State of Tennessee v. Lenzo Sherron A/K/A Salaam Shabazz ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 10, 2004
STATE OF TENNESSEE v. LENZO SHERRON aka SALAAM SHABAZZ
Direct Appeal from the Circuit Court for Dyer County
No. C02-393 Lee Moore, Judge
No. W2003-01222-CCA-R3-CD - Filed March 15, 2004
The defendant was convicted of aggravated robbery, a Class B felony, and sentenced to ten years as
a standard offender. The defendant has filed a pro se appeal of right of his conviction, posing the
following issues for our review:
1) Whether the evidence was sufficient beyond a reasonable doubt to support the
defendant’s conviction for aggravated robbery;
2) Whether the State improperly withheld exculpatory and impeachment evidence;
and
3) Whether the trial court failed to investigate a conflict of interest before
appointing new counsel.
After careful review, we affirm the conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT
W. WEDEMEYER , JJ., joined.
Lenzo Sherron aka Salaam Shabazz, Tiptonville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.
OPINION
Mary Ann Prince was working at Wilson’s Mini-Mart in Dyersburg on the night of
September 29, 2002, when a man armed with a shotgun entered the store at approximately 10:45
p.m. His face was wrapped in a scarf, and he was wearing a blue jacket, blue pants, gloves,
sunglasses, and a white visor. The man demanded money from Ms. Prince and her co-worker, Sadie
Jackson. The money from the cash register, as well as a First Citizens bag containing money, were
placed in a Wal-Mart sack presented by the man. The two clerks were taken to a back room and told
to stay there. The man then removed the phone handset and took it as he left the store. Ms. Prince
activated an alarm button and called 911 from a cordless phone.
Mike Dovice, a member of the Dyersburg Police Department, was the first officer to respond
and was later joined by other officers, including Investigator Chris Hamm. After taking a description
of the robber, Officer Dovice began a search in the area around the store. He found a .410 shotgun
and a Wal-Mart sack containing money and gloves, all behind an air-conditioning unit for a church
located adjacent to the store. Underneath the Wal-Mart sack, he found a two-way paging device.
Inside an air-conditioning unit behind the Mini-Mart, Officer Dovice discovered a blue jacket
containing four .410 shotgun shells. Inside an outbuilding of the Mini-Mart, he found blue jogging
pants and the phone handset taken from the store.
Later, Officers Dovice and Hamm examined the pager and located the signature page which
contained the words, “Lil Sparky.” This was compared with a database of nicknames and street
names which the police department maintained. “Sparky” matched the name of Lenzo Sherron, the
defendant.
Mary Ann Prince lived across the street from the Mini-Mart. She said that later that evening,
“[a]round about one, little after,” she was sitting on her porch with her friend Marissa Andrews. Ms.
Prince stated she saw a man riding a bicycle in the area of the store. She described him as a “[k]inda
small-framed black guy with a white sun visor, gray sweatshirt and jeans.” She stated that the man
laid his bicycle down between the Mini-Mart and Ketchum’s and appeared to be “[l]ooking for
stuff.” After the man left, Ms. Prince placed a call to 911 to report the sighting.
Officer Dovice returned to the Mini-Mart and took a description of the bicyclist. He also
went to the area where he had found the items recovered and there he saw bicycle prints in the dew.
On cross-examination, he admitted he did not see any footprints in the area. He stated that Ms.
Prince and Ms. Andrews described the bicyclist as wearing a white sun visor and a gray t-shirt with
a colored design on the front. While speaking with the women, Dovice was notified of the
defendant’s apprehension at the intersection of Reynolds and Barney. When Dovice went to that
location, he stated that the defendant was wearing a gray sweatshirt with a Mickey Mouse emblem
on the front and had been riding on a bicycle.
Deanna Yancy, a dispatcher for the Dyersburg Police Department, was on her way to work
for the 11:00 p.m to 7:00 a.m. shift on September 29th. At the intersection of Shelby and KW
Streets, she saw a black male wearing a gray sweatshirt and riding a chrome-colored bicycle. She
stated that he was riding fast and looking back.
After the robbery, Marissa Andrews was sitting with her friend, Mary Ann Prince, on the
porch of the Prince home across the street from the Mini-Mart. At sometime after midnight, she saw
a man wearing a gray sweatshirt with “something on the front” and a white visor, riding a bicycle.
Ms. Andrews witnessed “the guy on the bike go back around towards the back of the store and lay
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his bike down and start scrounging and looking for something.” After the man left, the women
reported their sighting to 911.
Chris Hamm, a member of the Dyersburg Criminal Investigation Department, responded to
the robbery alarm issued at the Mini-Mart. He viewed the security camera tape but was unable to
see the offender’s face due to its covering. Officer Dovice notified Hamm of evidence discovered
outside. Hamm stated that behind the air-conditioning unit at East Dyersburg Methodist Church,
there was a shotgun, a pair of white work gloves, a Wal-Mart sack containing money, a green money
bag, two .410 shotgun shells, and a two-way pager. The pager was without a battery cover. He also
described finding the name “Lil Sparky” on the pager display and matching “Sparky” on the police
database to Lenzo Sherron. The recovered sum of $2093.00 was returned to Johnny Wilson of
Wilson Mini-Mart. Hamm enumerated other items found near the store scene as: a heavy blue
denim coat, a pair of blue jogging pants, a phone receiver, a light-colored t-shirt, and a sun visor.
