on the floor of the office.

Scott Campbell, a param

edic with the Anderso n County

Ambulanc e Author

ity, also responded

to the 911 call at F&G Auto Sales. Whe n Campbell arrived, the Fire Department, the Clinton Po li ce De pa rt me nt an d t he An de rs on Co un ty Sheriff’s D epartment were already on the

scene. Campbell saw the victim lying be hind a desk an d 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 L akefront Park in Clinton to await the arrival of the Lifestar helicopter. Ca mpbell related that the victim had blood in his mouth and was having difficul ty breathing. Campbell testified that the Lif estar helicopter was landingas they ar rived at the park with the victim

.
Mike Norris w as a nurs e onboard the Lifestar he licopter 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 in

juries “[w ]e were g oing to plan on hot loading the victim. In other words, w e 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

direct ion.” According to Norris, the victim was not getting oxygen into his sy stem. Norris noticed areas of injury to the victim’s face, the right neck and the right chest. Also, “the re was a lot of con

tusions, a brasions , some

swelling, depressions.” The victim remained unconscious during the flight. When the flight landed, approximately eight minutes after ta ke -o ff , t he vi ct im sh ow ed no si gn s o f l if e; sp ec if ic al ly, he had no heart

rate or blood pressure. Dr. Blaine Enderson of the University of Tennessee Medical Center pronounced

the victim dead on arriva l at the ho spital.

On Februa

ry 17, 1999, B obbie Rig gs was living at 2740 West

Wolfe Valley

Road in And erson County . When Rig gs arr ived home

at appro ximately

5:30 p.m., s he found

a video ta

p e 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 th at even ing, R iggs discovered that the police were searc hing for

a video tape that w as mis sing fr om F&G A uto S ales. Riggs called the home of her neighbor, Ave ry Johnson, who was emplo yed with t he she riff’s depart ment. Riggs spoke with Johnson’s wife who calledpolice. Shortly therea fter, an officer was dispatched to Rig gs’ home to retrieve the video tape. Riggs testified that she did not attempt to play the v ideo t ape and relinquis hed it to po lice exac tly as she found it.

Officer

Rick Scarbrough, an officer with the Clinton Police Depar tment , te stified that at approximately 8:00 p.m. on Februar y 17, 1999, he went to Riggs’ residence to obtain a video tape. Office r Scarbro ugh testified that he became involved after receiving a telephone call fr om Judy Johnson. After obtaining the video tape, Officer Scarbroug h placed it in a brownpaper bag and took it to Assistant Chief David Queene r of the Clinton Police Department. Assistant Chief Queener instructed Officer

Scarbro ugh to ta ke the vid eo tape t o the Movie

Station, a movie sales and rental-4-

business. Janine Starnes, an empl oyee of M ovie Station, repaired the video tape. Officer Scarb rough observe d Starnesremo ve the video tape fr om the dam

aged c asing, c

ut approxima

tely one-half inch of the video tape from either side of a tear i n the video tap e, splice the tape back together, and wind it into a new casing. After the repa irs, Officer Scarbrough re

turned 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 arr est of the appellant at the appellant’s home on Valley View in Knox County. Officer McClendon explained that the off icers entered the appellant’s residence, obtained

custody of him, and placed the appellant in the back of the police c ruiser. At the time of the ap

pellant’ s arrest, the appellant’s girlfriend and her daug hter were also in the home. While in the cr

uis er, the appellant

told the officers that he was cold and asked for his coa t. The officers asked the appellant’s girlfriend to g o back into the residence and get the appellan t’s coat. However, after the girlfriend obtained the coa t, Officer McClendon did no t gi ve 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 main tained that the officers were attempting to a ccommodate the appella nt. Officer McClendon stated that they “were not in the business of being harsh or

mean to

an ybo dy. It’shis coat. He wanted to

take it with him. . . . So w e accom modated h

im and got his coat.” The coat was placed in the trunk of the police cruiser. Officer McClendon recalledthat upon arrival at the polic e depar

tment, “[W]e w ere tak

ing it ba ck up to be

put in [appe

llant’s] pr opertie s. As we walked

in, we ran into Mr. Douglas and some other office r . . . so in turn we turned this coat over to them.”

