State of Tennessee v. Michael D. Sweat

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 28, 2009 Session

STATE OF TENNESSEE v. MICHAEL D. SWEAT

Appeal from the Criminal Court for Knox County

No. 81531 Kenneth F. Irvine, Judge

No. E2008-00423-CCA-R3-CD - Filed January 15, 2010

The Defendant, Michael D. Sweat, was convicted by a jury in the Knox County Criminal

Court of aggravated robbery, a Class B felony, and was sentenced by the trial court as a

Range II, multiple offender to seventeen years in the Department of Correction. The

Defendant appeals, contending (1) that the evidence is insufficient to support his conviction,

(2) that he was denied his constitutional right to a fair trial when the State suborned perjury,

(3) that the State impermissibly shifted the burden of proof to the Defendant when it

questioned why additional alibi witnesses were not called, (4) that the trial court erred when

it allowed the admission into evidence of his prior convictions, (5) that the trial court erred

when it failed to allow the Defendant to poll the jury, and (6) that he was denied a fair trial

because the verdict was based on juror misconduct. We affirm the judgment of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which N ORMA M CG EE O GLE

and D. K ELLY T HOMAS, J R., JJ., joined.

Mike Whalen, Knoxville, Tennessee, for the appellant, Michael D. Sweat.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; Randall E. Nichols, District Attorney General; and Philip H. Morton,

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

OPINION

BACKGROUND

This case arises from a December 11, 2004, aggravated robbery that took place in a

Kroger parking lot. Due to the court reporter’s equipment failure, the direct examination and

part of the cross-examination of the first witness, Robert Mackey, were not recorded and are

not part of the record. The remaining portion of Mr. Mackey’s testimony indicates he was

parked in the Kroger parking lot on the night of the robbery. He observed a man in a

Cadillac pull up behind the victim’s car, remain for several minutes, and then pull away. On

cross-examination, Mr. Mackey was presented with five of the six photographs from the

photograph lineup used to identify the Defendant. He said that none of the photographs

were of the person who robbed the victim. He said that the perpetrator had a full, gray beard.

On redirect examination, he said that he came to court on March 26, 2007, and recalled

seeing the Defendant that day. He said that the Defendant looked the same on March 26 as

he did on the day of the trial. He said there was no doubt in his mind that the Defendant was

the person driving the car the night the victim was robbed. On recross-examination, he said

he would not agree that the Defendant was clean-shaven on March 26 but that the Defendant

had been cleaner cut.

Valerie Duncan testified that she was fifty-two years old and had been employed by

Home Federal Bank for nineteen years. She said her duties at the bank included dealing with

large commercial depositors, cash management customers, and electronic banking customers.

She said that she worked with numbers all day long and that she had to remember number

sequences and account numbers. She said she once visited a client whose telephone number

had changed. She said that as she approached the client’s office, she noted a business sign

displaying the new telephone number. She said she told her assistant that she needed to write

down the telephone number when they left the client’s office. She said that after she left her

meeting, she correctly remembered the telephone number without seeing the sign again.

Ms. Duncan testified that on the night of December 11, 2004, she had gone to Kroger

to buy groceries. She said her son worked there, that he had finished work at 10:00 p.m., and

that he had shopped with her for a while before leaving for home. She said she bought her

week’s groceries, put them in the grocery cart, and pushed the cart out to her car. She said

her car was parked close to the front of the parking lot, in the first spot not reserved for

handicapped drivers. She said she drove a 1999 Dodge Grand Caravan with a lift gate. She

said she stood at the back of her car, opened the lift gate, and started to put her groceries in

the car. She said she became aware of a car driving up from Broadway toward the front of

the store. She said the car stopped even with the back of her car. She said she did not think

there was anything unusual about it, and she did not pay it much attention until the car

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stopped directly behind hers. She said that the car was six to eight feet from her and the back

of her car.

Ms. Duncan testified that she did not pay attention to the make or model of the car

until the driver stated, “Give me all your money.” She said that initially she did not turn

around and told him that she did not have any money. She said that she had worked

downtown for nineteen years and her habit when encountering street people was to avoid eye

contact, tell them she did not have any money, and hope that they continued on their way.

She said that she employed the same tactics on that night. She said that the driver stated,

“Give me your wallet or I’ll have to shoot you” and that she turned to look at him.

Ms. Duncan testified that the driver was male and that he had a newspaper over one

hand. She said she immediately thought that he was hiding a gun under the newspaper and

that it was pointed in her direction. She said that the car was an older model Cadillac and

that the driver was unkempt with a bushy beard and wild hair. She said his beard looked as

if it had a reddish tinge. She said his hand was up at chest level as if he were pointing a gun

at her. She said she started digging in her pocketbook for her wallet. She said that because

she had her driver’s license, credit cards, and checkbook in her wallet, she hoped that he

would take only the cash. She said she asked the man, “Did you want the money from my

wallet?”

Ms. Duncan testified there was no question in her mind that the man was serious. She

said she pulled about seven dollars from her wallet and handed it to the man through the

Cadillac’s open window. She said that she got closer to the car but that she never saw a gun.

She said that she got a good look at the man and that he wore a heavy jacket. She said that

the man took the money and started to drive off. She said that he drove to the end of the row

of parked cars, stopped, and then turned left. She said that when he stopped, he stuck his

head out of the window and apologized for robbing her but said that he needed to have

Christmas.

