State of Tennessee v. Michael Harris and Eddie Harris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 1, 2011

STATE OF TENNESSEE v. MICHAEL HARRIS AND EDDIE HARRIS

Direct Appeal from the Criminal Court for Shelby County

No. 09-01012 W. Mark Ward, Judge

No. W2010-00693-CCA-R3-CD - Filed July 18, 2011

A Shelby County Criminal Court jury convicted the appellants, Michael Harris and Eddie

Harris, of aggravated robbery, and the trial court sentenced them to nine years in

confinement. On appeal, they contend that the evidence is insufficient to support their

convictions. Based upon the record and the parties’ briefs, we affirm the judgments of the

trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are

Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J ERRY L. S MITH, and

A LAN E. G LENN, JJ., joined.

Edwin C. Lenow (at trial and on appeal), Memphis, Tennessee, for the appellant, Michael

Harris, and Tony N. Brayton (on appeal) and Michael Johnson (at trial), Memphis,

Tennessee, for the appellant, Eddie Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Greg Gilbert and Neal Oldham,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

At trial, fifty-year-old Louis Alexander, the victim, testified that about 1:30 p.m. on

July 28, 2008, he went to the Ace Cash Express at the corner of Kimball Avenue and Getwell

Road in Memphis. The victim had over four hundred dollars with him and went to the store

to make a credit card payment. When he got inside, he saw that a lot of people were waiting

in line, so he decided to go to one of the store’s other locations. He walked out the front door

and toward his truck, which was parked in front of the business. He noticed two men behind

him. The men walked passed him, and the victim became suspicious. He said that he tried

to get to his truck, that one of the men pointed a gun at him, and that he heard, “Give me the

money.” The victim said he was “[a] little scared.” He thought the men wanted his truck and

threw his keys onto the ground. While one man pointed the gun at the victim, the second

man put his hand into the victim’s left pants pocket. The victim said that “I did struggle with

him a little bit” but that the man took over four hundred dollars, a lottery ticket, and his

driver’s license out of his pocket. The men ran north on Getwell Road toward Philsdale

Avenue. In court, the victim identified Eddie Harris as the man with the gun and Michael

Harris as the man who reached into his pocket.

The victim testified that someone telephoned the police. When a police officer

arrived, the victim gave the officer a description of the robbers. He said that both of the men

were wearing white shirts, black pants, and white baseball caps. Later that day, the victim

went to the police department, spoke with a detective, and signed a form titled “Memphis

Police Department Advice to Witness Viewing Photographic Display.” He said that he did

not remember if he read the form or if someone read it to him and that he signed the form.

In the first six-photograph array, the victim picked out Eddie Harris’ photograph and

identified him as the gunman. In a second six-photograph array, the victim circled the first

photograph and identified the man as the man who reached into his pocket. However, the

detective told the victim that the victim was wrong and showed the victim a third six-

photograph array. In the third array, the victim picked out Michael Harris’ photograph and

identified him as the man who reached into his pocket. He also identified the appellants at

the preliminary hearing. He said he identified them at the hearing from his memory of the

robbery, not the arrays. He said that the gun looked like a .380 caliber handgun and that it

was black with a silver barrel.

On cross-examination, the victim testified that he did not talk with the prosecutor

before trial “except for just conversations on the phone telling me when to be in court.” He

acknowledged that he testified at the appellants’ preliminary hearing. He said he did not

remember saying at the hearing that the detective showed him four nine-photograph arrays.

He said that the detective showed him three six-photograph arrays and that he probably was

mistaken at the hearing. He acknowledged that just before he testified at the preliminary

hearing, he looked again at the arrays containing the appellants’ photographs. The victim

said that he thought both of the robbers had goatees but that he did not remember if he told

the police the robbers had facial hair. He acknowledged that he gave a statement to police

and that he did not mention facial hair in his statement. He also acknowledged that none of

the photographs in the three arrays showed men with goatees. He said that the robbery took

no more than three minutes and that the robber who reached into his pocket “definitely had

-2-

a goatee.” He acknowledged that in his statement to police, he said the robbers were wearing

shorts, not pants. He said that although the detective told him that his selection in the second

array was incorrect, the detective did not influence him to identify Michael Harris in the third

array. He said he thought he had identified the right man from the second array “[u]ntil I

looked at [the third array] and I knew I was wrong.” He said that he had never seen the

robbers prior to July 28, 2008, and that his money, lottery ticket, and driver’s license were

never returned to him. He said that during the robbery, he was looking at the gun and the

man reaching into his pocket.

