State of Tennessee v. Jose Garcia (a/k/a Hilberto Alejandro Rentira Lerma) ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 9, 2011
STATE OF TENNESSEE v. JOSE GARCIA (a/k/a HILBERTO
ALEJANDRO RENTIRA LERMA)
Direct Appeal from the Circuit Court for Montgomery County
No. 40800308 Michael R. Jones, Judge
No. M2010-01661-CCA-R3-CD - Filed March 13, 2012
A Montgomery County jury convicted the Defendant, Jose Garcia, of conspiracy to
commit aggravated robbery, four counts of aggravated robbery, and especially aggravated
kidnapping, and the trial court sentenced him to an effective sentence of sixteen years, to
be served at 100%. On appeal, the Defendant contends that: (1) the evidence is
insufficient to support his convictions; and (2) the trial court erred when it made several
evidentiary rulings. After a thorough review of the record and applicable law, we affirm
the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.
Jordan D. Mathies, Nashville, Tennessee, for the appellant, Jose Garcia.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; Helen O. Young,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
This case arises from the robbery of an F&M Bank in which three men
participated. After the robbery, the men took a bank teller, who later escaped, with them
when they left the bank. For his alleged participation in this robbery, a Montgomery
County grand jury indicted the Defendant for one count of conspiracy to commit
aggravated robbery, four counts of aggravated robbery, and one count of especially
aggravated kidnapping. At his trial, the parties presented the following evidence:
Sheila Woodard testified that she was working at an F&M Bank in Clarksville,
Tennessee, on January 15, 2008, as the “head teller” or “vault teller.” Working with her
that day were Nancy Dueker, Gladys Gutierrez, and Tracy Anderson. Around noon, there
was one customer in the bank, Georgie Stenson, at Gutierrez’s window, and one
customer, Tara Stanton, in her car parked in the drive-thru lane of the bank. Two
Hispanic men walked in, one of whom she identified as the Defendant. She described the
Defendant as “heavier set” and as wearing sunglasses, a John Deere cap, and a plaid
jacket. She described the other man as “smaller built” and as wearing a cap, glasses, and
a grey hoodie. She also testified that this man wore a false mustache that kept sliding on
his upper lip.
Woodard said she acknowledged the men and asked them if they needed some
help. The man in the grey hoodie told her that he needed to open an account, so she
informed him that the woman in charge of opening accounts was with a customer, to have
a seat, and she would be with him shortly. Both men proceeded to the couch on the other
side of the customer desk and had a seat and waited. Woodard testified that she had a bad
feeling based on the disguises, so she called the head of operations of the bank to inform
her that she suspected the bank was going to be robbed. While she was on the phone,
Gutierrez told her to hang up the phone because the bank was being robbed. Woodard
testified that the next thing she knew, the man with the grey hoodie was behind the teller
row brandishing a gun.
Woodard identified several pictures taken during the robbery by the bank’s
security system, which took pictures intermittently from more than five cameras. During
her identification of these photographs, Woodard described the Defendant’s demeanor,
saying:
[H]e acted like he was in charge; very calm acting, very watching, hands
stayed in his pocket, and occasionally if things weren’t moving quick
enough or happening the way he wanted he’d bring a hand out and shout
out instructions.
Woodard said that, when the Defendant offered instructions, he used “short, direct
commands” in English. She described the man in the grey hoodie as “not so much the
dominate one, more or less the one doing what he’s supposed to be doing.”
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Woodard testified that the tellers placed all of the money in a cloth currency bag,
while the man in the grey hoodie and the Defendant told them to “hurry up.” In the
money bag, the tellers also placed “dye packs.” After the money was placed in the bag,
the robbers asked for keys to a car. Another teller, Tracy Anderson, gave them her car
keys, and the men instructed Anderson to accompany them to the vehicle. The Defendant
stayed two to three steps in front of Anderson, who appeared scared, as they left the bank.
Woodard said she could see Anderson outside through the windows of the bank’s drive-
thru, and she was concerned for her safety. In one of the drive-thru bays, Woodard saw a
customer, Tara Stanton, who was driving a white truck. Also through these windows,
Woodard saw Anderson run away, and so she went to the front on the bank and unlocked
the doors for Anderson to return inside the bank. Woodard testified that, after Anderson
had run away from the robbers, Stanton pulled her truck behind Anderson’s vehicle,
preventing the car from exiting the bank parking lot.
On cross-examination, Woodard testified her duties as “head teller” included
ensuring that the date and time of the security system was accurate. She said that she also
examined the security cameras once a month to ensure they were working properly. If
there was an issue with any of the cameras, such as a lens being out of focus, she would
call the surveillance camera company, and the company would send a representative to
service the camera. She said she had checked all the cameras in the bank at some point
before, but near, January 5, 2008, which was ten days before the robbery.
Woodard said the man in the grey hoodie never discharged the gun while inside
the bank, and she estimated it was two to three minutes between when the men sat down
on the customer service sofa and when they began the robbery. Woodard testified that the
Defendant wore sunglasses for the duration of the robbery, but he scanned the room and
looked in the direction of each of the employees.
Nancy Dueker, an employee with F&M Bank, testified she was working at the
bank on January 15, 2008, at around noon, when the robbery occurred. She explained
that she was waiting on a regular customer, Tara Stanton, at the drive-thru when she
heard another employee, Sheila Woodard, say that she thought the bank was being
robbed. When she looked around, she saw that two suspicious looking men had entered
the bank together, one wearing a “fake mustache” and sunglasses and the other wearing
sunglasses and a “cap.” Dueker identified a picture of Roberto Gomez Vasquez as being
the man wearing the mustache and sunglasses and carrying the gun. She identified the
Defendant as the man who entered the bank with Vasquez. Dueker testified that she also
identified the Defendant on the day of the robbery when police brought him to the bank
after his apprehension.
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Dueker testified that one of the men came behind the teller line with a gun, and he
told the bank employees that they wanted “all [the] money.” Dueker “pulled the dye
pack,” so it would be ready to place into the bag with the money. The Defendant then
went to the teller’s “gate” and said open the door “we want all your money.” The tellers
put the money in a white, cloth bag. One of the men said that he wanted some car keys,
and Anderson gave him her car keys. The two men then went through the gate and left,
taking Anderson with them.
Dueker testified that she wanted to communicate with her customer, Stanton, that
there was a robbery in progress, but she was unable to do so because the robbers had
ordered her to look away from the window. Dueker testified that, after the robbers left,
she saw that Stanton was still at the bank. She did not see, however, the events that
occurred thereafter.
On cross-examination, Dueker testified that when police officers brought the
Defendant back to the bank for her to identify him, the other robber, Vasquez, was not
with him. At the time police officers had the Defendant outside the bank, all of the tellers
were inside the bank building. She said she looked at him through the glass doors.
Dueker said that Anderson did not look like she was leaving with the Defendant and
Vasquez willingly, but she did not see the Defendant touch, or hear him threaten,
Anderson. She confirmed that the Defendant was not the man with the gun.
Tracy Anderson, a F&M Bank employee, testified that she was working on
January 15, 2008, when, shortly after noon, she returned from her lunch break. Upon her
return, she noticed one woman and two men in the bank. The woman she recognized as a
regular customer, Georgie Stenson, and the two men, who were both standing in the
lobby, she did not recognize. Anderson said she reopened her teller line immediately
upon returning to the bank.