Ms. Duncan testified that the car was a cream or yellow color and that she was able

to note the license tag number. She said that the license tag was a disability tag with a

wheelchair on it and that the number was 23865. She said she remembered the number. She

said that she was able to see the number as soon as the car pulled far enough in front of her

for her to see its back end. She said she was able to look at the number for a period of about

ten seconds. She agreed that she was able to study and remember the number because she

had looked at it when the car had stopped before turning left. She said the car turned left

again onto Highland Drive. She said that as soon as the car left the parking lot, she got a

scrap of paper out of her purse and wrote down the license tag number. She said that only

one person was inside the Cadillac and that it was very cluttered, with items piled in the front

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and back seats. Ms. Duncan identified the scrap of paper on which she had written the

license tag number and confirmed that the number was 23865. She testified that the paper

also listed the name and telephone number of Robert Mackey.

Ms. Duncan testified that after she spoke with Robert Mackey and wrote down his

contact information, she got into her car and telephoned her husband because he was a police

officer. She said she was “rather shaken” at that point. She agreed that her husband came

to the parking lot later that evening. She acknowledged that she called 9-1-1 after she called

her husband. She agreed that the police responded, that they spoke with her, and that they

took information from her at the scene. She identified the Defendant as the person who

robbed her in the Kroger parking lot. Ms. Duncan testified that from the night of the robbery

until the date of the trial, she had seen the Defendant at court several times. She said that the

Defendant had combed his hair and that the last time she had seen him in court on March 26,

2007, the Defendant had been completely clean-shaven. She agreed that she had seen the

Defendant four or five separate times during the course of the proceedings. She

acknowledged that the Defendant’s appearance had changed over time but that the changes

involved only the presence or lack of facial hair. She said that she had never seen the

Defendant before December 11, 2004. She said there was no doubt in her mind that the

Defendant was the person who had robbed her.

Ms. Duncan testified that on the Monday following the robbery, her husband called

her at work and told her he had driven by the address to which the car was registered. She

said her husband drove her to the house at approximately 11:00 a.m. She identified a

photograph as depicting the house on James Drive. She noted that the photograph showed

a vehicle parked next to the house. She identified another photograph that she said showed

the car that the man who robbed her was driving. She said she was positive the car was the

same. She said that the car in the photograph was the car parked beside the Defendant’s

house on the Monday following the robbery.

Ms. Duncan said that on the Tuesday morning following the robbery, Sergeant Tom

Cox of the Knox County Sheriff’s Office and her husband came to her office. She said that

Sgt. Cox presented a photograph lineup to her and that her husband had nothing to do with

presenting the lineup. She said she was able to identify an individual in the photograph

lineup and that she remembered the eyes of the man who had robbed her. She said that she

wrote on the back of the lineup, “On December the 14th, 2004, I identified subject No. 5 as

the man who robbed me on December the 11th, 2004, at Kroger on North Broadway at

Highland Drive.” She said that she signed and dated the lineup at 11:45 a.m. She identified

the photograph lineup and identified her writing on the back of it.

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On cross-examination, Ms. Duncan testified that she drove a red Dodge Grand

Caravan. She said she was putting groceries in the back and had the lift gate up. She agreed

that the car had stopped between six to eight feet from her and that she was standing at the

center back of her van. She acknowledged that she did not see the car pull up but that she

turned around when someone spoke. She said that when she turned, she was facing the

driver’s window. She said that she had made mistakes with numbers and that she had mis-

dialed a telephone number even when it was a number she had memorized. She said that she

was not “the best typist in the world” and that she sometimes typed in incorrect numbers at

work.

Ms. Duncan testified that Officer Cindy DeMarcus was the first officer on the scene

the night of the robbery. She said she was well aware of posts in the parking lot, and she

acknowledged that the posts were painted yellow. She said that she did not pay attention to

the color of the posts that night but that she knew they were painted yellow because she had

shopped at that store since it opened. She said she did not have difficulty seeing the

Defendant in his car. She said that the lights in the parking lot had a sodium or mercury

vapor that created an orange tinge. She said she did not know whether the white patrol cars

would have an orange tint to them because of the lights. She agreed that the light shone no

differently on the police cruisers. She said that she had reviewed the in-cruiser video taken

the night of the robbery. She said she knew Officer Bates of the Knoxville Police

Department (KPD), and she agreed that the video showed Officer Bates’s patrol car pull up

directly in front of Officer DeMarcus’s patrol car. She agreed that the patrol cars appeared

white in the video, not orange-tinted, but she said she also had personal knowledge that

patrol cars were white. The video was not played for the jury. Ms. Duncan was shown a

photograph of the car she had identified as having been parked beside the Defendant’s house.

She testified that the car appeared white in the picture. She said that she was not suggesting

that the car in the photograph was a different color.

Ms. Duncan testified that she had described the car as a really old, early 1970s model

Cadillac. She said the Cadillac was big. She acknowledged that she had described the

Cadillac as yellow and “disreputable looking.” She said that “disreputable looking” meant

that it was piled with junk. She said she never told anyone the Cadillac’s model year was

1989. She said she had trouble remembering the model year of her own car. She agreed that

she thought the car was an early 1970s model and that the driver was a larger man with a full

beard. She agreed that she had described the driver as in his fifties and that he looked as if

he had led a “rough life.”

