State v. Bradley

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1997 SESSION
October 10, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9609-CR-00349
)
Appellee ) McMINN CRIMINAL
)
v. ) HON. R. STEVEN BEBB,
) JUDGE
TRELVOR BRADLEY, )
)
Defendant/Appellant )
FOR THE APPELLANT FOR THE APPELLEE
Vance L. Baker, Jr. Charles W. Burson
114 Washington Ave. Attorney General & Reporter
P.O. Box 1085
Athens, TN 37371-1085 Marvin E. Clements, Jr.
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
OPINION FILED
AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
OPINION
The defendant was convicted by jury of attempted aggravated robbery and
vandalism of less than $500. He was sentenced as a Range I, standard offender to
six (6) years for the attempted aggravated robbery conviction to the custody of the
Department of Correction. He was also sentenced to eleven (11) months and
twenty-nine (29) days for the vandalism of less than $500 conviction to the custody
of the McMinn County jail. The trial court ordered the defendant to serve both
sentences concurrent with each other, but consecutive to a prior unserved sentence.
The jury also imposed fines in the amount of $5,000 for the attempted aggravated
robbery conviction and $1,500 for the vandalism of less than $500 conviction.
The defendant appeals these convictions, arguing (1) that the trial court erred
in overruling his objection to Detective Matthews’ testimony that the defendant’s
photograph was selected by the victim from a collection of photographs of black
males who had been arrested and thus the trial court erred in failing to grant a
mistrial, and (2) that the evidence is insufficient to sustain convictions of guilt beyond
a reasonable doubt.
We affirm the judgments of the trial court.
The evidence presented by the State at trial consisted of the testimony of
Detective Bill Matthews, who investigated the offenses in this case, and Ronnie
Miller, who was the victim of the attempted robbery and vandalism.
Detective Matthews testified that he became involved in this case by
interviewing the victim shortly after the attack on August 4, 1995. Detective
Matthews had met the victim previously in connection with the 10th Judicial Drug
Task Force for which the victim served as an undercover informant. Detective
Matthews testified that the victim told him that four black males attempted to rob him
at Clem Jones Apartments and that one of the black males, but not the defendant,
hit him with a bean stick while the others kicked and punched him. Detective
Matthews observed that the victim had been hit on the side of his face and on the
bridge of his nose and that the victim’s hand and forearm were swollen.
-2-
Detective Matthews testified that the victim was not able to identify anyone on
the day of the attack but that the victim gave him descriptions of the four black
males. Detective Matthews testified that he collected a group of photographs of
approximately two hundred (200) black males and that the victim returned to the
police station a few days after the attack to view the photographs. The victim picked
two pictures from the group, positively identifying the individuals, one being the
defendant, as two of the four black males who attacked him.
While testifying about the procedure used to have the victim identify the
perpetrators, Detective Matthews stated that the photographs “ha[d] been collected
at the police department through the years of different individuals that have been
arrested or whatever, and a tray of pictures also of, we call them ‘mug pictures.’”
Defense counsel objected to Detective Matthews’ “statement that they were pictures
of individuals who had been arrested,” but the trial judge overruled the objection.
The defendant says the trial court erred in overruling his objection to Detective
Matthews’ testimony that the defendant’s photograph was selected by the victim
from a collection of photographs of black males who had been arrested and the trial
court erred in failing to grant a mistrial by reason of the statement being made
before the jury.
At the time defense counsel objected to Detective Matthews’ testimony, he
did not move to have the testimony stricken, nor did he request a curative
instruction, nor did he move for a mistrial. 1 A motion for mistrial must be made
contemporaneously with the objectionable testimony and failure to do so results in a
waiver of the issue on appeal. State v. Leach, 684 S.W.2d 655, 658 (Tenn. Crim.
App. 1984), per. app. denied (Tenn. 1985).