Anderson testified she heard the two men talking to one of the tellers, Sheila
Woodard, who told them to step over to the new accounts desk. One of the men, whom
she identified as Vasquez, then approached Anderson’s desk and told her that he was
robbing the bank. She described Vasquez as wearing a grey hoodie and a false mustache,
which was falling off. She said the other man, the Defendant, was wearing a plaid jacket,
a green, John Deere hat, and sunglasses.
Anderson said that Vasquez instructed her to put the money in the bag while the
Defendant approached the teller door, telling the tellers to open a door between the tellers
and the lobby of the bank. The tellers complied and opened the door, and Vasquez came
through the door and repeatedly told the tellers to “hurry up” putting the money in the
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bags. Anderson said that, normally, the tellers kept approximately $8500 in their
drawers, and they gave him all the money they had in their drawers. Anderson explained
that they complied with Vasquez’s request because he insisted they do so while he held
the gun. Anderson described the Defendant’s demeanor during the robbery as “more in
control [and] calm mannered” while she found Vasquez “[r]eally nervous, on edge.”
Anderson said the Defendant seemed to know what he was doing.
After Anderson and the other tellers gave the robbers the money, Vasquez asked
for keys to a car. Anderson said she was able to privately discuss the matter with another
teller, Gutierrez, and the two decided Anderson should give the robbers her keys because
she had GPS in her car. The two thought that the police might be able to track the robbers
using the GPS unit. When Anderson handed Vasquez the keys, Vasquez ordered her to
leave with them. Anderson complied, noting that Vasquez still had his gun at the time.
As they were leaving, Anderson saw that the Defendant was carrying the bag containing
the money from the bank.
Anderson testified that, once she got outside with the two robbers, they walked
underneath the drive-thru. At this point the dye packs “started going off,” and the robbers
told her that there was no money in the bags. Anderson told them that there was, in fact,
money in the bags, but the robbers handed her the bag. Anderson explained that the dye
packs make a “pop[]” when they go off and contain a substance that burns ones eye’s,
similar to tear gas. Anderson said that they continued on to her truck, and, when they
arrived, she unlocked the truck, handed the key to Vasquez, dropped the money, and
turned and ran away.
Anderson said she later viewed pictures of the incident, which were taken by the
bank’s security system. From those photographs, she saw that bank customer Stanton’s
truck was still parked in the drive-thru when Anderson went to her car with the robbers.
She said, however, that she had no independent recollection of the car being there at the
time. Anderson first became aware of Stanton’s vehicle when she turned around while
running, after she heard a “loud bang.” The bang was caused by a collision between her
truck and Stanton’s truck.
On cross-examination, Anderson testified that, when Vasquez informed the tellers
that he was robbing the bank, and the Defendant was standing next to a wooden door
leading to the back of the bank, she could only see the Defendant from the chest up. She
said the Defendant wore sunglasses and a John Deere hat the entire time he was at the
bank. He never spoke directly to her, but he addressed the entire group when he told
them to open the door. Anderson said the Defendant never asked for keys to a car. She
said she did not recall where the Defendant was in relation to herself when they walked
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outside or when she ran away from the robbers.
Anderson testified that she was present at the bank when police officers brought
the Defendant back to the bank for identification. She said he was dressed in the same
manner as when he robbed the bank. She said she identified him when officers had her
look outside the glass doors of the bank at the Defendant. Anderson agreed she never
saw the Defendant with a gun, and she never saw him touch anyone. She said that the
Defendant repeatedly told the tellers to “hurry up” while they were putting the money in
the bag.
Gladys Gutierrez, the other teller present during the robbery, testified she was
waiting on a regular customer, Georgie Stenson, when she noticed the two robbers sitting
on the couch. Gutierrez said her duties included assisting customers opening a new
account at the bank, and one of the other tellers told her that the men wanted to open an
account. Gutierrez said that, based upon the men’s disguises, she pulled the alarm, which
informed police that the bank was being robbed. Shortly thereafter, the man in the grey
hoodie brandished a gun and informed her that the men were robbing the bank. Gutierrez
identified and described the photographs taken during the robbery by the security system.
She said that, in one, the Defendant is seen with his hand raised, and she recalled that he
was telling the tellers to open the teller door to allow them in the back area of the bank.
Guiterrez said, during the robbery, she asked the robbers if customer Georgie
Stenson could sit down. She explained that Stenson had nothing to do with the robbery
and asked if she could move out of the way. The Defendant responded to her request, and
told her that it was okay for Stenson to sit. Guiterrez then went back and assisted the
other tellers in getting the money together and, while she was doing so, both robbers were
telling the tellers to “hurry up.” Guiterrez then described how the robbers asked for a set
of car keys and how Anderson offered hers and was instructed to leave with the robbers.
Guiterrez described the Defendant as “calm” during the robbery, never appearing
surprised or shocked at anytime. Guiterrez said she “felt like he actually knew exactly
what [they] were doing. [The Defendant] was the one that demanded for us to open the
[teller] door in the beginning.”
On cross-examination, Gutierrez said that Vasquez first told Anderson that he was
robbing the bank. She said that, when she asked if Stenson could sit down, the Defendant
motioned, indicating agreement, but did not verbally respond. She said Vasquez was the
robber who asked for keys to a car and also the one who demanded that Anderson leave
with the men. She testified she was present when police officers later returned with the
Defendant to have the tellers attempt to identify him. Guiterrez said she was able to
identify the Defendant as the man who had participated in the robbery.
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On redirect examination, Guiterrez said, based on the two robber’s demeanor, she
thought the Defendant was in charge of the robbery.
Tara Stanton testified that, on January 15, 2008, she was working at a hair salon
when, around lunchtime, the employees discovered they were in need of smaller bills.
Stanton went to F&M bank where the salon held an account. When she arrived, she
pulled up to the drive-thru, and teller Dueker looked at her, shook her head “like no,” and
raised her eyebrows “really high.” Stanton said she found this behavior unusual and
different from Dueker’s normal demeanor. Stanton said she looked inside the bank,
where she saw two men, one wearing a grey hoodie and the other wearing a green plaid
jacket. Both men wore sunglasses, and the man with the green plaid jacket also had on a
John Deere hat. Stanton then noticed that the man in the grey hoodie held a gun and that
the tellers were gathering money and putting it into a bag.
Stanton testified that the man in the grey hoodie went behind the teller wall while
the man in the green cap stayed in the lobby, occasionally speaking with the tellers.
Stanton then saw Anderson attempt to remove a key from her key ring. She was shaking
so badly that another teller had to help her. The robber in the grey hoodie “had
[Anderson’s] arm,” and Anderson left with the robbers. Stanton said she did not have her
cell phone with her and could not call 911. She did not leave and get help, however,
because her “only thought was to protect [Anderson] [w]hen [she] saw that they were
taking her hostage and leaving the building.”
Stanton testified that Anderson and the men came around the bank to an area close
to the drive-thru lane, and Stanton noticed that Anderson appeared “[s]cared.” She then
heard a loud “bang,” and saw smoke coming from the money bags, which she assumed
meant the dye packs had exploded. The man in the green hat “took . . . off towards the
front of the building.” Anderson and the other man kept walking toward Anderson’s
vehicle. Stanton said she started backing her car up, with the intention of blocking the
robber’s exit from the bank parking lot. She said she backed her car directly behind
Anderson’s vehicle, and she saw Anderson run away from the vehicle. The robber in the
grey hoodie, who was driving Anderson’s vehicle, then backed Anderson’s vehicle into
Stanton’s truck, which she described as a “Chevy, three quarter ton, four wheel drive.”