Ms. Duncan was presented with photographs from the photograph lineup. She

testified that the man in the first photograph looked young, and she agreed that the

photograph did not match the description of a fifty-year-old man with a full beard who

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looked as if he had lived a hard life. She agreed that the man in the second photograph did

not have a beard, but she said he could be in his fifties if he had led a hard life. She

acknowledged that the man in the third photograph did not have a beard and did not look to

be in his fifties. She said that the man in the fourth photograph had a beard. She said she

would not describe the man in the fifth photograph as being in his fifties or looking as if he

had a hard life. The photographs were received into evidence.

Ms. Duncan testified that the man who robbed her told her to give him her money or

he would have to shoot. She said that she did not tell police that the man had his hand in his

lap. She said she could not tell whether the man had a gun because his hand was hidden.

She said the only way for her to have known would have been for her to put her “face in front

of what might possibly have been a gun.”

Ms. Duncan said that the police arrived between five and ten minutes after the robber

left. She agreed that she had stated to Officer DeMarcus that she did not believe the man

really had a gun. When asked whether it was accurate to say that she told police “the whole

thing seemed kind of laughable,” she said that she may have made that statement because the

man who robbed her seemed inept. She said that she would not dispute the video. She said

that she was “shaken” by the robbery. She said that her husband told her to call 9-1-1. She

said that it may not have been a full ten seconds that the Cadillac stopped before turning left

and exiting the parking lot. She said that the conversation between herself and the robber

lasted about a minute. She said that the time from the robbery until the police showed up was

no longer than ten to twenty minutes.

Ms. Duncan testified that the man who robbed her stopped his car and turned around

and apologized. She said that she gave that information to the police but could not recall on

the video where that occurred. She recalled sitting in general sessions court with Detective

A.J. Leoffler, but she did not recall Det. Leoffler pointing out the Defendant. She said that

her husband was sitting in the conference room with her when Sgt. Cox presented her with

the photograph lineup. She said that only she, her husband, and Sgt. Cox were present when

she identified the Defendant from the photograph lineup. She recalled that on the night of

the robbery, Officer DeMarcus told her they had tracked the license tag to an address in

South Knoxville. She remembered that Officer DeMarcus said it was odd that the man

would drive all the way to Fountain City because there was a Kroger in South Knoxville.

She said there was a discussion about whether the address was incorrect or whether the

person to whom the car was registered had moved. She said she believed her husband told

her the address he took her to on Monday following the robbery was the one obtained when

the officers had run the license tag number at the scene. Ms. Duncan said that there was only

one Cadillac in the driveway of the house on James Drive. She said that during the robbery

she observed that there was a lot of junk in the car but that she did not spend a great deal of

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time peering into the car. She did not recall seeing a big, red toolbox in the backseat. When

presented with a photograph of the toolbox, she said that she did not recall seeing it.

On redirect examination, Ms. Duncan testified that the “stuff” or “junk” she saw in

the Cadillac was similar to other items she saw in the photograph of the toolbox. She said

that she did not get out of the car or inspect the Cadillac when her husband took her by the

Defendant’s house. She said that the car in the photograph was the same car at the Kroger

parking lot and that the tag number was burned into her memory. She said the tag number

in the photograph was the same as on the Cadillac she saw the night of the robbery. She said

she was frightened and the experience was traumatic. She said that she did not make a

mistake when she wrote down the license tag number and Mr. Mackey’s name and telephone

number.

On recross-examination, Ms. Duncan testified that she was in a state of shock at the

time of the robbery. She said it was a surreal experience and that it was one she had never

expected to happen. When asked if in her experience her memory was best at times when

she was in shock, she replied that it was. She acknowledged that it would be more difficult

for her to remember the phone number after her business meeting than it would when she

was in a state of shock.

Mike Duncan testified that he was employed as a captain in the Criminal and Civil

Warrants Unit of the Knox County Sheriff’s Office (KCSO). He said that he had worked in

law enforcement for thirty years and that he had been a captain for about five years. He said

that four and a half of his thirty years in law enforcement had been with the KPD. He said

that his wife called him about 10:20 p.m. on December 11, 2004, and she told him she had

been robbed in the Kroger parking lot as she was putting her groceries in the car. He said she

sounded very upset. He said that he asked her if she had called 9-1-1 and that she said she

had not. He said that he told her to call 9-1-1 and that he would meet her at the parking lot.

He said that he dressed and that he and his son drove to Kroger, about five blocks from their

house. He said that when he arrived, Officer DeMarcus was taking a report. He said he

thought Officers Kent Bates and Greg Taylor were there. He said the exchange between his

wife and Officer DeMarcus took approximately ten minutes. He said his wife described a

big, light-colored or yellow, older model Cadillac, and she had seen the car’s disabled license

tag number. He said that KPD officers ran the license tag number and that it matched a

Cadillac located at James Drive. He said that the officers instituted a “be-on-the-lookout-

for,” or BOLO, request, but it yielded nothing. He said that on the Monday morning

following the robbery, he drove by the address on James Drive and saw an older model,

dingy white, four-door Cadillac parked in the driveway, with its front end toward the street.