After unsuccessfully attempting to lift fingerprints from the shotgun and the blue and green
bags, Hamm eventually returned to his precinct station. There he received notice of the reported
sighting of an individual at the Mini-Mart. Upon receiving further notice of the apprehension of a
suspect, he proceeded to Reynolds Avenue. There Officer Mann had stopped the defendant who was
wearing a white visor, a gray sweater with “something on the front,” and blue jeans. The defendant
was standing by a bicycle.
Sharon Rene Mosley had met the defendant in June or July of 2002. She had given the
defendant what she identified as a “T-900 beeper.” She explained that messages could be relayed
between other T-900s by typing in the text. Ms. Mosley stated she had last communicated with the
defendant by the pager the week prior to his arrest. Ms. Mosley was asked to display the signature
page on the pager in evidence. After a bench conference, the trial judge stated:
The record will reflect that on the Motorola pager, that it has the word,
“Signature,” then a colon and underneath that some symbol, and then the letters “I-
L,” then “Sparky.” S-P-A-R-K-Y.
Ms. Mosley said she was called by the defendant from jail and was told that she should go and claim
the pager from the police.
The State rested, and the defendant moved for a judgment of acquittal, which the trial court
denied. The defendant then recalled Officer Dovice to establish that the defendant was arrested at
2:05 a.m.
Tracy Roberson was the mother of the defendant’s child. On the night of September 29th,
she worked the 11:00 p.m. to 7:00 a.m. shift at Maple Ridge Manor. The defendant was at her home
when she left for work at 11:00 p.m. She had left the defendant her car, and he called her at 1:00 or
1:30 a.m. to tell her the car had broken down. When shown the pager, she identified it and said she
had found it in her car. Upon reviewing the messages between the defendant and another woman,
she threw the pager from her car window. On cross-examination, she stated she had known the
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defendant for five years and knew his nickname as “Sparky.” On the morning of September 30th,
she found her car in the Milltown area of Dyersburg.
The defendant denied any participation in the robbery offense in question. He stated he was
keeping his child but had left the child with his mother. While he was driving to Wal-Mart, Ms.
Roberson’s car broke down. The defendant walked to his uncle’s house and obtained a bicycle. He
then rode around in search of someone to help him with the car. He said the car was left on
Reynolds Street near a big church. On cross-examination, the defendant admitted that the pager in
evidence belonged to him and that he had last seen the pager on Saturday, the day before the robbery.
The State recalled Investigator Chris Hamm in rebuttal. Hamm stated that when arrested on
Reynolds Street, the defendant made no mention of a car being disabled on that street.
The defendant, in his pro se appeal of right, poses the following issues for our review:
1) Whether the evidence was sufficient beyond a reasonable doubt to support the
defendant’s conviction for aggravated robbery;
2) Whether the State improperly withheld exculpatory and impeachment evidence;
and
3) Whether the trial court failed to investigate a conflict of interest before
appointing new counsel.
We note that the trial judge entered a written order denying the defendant’s motion for a new
trial. The order reflected that the defendant was advised against proceeding with an appeal without
counsel. Nevertheless, the defendant rejected the assistance of the public defender and chose to
proceed pro se with this appeal.
Analysis
I. Sufficiency
When an accused challenges the sufficiency of the evidence, the standard is whether, after
reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). In its review of the evidence, an appellate court
must afford the State “the strongest legitimate view of the evidence as well as all reasonable and
legitimate inferences that may be drawn therefrom.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). Questions concerning the credibility of the witnesses, the weight and value to be given the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this
Court. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000). A guilty verdict can be based upon
direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence.
See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Furthermore, while a
guilty verdict may result from purely circumstantial evidence, in order to sustain the conviction, the
facts and circumstances of the offense “must be so strong and cogent as to exclude every other
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reasonable hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.” State
v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971).
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).
Aggravated robbery is robbery as defined in section 39-13-401:
(1) Accomplished 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[.]
Tenn. Code Ann. § 39-13-402(a)(1).
The defendant contends that the lack of definite identification of him as the robber, his alibi
defense, and the alleged loss of his paging device prior to the event all combined to create reasonable
doubt and render the evidence insufficient to support the guilty verdict. The State asserts that the
evidence is sufficient to prove the defendant’s guilt beyond a reasonable doubt.