On Februa ry 17,1999, Robbie Phill

ips was e mploy ed as a mechanic a t F&G Au

to Sales. He had worked for the victim for approximately one yea r. Phillips testifie d 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 ca

r lot. The

video ta pes were changed daily . On the day of the offense, at approxima

tely 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. O ne man was wearing a blac k jacket and the other man was wearing a green jacket. Shortly thereafte r, 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 ey e and onc e on the ba

ck of his h

ead, re ndering him uncons cious.

When Phillips regained consciousne ss, he was lying on the floor with his hands bound behind his back with duct tape. The victim, who was lying on the floor behindthe desk, told Phillips that he had been shot, and asked Phillips to call 911. Realizing that the office telephone ha d been jerkedfrom the w all, Phillip s ran next door for a ssistance . He then returne d to the of

fice wit h Carroll.1 This vi deo tape was not incl uded in the record f or our revi ew.

2 Gallaher

was al so indi cted in thi s off ense, but was n ot tr ied in the i nstan t case

.
-5- Phi llips testified that he had watched the video tape of the off ense and had al s o 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 perpe trators 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, P hillips ide ntified th e appell ant as the

perpetr ator who hit the vic tim. 2

Dr. Cl el an d B la ke pe rfor me d t he au to ps y on t he victim on February 18, 1999. Dr. Blake concluded that the cause of death was “a spiration asph yxia .” At tr ial, he testified that the victim had sustained two gunsho t wound s. “One of [the wounds] was clearly not lethal and one would have been lethal had

he not suf

fered s evere 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 ou t just above the breast bone. The second bullet entered the ches t near t he right nipple, traveled down through the c hest and abdomen, “causing gr adual bleeding into the abdomen,” and e ventually “ca me to rest over the hip bone.” This wound, left untreated, would hav e been f atal. However, death was actually ca used by “seve

re injuries to his face which caved in the left side of his facial bones and broke vessels going into the sinuses.” The fa cial wounds resulted

in the victim

“aspira ting, suc king the blood fro m his cave d[-]in fac e down int o his bronchial passages into his lungs causing asphy xia or failure to get

ox yge n. ” E ss en ti al ly, the victim ch ok ed to de at h o n h is ow n b lo od . D r. Bl ak e o pi ne d t ha t t he fa ci al wo un ds we re ca us ed by

a broad heavy

or flat object. These are not inflicted by fists. They

are notinflicted by, I

don’t think that they

are the butt of a gun unless it’s

a very bro ad butt of a gun. It c ould have been a piece of timber. Some of the se cou ld hav e been i nflic ted by cras hing into a t able, a wall, a piece of furniture, or indeed the floor , but . . . a

simple fa ll did notcave in t

he left f acial bo nes and c ause

the hemorrhage which

bled into that.

At the time of trial, David Queener was the Assistant Chief of the Cli nton Police Departm ent. On February

17, 1999, Assistant Chief Queene r was a C aptai n in ch arge of the Patrol and Detective Division of the Clinton Police De partmen t. He test ified tha t he had known the vi ctim for approximately fifteen

years a nd was familiar with his voice. Prior to the date of the offenses, he didnot know Phillips. However, he did kno w the app ellant and Gallahe r and wa s familia

r with the ir voices. After lis tening t

o the voices on the tape, Assistant Chief Queener rec ognizedthe voices of Gallaher and the a ppellant as those o f the per

petrato rs. Assist ant Chief Queen er also determined after viewing the vi deo ta pe tha t the a ppell ant en tered t he offi ce firs t and w as wear ing a green jacket; Gallaher followed the appellant into the office and was wea ring a blac k jacket . Assistant Chief Queener maintained that Philli

ps was mist

aken in st atin g tha t the appellant wore a black jacket during the offense.-6- AssistantChief Queener la ter req uested th at t

he Knox County Police Department compile computer-generated photog raphic line-ups
, spe cifically 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 co mpu ter randomly plac ed both Gallaher and the appellant in the num ber two pos ition. Assistant Chief Queener asserted that because the line-ups

were generated by

a computer located at the Knox County Police D ep artment, he was un able to change the position of either man. From these line-ups, Phillips positively identified Gallaher and the appella

nt as the p erpetr

ators. Ad dit ionall y, Assistant Chief Queene r noted that the video tape revealed that the perpetrators drove a 1979 yellow Mer

cury automobile to the

car lot. The car shown in the video tape was registered to Daphe ne Crowley.

