State v. Howell

672 S.W.2d 442, 1984 Tenn. Crim. App. LEXIS 2825
CourtCourt of Criminal Appeals of Tennessee
DecidedApril 18, 1984
StatusPublished
Cited by14 cases

This text of 672 S.W.2d 442 (State v. Howell) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Howell, 672 S.W.2d 442, 1984 Tenn. Crim. App. LEXIS 2825 (Tenn. Ct. App. 1984).

Opinion

OPINION

TATUM, Judge.

The defendant, Eunus Howell, was convicted of armed robbery and sentenced to serve a life term in the State penitentiary. The sentence imposed in this case was ordered to be served consecutive to a sentence imposed upon an armed robbery conviction in Monroe County. The defendant presents 5 issues for review. After considering the issues, we affirm the judgment of conviction.

We first address the issue attacking the sufficiency of the evidence. Charles Wilson, the pharmacist and owner of Wilson Drugs in Englewood, Tennessee, testified that at approximately 6:40 P.M. on November 21, 1982, a man, who appeared to be intoxicated, came into the pharmacy and requested to see Mr. Wilson in private because he had a rash on his leg. Mr. Wilson gave the man medication and instructed him to pay for it at the cashier’s counter. At this time, the man produced a pistol and pointed it at an employee, Robin Massingale.

The robber announced that he wanted drugs, not money. Mr. Wilson opened his safe and obtained the drugs stored therein. He placed the drugs in a paper sack and delivered them to the robber. After obtaining the drugs, the robber ordered Mr. Wilson and Ms. Massingale to lie on the floor and left the drug store.

Mr. Wilson positively identified the defendant as the robber. Ms. Massingale testified that the defendant “looked like” [444]*444the robber but she could not make a positive identification.

On November 27, 1982, the defendant was apprehended in the act of robbing the Wil-Sav Drug Store in Sweetwater, Tennessee. The modus operandi used in the Sweetwater robbery was identical to that used in the Englewood robbery. When apprehended in Sweetwater, the defendant had a bottle of drugs which was identified by markings as belonging to Wilson Drugs in Englewood. The pistol used in the Sweetwater robbery looked the same as that used in the Englewood robbery.

The defendant testified that he was “on escape” from the penitentiary at the time the instant robbery was committed. He testified that he was in Talladega, Alabama from November 18, 1982, until November 24, or November 25, 1982. He stated that he had bought the bottle of drugs from Charles Wilson’s son, Ricky Wilson, who was deceased at the time of the trial. The defendant testified that Don Wheeler, Sr. and Dewey Scott Frazier telephoned him in Talladega, Alabama on November 19 and November 24, 1982.

A rebuttal witness testified that the defendant robbed him at a motel in Delano, Tennessee (McMinn County) on November 20, 1982.

The evidence of the defendant’s guilt is overwhelming. It is sufficient upon which a rational trier of fact could be convinced of the defendant’s guilt beyond a reasonable doubt. This issue is overruled. Rule 13(e), T.R.A.P.

In two other issues, the defendant says that the trial judge erred in not conducting an evidentiary hearing to determine the reliability of a photograph lineup. He also says that the photographic lineup tainted the identification of the witness, Charles Wilson, so as to render it inadmissible in evidence.

First, we note that the pretrial motion to suppress is insufficient upon its face to require an evidentiary hearing. The motion alleges no facts; it only states that the lineup “was held in violation of” certain of the defendant’s constitutional rights. Before an evidentiary hearing is required, the “motion to suppress must be sufficiently definite, specific, detailed and non-conjectural, to enable the court to conclude a substantial claim was presented.” State v. Davidson, 606 S.W.2d 293, 297 (Tenn.Crim.App.1980).

Immediately after the Sweetwater robbery on November 27, Mr. Wilson and Ms. Massingale were shown an array of approximately 7 photographs, which included that of the defendant. The defendant was identified as the robber in the instant case through this photographic lineup. Evidence of the identification made from this group of photographs was not offered by the State but was brought out on cross examination of State’s witnesses.

The trial judge refused an evidentiary hearing on the pretrial motion to suppress because he had already conducted a hearing on a similar motion in the prosecution for the Sweetwater robbery. The defendant was represented by counsel at the evi-dentiary hearing to determine whether the photographic lineup was suggestive. After hearing the evidence, the trial judge found that the photographic lineup was not suggestive.

The defendant insists that his constitutional rights were violated because he was not afforded a second hearing on the same issue and with the same evidence concerning the identical photographic identification. Nowhere in the record or in the briefs does the defendant assign any reason why the identification was suggestive.

In support of his contention, the defendant cites State v. Mitchell, 593 S.W.2d 280 (Tenn.1980). In the Mitchell case, the Supreme Court was dealing with lineups which were conducted after the defendant’s arrest without his lawyer being present. That case has no application to the instant case since a photographic lineup was conducted in this case during the investigatory stage, before the defendant’s arrest.

In the recent case of Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 [445]*445L.Ed.2d 549 (1981), the United States Supreme Court had before it the question of whether a jury-out hearing is constitutionally required when suggestive identification procedures are alleged. In its negative response to this question, the court observed:

“Where identification evidence is at issue, however, no such special considerations justify a departure from the presumption that juries will follow instructions. It is the reliability of identification evidence that primarily determines its admissibility, Manson v. Brathwaite, 432 U.S. 98, 113-114, 97 S.Ct. 2243, 2252; 53 L.Ed.2d 140; United States ex rel. Kirby v. Sturges, 510 F.2d 397, 402-404 (CA7 1975) (Stevens, J.). And the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform. Indeed, as the cases before us demonstrate, the only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence. Thus the Court’s opinion in Manson v. Brathwaite approvingly quoted Judge Leventhal’s statement that,
‘ “(w)hile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart — the ‘integrity’ —of the adversary process.
‘ “Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification — including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.” ’ 432 U.S., at 114, n. 14, 97 S.Ct., at 2253, n. 14, quoting Clemons v.

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Bluebook (online)
672 S.W.2d 442, 1984 Tenn. Crim. App. LEXIS 2825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-howell-tenncrimapp-1984.