Our review indicates that there is a large segment of evidence which was undisputed. On
September 29, 2003, at approximately 10:45 p.m., a masked man armed with a shotgun robbed the
Wilson Mini-Mart in Dyersburg. Mary Ann Prince, one of two clerks at the store, testified that the
experience scared her. Between 10:50 and 11:00 p.m., a witness noticed a black male wearing a gray
sweatshirt, riding a bicycle fast, and looking back. This sighting was made at the intersection of
Shelby and KW. Officers who responded to the store found numerous clothing items, worn by the
robber, hidden in the immediate vicinity of the Mini-Mart. Along with the clothing, officers also
found a .410 shotgun, shells, and a two-way pager. The pager’s signature page had a name of “_il
Sparky.” It was ascertained that “Sparky” is the defendant’s nickname, and the defendant admitted
the pager belonged to him. The defendant admitted having the pager the day before the robbery. In
the early morning hours of September 30th, following the robbery, two witnesses, Mary Ann Prince
and Marissa Andrews, saw a black male on a bicycle go behind the Mini-Mart, dismount, and appear
to search for something. They described him as wearing a white visor and a gray t-shirt or sweatshirt
with an emblem on the front. After the man rode away, the women contacted the police. The
defendant was arrested shortly thereafter, at 2:05 a.m. When apprehended, the defendant was
wearing a gray sweater or sweatshirt and a white visor. According to one officer, the front of the
defendant’s shirt was adorned with a Mickey Mouse emblem. Although the defendant claimed later
that his girlfriend’s car was disabled on the same street on which he was apprehended, he made no
mention of this at the time of arrest. All of the foregoing evidence was undisputed. We concede that
it is largely circumstantial; however, it is strong circumstantial evidence.
The defendant’s girlfriend testified that the defendant was with her at the time of the robbery.
She also stated that she had thrown away the defendant’s pager without his knowledge. The
defendant testified in his own behalf that he was riding the bicycle in search of assistance to restart
the disabled car. The jury, by their verdict, rejected this testimony as they were entitled to do.
Wilson v. State, 574 S.W.2d 52, 55 (Tenn. Crim. App. 1978). The verdict of guilt removed the
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defendant’s presumption of innocence and raised a presumption of guilt. State v. Evans, 838 S.W.2d
185, 191 (Tenn. 1997). We conclude that the evidence was sufficient to prove the defendant’s guilt
beyond a reasonable doubt.
II. Exculpatory and Impeachment Evidence
The defendant contends that by failing to introduce the clothes he was wearing at the time
of his arrest, the State was suppressing impeachment evidence. The defendant contended that the
clothing would show that Officer Dovice was lying about his description of the clothes. The
defendant also contends that the State withheld fingerprint analysis from the shotgun, shells, and
pager. The defendant claims this evidence would be exculpatory.
In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the Supreme
Court held that “suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective of
good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-97; see also Sample
v. State, 82 S.W.3d 267, 270 (Tenn. 2002). The duty to disclose extends to all “favorable
information” regardless of whether the evidence is admissible at trial. Johnson v. State, 38 S.W.3d
52, 56 (Tenn. 2001). In United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L.
Ed. 2d 481 (1985), the Supreme Court held that both exculpatory and impeachment evidence fall
under the Brady rule.
However, the State is not required to disclose information that the defendant already
possesses or is able to obtain, State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992), nor
is the State required to disclose information which is not possessed by or under the control of the
prosecution or other governmental agency. Id.Before an accused is entitled to relief under this theory, he must establish several
prerequisites: (a) the prosecution must have suppressed the evidence; (b) the evidence suppressed
must have been favorable to the accused; and (c) the evidence must have been material. See Bagley,
473 U.S. at 674-75, 105 S. Ct. at 3379-80; Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; State v.
Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidence is considered material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the results of the
proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed.
2d 490 (1995); Edgin, 902 S.W.2d at 389.
In regard to the defendant’s clothing, the defendant fails to show why he could not produce
the clothing himself by subpoena. The record does not reflect nor does the defendant establish any
unavailability of the clothing. The State was under no obligation to introduce evidence which the
defendant himself could obtain. Furthermore, he has made no showing that the clothing was
favorable to his defense.
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The only reference in the record to fingerprint evidence was through Investigator Chris
Hamm. He testified that he was unable to find fingerprints on the shotgun, the Wal-Mart bag, or the
green money bag. There was no testimony concerning an attempt to take prints from the pager or
the shotgun shells. The defendant, having failed to prove the existence of fingerprint evidence,
cannot satisfy the other requirements of Brady. We conclude that this issue is without merit.
III. Conflict of Interest
In the final issue, the defendant maintains that his right to a fair trial was violated due to the
trial court’s failure to investigate a conflict of interest before appointing substitute counsel. The
defendant alleges that he was originally appointed to the public defender and that counsel was
replaced by an assistant from the same office. We are pretermitted from consideration of this issue
in two respects. The defendant, the appellant herein, has failed to furnish any record in reference to
the substitution of counsel. It is the duty of the accused to provide a record which conveys a fair,
accurate, and complete account of what transpired with regard to the issues which form the basis of
the appeal. Tenn. R. App. P. 24(b); see State v. Taylor, 999 S.W.2d 941, 944 (Tenn. 1999).
In addition, this issue was not included in the defendant’s motion for a new trial. The issue
is thereby waived. Tenn. R. App. P. (3)(e); see State v. Walker, 910 S.W.2d 381, 386 (Tenn. 1995).
The conviction from the trial court is affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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