George Wilson testified that he also worked at F&G Auto Sales. Throu gh various familial relation s, Wilson wa s acquainted with G allaher and the a ppellant

. Both men

had bee n to Wilson’s home on various occasions. Wilson believed that Gallaher and the appellant were cousins because they typ ically called each other “cuz.” Wilson viewed the video tape a nd 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, h e positively iden tifie d the ir voi ces a

fter hear ing t hem c all e ach o ther

“cuz ” on the tap e. Wilson a lso related that the victim normally

carrie d around

one hundr

ed dollar s ($100) in his shir t 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 B illy Paul Brown’s trailer . The black jacket seized by the polic e belo nge d to Gallaher. Billy Paul Brown stated that Daphene Crowley was Gallaher’s girlfriend. Moreover, after reviewing the video tape he recognized the voices and fac es of Gallaher and the a ppellant as the pe rpetra tors.

Eldri dge Douglas testified that, prior to his retire ment in O ctober 1 999, he wa s a detective with the Clinton Police Depa rtment. Douglas had known the victim, the appellant, and Gallaher for yea rs. Initially , Douglas was in charge of the investigation of

the robbery

and shooting of the victim. He was called to the scene a

nd notice d that Philli

ps appea red to ha ve been hit with somet hing. Dougla s ultimately r etrieve d a roll of

six thousand dollars ($6000) from a pocket of the victim’s pants. On February 17, 1999, after viewing the tape, Doug las visually identified Gallaher

as one of the perpetrators. He also recognized the voices of the victim, Ga llaher, and the a

ppellant

. Sp ecif ic al ly, Douglas stated that “I had talked to [the appellant]. But the day tha t 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 pos session of the Knoxville officers, he recognized it as the one w orn by the appe llant during the robbery

and took possessio n of the ja

cket.3 W e will ad dress the ap pellan t’s issues in a d ifferent or der tha n they we re raise d in the a ppe llant’s brief.

-7- Fi na ll y, Richard Wh

itt, an officer with the Clinton Police Department, testified that he was well-acquainted with Gallaher and the a ppellant and knew that Gallaher and the appellan t

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

Gallaher and the appel lant. He also recognized the appellant’s voice. Fur thermore, Whitt noted tha

t the appe lla nt enter

ed the of fice fir st and wa s followe d by Gallahe r. Whitt maintained that the tr

anscrip t of the video tape accurately reflected the proceeding s 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 appea led, raising

the following issue s: (1) whether the trial court erred in allowing the State to int roduce t

estimony of a witne ss whose identity was not revealed to the defense in compliance with discovery rules; (2) whether the trial court erred i n allowing

the State to introduce into evidence a video tape and purported tr anscript of the video tape of the alleged crime a nd whether the court erred in allowing the Stat e to introdu ce testimonyof witnesses who testified that they recognized the voice of

the appellant; (3) whether the trial court erred in failing to suppress the jacke t seized from the residence of the appellant ; (4 ) whether the trial court er red in fa iling to su ppress the suggestive photo line-up; (5) whether the trial court erred i n failing

to charge the jury

with the lesser-included offense of facilitation of first degree murder c ommitted in

the perpetration of an agg ravated robbery ; and (6) whether the evidence was sufficient to support the appellant’s conviction for first degree murder committedin the perpetration of an ag gr av at ed ro bb er y. 3

II. Analysis A. Suppression of Evidence The appellant contends that the trialcourt erred i n deny

ing his mo tions to sup

press evidence. Fin d ings of f

act made by a trial cou rt during an evide ntiary hearing on a motion

to suppressmust be given the weight of a jury verdict and anappellate court need not set aside the trial court’s findings unless the evidence prepondera tes against them. State v. Jackson , 889 S.W.2d 219, 222 (Tenn. Crim. App. 1993). Questions of the credibi lity of witnesses, the weight and value of the evidence, and the resolution of conflicts in the evidence are matter s entrusted to the trial judge as the trier of fact. Statev. 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 c ourt’s ru

ling on a pretria l motio n to suppress, appellate courts may consider the proof adduced both at the suppression hearing and at trial.” Statev. 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, ag ainst 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 sea rches and seizures.” In relation

to this issue, our supreme court recently noted: It is well settl ed that the Fourth Amendment's procedural safeg uards do not apply to police inve stigative activities unless those activities constitute a “search” within the

meaning of the Fo urth Amendment. Since Katz v. United States , 389 U.S. 347, . . . , 88 S. Ct. 507 (1967), the Supreme C ourt has d

eclined to define the term

“search” in a literal fashion, and it has insteadchosen to define a search as an invasion of a reasonable or legitimate expectation of privacy. State v. Ro ss , 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 a n ill ega l search. At the suppression hearing, Officer Robert A. Soloman and Officer Donald McClendon testified that they

were present when the appellant was arreste d on February 26, 1999. After the appellant was taken into custody and placed in the back of the police cruiser, the appellant aske d for his ja

cket bec ause he was cold. As a result of the app ellant’s req uest, the office rs asked the appe llant’s girlfrie