He said that he could not see the tag number but that it looked very much like the car his wife

had described. He said that at eleven o’clock that morning, he picked up his wife from her

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office and drove her by the house. He said that he asked his wife if the car looked like the

one used in the robbery and that she said it did. He said that he did not have a camera with

him at the time but that he went back later that day, around noon, with a camera. He

confirmed that a photograph showed the house on James Drive.

Capt. Duncan testified that he telephoned Lieutenant Gary Price with the Organized

Crime Department. He said he and Lt. Price had worked together previously in the Narcotics

Unit. He said that he obtained a copy of the police report and that he saw that Detective

Loeffler had been assigned to the case but that Det. Loeffler was not yet on duty. He said

that Lt. Price accompanied him to the house on James Drive. He said this was his third trip

to the house, and the car was still there. When presented with a photograph of the Cadillac,

he confirmed that he had taken the photograph. He said that he took photographs to record

the car, its general condition, and the license tag number. He said the car was in a rough

condition and its paint was a dull, dingy white. He said a large amount of junk was piled up

in the front and back seats, including clothing and boxes. He confirmed that a photograph

showed a tool box and a garbage bag in the back seat. He said the junk looked like items that

one would find in a rummage sale. He confirmed that another photograph showed a large

Rubbermaid container with a plaid bag, similar to a laundry bag, on top of it. He confirmed

that a photograph showed the license tag number identical to the one his wife had reported.

Capt. Duncan testified that he talked to the Cadillac’s registered owner, Mabel Varner.

He said Ms. Varner stated that the car did not run, that it did not have a battery in it, and that

it had not been moved for about two years. He said she suggested that someone had stolen

the license tag. He said he went outside to take pictures of the car while Lt. Price remained

inside with Ms. Varner and Ms. Varner’s granddaughter, Summer Parham. He said Ms.

Parham later attempted to remove the license tag, but she could not because the bolts were

badly rusted. He said he observed the rust around the bolts. He said that he and Lt. Price

opened the Cadillac’s hood and saw a battery in the battery compartment. He said the battery

was not connected but the terminal posts and connectors were very shiny as if they recently

had been removed. He said the cable clamps had no rust on the inside. He said there were

no pictures of the battery and cables because he ran out of film.

Capt. Duncan testified that he learned that Ms. Varner lived at the James Drive house

with her daughter, the Defendant, her granddaughter, and her granddaughter’s husband. He

said Lt. Price obtained physical descriptions of the people who lived there. He said he

learned the Defendant was approximately the same age as the suspect his wife had described.

He said he located the Defendant’s photograph and police record. He said he spoke with Sgt.

Tom Cox about a photograph lineup, but he was not sure whether Sgt. Cox or he caused the

photograph lineup to be created. He said he thought the photograph lineup was assembled

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by Sgt. Ed Young. He identified the photograph lineup that had been created and said that

after its creation, he took possession of it. He said he accompanied Sgt. Cox to his wife’s

office. He said he asked Sgt. Cox to present the photograph lineup to his wife because he

felt uncomfortable in his capacity as both an officer and the victim’s husband, and he felt that

it would have been inappropriate for him to present the photograph lineup. He said he did

not participate in any way in the presentation of the lineup. He said that he remained in the

same room with his wife during the photograph lineup but that he did not physically show

her the lineup and tried to avoid eye contact with her during the process. He said he did not

give his wife any secret signals during the lineup. He confirmed that he did not tell her to

pick photograph number five. He said that he had presented lineups to people in the past and

that Sgt. Cox had presented the lineup in the customary manner.

Capt. Duncan testified that he observed his wife’s reaction to the photograph lineup.

He said he was concerned the lineup was “too good” because several people in the lineup

looked similar. He said his wife looked at the lineup for a few seconds and identified the

suspect. He said she wrote on the back of the photograph and indicated the person she had

identified as the perpetrator. He said that to further the investigation, he caused several

copies of the photograph lineup to be delivered to Lt. Price and to Det. Loeffler.

On cross-examination, Capt. Duncan confirmed that he and Lt. Price went to the

James Drive address and took photographs. He said he had a twelve-exposure roll of film.

He said he lifted up the Cadillac’s hood. He said he was certain that the battery was a top-

post battery and not a side-mount battery. He said he was certain that the battery had posts

on which clamps where placed and tightened with bolts. He identified a photograph which

showed Lt. Price and the Cadillac. When presented with another photograph of the same car,

he said that it was an enlargement of one he had taken and that it showed leaves in the

Cadillac’s air intake. He agreed that the front seat did not seem to have items thrown

randomly in it, but bags packed as if to be transported to a flea market.

Capt. Duncan testified that the case was investigated by the KPD and that the KCSO

was not officially involved. He said he notified his chief deputy that he was going to assist

in following-up on the robbery because Det. Loeffler had not contacted him. He said that

when he arrived at the scene of the robbery, other witnesses were describing the suspect. He

said he did not meet Mr. Mackey. He said that he had reviewed the video from Officer

DeMarcus’s police cruiser. He confirmed that he heard the car described as an old, yellow

Cadillac. He disagreed that he heard the suspect described as a man in his fifties. He said

his wife described the suspect as a man with a reddish beard with white or gray in it. He

confirmed that he thought the lineup was good because several of the people in it matched

the suspect’s description. When shown the photograph lineup, he described one of the

individuals as thirty or thirty-five years old, with a receding hairline and a reddish beard. He

said that another man in the lineup looked to be the same age as the Defendant and that he

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had a goatee. He said yet another man in the lineup was clean-shaven. He said the beard was

not the only identifying characteristic of the individuals in the photograph lineup. He said

that witness descriptions were not absolute. He acknowledged that he had training in

developing a photograph lineup and that one school of thought was to present the

photographs one at a time. He said that when compiling a photograph lineup, he would

want people with similar characteristics. He agreed that he would want a witness to pick a

person out of a lineup who was the actual suspect and not the person who looked most like

a suspect. He agreed that it was unusual for the husband of a victim whose law enforcement

department was not involved in the investigation to take a photograph lineup to a witness.

