State of Tennessee v. Gaines Richardson ( 2018 )

08/30/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
May 1, 2018 Session
STATE OF TENNESSEE v. GAINES RICHARDSON
Appeal from the Criminal Court for Shelby County
No. 14-04610 Paula L. Skahan, Judge
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No. W2017-01102-CCA-R3-CD
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Defendant, Gaines Richardson, was indicted for two counts of aggravated robbery. After
a jury trial, Defendant was convicted as charged. He received a total effective sentence
of nine years. On appeal, Defendant argues that the evidence was insufficient to support
his convictions and that several plain errors were committed by the trial court. After a
thorough review, we conclude that the evidence is sufficient and that Defendant is not
entitled to plain error relief. Accordingly, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
J. ROSS DYER, JJ., joined.
Melody M. Dougherty (on appeal) and Mark Renken (at trial), Memphis, Tennessee, for
the appellant, Gaines Richardson.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Sam Winnig,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
In September of 2014, a Shelby County Grand Jury indicted Defendant and co-
defendant, Javon Ponder, for two counts of aggravated robbery. Trial began in August of
2016. The following is a narrative of the proof presented by the State at trial.
Winton Burrell is a licensed car dealer and operates his business out of his home.
Mr. Burrell is on disability for a heart condition, but every tax season, Mr. Burrell sells
some cars and, as a result, has large amounts of cash in his house. Mr. Burrell received a
call from co-defendant, about purchasing a vehicle. During their discussion about the
vehicle purchase, co-defendant agreed to get some money together and meet Mr. Burrell
the next morning, April 1, 2014. Before noon on April 1st, co-defendant called Mr.
Burrell and stated that he and “his cousin” were going to pick up the truck, a Ford F-150.
When the men arrived, Mr. Burrell met them outside, showed them the truck, and walked
inside to get the title at their request. Mr. Burrell recounted that once he had the title,
“the next thing [he knew, he] had a gun pointed in [his] face by [Defendant].” Defendant
continued to hold Mr. Burrell at gunpoint as he pushed Mr. Burrell through the house and
into Mr. Burrell’s bedroom.
Inside his bedroom, Tarreka Anderson, Mr. Burrell’s fiancée, awoke to the sound
of the commotion. She remembered awaking to the sight of a man, later identified as
Defendant, pointing a gun at Mr. Burrell’s face and asking where he could find the
money. Ms. Anderson initially thought it was a joke and talked “crazy” to both of them
because it was April Fool’s Day. When Defendant pointed a gun at her and told her to
“shut the ‘F’ up,” she realized it was not a joke. Once Defendant pushed Mr. Burrell in
the bedroom, Defendant took $6500 in cash that Mr. Burrell claimed he had set out on the
ironing board in preparation for an automobile auction later in the day. Ms. Anderson
said that Defendant found the cash in some shoeboxes. At any rate, Defendant ordered
Mr. Burrell to lie down, and Mr. Burrell laid down in a manner which he thought would
protect Ms. Anderson, who was pregnant with Mr. Burrell’s child at the time. Once Mr.
Burrell was lying down, Defendant asked where the rest of the money was located and
rummaged through the shoeboxes in Mr. Burrell’s bedroom. Defendant said, “you better
not get your ass up” and exited the room.
After Defendant and co-defendant left, Mr. Burrell surveyed the house and noticed
other things were missing. Mr. Burrell recalled that money, a PlayStation 4, games, a
DVD, shoes, bags of medicine, keys to the car, keys to the house, cellphones, and a car
radio were taken from the house. According to Ms. Anderson, they took “two or three
pair[s] of Air Jordan tennis shoes,” “a Play Station 4,” and “a lot of DVDs,” which
belonged solely to her.
Mr. Burrell could not call the police immediately because his phone had been
taken. Ms. Anderson and Mr. Burrell looked up Defendant and co-defendant on
Facebook because they wanted to know their full names before they called the police.
Once he had access to a phone, Mr. Burrell called the police and reported the robbery.
The recording begins by giving the date and time as “Tuesday, April 01, 2014 at 3:58:55
p.m.” In the recording, Mr. Burrell states that he had been robbed at gun point and gives
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the full names of Defendant and co-defendant over the phone to the 911 operator.