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

by appellant’s girlfriend, Officer M cClendon se arched the jack et and dis covere d 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, Offic er McClendon explained:

Well, sir, he was in handcuffs. We weren’t makin g it conven

ient. We just gave him his jacket. And if he w anted his jacket down the roadand they wa

nted to give i t b ack to him, it was his jacket. He didn’tneed a jacket in the car, because it was warm. And we weren’t going to unhand

cuff him. We just

made it convenient

to him to get him his jac

ket. Thereafter, th e o ff

ic er s t oo k t he ja ck et to th e K no x C ou nt y I ntake Cen ter 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 investig ators, testified that he immediately seized the jacke t 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 deniedthat he was cold on the day of his arr est and further denied that he asked the offic ers for his jacket. Instead, the appellant cla imed that while he was in the back of the police cruiser he witnessed the officers go into his home and return with the jacke t.

Based upon this evidence, the tri al court found that “the jacket came into police custody in a lawful manne r and not as a result of a search.” The r ecord reflects that the

credibi lity 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 cour t’s findings. Based upon the testimonyof the of

ficers, no search took place. The appellant did not have a reasonable expectation-9-

of privacy in a jacket that he specifically asked the officers to retrieve. The a ppellant asks this court to “infer” another

motive for the retrievalof the ja cket. Ho wever, the trial

court is th

e trier o f 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 co ntends that the trial court erred in failing to suppress the photogr aphic line-up, summarily complaining tha t it was suggestive. We note that the appellant has notincluded 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 constituti onal due p rocess i s violated

if a pre trial ide ntificat ion is influenced

by sugg estiveness by police of ficers to suc h de gree as to render the identifica tion unreliable.” State v. Sha

nklin , 608 S.W.2d 596, 5 98 (Tenn. Cr im. App. 19 80). Ten

nessee c ourts have adopted the five factors suggested in Neil v. Biggers , 409 U.S. 1 88, 199-2 00, 93 S. Ct. 375, 382 (1972), for use in determining whether an iden t ification is sufficiently re liable to withstand a due process attack despite a sugg estive lineup:

(1) the opportunity of the witness to view the c riminal 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 bet ween the crime and the confrontation. Shanklin
, 608 S.W.2d a

t 598; see a lso Benn ett v. State , 530 S.W.2d 511, 514 (Tenn. 1975). “‘Convictions based on eye witness identification a t trial fo llowing a pretrial identification by photograph

will be set aside on that grou nd only if the pho to identif

ication w as so impe

rmissibly suggestive

as to give r

ise to a ve ry substantia

l likelihoo d of irre

parable misidentification.’” State v. Philpott
, 88 2 S.W. 2d 394 , 399 ( Tenn. Crim . App. 1994) (quot ing Simmons v. United States , 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968)). However, if a court using the Bigger s standard determines that a pretrial confrontation was so impermissibly suggestive that it violated a n accus ed’s rig

ht to due process, both the out-of-court and the in-court identifications ar e excluded. Sha nkl in , 608 S.W.2d at 598.

In the instant case, Phillips testified at the suppr essio n heari ng that even t hough the offense was committed in February , the police did not contact him to view a line-up until September. AssistantChief Queener asserted that the line-ups containing Gallaher an d the appellant were generated by c omputer. He explained that “ I fou nd it’s be tter to le t the computer pick it out. I t gets a whole lot closer thanme trying to pick it out. That and the fact that you ha

ve color photographs and you have blac

k-and-white photographs, and it’s just hard to get a photograph being the same.” The computer program placed Gallahe r’s picture i n t he second position in his line-up and the appella nt’s pictu re was a lso 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 perc ent sure” of his identification. Within approximately one minute,4 At t ria l, Phil li ps cl aimed t

hat the appell ant wore a black coatand st ood by the victi m and Gallaher wore a green coat and st ood beside Phillips. However, the officers t estif ying at t rial agreed that

the appellant stood near the victim b ut asserte d that the app ellant wo re a gre en jac ket and Ga llaher w ore the black jacke t.