He said it was also unusual for the victim not to be contacted by the investigator. He said it

was usual in the KCSO for there to be some follow-up on an aggravated robbery within a few

hours. He said he did not do anything to taint the process. He said it was important that an

investigation occur contemporaneous to a crime. He said his wife called the KPD and was

told that an investigator was assigned to her case and would be in touch. He disagreed that

he had been told or taught that a person with intimate knowledge of a case should not present

a photograph lineup.

Capt. Duncan testified that he knew where to look for the Cadillac because he learned

the address at the scene of the robbery. He said he did not go by the address on the night of

the robbery because his wife was upset and he had tried to comfort her. He said that Ms.

Varner told him the

Cadillac had not run in two years. He said he did not wonder why there were leaves in the

air intake of the Cadillac if it had been used in a robbery within the past forty-eight hours.

He said that Ms. Varner told him there was no battery in the Cadillac. He agreed that the

Defendant was reported as being forty-three years old at the time of the robbery. When asked

if he would describe a forty-three year old man as an “older gentleman,” he said that would

not be the first description. He agreed that he investigated the case by causing a photograph

lineup to be run and by going to the Defendant’s home.

On redirect examination, Capt. Duncan testified that he knew what the Defendant

looked like at the time he gave the photograph lineup to Sgt. Cox. He said that he ordered

the lineup but that he did not tell anyone who to put in the lineup or the age of anyone to be

included in the lineup. He said that he did not personally select the photographs for the

lineup. He said that he was unaware of any improper preparation or presentation of the

lineup. He said that in the photograph of the car taken the Monday after the robbery, the

windshield appeared clean with no leaves on it. On recross- examination, Capt. Duncan

testified that he stood by his assertion that the photograph lineup was fair.

Captain Gary Price of the Organized Crime Unit testified that he had been employed

by the KPD for approximately twenty-five years. He said he was a lieutenant at the time of

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the robbery. He said that on December 13, 2004, Capt. Duncan informed him that Capt.

Duncan’s wife had been involved in a robbery and that Capt. Duncan had found the car used

in the robbery at an address on James Drive. He said Capt. Duncan asked him to go to the

address to determine who drove the car. He said the report described the suspect’s car as a

yellowish, four-door Cadillac, and it listed the license tag number as registered to Mable

Varner at 1406 James Drive. He said he and Capt. Duncan arrived at the James Drive

address at approximately 12:45 p.m. He said he asked permission of the residents to come

inside and speak with them. He said that Ms. Parham and Ms. Varner were there and that

both he and Capt. Duncan spoke with them. He said he also spoke with the Defendant’s wife

on the telephone before he looked at the car. He said that the car was parked beside the

house and that Capt. Duncan took photographs. He said that he examined the car and the

license plate and that it was clear the license tag had not been removed because the bolts

were rusted. He said that Ms. Parham attempted to remove the license plate with pliers and

a screwdriver but that it would not come off. He said that when he checked under the hood,

a battery was sitting unsecured on the battery tray. He said the battery did not appear to have

been in the car very long because it was fairly clean, unlike the rest of the engine. He said

that battery cables were not attached but that the bolt in the positive cable was shiny, as if it

had been placed there recently. He said the negative cable had oxidized. He said that he was

familiar with batteries and the oxidizing process from his own experience. He said that if the

bolts are exposed to air and moisture, the metal will dull. He identified a photograph of the

car taken that day. He said that there were items in the car and a seat cover or something

was thrown over them. He said there was no accumulated dirt on the windshield but the car

had some leaves on it.

Capt. Price testified he learned that Ms. Varner, the Defendant, the Defendant’s wife,

and Mr. and Ms. Parham lived at the house. He said the Parhams were both nineteen years

old and the Defendant and his wife were both forty-three years old. He said he estimated Ms.

Varner’s age to be in the eighties. He said that based on the descriptions he received from

Ms. Varner and Ms. Parham, the Defendant most closely matched the description of the

suspect who committed the robbery.

On cross-examination, Capt. Price testified that Ms. Varner asked him if he thought

it would be a good idea to remove the license tag from the Cadillac. He said he told her that

it would, and he asked Ms. Parham to remove it. After looking at a photograph of the license

tag, he said that the tag had expired in April 2005. He agreed that there was dirt on the back

end of the car and leaves on the front air intake near the windshield. When presented with

a photograph of the car’s battery, he said that without seeing the entire engine compartment

he could not say whether the positioning of the battery and its cables was the same in the

photograph as on the day he saw them. He agreed that the general configuration of the cables

was the same as the day he investigated. He said that there was no carport over the Cadillac.