Stanton said that the robber then tried to back up again, and Stanton accelerated her truck
and pushed the vehicle the robber was driving.
At this point, the robber exited Anderson’s vehicle and came to Stanton’s window.
He tried to open her door and then pointed the gun at her and told her to get out. She told
him “no,” and he again pointed the gun at her and told her to get out. She again refused,
and the robber “took off running” into a park behind the bank. Stanton said she put her
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truck in drive, followed the robber, and “bumped” him with her truck. The robber
became “quite angry” and tried to get into Stanton’s vehicle again. She again refused,
and the robber shot the lock out of the truck. The robber then looked around, saw a blue
minivan close by, and ran toward the minivan. When he got to the minivan, he opened
the door, started arguing with the driver, and then got inside the minivan. The minivan
then drove out of the park. Stanton testified that, at this point, police had arrived and
chased the minivan.
Stanton testified that the Defendant appeared “very calm” during the entire time
she observed him, until the dye packs exploded. She said that he did not appear to be a
bystander and that he appeared to be involved in the robbery.
On cross-examination, Stanton testified she participated in identifying the
Defendant when police brought him back to the bank. She said police officers had the
Defendant stand outside the double glass doors of the bank, and she observed him
through the doors and identified him. Stanton testified she never spoke with the
Defendant, and she never saw the Defendant make any motions or physical contact with
Anderson.
Sergeant Joe Difiore, with the Clarksville Police Department, testified that he was
on duty on January 15, 2008, and he was the first officer on the scene of this robbery.
When he arrived, he saw a vehicle parked in a parking space with a white truck “up
against the back bumper” of the vehicle, as if “blocking it in.” Sergeant Difiore made eye
contact with the woman driving the white truck , and he noted the woman appeared calm.
Then, out of the corner of his eye, he saw a man, who he later identified as the Defendant,
running through the field. The officer noted that it was a cold day in January, and the
Defendant was taking his coat off as he was running. The officer assumed the Defendant
was involved in the robbery, and so he followed him. Sergeant Difiore testified that he
stayed in his vehicle and was able to follow the Defendant for some distance, before the
Defendant ran in front of his vehicle. At this point the Defendant had slowed down,
presumably because he had become tired, and the officer pursued the Defendant on foot.
The officer instructed the Defendant to halt, and the Defendant complied.
Sergeant Difiore testified that he spoke with the Defendant and asked him why he
removed his jacket. The Defendant spoke to him, but the officer was unable to
understand the Defendant’s response. The Defendant shrugged his shoulders and
indicated that he did not understand what the officer was saying. The officer explained to
him that there had been a bank robbery and then walked the Defendant to the officer’s
car. The officer returned to the bank, with the Defendant in his car. Shortly thereafter, a
detective asked the sergeant to walk the Defendant to the front of the bank doors so that
bank employees could identify him. After turning over custody of the Defendant to other
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officers, Sergeant Difiore searched the field where he saw the Defendant running. In the
field, he found sunglasses, a quilted jacket, and a green John Deere hat.
On cross-examination, Sergeant Difiore testified that when he stopped the
Defendant he took him into custody but did not immediately arrest him. The sergeant
agreed that, initially, he thought the Defendant did not speak English. He said that, later,
however the Defendant responded to him in English. The sergeant explained that, after
he walked the Defendant to the bank for the identification, the two returned to the
sergeant’s car, and the Defendant was placed in the rear seat of the car. The windows
were up and the doors were shut, and Sergeant Difiore was outside the car. At one point,
the sergeant noticed that the Defendant was sweating, so he cracked open the rear door
and asked the Defendant if he was hot. In English, the Defendant responded yes, so the
officer left the door open.
Sergeant Difiore testified that, during the show-up identification at the bank, the
Defendant kept looking away from the window. The sergeant repeatedly told him, and
made gestures indicating, that he wanted him to face the door and look toward the door.
The Defendant finally complied with the sergeant’s request.
Maureen Blair testified that, on January 15, 2008, she was working at a nearby
company when she took her lunch break at around 11:45 a.m. She picked up food and
then went to a park to eat. As she was finishing, a man wearing a grey hoodie was
running toward her car. She became uneasy, so she locked her car doors. The man
approached her and held a gun to her driver’s side window and told her to get out of the
car. As she started to exit her vehicle, she heard police sirens approaching, and the man
told her to get back into her car. He climbed over her and got into the seat behind her,
telling her to drive. He told her to drive over the grass in order to avoid the white pick-up
truck that was blocking the entrance of the park.
Blair testified that the man directed her to turn right, and she told him it was a dead
end. He, however, told her to keep going that direction. Two police cars approached
behind them and blocked the road. When she reached the dead end, the man told her to
turn around and go over the grass to get around the police cars. Blair testified that, when
she passed the officers, they had their guns drawn and pointed at her car. She waved at
the officers to indicate that she was not involved in the crime.
Blair said that she successfully maneuvered around the officers, and went out to
the main road, traveling north. The man instructed her to turn into a Wal-Mart parking
lot, and she complied. At that time, a police car pulled up behind her and hit her car.
Another police car pulled in front of her and blocked her, and the police officers exited
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their vehicles and drew their weapons. Blair said police officers then began firing into
her car through the front windshield. An officer approached Blair’s window and told her
to open the door. She did and, as she was exiting, she saw that the police had shot and
killed the man who was in her car. Officers found a cap, a pair of sunglasses, a knife, a
wallet, and a gun in her car, all items that had not been there before the man got into her
car.
On cross-examination, Blair agreed the Defendant never entered her car. She also
testified that the man who entered her car never made any statements related to the
robbery to her.
Brad Crowe, a Clarksville Police Department officer, testified he responded to the
call about a bank robbery on January 15, 2008, to assist in processing the scene. He
gathered the following at the scene: a ball cap, sunglasses, a jacket, and a canvas bag
containing money. The bag contained $11, 993 in cash and three $20 dye packs. Officer
Crowe also collected the copper jacketing from the bullets fired in this case.
Clarksville Police Officer Francis Profitt testified that he responded to a call about
a police shooting, where he assisted in processing the crime scene. He identified the
evidence he retrieved, including a grey hoodie sweatshirt, Vasquez’s wallet, sunglasses,
ball cap, knife and gun. On cross-examination, Officer Profitt agreed he did not retrieve
any evidence that implicated the Defendant.
Kristina Figueroa testified that the Defendant, whom she knew as Alejandro
Lerma, was the father of her daughter. On January 14, 2008, the Defendant was at her
home with two of his friends, Vasquez and a man named Alejandro Briones. The men
had been drinking and were laughing and making jokes while discussing a bank robbery.
Figueroa testified that she heard Briones and Vasquez discussing the robbery, and she
asked the Defendant about the discussion later. She said that she did not recall the details
of the conversation. Figueroa agreed she did not want to be in court and she did not want
to testify against the Defendant. She recalled giving police a statement on January 23,
2008, but she said she did not remember what she said.
The State then asked her to read her statement, and, after doing so, Figueroa
conceded that she had told police that Vasquez and Briones had come over to her house
on January 14, 2008, and asked the Defendant if he wanted to participate in a bank
robbery. Figueroa told police that the Defendant told the men “no,” explaining that he
wanted to be with Figueroa. She also told police that, when the men left, she asked the
Defendant if the men’s offer was real, and the Defendant said that they were only joking.
On cross-examination, Figueroa testified that the Defendant lived in Hopkinsville,
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Kentucky, and had come to see her a few days before January 14, 2008. She said she
heard only Vasquez and Birones discussing the bank robbery, and she maintained she did
not hear the Defendant discuss this issue.