5 In his bri ef, the appellant contends that he did object to allowing Austi n to t esti fy. However, he al so notes that the transcri pt does not reflect he objection and [the ap pellan t] is unsure why. [The

app ellant] would state, t hat the transcri pt picks up a discussi on about [the ap pellan t]
not havi ng had an opport uni ty to mee t wi th t

he wi tnes s, bu t th e S tate indic ates in thei r discu ssi on that

they are now maki ng the w itn ess avai lable f or an int erview.

-10- Phillips examined th

e line-ups and identified Gallaher and the appellant as the pe rpetrators. See Philpott
, 882 S.W.2d at 400. In response to the appe llant’s questioning at the suppr essio n heari ng, Phillips admitted that in February he told the police that

he could

identify only

one of the perpetr ators. The record is not clear as to which perpe trator Phillips could identify. However, he explained that “after I sa

t around and thought ab out it, then I could identify ‘em [both].” Phillips asserted that he never s aw th e 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 heproceeded 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 e

nteredthe office. One of the perpetrator s stood beside the victim and the other perpetrator stood beside Phillips. The perpetrator standing near the victim, whom Phillip s identifi ed as the appella nt, “told Fred

that it was a robbery .” 4 Phillips stated that he was “certain” of his identification of the appellant and Gallaher fromthe photographic lineups. He also contended that no one sugg ested that he choose a specific photogra ph. See State v. Howell
, 6 72 S.W.2d 442, 445 (Tenn. Crim. App. 1984). The trial court determined that “p olic e photogr aphic lineu p proc edure w as pro per and not s ugge stive.” In light of the fore going, we conclude that the trial court did not abu se its discreti on in deny ing the a ppellant ’s motion to

suppress Phillips’ pretrial identification of the appellant.

B. Witness not Disclosed in Discovery At trial, the State calledwitness Ronald Austin to testify rega rding a conversation he had with the appellant prior to trial. The appellant argues tha t the trial court “erred in allowing the Stateto int

rodu ce in to ev iden ce the tes timon y o f [A ustin ] 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 occurr ed prior to the State

calling Ronald Austin to te st if y:6 Addit ional ly , Tenne ssee Code Annot ated section 40- 17-106 ( 1997) control s the “duty of th e dist rict att orney general to endorse on each in dictment

. . . th e names of s uch wit nesses as th e dist

rict att orney gener al i nten ds sh all be summoned in the cau se.” H owe ver, this d uty is direc to ry, not m and atory. State v . Har ris , 839 S.W .2d 54, 69 (T enn. 199 2).

-11-

Court: [State], this witness tha t you p lan to ca

ll, it is my understanding that [the appe l lant] has not had an op portunity to interview this witne ss. It

is also my

understanding that y ou have not give n this witne ss an

y instru ction s to no t talk

with [t he ap pella nt].

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

Court: B ut bas ically

speaking , yo

u have given [the a

ppellant ] this statement that is referred to and that’s the information that y ou have as to wha t this witne ss would te stify to. Isthat cor

rect?

State: Tha

t’s corr ect.

Court: [Appe

llant ], at this time

I am g oing to a

llow y ou to go b ack to the jail to talk with this individual.

Ini ti al ly, 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 : U pon request

of a def endant th e state sh all permit the def endant to inspect and copy or photog

raph: . . . the substance of any oral statement which the state inte nds to offer

in evidence at the trial made by the defendant whether before or after a rrest in r esponse t o interrogations by any

person th en known t

o 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 interrog ation and not extended to any

oral statements made which are incriminating.” State v. Balthrop
, 752 S.W.2d 104, 108 (Tenn. Crim. App. 1988). Acco rdingly, because the remarks in question were made by the appellant to a civili an and no t to an officer during an interrog ation, “they are not e xcludable because the state di d not reveal them.” Id. ; see also State v. Cyrus Deville Wilson , No. 01C01 -9408-CR00266, 1995 Tenn . Crim. App . LEX IS 892 , at *8 (N ashville, Nov. 15, 1 995) (co ncluding that t h e 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 indicate s that the S tatedid reveal Austin’s identity and the substance of his testimony prior to his being ca lled 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 resultedfrom the witnesses' testimony butthe prejudice which resulted from the defenda nt's lack of notice which is relevant to establish prejudice.’” Statev. Kendricks , 947 S.W.2d 875, 883 (Tenn. Crim. App. 1 996) ( quot ing State v. Jes se Euge ne Harr is , No. 88-188-II