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He said that if a car were not driven for a while there would be a buildup of debris on it but

less if the car had been driven recently. He agreed that the car was exposed to rain and wind.

He said that he guessed one of the people in the photograph lineup was in his early to mid-

twenties. He agreed that Mr. Parham would not have been much younger than the person in

the lineup. He said the car parked at the Defendant’s home matched the description of the

four-door, yellowish Cadillac involved in the robbery. He acknowledged that the description

of the car was important, but he said the license tag number was the most important fact.

On redirect examination, Capt. Price testified that the amount of leaves on the car did

not indicate that the car had not been driven for a long period of time. He said it was

December and leaves were blowing around. He said it was likely for a car to have leaves or

dirt accumulated on it. On recross-examination, Capt. Price testified that he did not see any

leaves on the tree or in the yard in the photograph.

Sergeant Tom Cox testified that he had been employed with the KCSO for nineteen

years. He said he was assigned to the Internal Affairs Unit and that he assisted in other

investigations from time to time. He said that he had known Capt. Duncan for a long time

and that Capt. Duncan asked for his assistance in putting together the photograph lineup. He

said that Capt. Duncan gave him suspect identifiers. He said he did not have the program

that created the photograph lineups on his computer, and he asked Sgt. Young to generate

it. He said that based upon suspect identifiers entered by the program operator the computer

would generate a comparison of people of similar age, race, gender, hair color, and eye color.

He said that the procedure of providing identifiers to the program operator was common

practice. He said that the photograph lineup was the most common lineup procedure, but

occasionally police presented video evidence or conducted a show-up within one hour of the

crime. He said that physical lineups were rare. He said the photograph lineup in this case

was generated upon his request. He said he showed the lineup to the victim three days after

the robbery and asked her if she could identify the person who had robbed her. He said that

the victim was seated at a table and that he told her he was going to show her six photographs

all on one page. He said he told the victim to take her time and make a thoughtful, careful

decision. He said he did not tell her that the suspect was in the lineup. He said he purposely

chose not to know which photograph was the suspect’s to avoid inadvertently alerting the

victim. He said he asked Capt. Duncan to stand behind the victim because he did not want

any accusation that they had somehow manipulated the lineup. He said the victim identified

photograph number five, which was the suspect. He said she studied the photograph lineup

for only a few seconds. He said he then verified with Capt. Duncan that the photograph was

of the person whose identifiers Capt. Duncan had provided. He said the victim wrote a

statement in his presence on the back of the photograph lineup. He said he had no other

involvement in the case.

-12-

On cross-examination, Sgt. Cox testified that the case was never officially a KCSO

case. He recalled that he, not Capt. Duncan, had requested the photograph lineup. He agreed

that it would be suggestive to present one photograph at a time and ask, “Is this the guy?”

He said he did not recall ever showing a lineup to a victim or witness that did not contain the

suspect. He said he did not enter the age of “fifty” as an identifier in the program that

generated the lineup. He said the suspect’s birth date was entered. He said he had not

interviewed the victim and had no idea of what age she had described the suspect as being.

He said the program used the most recent photograph of the suspect that was in the system.

He said that if a suspect’s most recent photograph was twenty years old, they would use that

one. He clarified that he first asked the victim to identify the suspect from the photograph

lineup and then he asked Capt. Duncan in the victim’s presence to confirm that the

photograph was of the suspect. He said that he saw no impropriety in verifying for the

victim that she had made the correct choice.

A.J. Loeffler testified that he worked for ten years as a Violent Crimes Investigator

with the Violent Crimes Unit of the KPD. He said that he had been employed by the KPD

for fifteen years. He said that he had investigated many “crimes against persons,” including

robberies, murders, and rapes. He said that the KPD investigates more violent crimes than

the KCSO. He said that on the night of the robbery, he was working on another case and

could not leave to go to the scene of the robbery. He said he preferred to go to the scene and

talk to the witnesses and victim right away. He said that on the Monday following the

robbery he had received a voicemail message from Lt. Price about the case. He said the

initial report was lying on his desk, the manner in which he was usually assigned cases.

Investigator Loeffler said the message from Lt. Price stated that he had found the

vehicle involved in the robbery, that he had spoken to the residents at the house and had a

possible suspect, and that photograph lineups were being created. He said that requesting a

photograph lineup would be the normal course of procedure once he had the name of a

suspect. He said that at the time, the KPD did not have access to booking photographs and

that the KCSO would create the lineup after receiving the suspect’s name, date of birth, race,

and “I.D.N.” number. He said the process took several days. He said he received copies of

the lineup on December 14, 2004, one of which had been written on by the victim. He said

that he showed Mr. Mackey the photograph lineup and that Mr. Mackey identified the

suspect. He said that he told Mr. Mackey that he did not know if the suspect was in the

lineup, that Mr. Mackey should not feel pressure to pick out anyone, and that he would prefer

Mr. Mackey say he was not sure rather than pick the wrong person. He said that it did not

take Mr. Mackey long to identify the suspect. Mr. Mackey identified the Defendant as the

suspect in the photograph lineup.