Sean Averitt, employed with the Clarksville Police Department, testified he was
the lead detective in this case. He said that he was present during the Defendant’s
interview. Also present were Officer Nelson Rodriguez, who acted as an interpreter, and
Special Agent Dan Hemmersmery, a Federal Bureau of Investigations (“FBI”) officer.
Sergeant Averitt testified the Defendant understood “a very limited amount of English,”
so the interview, which was recorded in its entirety, was conducted through Officer
Rodriguez. On cross-examination, Sergeant Averitt testified that he was unsure of
Officer Rodriguez’s qualifications as an interpreter. He said that he called for Officer
Rodriguez to come to the scene of the robbery, and the officer remained with him,
interpreting for him, during the interview.
Amy Bermudez, a certified court interpreter, testified that she interpreted the
recorded interview and provided a transcription of the interview to the court.
The State recalled Sergeant Averitt, who testified about his interview with the
Defendant. He read portions of the interview into evidence. During the beginning of the
interview, Sergeant Averitt attempted to ascertain the identity of the Defendant’s
accomplice. When he asked the Defendant if he knew the man, the Defendant said, “yes,
because he asked me to work with him in Hopkinsville.” When the officer asked the
accomplice’s name, the Defendant said “Roberto” but said he was unsure of Roberto’s
last name.
Sergeant Averitt recounted that, during the interview, he asked the Defendant how
the robbery started. The Defendant responded, saying that Vasquez 1 came to his home
during the night and talked to the Defendant about “going somewhere” to get “some
cash,” and the Defendant said he told Vasquez that he wanted to “go back to Mexico.”
The Defendant told the officer that Vasquez never told him where they were going and
that the Defendant was desperate for money, which he needed in order to return to
Mexico to be with his family. The Defendant said he told Vasquez “let’s go.” The
Defendant conceded to the officer that Vasquez told him of the plan before they began the
robbery. The Defendant said that a third man named “Hondo,” who knew nothing about
1
In the record and during the interview, the Defendant does not refer to the man who was present in the
bank robbery by his last name, Vasquez. He refers to him largely as “Roberto,” but police later learned
the identity of the man as Roberto Vasquez. For clarity of the facts, however, we will continue to refer to
Vasquez by his last name.
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the robbery, drove the Defendant and Vasquez to the bank.
During the interview, the Defendant said Vasquez told the Defendant before the
robbery to “leave [the robbery] to [him]” and took the Defendant and “Hondo” 2 to several
banks. He said, “Everything was at the last minute. Suddenly, he told us okay, let’s get
out of here.” The Defendant said Vasquez told the Defendant to enter the bank with him
so the employees there saw that there were two robbers. He asked the Defendant to put
on a fake moustache, but the Defendant said he responded that he was going to Mexico,
so the moustache was unnecessary. The Defendant told the officer that he did, however,
wear sunglasses and a green cap given to him by Vasquez and that he also wore a yellow
sweatshirt.
When asked about his role in the robbery, the Defendant said the plan was for him
to drive the “getaway” car. He explained that Vasquez told him that they were going to
take “somebody’s vehicle or truck” during the robbery and that they would leave the bank
in that car. The Defendant said, however, he got scared when they exited the bank
because a lady at the drive-thru kept looking at him, so he “took off running” as soon as
they exited the bank. He said he was further upset by Vasquez’s orders to one of the bank
employees, asking her to leave with them. He told the officer that he did not have a gun
during the robbery. He said that Vasquez always had the gun, and that he left the robbery
with “nothing.”
The Defendant said that, at first, Vasquez told him that Vasquez was going to “go
cash a check,” and that, when he did so, he would give the Defendant a cut of the check.
The Defendant said that, as the men were driving around looking at banks, Vasquez and
Briones were “laughing” when saying “cash a check,” and the Defendant “figured” that
meant that they were robbing a bank. The Defendant told the officer that, if the plan was
successful, Vasquez was going to give the Defendant and Briones two or three thousand
dollars each. The Defendant planned to use his money to immediately return to Mexico.
The Defendant said he expressed his concern to Vasquez that there would be
police. The Defendant told the officer that Vasquez responded by saying that there were
no police and that the bank employees would not call police because they had insurance
that would cover the money stolen. The Defendant confirmed that, before the robbery,
Vasquez “had already told him” what was going to happen. The Defendant told the
officer that they began driving around at 11:00 a.m. that morning. He said that, when
Vasquez picked him up, Vasquez asked whether he was excited, and the Defendant
2
Police later identified “Hondo” as Alejandro Briones (spelled phonetically by the court reporter).
Briones was also charged for his participation in this robbery.
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responded “no man.” The Defendant then got into the car, and Vasquez told him the
plan. The Defendant said that, while he was running away from the bank, he took off his
glasses and jacket. The cap, he said, fell off on its own.
Sergeant Averitt testified that, during the interview, the Defendant would
sometimes answer a question that the sergeant posed before the interpreter posed the
question to the Defendant in Spanish. He said that the Defendant answered in Spanish.
Sergeant Averitt said that police also learned that the car Briones drove to the robbery
was registered to Vasquez.
On cross-examination, Sergeant Averitt testified that during his interview with the
Defendant he surmised that the Defendant knew of the robbery plan before he entered the
bank. He based this on the fact that the Defendant and Vasquez discussed that there were
no police or security present at the bank, that they went into the bank wearing a disguise,
and from the Defendant’s statement that Vasquez told him before they entered that they
were going to take money from the bank. The officer testified that the interview lasted
one hour and forty-five minutes. He said that, based on the Defendant’s behavior during
the interview, the officer believed the Defendant was not fluent in English but that he
understood some English, in part because the Defendant sometimes answered questions
before the interpreter interpreted the questions for him.
Sergeant Averitt discussed the Defendant’s claim that he thought he was going
with Vasquez to cash a check. The sergeant agreed that hospital personnel who attended
to Vasquez before he died found a check stub in Vasquez’s possession, and they gave that
stub to the police. The sergeant also agreed that, during the Defendant’s interview, the
Defendant repeatedly said that Vasquez said on multiple occasions that they were going
to the bank to cash a check. He explained, however, that he did not find credible the
Defendant’s claim that he was only accompanying Vasquez to cash a check in light of the
Defendant’s other statements.
The State rested, and the Defendant testified on his own behalf. He stated that, at
the time of the robbery, he lived in Hopkinsville, Kentucky. Before that, he had lived in
Clarksville, Tennessee, where he was employed as a construction worker. The Defendant
said he had been in the United States for a year and a half before his arrest. The
Defendant testified that Vasquez, whom he knew through working construction, drove
him from Hopkinsville to Clarksville on January 13, 2008, because the Defendant wanted
to visit his brother. When they arrived in Clarksville on the 13th , Figueroa, the mother of
his child, saw the men drive by, so she contacted the Defendant. The Defendant said that
he stayed only a couple of hours at his brother’s house and then went across the street,
where some of his friends lived. He spent his first night in Clarksville in a hotel with
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Figueroa. He said he spent the following night, the night of the 14 th , at his friends’ house
located across the street from his brother’s house.