I, 1989 Tenn. Crim. App.-12-

LEXIS 449, at *1 1 (Nashville, June 7, 1989)). E ven if the identity of the wit

ness shoul d have been disclosed, the appe

llant has d

emonstra te d no prejudice resulting from his lack of notice re garding 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 A ustin outside of

trial pri or to the St

ate calling Aus tin

as a witness. The appellant could have requested a c ontinuance, but failed to do so. This issue is without merit.

C. Video Tape

The appellant raises two c losely related c omplaints 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 pu rported tr anscript of the tape of the alleged c rime. At the outset, we note that trial courts are accor ded broad discretion in ruling upon the admissibility of evidence; we shall not overturn such rulings absent an abuse of tha t 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 testimonyof witnesses who recognized the appellant’s voice should ha ve been inadmissib le beca use the State failed to lay a pr oper fou ndation. “The on ly foundation that was laid by the State in the recognitionof these voices was that [the witnesses] knew [the appellant] through the course of their work.” First, we observe that the appe llant fai led to cite

to any releva nt author ity in support o f this issue

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

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

Tenness ee Rule of Evidence 9 01 gove rns the a uthentic ation of e

vidence . Specif

ically regarding voice ide ntificat ion, the r ule provides that authentication may be made by “ [i]dentification of a voice, whether heard

firsthand or through mechanical or elect ronic trans miss ion o r recor ding, by opinion based upon he aring the voice at any time under circumstances connecting it with the allege d speake

r.” Ten n. R. Evid. 9 01(b)(5 ). Specif ically , one authority

has noted

that if the witness has, at the time of t estify ing, ad equate f amiliarit y w ith the sp eaker’s voice, he or she may opine whether the dispu te d testimonyis the alleged

speaker ’s voice , Rule 901( b)(5). Familiarit

y
can be gained in a relatively short period of

time, and as the result of conversations occurring before or a fter the co nversation that was identified. Neil P. Cohen, et al., Tennessee Law of Evidence , § 9.0 1[7], at 9-11 ( LEXI S Publishing, 4th ed. 2000). Additionally, in State v. Jones , 598 S.W.2d 2 09, 223 (T enn. 1980 ), our sup reme court held that tape recordings and compare d transc

ripts are admissible and may be presented in evidence by

any witness who was pr

esent dur ing thei r recording or who monitoredthe conversations, if he was so situated7 The app ellant di d object to the admission of the t ranscript at

trial ; however, the record is unclear as to the exact basis of t

he appellant’s objecti on.

-13- and circumstanced that

he was in a position to identify the declar ant withcertainty, a

nd provided his testimony in whole, or in par

t, comports with other rules of evidence.

In the instant case, the appe llant’s voice was identified by AssistantChief

Queener, Wils on, Billy Paul Brown, D ouglas, and Officer Whitt. The appellant objected to the voic e 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 t hey had known both men f or many y

ears. See State v. Leonard Edwar d Baugh, Jr. , No. M2000-00477-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 415, at *29 (Nashville, June 1, 2001), perm. to appeal denied
, (T en n. 20 01 ). Sp ec if ic al ly, Assistant Chief Queener testified that he had known the appellant “[m]ost of his young adult life as a j uvenile up,” and he further asserted that he had conversations with the appellant prior to the Februa ry 17 , 1999, offe nse. AssistantChief

Quee ner 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 beca use they had

been to his house on several occasions and they typically refe rred to eachother as“cuz.” D ue to his familiar ity with their

voices, Wilson identified the voices of Gallaher and the appellant on the tape. Billy Paul Brown testified that Gallaher and the appe llant wer e his cous ins and he

recog nized their voices and faces on the tape. Douglas asserted that he recog nized the appellant’s voice on the tape because he was familiar with the appellant’s voice. Particularly , Doug las ex plained that “[i]t had been a while but I had talked to [the appellant]. But the day that . . . I we

nt to the Dete

ntion Facility to interview him, I

was abso lutely

positive th at it was h

is voice. ” Addition ally , Office r Whitt testified that he knew the appellant and Gallaher well and r ecognized 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. C rim. App. 1977) . Accordingly , we find no error. See State v. Steven Radley , No. 01C01-931 1-CC-0038 2, 1994 Te nn. Crim. A

pp. LE XIS 43 8, at *10 (

Nashville , July

14, 1994).