However, Mr. Burrell testified that he met Defendant for the first time on April 1st.
Mr. Burrell recounted that a police officer came to his house. Mr. Burrell used
Facebook to look up pictures and show the police pictures of co-defendant. The police
officer gave Mr. Burrell and Ms. Anderson instructions to come to the police station for a
photographic lineup at a later date. In the time between the crime and the photographic
lineup, Ms. Anderson gave birth. She remained in the hospital for two days, and the child
remained in the hospital for two weeks.
Lieutenant Shawn Hicks of the Memphis Police Department investigated the
instant case. Once the case was handed off to him, he contacted Mr. Burrell and Ms.
Anderson by phone to talk to them about the case. Even though Lieutenant Hicks had
names for the two suspects, he created a photographic lineup to confirm the
identification. When making the photographic lineup, Lieutenant Hicks retrieved a
picture of Defendant and co-defendant and placed them in separate lineups with
photographs of other individuals that looked similar. Before administering the
photographic lineup, Lieutenant Hicks had both Mr. Burrell and Ms. Anderson review the
“Advice to Witness Viewing a Photographic Display” document. He explained to them
the contents of the document and its instructions. After each victim signed the document,
Lieutenant Hicks separated Mr. Burrell and Ms. Anderson and had them independently
review the photographic lineups. Both victims identified Defendant and co-defendant.
Subsequent to this identification, Lieutenant Hicks obtained an arrest warrant for
Defendant and co-defendant. Mr. Burrell and Ms. Anderson identified Defendant and co-
defendant in the courtroom. However, Ms. Anderson was unable to describe the clothing
co-defendant was wearing because she did not have on her glasses.
At the conclusion of the trial, the jury found Defendant guilty of aggravated
robbery in both Count One and Count Two. At a sentencing hearing, the trial court
sentenced Defendant to concurrent nine-year sentences on each count.
In his motion for new trial, Defendant alleged that the evidence was insufficient to
support his convictions and that the following the plain errors occurred at trial: the State
engaged in improper argument during opening statement, the State elicited victim impact
testimony from both Mr. Burrell and Ms. Anderson during its case-in-chief, the trial court
published the 911 recording to the jury, the trial court admitted an impermissibly
suggestive photographic lineup, and the State engaged in improper argument during
closing arguments. The trial court denied Defendant’s motion for new trial, and
Defendant raises the same issues in this timely appeal.
Analysis
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I. Sufficiency of the Evidence
Defendant argues that the evidence presented at trial was insufficient to support
his convictions for two counts of aggravated robbery because the evidence came from
“two individuals who could not get basic facts straight even within their own individual
testimonies at trial.” The State argues that all of Defendant’s arguments about the
sufficiency of the evidence relate to the weight and credibility of the witness testimony,
which is strictly determined by jury. We agree with the State.
Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. A guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992). The burden is then shifted to the defendant on appeal to demonstrate why the
evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The relevant question the reviewing court must answer is whether any
rational trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
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 standard of review ‘is the same whether the
conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).
As charged in this case, aggravated robbery is a robbery “[a]ccomplished with a
deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon.” T.C.A. § 39-13-402(a)(1). “Robbery is the
intentional or knowing theft of property from the person of another by violence or putting
the person in fear.” T.C.A. § 39-13-401(a). “A person commits theft of property if, with
intent to deprive the owner of property, the person knowingly obtains or exercises control
over the property without the owner’s effective consent.” T.C.A. § 39-14-103(a).
Defendant points out that Ms. Anderson changed her story. Initially, she claimed
that she did not move until the men left. Then, she claimed that she was looking out the
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window when the men left. Defendant continues by highlighting that Mr. Burrell
testified that the stolen money was taken off of the ironing board while Ms. Anderson
testified that it was taken out of shoeboxes. Defendant also directs us to the fact that Mr.
Burrell testified to multiple places from which he retrieved the title to the truck.