The Defendant denied ever being in the presence of Vasquez or Briones while
Figueroa was present. He said that she testified incorrectly when she heard Vasquez
state that they should participate in a robbery. The Defendant explained that he was with
Vasquez at the bank the day of the robbery because Vasquez owed him nearly two
thousand dollars for drywall work that the Defendant had completed. Vasquez told the
Defendant that he was going to cash a check, and the Defendant accompanied him to the
bank. The Defendant said that, as they entered the bank, Vasquez told the Defendant to
have a seat at a desk, and the Defendant complied. The Defendant said he then saw
Vasquez don the false moustache, so he asked him “what are you going to do?” Vasquez
responded that he was just going to talk to the manager. The Defendant testified he then
saw Vasquez draw a “pistol” while talking to the bank employees. He said he asked
Vasquez “[W]hat are you doing?,” but Vasquez would not answer him and just stood
there. The Defendant said he told Vasquez to stop, saying “stop it, let’s get out of here”
several times. The Defendant said that, because Vasquez did not listen to him and did not
stop, he “just walked out” of the bank. He said, after he walked out of the bank, he ran
away, taking off his jacket, sunglasses, and cap.
The Defendant testified that he did not know before he entered the bank that
Vasquez planned to commit a robbery. He said that he drove to the bank with Briones
and Vasquez and that Vasquez never discussed robbing a bank. The Defendant said that
the bank tellers’ testimony that he was telling them to “hurry up” and that he cooperated
with Vasquez was untrue. He said, rather, he was trying to get Vasquez to stop what he
was doing. The Defendant also denied telling customer Georgie Stenson that she could
sit down, saying that the only person he talked to was Vasquez. The Defendant said that
Vasquez never told him that he was in possession of a gun or a knife, reiterating that the
first time he saw the gun was when he was seated at the desk in the bank.
The Defendant said that he never asked anyone for their car keys while he was at
the bank. He said that he did not see Stanton when he left the bank. The Defendant said
he could not communicate with the police officer who arrested him because he did not
understand much English.
On cross-examination, the Defendant testified that the transcript of his police
interview did not accurately reflect what he said to officers during the interview. The
Defendant conceded that he answered “yes” when the officer asked him whether he knew
of Vasquez’s plans to rob the bank before it happened. He explained that he did not know
what the officer was talking about. He denied ever telling police that he knew about the
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robbery before he entered the bank. He denied telling police that Vasquez said there
would be no trouble because there would not be any police. He denied telling police that
Vasquez asked him to enter the bank with him so that the bank employees would see that
there were two robbers. The Defendant maintained that the only thing he told officers
was that he was accompanying Vasquez to the bank because Vasquez owed him money.
The State presented the Defendant with photographs taken by the bank’s security
system. The Defendant said that he was “pointing” in the picture because he was asking
Vasquez what he was doing. The Defendant acknowledged that one picture depicted him
facing away from Vasquez and pointing to the door. He said that “that’s when [he was]
walking back and forth.” He said that the bank tellers were being untruthful when they
testified that he was, at this point, telling them to open the door. The Defendant
maintained that the only person he spoke to was Vasquez and that he only asked him what
he was doing. The Defendant said he never heard Vasquez ask Anderson for her keys
and that he never heard Vasquez ask Anderson to leave with him. He said he left before
Vasquez and never saw Vasquez depart the bank.
In rebuttal, the State offered Judith Khristy, an expert in translation, who testified
that she was a certified Spanish interpreter. She said that she had reviewed the transcript
of the Defendant’s interview and that it was substantially accurate.
II. Analysis
On appeal, the Defendant contends that: (1) the evidence is insufficient to support
his convictions; and (2) the trial court erred when it made several evidentiary rulings.
A. Sufficiency of Evidence
The Defendant contends the evidence is insufficient to sustain his convictions. He
asserts that he was merely present during the commission of this crime and that his
presence is not a sufficient basis upon which to convict him. He asserts that he was only
present at the bank to get money Vasquez owed him after Vasquez cashed a check, that
he tried to get Vasquez to stop robbing the bank, and that he left the bank before Vasquez
completed the robbery. The State counters that the evidence is sufficient to sustain each
of the Defendant’s convictions.
When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.
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App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the
witnesses, the weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); see also Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978) (quoting State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). The
Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record, as well as all reasonable inferences which
may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24
S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes
the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to
sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
1. Conspiracy to Commit Aggravated Robbery
The Defendant was convicted of conspiracy to commit aggravated robbery.
Conspiracy is proven when a defendant and at least one other person “each having the
culpable mental state required for the offense which is the object of the conspiracy and
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16
each acting for the purpose of promoting or facilitating commission of an offense, agree
that one (1) or more of them will engage in conduct which constitutes such offense.”
T.C.A. § 39-12-103(a) (2010). The agreement necessary to establish a conspiracy does
not need to “be formal or expressed, and it may be proven by circumstantial evidence.”
State v. Vasques, 221 S.W.3d 514, 522 (Tenn. 2007) (quoting State v. Pike, 978 S.W.2d
904, 915 (Tenn. 1998)). Aggravated robbery is robbery: “(1) Accomplished with a
deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it would be a deadly weapon . . . .” T.C.A. § 39-13-402 (2010).
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 (2010).
In the case under submission, the proof presented, in the light most favorable to the
State, proves that the Defendant and Vasquez discussed robbing a bank on the night
before the bank robbery. Vasquez picked up the Defendant in the morning, and a third
man drove them to multiple banks. The men decided upon the F&M Bank to rob because
of the lack of security or police officers present. Vasquez told the Defendant to enter the
bank with him so the bank employees would see two robbers. Vasquez and the
Defendant also agreed that the Defendant would drive a “getaway” car from the bank.
Before they entered the bank, Vasquez asked the Defendant to put on a fake moustache,
but the Defendant said it was unnecessary because he was going to return to Mexico after
the robbery. The Defendant entered the bank wearing sunglasses and a green cap, which
he said Vasquez gave to him. The Defendant and Vasquez entered the bank and asked to
speak with someone regarding opening an account. Vasquez then brandished a weapon,
and the men ordered the tellers to allow Vasquez through the gate and to put money in the
bag. Several of the witnesses testified that the Defendant did not appear surprised or
alarmed when Vasquez brandished the weapon and that the Defendant told them to “hurry
up” during the robbery. Some of the witnesses testified that the Defendant’s demeanor
indicated that he was the one in charge.
The Defendant testified at trial, and he maintains on appeal, that he was unaware
that Vasquez was going to rob the bank and that he simply thought he was accompanying
Vasquez to cash a check. The jury rejected this contention, and the evidence supports the
jury’s verdict. The Defendant is not entitled to relief on this issue.
2. Aggravated Robbery
The Defendant was convicted of four counts of aggravated robbery, one count for
each of the four tellers present during the robbery. Aggravated robbery is robbery: “(1)
Accomplished with a deadly weapon or by display of any article used or fashioned to lead
the victim to reasonably believe it would be a deadly weapon . . . .” T.C.A. § 39-13-402
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(2010). 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 (2010).
Under a theory of criminal responsibility, “[p]resence and companionship with the
perpetrator of a felony before and after the commission of the offense are circumstances
from which one’s participation in the crime may be inferred.” State v. Ball, 973 S.W.2d
288, 293 (Tenn. Crim. App. 1998). No particular act need be shown, and the defendant
need not have played a physical role in the crime in order to be held criminally
responsible for the crime. State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim. App. 2002).
Rather, to be held criminally responsible for the acts of another, the defendant need only
“associate himself with the venture, act with knowledge that an offense is to be
committed, and share in the criminal intent of the principal in the first degree.” State v.
Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994); see also State v. Steven Nelorn
Hampton, Jr., No. M2004-00704-CCA-R3-CD, 2005 WL 677279, at *5 (Tenn. Crim.