Even if the trial judge erred in failing to grant a mistrial because of Detective
Matthews’ testimony, we would hold that the error was harmless. The general rule
is that a mistrial should be declared if there is manifest necessity warranting such
action by the trial judge. Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App.
1
There is no evidence in the record that defense counsel ever made a
Motion for a Mistrial, despite the allegation in the brief that defense counsel moved
for a mistrial when he objected to Detective Matthews’ testimony.
-3-
1977). In this case, Detective Matthews’ statement was the only reference to prior
arrests, and it did not specifically refer to a prior arrest of the defendant.
Furthermore, it does not appear from the record that the State surreptitiously elicited
testimony about a prior arrest of the defendant. Accordingly, Detective Matthews’
testimony that the photographs were of black males who had been arrested did not
amount to “manifest necessity,” and the trial judge did not err in failing to grant a
mistrial.
The victim testified that he was attacked by four black males at Clem Jones
Apartments around three o’clock in the afternoon on August 4, 1995 while he was
on personal business in the area. He identified the defendant as one of the
perpetrators. The victim testified that he had worked as an undercover informant
buying crack cocaine from people in and around the vicinity of the Clem Jones
Apartments. While working in this capacity, the victim testified that he had seen the
defendant in the area before, but he had never bought drugs from the defendant.
The victim testified that he saw the defendant at Clem Jones Apartments on
the day of the attack. The victim explained that he was getting back in his car when
he was approached by four black males. He described how one of the perpetrators,
not the defendant, hit him on the right side of his head with a bean stick, knocking
him to the ground. The victim testified that while he was on the ground and trying to
get up, three of the perpetrators, including the defendant, punched him with their
fists, kicked him in the chest and stomach, and tried to reach in his pocket to get his
wallet. The victim stated that he finally got to his car and drove away, but not before
one of the perpetrators kicked a dent in his car, causing $500 worth of damages.
The victim identified, both at the police station and at trial, the defendant as
one of the perpetrators of the attempted robbery and vandalism. On cross-
examination, the victim testified that the defendant was wearing a black Oakland
Raiders hat at the time of the attack. The victim was never able to identify the black
male who hit him with the bean stick.
The defendant presented an alibi defense to the jury. The defendant’s proof
at trial consisted of the testimony of Officer Steve Moore, Mae Hammons, who is his
-4-
mother, Paul Bradley, who is his brother, and Jackie McCusick, who is his girlfriend.
Officer Moore testified that he responded to the call concerning the attack on August
4, 1995 and that he saw several black males running away from the scene when he
arrived. Officer Moore testified that he could not identify any of these individuals
and that he did not specifically see the defendant. Mae Hammons testified that the
defendant, his brother, and his girlfriend went fishing on August 5, 1995. Both Paul
Bradley and Jackie McCusick testified that they went fishing with the defendant on
this date. Both Mae Hammons and Paul Bradley testified that the defendant was
not wearing a hat on this date and that the defendant does not like to wear hats
because they bother him.
The defendant challenges the sufficiency of the evidence to support the
convictions for attempted aggravated robbery and vandalism of less than $500.
When the sufficiency of the evidence is challenged, the standard of review is
whether, after considering the evidence in the light most favorable to the State, any
rational trier of fact could find the accused guilty of the crime beyond a reasonable
doubt. State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985), cert. denied, 475 U.S.
1031 (1986).
Furthermore, “a jury verdict approved by the trial judge accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the
State’s theory.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983), cert. denied,
465 U.S. 1073 (1984); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On
appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978).
A finding of guilt against the defendant removes the presumption of
innocence and raises a presumption of guilt on appeal. Grace, 493 S.W.2d at 476.
It is the defendant who must overcome this presumption of guilt and carry the
burden of demonstrating that the evidence is insufficient. Williams, 657 S.W.2d at
410.
The evidence in this case is sufficient to support the verdict of the jury.
-5-
John K. Byers, Senior Judge
CONCUR:
David H. Welles, Judge
Thomas T. Woodall, Judge
-6-