Defendant calls our attention to the fact that both Ms. Anderson and Mr. Burrell claim
that they were the one to call the police. Finally, Defendant claims that the
identifications of Defendant by both Ms. Anderson and Mr. Burrell were compromised
because neither witness “knew the second man who came to their residence on the day in
question, nor did they know his name.” All of these discrepancies to which Defendant
calls our attention are matters relating to the weight attributed to witness testimony and
the credibility of each witness. “A guilty verdict by the jury, approved by the trial court,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the prosecution’s theory.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997) (citing
State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Determinations of weight and
credibility are made solely by the jury, and this Court may not second-guess those
determinations on appeal. Pruett, 788 S.W.2d at 561. Therefore, we will not reevaluate
the weight and credibility of the witnesses’ testimony.
In a light most favorable to the State, the facts adduced at trial show that
Defendant held Mr. Burrell and Ms. Anderson at gun point and intentionally took
property from each of them without either person’s consent. Thus, Defendant violently
used a deadly weapon to intentionally or knowingly exercise control over the property of
another without the owner’s consent, and he did so with respect to two different
individuals. The evidence is sufficient to support Defendant’s convictions for aggravated
robbery.
II. Plain Error Review
Defendant concedes that no contemporaneous objections were made regarding the
following issues, but he presents them for plain error review. Our supreme court has
succinctly described the discretionary nature of the plain error doctrine as follows:
In criminal cases, the doctrine of plain error permits appellate courts to
consider issues that were not raised in the trial court. [Tennessee Rule of
Appellate Procedure] 36(b), the codification of the plain error doctrine,
states in part that “[w]hen necessary to do substantial justice, an appellate
court may consider an error that has affected the substantial rights of a party
at any time, even though the error was not raised in the motion for a new
trial or assigned as error on appeal.” We have cautioned, however, that the
discretionary authority to invoke the plain error doctrine should be
“sparingly exercised,” State v. Bledsoe, 226 S.W.3d [349,] 354 [(Tenn.
2007)], because “appellate courts do not sit as self-directed boards of legal
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inquiry and research, but essentially as arbitrators of legal questions
presented and argued by the parties before them.” State v. Northern, 262
S.W.3d [741,] 766 [(Tenn. 2008)] (Holder, J., concurring and dissenting)
(quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).
State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014). To determine whether a trial error rises
to the level of justifying “plain error” review, we look to the following five factors:
(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a
substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of
the error is “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). All five factors must be established by the record
before this Court will recognize the existence of plain error, and complete consideration
of all the factors is not necessary when it is clear from the record that at least one of the
factors cannot be established. Bishop, 431 S.W.3d at 44. Even if all five factors are
present, “the plain error must be of such a great magnitude that it probably changed the
outcome of the trial.” Id. (quoting Adkisson, 899 S.W.2d at 642).
A. Opening Statement
Defendant contends that “the State engaged in argument and encouraged
prejudice, sympathy and bias” when it made certain remarks during its opening
statement. While counsel for co-defendant objected to the statements, no curative action
was taken. According to Defendant, this was error. The State maintains that the
statements by the prosecutor were not erroneous and, if they were error, the trial court
adequately addressed the situation by asking the prosecutor to move on. Because
Defendant failed to establish all of the requisite factors, we conclude he is not entitled to
plain error relief.
In a criminal trial, the prosecution and the defense are entitled to make opening
statements prior to the presentation of the case that set forth “their respective contentions,
views of the facts, and theories of the lawsuit.” T.C.A. § 20-9-301; State v. Sexton, 368
S.W.3d 371, 414-15 (Tenn. 2012). The purpose of an opening statement is to give a
general overview of “the nature of the case” and “the facts each party intends to prove.”
Sexton, 368 S.W.3d at 415. One boundary on an opening statement is that the facts
presented must be “deemed likely to be supported by admissible evidence,” id. (citing
Stanfield v. Neblett, 339 S.W.3d 22, 41-42 (Tenn. Ct. App. 2010)), and “[n]o reference
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should be made to facts or circumstances which are not admissible in evidence.” Id.
(citing 75A Am. Jur. 2d Trial §§ 525, 526 (West 2012)).
In their role as advocates for the State, prosecutors must not cross the boundary
lines demarcating prosecutorial misconduct. See State v. Johnson, 401 S.W.3d 1, 20
(Tenn. 2013). Prosecutors should not:
(1) Intentionally misstate the evidence or mislead the jury as to the
inferences they may draw.
(2) Express his or her personal belief or opinion as to the truth or falsity of
any testimony or guilty of the defendant.