App., at Nashville, Mar. 24, 2005) (finding sufficient evidence to convict the defendant of
especially aggravated robbery under a criminal responsibility theory because he admitted
that he shared in the proceeds of the robbery, was present at the scene of the crime, and
was with his co-defendants both before and after the commission of the crime).
The evidence at trial proved that each of the four tellers were forced to place the
cash from their drawers into a cloth bag while Vasquez held a gun and the Defendant told
the tellers to “hurry up.” The Defendant watched the tellers place the money into the bag
and directed their movements. The jury made it clear by its verdict that it did not find
credible the Defendant’s claim that he was unaware that a robbery was going to take
place, that he repeatedly told Vasquez to discontinue the robbery, and that he left the bank
when Vasquez failed to honor his request. Credibility determinations are left to the jury.
See Bland, 958 S.W.2d at 659. The evidence at trial is sufficient to sustain the
Defendant’s four convictions for aggravated robbery. The Defendant is not entitled to
relief.
3. Especially Aggravated Kidnapping
The Defendant was convicted of especially aggravated kidnapping with regard to
the robbers leaving the bank with Anderson. Especially aggravated kidnapping, a Class
A felony, is false imprisonment “[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. § 39-13-305 (2010). “A person commits the offense of false
imprisonment who knowingly removes or confines another unlawfully so as to interfere
substantially with the other's liberty.” T.C.A. § 39-13-302 (2010). As previously stated,
under a theory of criminal responsibility, “[p]resence and companionship with the
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18
perpetrator of a felony before and after the commission of the offense are circumstances
from which one’s participation in the crime may be inferred.” Ball, 973 S.W.2d at 293.
No particular act need be shown, and the defendant need not have played a physical role
in the crime in order to be held criminally responsible for the crime. Caldwell, 80 S.W.3d
at 38. Rather, to be held criminally responsible for the acts of another, the defendant need
only “associate himself with the venture, act with knowledge that an offense is to be
committed, and share in the criminal intent of the principal in the first degree.” Maxey,
898 S.W.2d at 757; Hampton, 2005 WL 677279, at *5.
The evidence viewed in the light most favorable to the State proved that, after
tellers had placed the money from their drawers into a cloth bag, Vasquez demanded that
one of the tellers provide the men with their car keys. After Anderson volunteered her car
keys, Vasquez, who was still in possession of the gun, ordered Anderson to leave the
bank with the men. Surveillance video from the bank’s security cameras showed that the
three left the bank together and went toward the back of the bank where Anderson’s truck
was parked. Witnesses also testified that the three left together. The dye pack that tellers
had placed in the cloth bag with the money exploded. At that point, the Defendant ran
away from Vasquez and Anderson and through a field, before he was apprehended by
police. In his statement to police, the Defendant said that his role in the robbery was to
include driving the “getaway” car. This evidence is sufficient to sustain the Defendant’s
conviction for especially aggravated kidnapping. The Defendant is not entitled to relief.
B. Evidentiary Rulings
The Defendant next contends that the trial court erred when it made several
evidentiary rulings. He first asserts that the trial court erred when it allowed the
admission of the Defendant’s confession because police officers failed to properly
administer Miranda warnings, he was denied a certified interpreter, and denied the
assistance of counsel. He next asserts that the trial court erred when it allowed testimony
about the “show-up” identification of him and also when it allowed photographs of him at
the crime scene because the State did not lay a proper foundation and because the
evidence was unduly suggestive. Finally, the Defendant contends that the trial court erred
when it allowed an expert witness to testify without the State first establishing a sufficient
foundation.
1. Confession
The Defendant contends that the trial court erred when it failed to suppress his
confession. He contends that his convictions should be vacated because of the following
actions by the State: giving him “ineffective Miranda warnings, [the State’s] coercive
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interrogation techniques resulting in a coerced confession and deprivation of the
defendant to equal protection under the laws by depriving him of a certified interpreter,
which has been recognized as constitutional requirement under Tennessee’s law, deprived
the defendant of fundamental trial rights protected by law.”
The record evinces that the Defendant filed a motion to suppress his confession.
The trial court held a hearing on that motion to suppress. The Defendant has failed to
include in the record a transcript from the hearing on the motion to suppress. It is the
appellant’s duty to ensure that the record on appeal contains all of the evidence relevant
to those issues which are the basis of the appeal. State v. Brenda Faye Worley, No.
03C01-9608-CR-00322, 1997 WL 531153 (Tenn. Crim. App., at Knoxville, Aug. 29,
1997) (citing Tenn. R. App. P. 24(b); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim.
App. 1993); State v. Deborah Gladish, No. 02C01-9404-CC-00070, 1995 WL 695125
(Tenn. Crim. App., at Jackson, Nov. 21, 1995), perm. app. denied (Tenn. May 6, 1996)).
An appellate court may consider the evidence presented at the suppression hearing as well
as at trial in determining whether the trial court properly denied a pretrial motion to
suppress. State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). Therefore, while our
review of this issue is hampered by the Defendant’s failure to include the transcript of the
motion to suppress hearing on appeal, we may still consider this issue based upon what is
included in the record. See State v. Smotherman, 201 S.W.3d 657, 660-61 (Tenn. 2006);
see also State v. Siliski, 238 S.W.3d 338, 365 (Tenn. Crim. App. 2007).
The standard of review for a trial court’s findings of fact and conclusions of law in
a suppression hearing was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
This standard mandates that “a trial court’s findings of fact in a suppression hearing will
be upheld unless the evidence preponderates otherwise.” Id. at 23; see State v. Randolph,
74 S.W.3d 330, 333 (Tenn. 2002). The prevailing party in the trial court is “entitled to
the strongest legitimate view of the evidence adduced at the suppression hearing as well
as all reasonable and legitimate inferences that may be drawn from that evidence.”
Odom, 928 S.W .2d at 23. Furthermore, “[q]uestions of credibility of the witnesses, the
weight and value of the evidence, and resolution of conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact.” Id. However, this Court reviews the trial
court’s application of the law to the facts de novo, without any deference to the
determinations of the trial court. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). The
defendant bears the burden of demonstrating that the evidence preponderates against the
trial court’s findings. Odom, 928 S.W.2d at 22-23; State v. Yeargan, 958 S.W.2d 626,
629 (Tenn. 1997).
The Fifth Amendment to the United States Constitution provides that “[n]o person
. . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
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20
amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth
Amendment’s protection against compulsory self-incrimination is applicable to the states
through the Fourteenth Amendment). Article I, Section 9 of the Tennessee Constitution
provides that “in all criminal prosecutions, the accused . . . shall not be compelled to give
evidence against himself.” Tenn. Const. art. I, § 9. “The significant difference between
these two provisions is that the test of voluntariness for confessions under Article I, § 9 is
broader and more protective of individual rights than the test of voluntariness under the
Fifth Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992).
Generally, one must affirmatively invoke these constitutional protections. An
exception arises, however, when a government agent makes a custodial interrogation.
Statements made during the course of a custodial police interrogation are inadmissible at
trial unless the state establishes that the defendant was advised of his right to remain
silent and his right to counsel and that the defendant then waived those rights. Miranda v.
Arizona, 384 U.S. 436, 471-75 (1966); see also Dickerson v. United States, 530 U.S. 428,
444 (2000); Stansbury v. California, 511 U.S. 318, 322 (1994). A defendant’s rights to
counsel and against self-incrimination may be waived as long as the waiver is made
voluntarily, knowingly, and intelligently. Miranda, 384 U.S. at 478; State v.
Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). “Confessions that are involuntary,
i.e., the product of coercion, whether it be physical or psychological, are not admissible.”
State v. Phillips, 30 S.W.3d 372, 376 (Tenn. Crim. App .2000) (citing Rogers v.
Richmond, 365 U.S. 534, 540 (1961)). In order to make the determination of whether a
confession was voluntary, the particular circumstances of each case must be examined.
Id. at 377 (citing Monts v. State, 400 S.W.2d 722, 733 (1966)). “Coercive police activity
is a necessary prerequisite in order to find a confession involuntary.” Id. (citing State v.
Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)). “The crucial question is whether the behavior
of the state’s officials was ‘such as to overbear [defendant]’s will to resist and bring about
confessions not freely self-determined.’” Id. (quoting Rogers, 365 U.S. at 544); see State
v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980). The question must be answered with
“complete disregard” of whether the defendant was truthful in the statement. Phillips, 30
S.W.3d at 377 (citing Rogers, 365 U.S. at 544).
The Defendant’s first contention is that law enforcement officers gave him
“ineffective” Miranda warnings and that he was coerced into giving his confession by
being denied a certified interpreter. The trial court held that the Miranda warnings had
been properly given. It further stated on the record:
I do not know of any law that requires that [the Defendant] be provided an
attorney just because he’s not a citizen of the United States, in the sense of
automatic he can waive it just like anyone else, and he did in fact waive it
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21
based on what I’ve heard throughout the trial of this case, or other motions,
whatever, the translation is correct in the transcript.
The transcript of the Defendant’s confession evinces that a law enforcement officer read
the Defendant his Miranda warnings, which were translated into Spanish for the
Defendant. The Defendant then read the Spanish version of the waiver of his rights form,
and he initialed that form.
In his brief, the Defendant states, “Tennessee law has long recognized the
requirement for a certified interpreter in circumstances where a defendant had difficulty
with language proficiency and translation from his native language to English.” He then
cites three cases, each of which we will examine herein. The first case the Defendant
cites to support this proposition is State v. Baldomero Galindo, No. E2009-00549-CCA-
R3-CD, 2010 WL 4684469 (Tenn. Crim. App., at Knoxville, Nov. 19, 2010), perm. app.
denied (Tenn. Apr. 13, 2011). In that case, a defendant appealed the trial court’s failure
to suppress his statement. This Court held that the defendant had waived the issue by
failing to timely file a motion for new trial. We further held that the issue did not warrant
plain error review. In so doing, we stated:
The evidence presented at the pretrial hearing and the trial demonstrated
that the Defendant gave two pretrial statements and that he was given
proper Miranda warnings before both. He did not make any inculpatory
statements in his first interview. In the second, he waived his rights, of
which he was advised in both English and Spanish. He also signed a
written waiver of rights, which was in English. A certified interpreter
translated during the entire process. He acknowledged his understanding
after both admonitions.
Id. at *16. We fail to see how this case stands for the proposition that there is a
“requirement for a certified interpreter” to be present where a defendant does not speak
English as a native language.
The next case cited by the Defendant, State v. Spencer Peterson, W2003-02939-
CCA-R3-CD, 2004 WL 2791621 (Tenn. Crim. App., at Jackson, Dec. 6, 2004), perm.
app. denied (Tenn. Mar. 21, 2005), the defendant therein appealed the trial court’s failure
to suppress his statement to police. The defendant contended that “his statement should
have been suppressed because it was not knowingly and voluntarily made under the
totality of the circumstances, in which he had just turned eighteen, was detained for four
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22
hours without being charged, and was interviewed without the presence of his parent or a
lawyer.” There was no allegation that he was not provided a certified interpreter during
his police interview, and this Court did not make a holding requiring as much.
The final case cited by the Defendant, State v. Jason Lebron Rogers, E2007-
00354-CCA-R3-CD, 2008 WL 2278514 (Tenn. Crim. App., at Knoxville, June 4, 2008),
perm. app. denied (Tenn. Oct. 27, 2008), which was also authored by the authoring judge
herein, is equally unsupportive of the Defendant’s assertion about the law. The defendant
in Rogers contended that the trial court should have suppressed his confession, but he
was, in fact, an English speaking defendant.
We conclude that the Defendant in this case was provided an interpreter, who
properly translated his Miranda rights for him. A certified interpreter transcribed the
video taped recording of the Defendant’s confession, which included the law enforcement
officer accurately relaying the Defendant’s Miranda warnings. The Defendant read and
signed the waiver of his rights, which was written in Spanish. During his confession, he
never asked for an attorney or asked to remain silent. A second expert reviewed the video
recording of the Defendant’s statements and she testified that the transcription was
“substantially accurate.” We conclude that the Defendant was offered his Miranda
warnings and that he knowingly and voluntarily waived his rights. The Defendant is not
entitled to relief on this issue.
2. “Show-up” Identification
The Defendant next asserts that the trial court erred when it allowed testimony
about the “show-up” identification of him and also when it allowed photographs of him at
the crime scene because the State did not lay a proper foundation and because the
evidence was unduly suggestive. The State counters that the Defendant has waived this
issue by failing to include the suppression hearing transcript. Further, it contends, the
issue is without merit.
The appellant has the obligation to ensure that the record on appeal is sufficient to
allow meaningful review. State v. Ballard, 855 S.W.2d at 560-61. Thus, the failure to
include the transcript of a suppression hearing generally constitutes a waiver of the issue.
See Tenn. R. App. P. 24(b); Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App.
1997). When no transcript is included in the record, this Court must presume that the
ruling of the trial court is correct. See Ballard, 855 S.W.2d at 560-61; State v. Taylor,
669 S.W.2d 694, 699 (Tenn. Crim. App. 1983). While our review of this issue is more
difficult without the transcript of the hearing, we conclude we can review this issue on its
merits, basing our review on the evidence presented at trial.
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During the Defendant’s trial, each of the four bank tellers testified that, after the
robbery, a police officer brought the Defendant back to the bank and had him stand
outside of the glass doors of the bank. Each of these four tellers said she positively
identified the Defendant as one of the robbers. The State also offered photographs taken
by the bank’s security system during the robbery, which depicted the Defendant’s actions
in the bank.
The standard of review for a trial court’s findings of fact and conclusions of law in
a suppression hearing was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
This standard mandates that “a trial court’s findings of fact in a suppression hearing will
be upheld unless the evidence preponderates otherwise.” Id. at 23; see State v. Randolph,
74 S.W.3d 330, 333 (Tenn. 2002). The prevailing party in the trial court is “entitled to
the strongest legitimate view of the evidence adduced at the suppression hearing as well
as all reasonable and legitimate inferences that may be drawn from that evidence.”
Odom, 928 S.W.2d at 23. Furthermore, “[q]uestions of credibility of the witnesses, the
weight and value of the evidence, and resolution of conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact.” Id. However, this Court reviews the trial
court’s application of the law to the facts de novo, without any deference to the
determinations of the trial court. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). The
defendant bears the burden of demonstrating that the evidence preponderates against the
trial court’s findings. Odom, 928 S.W.2d at 22-23; State v. Yeargan, 958 S.W.2d 626,
629 (Tenn. 1997).
a. Show-up Identification
Convictions based on eyewitness identification at trial following a pre-trial
identification will be set aside if the identification was “so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification.” Simmons v.