-13-

On cross-examination, Investigator Loeffler testified that he was aware of the

descriptions of the suspect and the car after he received the initial report. He said he was

aware the witnesses had described the Cadillac as yellow and in rough condition. He said

he went to the Defendant’s house on December 13 and 14. He agreed it was within his duties

as an investigator to send a car to the suspect’s house on the night of the robbery. He said

he was working on another case the night of the robbery and could not leave. He could not

recall whether he was notified of the suspect’s address on the night of the robbery. He said

that when he went to the house, he noted that the paint job on the car was rough, as if it had

not been buffed or washed in a long time. He said that brown marks were on the car and that

the hood had a place that appeared burned. He stated the vehicle looked as if it could run,

and he said that he had seen cars in all sorts of conditions on the roads. He said he talked to

the victim a few days after the robbery. He stated that checking under the car’s hood was not

part of his investigation. He said he knew that other law enforcement officers had been to

the house, had talked to the residents, and had taken photographs before he did. He said the

Defendant came to the department and was cooperative during questioning. He stated that

the Defendant’s wife was present during questioning but that he could not recall whether the

Defendant’s daughter was there. He said the Defendant was not under arrest at the time of

the questioning. He said the Defendant stated he drove a Nissan Sentra to work.

Investigator Loeffler testified that the Cadillac did not look yellow in the photographs.

He said he was never told that the car in question was a 1970s model Cadillac. He said the

report listed the car as a 1989 four-door Cadillac. He said that the color difference did not

bother him because in many cases, the victim gives the wrong color of a car. He said he did

not contact two other witnesses. He said he did speak to the other people at the Defendant’s

residence.

On redirect examination, Investigator Loeffler testified that he had driven a car around

with leaves in the intake. On recross-examination, he acknowledged that leaves blow off the

front of a car when it is moving at a high rate of speed, but he said he also had had to pull

them out of the air intake. The State rested.

The Defendant did not testify. Roger Fisher testified that he owned Paradise Taxi and

Paradise Chauffeur. He said that the Defendant had been his employee since 1996. He

stated that in December 2004, he was a subcontractor for United Parcel Service (UPS) and

that the Defendant was making package deliveries for him. He agreed he was hauling fairly

small items. He said he became aware of the Defendant’s transportation problems when he

saw the Defendant walking across a bridge in Knoxville. He said he gave the Defendant a

ride. He said the Defendant told him that the Defendant’s car was broken and that the

Defendant had been taking taxicabs for transportation. He said he loaned the Defendant a

Nissan to drive because the nature of his business required the Defendant to make deliveries

-14-

in a timely manner. He said that the Nissan was registered to him but that it was in the

Defendant’s possession in December 2004. He said he knew the Defendant had been

arrested. He said that he saw the Defendant’s wife driving the Nissan the day of the

Defendant’s arrest and that it was filled with items. He said the Defendant’s wife told him

she was going to sell things to get enough money for bail. When he was shown a photograph

of the Cadillac, he said that he had seen the car at the Defendant’s house but that he had

never seen the Defendant or the Defendant’s wife drive it.

On cross-examination, Mr. Fisher testified that he still owned the Paradise Taxi

Company. He agreed that an investigator from the district attorney general’s office had

called and requested records. He said that he did not bring the records because he had

received the call only two or three days earlier and that he had been unable to assemble them.

He said that his secretary had been out sick, that the records were filed in boxes, and that it

would take some time to get the records from December 2004. He said that the Defendant

had been paid cash commissions based on his deliveries. He said that he kept a record of

each time the Defendant was paid and that he filed an Internal Revenue Service Form 1099.

He said that the district attorney general’s office did not tell him to bring the boxes

containing the records to the trial. He said he did not know where the Defendant was at

10:20 p.m. or at 10:30 p.m. on December 11, 2004. He said he had no knowledge of which

car the Defendant was driving the night of the robbery. On redirect examination, Mr. Fisher

testified that the assistant district attorney’s office had requested the records three or four

days before and that they had not informed him they had contacted defense counsel about

obtaining the records.

Gary Lynn Hood testified that he owned Gary’s Garage on Maryville Pike. He said

that he had recently met the Defendant but that he knew the Defendant’s mother-in-law, Ms.

Varner, from his church. He said he had worked on the family’s vehicles. When presented

with a photograph, he said he recognized the Cadillac. He said that Ms. Varner had brought

him the Cadillac for service and that he had told her it was not safe to drive. He said he told

her it would be cheaper to buy a new car than to fix it. He said this exchange took place in

September of 2003. He said that he had not worked on the car and that he had not been

asked about working on the car since that time.

On cross-examination, Mr. Hood agreed the car was driven to his shop by a family

member, but he said that the car would not hold power steering fluid and that Ms. Varner

could not turn the steering wheel. He said he thought he gave a record of the September

2003 inspection to one of Ms. Varner’s children. He identified an invoice from July 2, 2004.

He said that he had worked on a thousand cars since the Cadillac and did not remember the

exact date he had inspected the Cadillac. He agreed that he had no knowledge of the

-15-

Defendant’s whereabouts on December 11, 2004. He acknowledged that he had no

information on whether the Cadillac ran on December 11.

On redirect examination, Mr. Hood testified that the estimate dated July 2, 2004, was

for an engine replacement. He said that after he wrote an estimate, he would have given the

original to the car’s owner and retained a copy. He said that the license tag number on the

estimate was the same as in the photograph of the Cadillac located at the Defendant’s house.