On redirect examination, the appellant again identified Eddie Harris in court as the

man with the gun and Michael Harris as the man who reached into his pocket. The State

asked that the trial court allow each appellant to walk toward the victim and that the victim

show the jury how close each appellant got to him on the day of the robbery. The trial court

allowed the demonstration. Eddie Harris walked toward the victim first, and the victim

stopped him when the appellant got eight to ten feet away from the victim. The State asked

the victim how sure he was that Eddie Harris was one of the robbers, and the victim said,

“That’s the person.” Then Michael Harris walked toward the victim, and the victim stopped

him when the appellant got one to two feet away from the victim. The State asked the victim

how sure he was that Michael Harris was one of the robbers, and the victim said, “That’s the

person.”

Officer K. A. Woods of the Memphis Police Department testified that on July 28,

2008, he responded to a call at the Ace Cash Express. He arrived at the scene about 2:00

p.m. and spoke with the victim. The victim described the robbers, and Officer Woods

broadcast information about the robbery over the police radio. About 2:45 p.m., he heard the

appellants were in custody.

On cross-examination, Officer Woods testified that he did not remember the victim’s

saying the robbers had goatees. He said that he took notes at the scene but that he no longer

had them because he threw his notepad away. On redirect examination, Officer Woods

testified that after he entered the information from his notes into the computer for the

detectives at the robbery bureau, he did not think he needed to keep his notes.

Michael Powell testified that he was a retired criminal investigator for the Tennessee

Bureau of Investigation, lived on Philsdale Avenue, and could see Getwell Road from his

house. About 1:00 or 1:30 p.m. on July 28, 2008, Powell was outside washing his truck and

noticed a dark blue Saturn parked in front of his house. He said that he had never seen the

car before and that the “hood was up for a minute and then it was back down again.” Powell

began watching the car and saw an African-American male sitting in the driver’s seat. Powell

said that a few minutes later, he “heard these guys running past me to get in it real quiet.”

-3-

The males got into the car, and the car drove away. He said that he did not see the males’

faces but that they were African-American and were wearing shirts and baggy shorts. Powell

was suspicious and wrote down the car’s license tag number. Later, he heard police sirens

on Getwell Road. He flagged down a police officer and gave him the Saturn’s license tag

number, “284 SXB.”

On cross-examination, Powell testified that the Saturn was a two-door hatchback. He

did not see anything in the males’ hands and did not see a gun. He acknowledged that he told

the police the males appeared to be in their mid-teens, fifteen to sixteen years old.

Officer Tim Henderson of the Memphis Police Department testified that he responded

to the scene of the robbery. Officer Woods was already present, so Officer Henderson began

patrolling the area, looking for the suspects. He was in a neighborhood one block north of

the robbery when a man flagged him down and gave him a card with a car’s license tag

number written on it. The man also described the car to Officer Henderson. The tag number

and the car description were broadcast over the police radio.

Officer Timothy Brown of the Memphis Police Department testified that about 2:15

p.m. on July 28, 2008, he stopped a blue Saturn that matched the description announced over

the radio. Three African-American males were in the car; the two passengers were the

appellants. Officer Henderson saw a handgun on the front passenger floorboard and arrested

the three males. On cross-examination, Officer Brown identified a photograph of the Saturn.

He acknowledged that the car had four doors and was not a hatchback.

Investigator Marlon Wright of the Memphis Police Department testified that on July

28, 2008, he went to the Exxon gas station at the corner of Elvis Presley Boulevard and

Shelby Drive. He talked with Officer Brown and photographed a blue Saturn Officer Brown

had stopped. He identified a photograph of the Saturn, showing that its license tag number

was “284 SXB.” He also collected a gun from the front passenger floorboard. He said that

the gun was loaded with one live round in the chamber and three .380 caliber bullets in the

magazine. He had the gun chemically processed for fingerprints but was never notified that

identifiable prints were found. On cross-examination, Investigator Wright testified that he

collected the evidence in this case and that no money, driver’s license, or lottery ticket were

turned over to him.