United States, 390 U.S. 377, 384 (1968). “It has long been recognized that show-ups are
inherently suggestive and unfair to the accused.” State v. Thomas, 780 S.W.2d 379, 381
(Tenn. Crim. App. 1989). A show-up occurs when police officers bring a lone suspect to
a witness and ask the witness to identify the suspect. See id. at 381 n.1. The use of a
show-up, however, may be warranted if (1) imperative circumstances necessitating the
show-up exist, or (2) the show-up occurs as part of an on-the-scene investigatory
procedure shortly after the commission of the crime. Id. at 381.
“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) (citing
Simmons, 390 U.S. at 384). In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court
identified five factors for assessing the reliability, and therefore the admissibility, of an
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identification. They are as follows: (1) the opportunity of the witness to view the
perpetrator at the time of the offense; (2) the witness’s degree of attention; (3) the
accuracy of the witness’s prior description of the perpetrator; (4) the level of certainty
demonstrated by the witness at the confrontation; and (5) the time between the crime and
the identification. Id. at 199. These factors for evaluating the reliability of an
identification have been adopted in this state. See Rippy v. State, 550 S.W.2d 636, 640
(Tenn. 1977); Bennett v. State, 530 S.W.2d 511, 515 (Tenn. 1975).
As previously stated, a show-up identification is admissible if it occurs as part of
an on-the-scene investigatory procedure shortly after the commission of the crime.
Thomas, 780 S.W.2d at 381. In this case, Officer Difiore testified that he responded to a
call about a bank robbery at the F&M Bank. Upon his arrival at the scene, he saw the
Defendant running away from the bank, through a field, while removing his coat.
Believing him to be involved in the robbery, Officer Difiore pursued the Defendant,
ultimately catching him a short time later. He then immediately returned to the bank with
the Defendant, where the bank tellers identified him. Photographs taken of the Defendant
by the bank’s security cameras confirmed the Defendant’s identity. Considering the
factors enumerated in Biggers, we conclude that the trial court did not err when it denied
the Defendant’s motion to suppress testimony about the witnesses’ identification of him
and when it admitted this testimony at trial. The Defendant is not entitled to relief on this
issue.
b. Photographs Taken During Robbery
The Defendant also asserts that the trial court erred when it admitted photographs
taken of him by the bank’s security cameras during the robbery. He says on appeal that
they were “cumulative and unnecessary” and that any probative value of the photographs
was outweighed by their prejudicial effect. He also complains that an aerial photograph
of the crime scene should not have been admitted because it was taken two years after the
commission of the robbery and because it violated hearsay rules.
The admission of photographs is generally discretionary with the trial court and,
absent an abuse of that discretion, will not result in the grant of a new trial. State v.
Jordan, 325 S.W.1, 84 (Tenn. 2010) (citing State v. Banks, 564 S.W.2d 947, 949
(Tenn.1978)). However, a photograph must be relevant to an issue that the jury must
decide before it may be admitted into evidence. Id. (citing State v. Vann, 976 S.W.2d 93,
102 (Tenn. 1998); State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993); and
Tenn. R. Evid. 401, 402). Evidence that is not relevant to prove some part of the
prosecution’s case should not be admitted solely to inflame the jury and prejudice the
defendant. Id. Additionally, the probative value of the photograph must outweigh any
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unfair prejudicial effect that it may have upon the trier of fact. Id.; see also Tenn. R.
Evid. 403 (“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice[.]”).
In this case, the trial court properly admitted each of the photographs. The first
series of photographs, about which the Defendant complains, were photographs of him
taken by the bank security camera during the robbery. The Defendant argues that the
photographs were cumulative. We conclude, however, they were relevant to contradict
the Defendant’s contention that he was simply at the bank to accompany Vasquez cashing
a check and that he was not aware that Vasquez was going to rob the bank. At trial, he
claimed that he never had his back to Vasquez, that he pled with Vasquez to stop, and that
he left the bank when Vasquez did not acquiesce to his pleas. The photographs depicted
the Defendant’s calm demeanor during the robbery and also showed his back turned
toward Vasquez while he was pointing toward one of the tellers. It further showed him
leaving the bank with Vasquez and Anderson. The other photographs, in which the
Defendant was not depicted, aided the witnesses in telling and explaining the story of the
bank robbery. After our review of these photographs, we conclude that they were not
cumulative, and that each had independent evidentiary value.
We further conclude the trial court did not err when it admitted two aerial
photographs of the crime scene. We first note that the Defendant failed to preserve his
appeal of this issue by failing to include it in his motion for new trial. See Tenn. R. App.
P. 3(e). Further, these photographs, while taken two years after the crime, aided the
officer’s testimony regarding where the Defendant ran, where the officer chased him, and
where he eventually apprehended the Defendant. The photographs were not prejudicial,
do not contain hearsay as the Defendant contends, and the trial court properly admitted
the photographs. The Defendant is not entitled to relief on this issue.
3. Expert Witness
Finally, the Defendant contends that the trial court erred when it allowed an expert
witness to testify without the State first establishing a sufficient foundation. He asserts
that the expert who testified about the translation of the transcript of the Defendant’s
confession from Spanish to English did not “possess the ability to determine whether the
process or system of recording the CD with the interrogation . . . had any deleted or
altered files”; that the expert could not verify that “testing studies as a valuable aid to
assist the jury in determining if her method of training allowed her to answer questions on
testing methodologies of the recording by the state, defendant was not armed at any
time”; and also that “there was no testimony . . . to verify that the expert’s failure to
graduate from college was counterbalanced by her experience in method or process
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analysis to qualify her to answer defense counsel questions in the area of file alteration or
deletion.”
At the Defendant’s trial, Amy Bermudez, a certified court interpreter, testified that
she interpreted the recorded interview and provided a transcription of the interview to the
trial court. Portions of the transcript were then entered into evidence through Sergeant
Averitt’s testimony. The Defendant testified on his own behalf and, several times, said
that the transcript did not accurately reflect what he had told Sergeant Averitt during the
interview. In rebuttal, the State offered Judith Khristy, as an expert in translation. She
testified that she was a certified Spanish interpreter and that she had reviewed the
transcript of the Defendant’s interview and found that it was substantially accurate. The
Defendant objected to Khristy’s qualification as an expert, arguing that she could not
testify accurately about whether there were portions of the DVD missing. He maintains
this argument on appeal.
Questions regarding the qualifications, admissibility, relevancy, and competency
of expert testimony are matters left within the broad discretion of the trial court. See
State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002) (citing McDaniel v. CSX
Transportation, Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997); State v. Ballard, 855 S.W.2d
557, 562 (Tenn. 1993)). On appellate review, the trial court’s ruling shall not be
overturned absent a finding that the trial court abused its discretion in admitting or
excluding the expert testimony. Id. (citing Ballard, 855 S.W.2d at 562). “[A]n appellate
court should find an abuse of discretion when it appears that the trial court applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that
caused an injustice to the party complaining.” Id. (citing State v. Shuck, 953 S.W.2d 662,
669 (Tenn.1997)).
In the case under submission, the Defendant’s objection to expert witness
Khirsty’s testimony is one that he could have addressed on cross-examination. Her
inability to testify about the method used to record the interrogation or whether there were
portions of the interrogation omitted from the transcript of the DVD are not relevant to
the determination of whether she was qualified to testify as an expert that the transcript of
the interrogation provided by Bermudez accurately reflected what was said during the
interrogation. This issue is without merit.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgments.
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_________________________________
ROBERT W. WEDEMEYER, JUDGE
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