(3) Use arguments calculated to inflame the passions or prejudices of the
jury.
(4) Make an argument that would divert the jury from its duty to decide the
case on the evidence, by injecting issues broader than the guilt or innocence
of the accused under the controlling law, or by making predictions of the
consequences of the jury’s verdict.
(5) Intentionally refer to or argue facts outside the record unless the facts
are matters of common public knowledge.
Id. A defendant is only entitled to relief if the improper conduct by the prosecutor “could
have affected the verdict to the prejudice of the defendant.” Id. at 21 (quoting
Harrington v. State, 389 S.W.2d 758, 759 (1965)). To measure the prejudicial impact of
a prosecutor’s improper conduct, we consider:
(1) the conduct complained of viewed in context and in light of the facts
and circumstances of the case; (2) any curative measures undertaken by the
court and the prosecutor; (3) the intent of the prosecutor in making the
improper statement; (4) the cumulative effect of the improper conduct and
any errors in the record; and (5) the relative strength or weakness of the
case.
Id. (citing State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984)).
During the State’s opening statement, the State spoke about the unrelated drug
charges pending against Mr. Burrell and Ms. Anderson. The State reminded the jury that
nothing had been proven against Mr. Burrell and Ms. Anderson and that they had the
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right to remain silent when asked questions about those charges. In that context, the State
made the following statements that are relevant to this appeal:
Because like we talked about in voir dire, it doesn’t matter when it comes
to the law who you are or what you’ve done. If you’re a saint or if you’re a
sinner.
What happened to them on April 1st, 2014 should never happen to
any member of our community in our community here in Shelby County.
Mr. Burrell was selling a truck. I believe a Ford F150. He was at home at
his residence . . . . And that’s here in Shelby County Tennessee. He was
selling a truck. And he knew Mr. Ponder’s brother. Mr. Ponder knew that
Mr. Burrell was selling a truck. Mr. Ponder and him had talked over the
phone for a couple of days. On April 1st, 2014 Mr. Ponder came over to
his house with Mr. Richardson. Mr. Ponder and Mr. Richardson are both
from Covington. They came into our community and they committed a
horrible crime.
And it doesn’t matter who those people are that they did that too
[sic]. It matter what they did. After they talked with Mr. Burrell about
buying that car, Mr. Richardson took a gun out and pointed it at him.
Together they stole money. They stole property. And then when Ms.
Anderson woke up, they stole property from her. They did that at gunpoint.
No one, no one, no matter what they’ve done or what they’ve been accused
of has the right to –
Mid-sentence, counsel for co-defendant objected to the statements being made by the
State. Defendant’s counsel never objected or joined the objection. Immediately after the
objection was made, the trial court instructed the State to stay with what they expected to
prove.
First, Defendant argues that the State engaged in improper conduct during opening
statement by saying, “[I]t doesn’t matter when it comes to law who you are or what
you’ve done. If you’re a saint or if you’re a sinner. What happened to them on April 1st,
2014, should never happen to any member of our community in our community here in
Shelby County.” Defendant makes the same claim about the State saying, “[Co-
defendant] and [Defendant] are both from Covington. They came into our community
and they committed a horrible crime. And it doesn’t matter who those people are that
they did that too [sic].” Defendant also extends his argument to the State saying, “No
one, no one, no matter what they’ve done or what they’ve been accused of has the right to
. . . .” Defendant specifically argues that the use of the “personal opinion adjective
‘horrible’” is improper and that the use of the phrase “our community” implies that
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Defendant was a “lesser class [citizen] with limited rights or freedom of movement and
outside their containment area by stating that they were from Covington and [went to
Shelby County] to commit a crime.”
We view the State’s opening statement differently. The use of the adjective
“horrible” or the phrase “our community” does not violate a clear and unequivocal rule of
law. With regard to the word “horrible,” this is merely an adjective used to describe the
severity of the crime. While it may be subjective in nature, we cannot see how the use of
the word “horrible” only once in an opening statement would rise to the level of an
“argument calculated to inflame the passions or prejudice of the jury.” Secondly,
Defendant’s argument that the use of the phrase “our community” implies some sort of
lesser class citizenship or limited rights is preposterous. We do not perceive the
statement as one meant to “inflame” or “divert” the jury, but rather we see it is a
restatement of the facts. The crime was committed in Shelby County. The trial was in
Shelby County. The jurors were from Shelby County. However, Defendant was from
Covington, Tennessee, which is in a different county and community. Therefore,
Defendant is not entitled to plain error relief.