Detective Gary Badgett of the Memphis Police Department testified that on July 28,

2008, he worked for the robbery bureau and took the victim’s formal written statement.

Detective Badgett was aware that three suspects had been arrested but that the victim had

reported only two robbers. Detective Badgett put together three six-photograph arrays and

had the victim read and sign a Memphis Police Department Advice to Witness Viewing

-4-

Photographic Display form. Detective Badgett showed the victim the first array, and the

victim identified Eddie Harris’ photograph. Detective Badgett said he told the victim to

“write down what exactly this particular suspect did during the incident.” On the bottom of

the array, the victim wrote that Eddie Harris was the gunman. Detective Badgett then

showed the second array to the victim. He said that the victim “circled this individual and

he wasn’t exactly sure.” Detective Badgett said that because the victim was not positive

about the identification, he told the victim, “[D]on’t write anything unless you’re sure that

this is the suspect in the crime.” The victim did not write anything on the bottom of the

array.

On cross-examination, Detective Badgett testified that he did not remember being at

the appellants’ preliminary hearing or showing the victim the photograph arrays before the

victim testified at the hearing. He said, “Normally, we don’t do that during a preliminary

hearing.” He acknowledged that he was trained on showing photograph arrays to victims and

that the victim circled and initialed the first photograph in the second array. However, he

said the victim did not make a “complete identification” because the victim did not write

anything on the array about what the suspect did during the robbery. He denied telling the

victim after the victim circled and initialed the photograph in the second array that the victim

was wrong. He said that he showed the victim the third array and that the victim made a

complete identification of the second suspect, Michael Harris.

Kevin Dandridge testified that he owned a blue Saturn. On July 28, 2008, he picked

up the Harris brothers, who were his friends. He said they “didn’t have no plans, really, just,

you know, kicking.” Dandridge drove around for awhile, and the appellants told him they

were going to a store. Dandridge parked his car on a residential street, the appellants got out,

and the appellants walked toward Getwell Road. Dandridge said the store was on Getwell

Road but that he did not know where. He said he did not know why he did not park his car

at the store. Dandridge sat in his car and waited on the appellants, and he could not see the

store from where he was parked. He said that the appellants were gone about five minutes,

that they were counting money when they returned, and that Michael Harris was holding a

gun. He said the appellants told him that they “hit a lick,” meaning they committed a

robbery. Dandridge said he did not know the appellants were going to commit a robbery

when he parked on the street.

Dandridge testified that Michael Harris sat in the front passenger seat and put the gun

on the floorboard. Eddie Harris got into the backseat. Dandridge drove around for about

twenty minutes until a police officer pulled him over. The officer arrested him and the

appellants, and Dandridge gave a statement to the police. He said that from the time he drove

away from Getwell Road until the police officer pulled him over, the appellants did not get

out of the car and he did not stop anywhere.

-5-

On cross-examination, Dandridge testified that he picked up the appellants from their

mother’s house. He acknowledged that in his statement to the police, he said he picked them

up from their father’s house. He said he was mistaken in his statement. He said that while

he was parked and waiting for the appellants to return, he never got out of the car and never

put the hood up. He said he did not remember anyone throwing anything out of the car

window.

Judge Lee Wilson testified for Eddie Harris that he was a judge in the general sessions

criminal court. Prior to being a judge, he was a criminal defense lawyer and represented

Michael Harris at the preliminary hearing in this case. He said that at the hearing, Michael

Harris was identified as the gunman. On cross-examination, Judge Wilson acknowledged

that the appellants were identified by numbers, not names, at the hearing. On redirect

examination, Judge Wilson testified that he was sure Michael Harris was identified as the

gunman. The jury convicted the appellants of aggravated robbery, a Class B felony. After

separate sentencing hearings, the trial court sentenced them to nine years.

II. Analysis

The appellants contend that the evidence is insufficient to support their convictions.

