James v. Ball ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1996 SESSION FILED
May 1, 1996
STATE OF TENNESSEE, * C.C.A. # 02C01-9509-CC-00272
Cecil Crowson, Jr.
Appellate Court Clerk
Appellee, * TIPTON COUNTY
VS. * Hon. Joseph H. Walker, Judge
KEITH L. BROWN, * (Possession of Schedule II
Controlled Substance with
Appellant. * Intent to Deliver and
Evading Arrest)
For Appellant: For Appellee:
James V. Ball Charles W. Burson
Attorney Attorney General & Reporter
217 Exchange Avenue
Memphis, TN 38105 Robin L. Harris
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Walt Freeman
Assistant Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED:
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Keith L. Brown, was convicted for
evading arrest and possession of more than .5 grams of cocaine
with intent to deliver. The trial court imposed a sentence of
ll months and 29 days for the misdemeanor conviction and a
consecutive sentence of nine years for the drug conviction.
The single issue presented for review is whether the evidence
was sufficient to convict. We affirm the judgment of the
trial court.
At approximately 7:30 P.M. on February 24, 1994,
Officers Terence Craig and Cavat Bass observed an automobile
accident at the intersection of Church Street and South
College in Covington. Although the accident occurred after
dark, there was a street light at the intersection. Sergeant
Bass, who was ten to twelve feet away from the collision site,
identified the defendant as the driver of one of the two
vehicles involved. The second vehicle had caused the accident
by running a stop sign. Before the officers could intervene,
however, the defendant sped away from the scene, traveling at
a high rate of speed and running several stop signs. The two
officers pursued the vehicle through the town square until the
defendant and his passenger, later identified as Elton Ruffin,
abandoned their vehicle and ran away on foot. Officer Bass
captured Ruffin. Officer Craig was able to identify the
defendant as he fled from the moving car, but was unable to
make an arrest at the scene.
The officers found some "white chunky substance" in
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the rear floorboard of the defendant’s car. A laboratory
analysis established that the substance was 2.9 grams of
cocaine. A warrant was issued and the defendant was arrested
at his mother’s house in Shelby County about a week later.
At trial, Officer Craig testified that the person
driving the car was the defendant. Officer Bass testified
that he knew the defendant and had seen him in the same car
about three days before this offense; he specifically recalled
having seen the defendant washing the car at the residence of
a relative.
The defendant denied that he was the driver of the
car. He claimed that he was in Memphis with his girlfriend
and several others at the time. Ruffin testified that the
defendant, his nephew, was not in the vehicle at the time of
the accident and that the car had been driven by Lamont
Leonard Currie. Ruffin claimed that he had purchased the
vehicle for $200.00 from Quentin Booker, to whom the vehicle
was registered, on the day of the accident. The defendant’s
grandmother, his mother, his sister, and his girlfriend, all
testified that the defendant was in Memphis at the time of the
accident.
In this appeal, the defendant complains that no
rational trier of fact should have been satisfied with the
sufficiency of the identification evidence. Clearly, the
identification of the defendant was the primary issue at
trial. In fact, during the course of deliberations, the
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jurors asked the trial judge why Currie had not been
subpoenaed to appear and what testimony he had given at the
preliminary hearing. Of course, no answers were given to
either of the questions. The jury was instructed to disregard
those issues.
Recently, our supreme court promulgated a new jury
instruction on identification, holding that the value of such
evidence may depend upon several factors:
(1) The witness’ capacity and opportunity
to observe the offender. This includes,
among other things, the length of time
available for observation, the distance
from which the witness observed, the
lighting, and whether the person who
committed the crime was a prior
acquaintance of the witness;
(2) The degree of certainly expressed by
the witness regarding the identification
and the circumstances under which it was
made, including whether it is the product
of the witness’ own recollection;
(3) The occasions, if any, on which the
witness failed to make an identification
of the defendant, or made an
identification that was inconsistent with
the identification at trial; and
(4) The occasions, if any, on which the
witness made an identification that was
consistent with the identification at
trial, and the circumstances surrounding
such identifications.
State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995).
Dyle was released on May 15, 1995, before the notice
of appeal was filed in this case. Because the new rule
specifically applied to those cases which were on appeal at
the time of the release of Dyle, it applies here.
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Under this ruling, it is plain error not to give the
instruction when witness "identification is a material issue
and it is requested by defendant’s counsel." Id. The issue
of identity is a material issue when either (1) the defendant
puts it at issue, or (2) the eyewitness testimony is
uncorroborated by circumstantial evidence. Id. at 612, n. 4.
If the "defendant does not request the instructions, failure
to give it will be reviewable under a Rule 52 harmless error
standard." Id. Because defense counsel did not request any
special instructions on eyewitness identification in this
case, our review must be based upon the harmless error
standard, that is, there shall be no reversal "except for
errors which affirmatively appear to have affected the result
of the trial on the merits." Tenn. R. Crim. P. 52(a).
There are restrictions upon our scope of review. In
an appeal, the state is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which might
be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to
be given their testimony, and the reconciliation of conflicts
in the evidence are matters entrusted exclusively to the jury
as the triers of fact. Byrge v. State, 575 S.W.2d 292, 295
(Tenn. Crim. App. 1978). A conviction can be set aside only
when this court finds that the "evidence is insufficient to
support the finding by the trier of fact of guilt beyond a
reasonable doubt." Tenn. R. App. P. 13(e). A jury verdict,
approved by the trial judge, accredits the testimony of the
state’s witnesses and resolves all conflicts in favor of the
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state’s theory. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.
1978).
In our view, the instruction error was harmless and
the proof was sufficient. First, there was corroboration of
the identification by direct and circumstantial evidence.
When arrested, Ruffin initially identified the defendant as
the driver of the car. The factors outlined in Dyle support
the position of the state. First, each of the officers who
identified the defendant knew him before the date of the
accident. Officer Bass was within ten to twelve feet of the
defendant in a well-lit intersection. Officer Craig
identified the driver as the defendant when he saw the
defendant leap from the moving vehicle. Clearly, each officer
had not only a reasonable opportunity to identify the
defendant but also a good reason to do so. Next, each of the
officers testified repeatedly that they were certain that the
defendant was the driver of the car. That would have
satisfied the second prong in Dyle. Thirdly, neither of the
officers hesitated about their identification. There was no
point at which they misidentified or failed to identify the
defendant. Finally, the officers were consistent in making
the identification, from the issuance of the warrant to their
testimony at trial. In our view, the proof of eyewitness
identification was sufficient. It was the prerogative of the
jury to assess the credibility of those who testified. Any
error by the failure to provide the Dyle instruction, in the
interest of the entire trial, was harmless.
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Accordingly, the judgment is affirmed.
____________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Joe B. Jones, Presiding Judge
_____________________________
William M. Barker, Judge
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