2. Transcript Th e appellant also complains that the trial court erred in allowing the Stat e t o introduce into evidence at trial the purported transcript of the tape of the alleg ed crime. 7 As we noted, Jones , 598 S.W.2d at 223, provides the standardfor the admission of a transcript. Assistant Chief Queener testified that he and Detective Hedden “listened to the tape and transcribed in words and the pers on that w as talking and we pu

t these in w ords on pa

per.” H owever , the proo f clear ly reflec ts that Assistant Chief Queener was not present during the r ec ordin g of the tape nor did he

mo nitor the conve

rsation a s it was recorded. Accord ingly , the tria

l court e rred in a dmitting th e transcr ipt.

Moreover, the appellant additionally complains that the tria l cour t failed to give a limiting instruction following the admission of the transcript. The record doe s notreflect that the-14-

appellant ever reque sted that a limiting instructi on be gi ven reg arding the use of

the tran script. Becau se of the appellant’s failure to request such an instruction, t he appellant

has waiv ed this argume nt. See Tenn. R. App. P. 36( a); State v. William Lewis Houston , No. M1999-01430-CCAR3-CD, 2000 Tenn. Crim. App. LEXI S 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, a nd not the transcript is the actual evidence.” State

v. Barnard , 899 S.W.2d 617, 623-24 (Tenn. Cr im. App. 1994 ). Acco

rdingly , the tria

l court sh ould have instructed the jury tha t the tape itself wa s the evid

ence to b e conside

red, not t he trans cript. Howeve r, ev en if the trial court erred by admitting the transcript, in light of the remaining overwhelming proof ag ainst the appellant, namely the

video tape itself and the positive identification by Phillips, we conclude that this error w as harmless. Tenn. R. App. P. 36(b).

D. Le sser-I

ncluded O ffense Next, the appellant contends that the trial court erred in failing to charg e the jur

y w ith the lesser-included offense of facilitation of first degree murder committed in the perpe tration of an aggravated

robbery ( hereinafter “facilitation of felony murder”). The trialcourt instructedthe jury

on the charged

offense of first degree

murder committed in the perpetration of an aggrava

ted robbery and on the les ser-inc luded off enses of second d egree murder, criminall y negl igent homicide, and reckle ss homicide. Tennessee Code Annotated section 40-18-110 (1997) mandates that a trial court must charge the jury

as to the la

w of eac h offens e which is“include d” in an indictment, regar dless of a defendant’s request for such an instruction. Whether a lesser-included offense must be charg ed in a jury instruction is a two-par t inquiry. First, the trial court must determine whether any evidence exists that

reasona ble minds coul d accept as to the l esser- inclu ded off ens e. In making this determination, the trial court mus t view t he evidence liberall y in t he li ght most favorable to the existence of the lesserincluded offense without making any judgments on the credibility of such evidenc e. Secon d, the tria l court mus t determine if

the evidence, viewedin this l ight, 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, ist h e controlling authority for dete rmining when an

offense may

be consider

ed a less er-inc luded off

ense of an indicted offense. Again, the appe llant con tends tha t facilita tion of fe lony murder isa lesserincluded offense

of fi rs t d eg re e m ur de r c om mi tt ed in th e p er pe tr at io n o f a n a ggr av at ed ro bb er y. “A person is criminally responsible for the f acilitation of

a f el on y i f, knowin g that a nother in tends to commit a specific felony , but without the intent required for criminal responsibility under § 39-11- 402(2), the person knowingly fur nishes sub stantial assistance in the commission of the felony .” Tenn. Code Ann. § 39-11-403(a) (1997). Apply ing the c riteria set forth in Burns , our supreme court recent ly n oted that, pursuant to part (c) of the Burns test, facilitation of felony murder is a lesserincluded offense of first degree murder

committed

in the per

petratio n of a felony , which f elony in the instant ca se is aggravated robbe ry. State v. El

y , 48 S.W.3d 710, 720 (Tenn. 2001). Thus, we

mu st pr oc ee d t o t he se co nd pa rt of ou r i nq ui ry.-15- It is well-settled that “the mere existence of

a lesser offense to a char ged of fense is notsufficient alone to warrant a charg e on that offense. Whether or not a particular lesser -included offense should be charged to t he jury depe nds 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 rulefor 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 suffici ent to convi ct under the greater off ense will not necessarily

prove the lesser offenses, including facilitation, enumerated in part (c) of the test. Id

.