B. “Victim Impact” Testimony
Defendant alleges that the trial court committed error by admitting irrelevant
testimony relating to the victims’ relationship, health, and children. The State responds
that the testimony which is the subject of Defendant’s contention was relevant
background information that was admissible. Further, the State contends that, even if the
evidence was inadmissible, the trial court’s alleged failure to sua sponte exclude the
evidence does not breach a clear and unequivocal rule of law. We agree with the State.
At the beginning of the State’s direct examination of Mr. Burrell, the State asked
Mr. Burrell questions about his life. Mr. Burrell testified about the number of children
that he had, the ages of his children, and the gender of his children. Additionally, Mr.
Burrell testified that Ms. Anderson was his “soon to be” fiancée. Mr. Burrell elaborated
that he had known her for about six or seven years and that the two of them lived together
at the time of the crime in this case. Just like with Mr. Burrell, the State began the
questioning of Ms. Anderson by asking about her age, her children, and her relationship
with Mr. Burrell. Ironically, Defendant’s counsel began his cross-examination in a
similar manner.
Evidence is relevant when it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence is
admissible unless it is barred by some other rule of law. Tenn. R. Evid. 402. However,
relevant evidence “may be excluded if its probative value is substantially outweighed by
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the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403. “[Q]uestions concerning the admissibility of evidence
rest within the sound discretion of the trial court, and this [C]ourt will not interfere in the
absence of abuse appearing on the face of the record.” Pylant v. State, 263 S.W.3d 854,
870 (Tenn. 2008).
In his brief, Defendant specifically claims that the following four pieces of
testimony were irrelevant: testimony regarding Mr. Burrell’s and Ms. Anderson’s
children, including their ages and genders; testimony regarding Mr. Burrell’s and Ms.
Anderson’s romantic relationship with each other; testimony regarding Ms. Anderson
going to the hospital; and testimony regarding Mr. Burrell’s and Ms. Anderson’s
newborn child having complications after birth. Defendant argues that the
aforementioned pieces of testimony did not serve the purposes of giving a context to the
witnesses’ testimony or of showing why the victims were delayed in notifying the police.
Rather, Defendant argues that they were pieces of irrelevant “victim impact” testimony.
However, Defendant has failed to show that counsel’s failure to object to these pieces of
testimony was not a tactical decision, especially given the fact that counsel likewise
questioned Ms. Anderson about her relationship with Mr. Burrell and the ages of her
children. Defendant is not entitled to plain error relief on this issue.
C. 911 Recording
Defendant argues that the trial court erred when it admitted the 911 recording as
Exhibit 1 because the State failed to properly identify the recording and establish a chain
of custody. The State replies that the 911 recording was properly authenticated and that
Defendant did not respond when asked if there was an objection to the way that it was
authenticated. We agree with the State.
It is a condition precedent to admissibility that evidence be authenticated or
identified by evidence “sufficient to the court to support a finding by the trier of fact that
the matter in question is what its proponent claims.” Tenn. R. Evid. 901(a). Some
examples of authentication or identification are testimony of a witness with knowledge
that a matter is what it is claimed to be; identification of a voice by a witness’s opinion,
having heard the voice prior; or evidence that a call was made to the number assigned to
a particular person or business if the circumstances show self-identification or, in the case
of a business, the conversation related to business reasonably transacted over the
telephone. See Tenn. R. Evid. 901(b). “[I]t is ‘well-established that as a condition
precedent to the introduction of tangible evidence, a witness must be able to identify the
evidence or establish an unbroken chain of custody.’” State v. Cannon, 254 S.W.3d 287,
296 (Tenn. 2008) (quoting State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000)) (emphasis
added). The State is not required to establish facts which exclude every possibility of
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tampering; however, “the circumstances established must reasonably assure the identity
of the evidence and its integrity.” State v. Holbrooks, 983 S.W.2d 697, 701 (Tenn. Crim.
