State v. Strickland

885 S.W.2d 85, 1993 Tenn. Crim. App. LEXIS 620
CourtCourt of Criminal Appeals of Tennessee
DecidedSeptember 9, 1993
StatusPublished
Cited by352 cases

This text of 885 S.W.2d 85 (State v. Strickland) 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. Strickland, 885 S.W.2d 85, 1993 Tenn. Crim. App. LEXIS 620 (Tenn. Ct. App. 1993).

Opinion

[87]*87OPINION

SUMMERS, Judge.

The appellant, Herbert Lee Strickland, was convicted of two counts of aggravated robbery. The trial court sentenced him as a Range I, standard offender to ten years on each conviction with the sentences running concurrently. Appellant subsequently filed a motion for new trial which was denied by the trial court. He now appeals, contesting the sufficiency of the evidence and the length of his sentences.

On July 15, 1991, Barbara Robinson and Wade Kirk were standing at a bus stop in Chattanooga, Tennessee, when a man wearing an overcoat approached them from across the street. He was carrying a sawed-off shotgun and as he neared the victims he told them to “up it.” The man then pointed his gun at the victims and demanded their valuables. He took Ms. Robinson’s pocketbook containing her billfold, rings, necklace and $410.00. He also took Mr. Kirk’s watch and wallet. After receiving these valuables, the robber turned around and began running.

Lieutenant Ronald David Lee of the Chattanooga Police Department soon arrived at the scene. The victims gave Lt. Lee a description of the assailant. They described him as being a black male, twenty to twenty-one years old, five-foot five to five-foot six inches tall, weighing 140 to 145 pounds, black hair, short on the sides but with a high flattop on the top, wearing beige cutoff shorts, white T-shirt and a mid-thigh length light colored coat. Additionally, Lt. Lee remembered that Ms. Robinson described the robber as having “a dark tooth or a tooth with a cap or something.”

On July 22,1991, Detective James Jackson of the Chattanooga Police Department conducted a lineup. The lineup contained six individuals including the appellant. Mr. Kirk could not identify anyone from the lineup; however, Ms. Robinson identified the appellant. Again, at trial, Ms. Robinson identified the appellant as the robber.

In appellant’s first issue, he argues that the evidence was insufficient to support a finding of guilt for the offenses of aggravated robbery.

In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury verdict approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405 (Tenn.1983). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn.1978). Moreover, a guilty verdict removes the presumption of innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474 (Tenn.1973). The appellant has the burden of overcoming this presumption of guilt. Id,

Where sufficiency of the evidence is challenged, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Duncan, 698 S.W.2d 63 (Tenn.1985); T.R.A.P. 13(e). The weight and credibility of the witnesses’ testimony are matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn.1984); Byrge v. State, 575 S.W.2d 292 (Tenn.Crim.App.1978).

Appellant contends that the evidence presented at trial was insufficient to demonstrate that he was the perpetrator of the robberies. He argues that Barbara Robinson’s identification of him, standing alone, is not enough. We disagree. It is well-established that the identification of a defendant as the person who committed the offense for which he is on trial is a question of fact for the determination of the jury upon consideration of all competent proof. State v. Crawford, 635 S.W.2d 704, 705 (Tenn.Crim.App.1982). As this Court held in State v. Williams, 623 S.W.2d 118, 120 (Tenn.Crim.App.1981), the testimony of a victim, by itself, is sufficient to support a conviction. In this case, Barbara Robinson identified appel[88]*88lant as the perpetrator of the crimes. Such testimony is sufficient to support appellant’s convictions.

As a sub-issue, appellant asserts that Ms. Robinson’s in-court identification was tainted by an impermissibly suggestive and improper lineup procedure. He argues that the convicting evidence is therefore insufficient because Ms. Robinson provided the only identification of him as the perpetrator of the robberies.

Appellant concedes that he filed no motion to suppress the in-court identification by the witness. Appellant’s failure to raise this issue pretrial constitutes a waiver of his right to now attack the lineup procedure on appeal. Rule 12(b)(3) of the Tennessee Rules of Criminal Procedure provide that a motion to suppress must be raised prior to trial and that failure to do so constitutes waiver of those issues. State v. Burtis, 664 S.W.2d 305, 310 (Tenn.Crim.App.1983); State v. McCray, 614 S.W.2d 90, 94 (Tenn.Crim.App.1981).

Notwithstanding waiver, we elect to address this issue on the merits.

Due process is violated if an identification procedure was so suggestive as to give rise to “a very substantial likelihood of irreparable misidentifieation.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). In determining whether the pretrial identification procedure was unreasonably suggestive, we apply the test described by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Neil, the Court set out five factors to be considered in determining whether an identification is reliable enough to withstand a due process attack despite the suggestiveness in the procedure employed. These factors are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the time between the crime and the confrontation.

The degree of reliability of the identification, as indicated by these factors, should be assessed in light of the suggestiveness of the identification procedure and the totality of the circumstances to determine whether a violation of due process has occurred. Sloan v. State, 584 S.W.2d 461, 466 (Tenn.Crim.App.1978).

The evidence suggests that Ms. Robinson had ample opportunity to observe the assailant during the commission of the offenses.

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Cite This Page — Counsel Stack

Bluebook (online)
885 S.W.2d 85, 1993 Tenn. Crim. App. LEXIS 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-strickland-tenncrimapp-1993.