Specifically, Michael Harris argues that the victim’s identification of the appellants is suspect

because the victim never told the police that the robbers had facial hair, misidentified one of

the robbers in the second photograph array, and was allowed to look at the arrays just before

the victim testified at the preliminary hearing. He also argues that Detective Badgett’s telling

the victim that the victim was incorrect when the victim identified a suspect from the second

array resulted in a “suggestive procedure.” Similarly, Eddie Harris argues that the evidence

is insufficient to support his conviction because eyewitness identification is inherently

untrustworthy, Officer Badgett told the victim that he had misidentified one of the robbers,

and Officer Badgett showed the photograph arrays to the victim before the victim testified

at the preliminary hearing. The State argues that the evidence is sufficient. We agree with

the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard

for review by 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 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see

also Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the

evidence and all reasonable or legitimate inferences which may be drawn therefrom. See

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility

of witnesses and the weight and value to be afforded the evidence, as well as all factual

issues raised by the evidence, are resolved by the trier of fact. See State v. Bland, 958

-6-

S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor

will this court substitute its inferences drawn from the circumstantial evidence for those

inferences drawn by the jury. See id. Because a jury conviction removes the presumption

of innocence with which a defendant is initially cloaked at trial and replaces it on appeal with

one of guilt, a convicted defendant has the burden of demonstrating to this court that the

evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

As charged in the indictment, aggravated robbery is defined as robbery

“[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.” See Tenn. Code Ann. §

39-13-402(a)(1). Robbery is defined as “the intentional or knowing theft of property from

the person of another by violence or putting the person in fear.” Tenn. Code Ann. §

39-13-401(a). The trial court instructed the jury on criminal responsibility. A defendant is

criminally responsible for an offense committed by another if, “[a]cting with intent to

promote or assist the commission of the offense, or to benefit in the proceeds or results of

the offense, the [defendant] solicits, directs, aids, or attempts to aid another person to commit

the offense.” Tenn. Code Ann. § 39-11-402(2).

Initially, we note that to the extent the appellants are arguing that the victim’s

identification of them was unduly suggestive, and, therefore, inherently unreliable as

explained in Neil v. Biggers, 409 U.S. 188, 198-99 (1972), the State argues that this issue has

been waived because the appellants failed to file a motion to suppress the victim’s in-court

and out-of-court identifications. See Tenn. R. Crim. P. 12(b)(2). Our review of the record

shows that the appellants filed a pretrial motion to suppress the victim’s identifications on

the basis that the victim “was shown the individual pictures of the Defendants by a detective

prior to the testimony at the preliminary hearing.” However, the disposition of the motion

or a transcript of any suppression hearing is not in the appellate record. Therefore, we agree

with the State that the issue has been waived. See Tenn. R. App. P. 36(a), (b).

Taken in the light most favorable to the State, the evidence shows that on the

afternoon of July 28, 2008, Kevin Dandridge and the appellants parked in front of Michael

Powell’s house on Philsdale Avenue. While Dandridge waited in the car, the appellants

walked to the nearby Ace Cash Express on Getwell Road. They went into the store, followed

the victim outside, and stopped the victim at his truck. While Eddie Harris pointed a gun at

the victim, Michael Harris put his hand into the victim’s pants pocket and took the victim’s

money, lottery ticket, and driver’s license. Then the appellants ran back to Philsdale Avenue

and got into Dandridge’s car. Dandridge said that the appellants were counting money, that

Michael Harris had a gun, and that Harris put the gun on the front floorboard. Powell

recorded Dandridge’s license tag number and gave it to Officer Henderson. Shortly

thereafter, Officer Brown stopped Dandridge’s car, arrested the appellants, and found the gun

-7-

on the floorboard. The jury, not this court, determines the credibility of the witnesses and

the weight and value to be given their testimony. The jury heard and assessed the victim’s

testimony and determined that his identifications of the appellants were credible and reliable.

In any event, the jury could reasonably conclude from Dandridge’s testimony that the

appellants robbed the victim. The evidence is sufficient to support the convictions.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgments of the trial

court.

_________________________________

NORMA McGEE OGLE, JUDGE

-8-