App. 1998) (citing State v. Ferguson, 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987)).
The issue of authentication is in the sound discretion of the trial court, which we will not
disturb absent abuse of discretion. Id. (citing State v. Beech, 744 S.W.2d 585, 587 (Tenn.
Crim. App. 1987)).
At a bench conference during trial, the State asked if they could play a portion of
the recording of the 911 call, ask Mr. Burrell if it was his voice, and then, play the rest of
the call. Co-defendant’s counsel stated, “That’s not usually how it’s done. I have no
objection.” Defendant’s counsel did not object. The State played an unspecified portion
of the 911 call. Then, the State asked Mr. Burrell “[I]s that your voice?” and “Is that the
start of the recording of the 911 call you made?” Mr. Burrell responded affirmatively to
both questions, and the trial court admitted the recording into evidence. Once admitted,
the remainder of the recording was played for the jury.
Defendant asserts that Mr. Burrell’s testimony was insufficient to authenticate the
recording. Defendant specifically points out that the chain of custody for the recording
had not been established nor had it been established that the recording had not been
tampered with.
Defendant’s argument is meritless. The 911 recording was authenticated by Mr.
Burrell, a witness with knowledge of both the contents of the recording and the sound of
his own voice. When a witness with knowledge of the evidence can identify it, there is
no need to establish a chain of custody. See Cannon, 254 S.W.3d at 296. Further, every
possibility of tampering need not be ruled out. See Holbrooks, 983 S.W.2d at 701. Thus,
no clear and unequivocal rule of law was breached when the trial court admitted the 911
recording. Defendant is not entitled to plain error relief.
D. Photographic Lineup
Defendant contends that the trial court erred by admitting an unduly suggestive
photographic lineup into evidence. The State maintains that there was “nothing
improper” about the lineups. We agree with the State.
“To be admissible as evidence, an identification must not have been conducted in
such an impermissibly suggestive manner as to create a substantial likelihood of
irreparable misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998). A
two-part test is used to determine the validity of a pre-trial identification. See Neil v.
Biggers, 409 U.S. 188, 198-99 (1972). First, the trial court must determine whether the
identification procedure was unduly suggestive. Id. at 198. If the trial court determines
that the identification procedure was unduly suggestive, the second step is to determine
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whether, under the totality of the circumstances, the identification was nonetheless
reliable. Id. at 199. Suppression is required only when the totality of the circumstances
shows that the identification was unreliable. State v. Scarborough, 300 S.W.3d 717, 729
(Tenn. Crim. App. 2000). The following factors must be considered in determining the
reliability of an identification:
1. the opportunity of the witness to view the criminal at the time of the
crime.
2. the witness’s prior description of the criminal.
3. the accuracy of the witness’s prior description of the criminal.
4. the level of certainty demonstrated by the witness at the confrontation.
5. the length of time between the crime and the confrontation.
State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998) (quoting Biggers, 409 U.S. at 199). It is
unnecessary to apply the totality of the circumstances test if the trial court determines that
the identification procedure was not unduly suggestive. See State v. Butler, 795 S.W.2d
680, 686 (Tenn. Crim. App. 1990).
Defendant claims that the five other men that appear in the photographic lineup do
not appear to be near Defendant’s age, that he is the only man in the lineup wearing one
earring, and that his eyebrows are much thinner than the other men. Defendant also
claims the fact that the same officer who compiled the lineup also presented the lineup,
along with the fact that Defendant’s picture appears first in the lineup, support his claim
that the lineup was unduly suggestive. Defendant also takes issue with the identifications
by Ms. Anderson and Mr. Burrell being conducted thirty-five minutes apart when there
was no testimony regarding the procedures taken to prevent the witnesses from
discussing the identification between identifications. Additionally, Defendant argues that
Ms. Anderson lacked the capacity to properly identify him because she cannot see well
without glasses. He contends that there was no testimony that Ms. Anderson got out of
bed and put her glasses on while the robbers were in her home. Further, Defendant
asserts that Mr. Burrell initially identified co-defendant to the police.