The facts of

the instantcase closely

resemble those in Ely . In Ely , our supreme court concluded: While there was some question as to whether it was Car

den or Ely who actually

killed the

victim, th e eviden ce was clear that the commis sion of the underlying felony of robbe

ry was a

joint under takin g. Ely’s defense was that he was not present; therefore, he

was either guilty of

some degree o f ho micide or wholly innocent of any wrongdoing. . . . [Accor

dingly ,] we find t

hat no re asonable

juror could have believed th at althou gh Ely was present, knew that Carden intended to commit

the robbery , and furnished substantial assistance in the commis sion of the

robbery , he neve

rthelessdid not inte

nd “to promote or assist t

he commiss ion of th e offense or to benefit in the proceeds or

results of the offense.” Therefore, no instruction on the lesser-included offense of facilitation was wa rranted. 48 S.W.3d at 724. In

the insta nt case, the pr oof the State adduced at trial established that the appellant was active in thero bb er y, 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. I

n defense of the charg es, the appellant relied solely upon a theory of

mistaken id en ti ty. Consequently, as in Ely , the appellant “was either guilty

of some degree of homicide or who lly innocen t of any wrong doing.” 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 Fi na ll y, the appe

llant con tests the s ufficie

ncy of the evidence s upporting his convicti on. I

n Tennes see, app ellate

courts accord considerable weig htto the verdict of a jury

in a criminal trial. In essence, a jury conviction removes the presumption of the defendant’s innocenc e and replac es it with o ne of guilt, so tha t the appe llant car ries the burden of

demonstr

ating to this court why the evidenc e will not support the jury’s findings. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). The appe

llant must e stablish

that no “reasonable trier of fact”could have found the essential elements of

the offense bey ond a reasonable doubt. Jackson v. V irginia
, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

Ac co rd in gl y, on appeal , the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences whic h may be dra

wn ther efrom. State v. Will iams , 657-16-

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

a n d value to be given the evidence, as we ll as all factual issues raised by the evidence,

are resolve d by

the trier of fact , and not th

e appell ate cour

ts. State v. Pr

uett , 788 S.W.2d 559, 561 (Tenn. 1990).

The indictment against the appellant charged him with killing Fred B rown in the perpetrationof an aggrava ted robbery

. See Tenn. Code Ann. § 39-13-202(a)(2) (1997). Aggravated robb ery is robbery “[a]ccomplished with a de adly wea pon or by display

of any ar

ticle used or fashion e d to led the

victim to r

easonab ly b elieve it

to be a de adly

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 appe llant specifically

argue s 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 th at the App ellant s truck the victim and further the only item that conclusively place s him at the scene is the videotape and the ancillary testimony interpreting him as be ing on the videotape by

non
ex pe rt s g iv in g e xp er t t es ti mo ny. At trial, the appellant was positively identifie d by Phillips as one of the perpetra tors 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 hea d, rende rin g him

unconsc ious. When Phillips regainedconsciousness, the perpetrators were g one andthe victim was lying prone on the floor. Phillips freed himself from the duct tape binding his arms and went to the aid of his b oss. Th e victim instructed Phillips to call 911 because he had been shot by the perpetr ators. The autopsy re

vealed that the victim die d as a result of massive facial injuries, but had those injuries not been fatal, one of the gunshot wounds likely would have bee n. Dr. Blake opined that the fatal facial injuries occurred just prior to the nea r fatal gunshot wound.

AssistantChief

Queener, Douglas, Billy

Paul Brown, Wilson, and Office r Whitt all positively identified the appellant as one of the perpetratorsshown on the video tape. The appellant entered the office first and approached the victim. Testimony rega rding the video indicates that a strugg le occur

red as the victim

resisted the attempts to take his money. The money typically kept in the appellant’s shirt pocket was never discovere d. Additionally, the perpetra tors took the video tape from the security c amera. Furthermore, the audio portion of the vide o 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