The photographic lineup that contained Defendant’s picture was not unduly
suggestive. The photographic lineup includes pictures of five other men, all of whom
appear visually similar to Defendant. In our review of the lineup, Defendant appears
around the same age as some of the other members of the lineup. We are aware of no
rule of law so specific that it would require the other men in the lineup to be wearing the
same number of earrings or to have eyebrows plucked in the same manner as the
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identified suspect. Lieutenant Hicks’s instructions to Mr. Burrell and Ms. Anderson
regarding the photographic lineup included a provision which stated that the order in
which the photographs were placed held no significance, and there is no requirement that
a suspect’s picture be placed in a certain location in a photographic lineup. See State v.
Paul Dennis Reid, Jr., No. M2003-00539-CCA-R3-DD, 2005 WL 1315689, at *19
(Tenn. Crim. App. June 3, 2005) (affirming a trial court’s finding that a lineup was not
unduly suggestive when a defendant took issue with his placement in the photographic
lineup), aff’d 213 S.W.3d 792 (Tenn. 2006).
Additionally, there are no facts in the record which could have led the trial court to
believe that Lieutenant Hicks’s presentation of the photographic lineup, which he
compiled, or the period of time between the identification by Mr. Burrell and the
identification by Ms. Anderson would have caused the lineup procedure to be unduly
suggestive. Rather, the facts adduced at trial showed that Lieutenant Hicks created a
lineup which included individuals that looked similar to Defendant, thoroughly instructed
Mr. Burrell and Ms. Anderson on the identification procedure, and conducted the
identifications by Mr. Burrell and Ms. Anderson independently. Defendant has failed to
show that a clear and unequivocal rule of law was broken when the trial court admitted
the photographic lineup identifications. Thus, Defendant is not entitled to plain error
relief.
E. Closing Argument
Defendant claims that the State’s repeated references to Mr. Burrell’s disability
was an emotional appeal to the jury where the State “begged sympathy for Mr. Burrell in
an attempt to have the jury set aside the fact that Mr. Burrell, by his own admittance, sold
cars and drugs without reporting the income so he can continue to cheat the government
by also receiving disability income.”
Attorneys are “usually given wide latitude in the scope of their arguments,” and
trial courts have “wide discretion in their control of those arguments.” State v.
Carruthers, 35 S.W.3d 516, 578 (Tenn. 2000). However, a trial court’s discretion over
closing arguments is limited by the requirements that arguments be “temperate, based
upon the evidence introduced at trial, relevant to the issues being tried, and not otherwise
improper under the facts or law.” Id. (citing Coker v. State, 911 S.W.2d 357, 368 (Tenn.
Crim. App. 1995)). As with opening statements, prosecutors must not venture across the
boundaries demarcating prosecutorial misconduct. See Johnson, 401 S.W.3d at 20
(setting forth instances of prosecutorial misconduct and the factors to consider).
During closing argument, the State reviewed the applicable law and highlighted
various jury instructions. Relevant to this appeal, the State mentioned that Mr. Burrell
was on disability during a portion of the closing argument when the State was talking
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about Defendant and co-defendant selecting a victim. Mr. Burrell’s disability was
mentioned again when the State discussed Mr. Burrell’s risking loss of his disability
check by testifying about his other sources of income.
From our review, it appears that Mr. Burrell’s disability was mentioned three
times during the State’s closing argument. Not once was there an objection to its
mention. Each time that it was mentioned, it does not appear to have been intended to
mislead, inflame, or divert the jury. It was mentioned to explain why Defendant and co-
defendant might have chosen Mr. Burrell as a victim, and it was mentioned to explain
why Mr. Burrell would have a lessened incentive to lie. No clear and unequivocal rule of
law was broken by the State mentioning Mr. Burrell’s disability in this manner.
Defendant is not entitled to plain error relief.
III. Cumulative Error
Leaving no stone unturned, Defendant argues that he should receive relief due to
the cumulative effect of the errors by the trial court. Since we have found no errors when
considering the issues individually, no errors accumulated for cumulative error review.
See State v. Jerald Jefferson, No. W2014-00784-CCA-R3-CD, 2015 WL 3932448, at *7
(Tenn. Crim. App. June 25, 2015), perm. app. denied (Tenn. Jan. 6, 2015).
Conclusion
For the aforementioned reasons, we affirm the judgments of the trial court.
____________________________________
TIMOTHY L. EASTER, JUDGE
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