He said the Cadillac was a 1989 model. On recross-examination, Mr. Hood said that he had

not seen the Cadillac since July 2004. He said that he was just guessing when he said that

he had last seen the car in September 2003.

John Sweat testified that he was the Defendant’s brother. He said that he and the

Defendant worked for Paradise Transportation in December 2004. He said that he was

working on December 11, 2004, and that he received a telephone call about 7:30 p.m. to

make a delivery. He said he picked up the parcel from the UPS warehouse that was to be

delivered to the UPS warehouse in Nashville. He said he went to the Defendant’s house to

see if he could talk the Defendant into making the delivery for him. He said that the

Defendant did not agree. He said that the defendant had made similar deliveries previously.

He said that he had thirty minutes from the time of the telephone call to pick up the package

and that he went to the Defendant’s house afterwards. He said that the package had to be in

Nashville by midnight. He said that he received a cash payment for deliveries and whether

he made the delivery on time determined whether he was paid.

Mr. Sweat testified that the Cadillac at Ms. Varner’s residence had “been messed up

forever.” He said that the Defendant and the Defendant’s wife used to live two houses from

Ms. Varner. He said that the Cadillac was located at that residence at one point and that he

pushed it to Ms. Varner’s house. He said that the Cadillac had been in the same place from

that date until the date of the trial. He said that when he went to the Defendant’s house on

the night of December 11, 2004, the Defendant had his nieces over and was filming them

with a video camera. He said the Defendant said he was going to watch a movie with his

nieces. He said the nieces were small children. He said the Defendant had purchased the

video camera that day. He said he left the Defendant’s house at 9:45 p.m. and headed to

Nashville. He said he did not know the Defendant’s whereabouts at 10:20 p.m. that night but

that the Defendant was still at home at 9:45 p.m.

On cross-examination, Mr. Sweat testified that he had met with the assistant district

attorney general because his name had been provided as an alibi witness. He said he

remembered the assistant district attorney asking what kind of car the Defendant drove. He

said that he thought the Defendant drove a 1987 or 1988 white Mazda van. He said that he

thought that was the car the Defendant was driving on December 11, 2004. He disagreed that

-16-

he no longer believed that was correct and said that “we went through a lot of cars.” He said

that he specifically remembered leaving the Defendant’s house at 9:45 p.m. and that he

returned before midnight. He confirmed that he first went to the Defendant’s house at 7:30

p.m. He admitted that he may have told the assistant district attorney general that he arrived

at the Defendant’s house about 8:00 p.m. and agreed that it actually might have been closer

to 8:00 p.m. when he arrived. He said that he left the Defendant’s residence by himself and

that neither the Defendant nor the Defendant’s wife walked outside with him. He said that

the Defendant drove a white Mazda van to make deliveries. He said that he could remember

that the Defendant was driving a Nissan Sentra during that time period. He said that he had

never been in the Cadillac and that he did not know if it ran. He said he had only seen Ms.

Varner and the Defendant’s wife drive the Cadillac and that had been before July 2004. He

said he would not agree that the car had been driven in July 2004 because he had no

knowledge. He identified a picture of the Defendant in the photograph lineup.

On redirect examination, Mr. Sweat testified he remembered exactly when he left the

Defendant’s house because it was important that he deliver the package on time or risk losing

the contract. He said it took two hours and thirteen minutes to drive to Nashville and there

was a time change which helped him meet the deadline. On recross-examination, Mr. Sweat

testified that he wanted the Defendant to take the package. He said that he could have

telephoned the Defendant to ask him to take the package but that he drove to the Defendant’s

house instead.

Connie Sweat testified that she had been married to the Defendant for eleven years.

She said that she was the last person to drive the Cadillac and that she last drove it in the

summer of 2004. She said that the car had not been running for a while and that she started

it to prove to her mother, Ms. Varner, that the car was inoperable. She said she drove the car

for approximately three blocks, at which point the car stopped running and she had to push

it back to the driveway. She said that she kept the car despite its poor condition as an

incentive to help Ms. Varner recover from a bad fall. She said Ms. Varner did not want

anyone to touch the car until Ms. Varner was well enough to drive. She said that at one time,

she lived two houses away from Ms. Varner’s house. She said she kept the Cadillac at her

house. She said that she, her husband, and two neighbors pushed the car to Ms. Varner’s

house and that it would not start. She said they backed the car into Ms. Varner’s driveway,

and the car had remained there until the trial.

Ms. Sweat testified that she received a call from her daughter on Monday, December

13, 2004, informing her that the police were at Ms. Varner’s house and that they claimed Ms.

Varner’s car had been involved in a robbery. She said she told the officer over the telephone

that the car had not been moved and that it did not run. She said she asked the person on the

telephone if she were in a Candid Camera or Funniest Videos episode. She said she thought

-17-

it was a joke. She identified Investigator Loeffler and said he came to her house to interview

her husband and son-in-law. She said she did not participate in the conversation between her

husband, her son-in-law, and Investigator Loeffler. She said she received a call from

Investigator Loeffler informing her that he had additional questions to ask the Defendant.

She said that she asked the Investigator if he was going to arrest the Defendant and that the

Investigator replied that he did not have an arrest warrant. She said she contacted the

Defendant through his company. She said the Defendant was in Morristown making a

delivery. She said that the Defendant returned and that she accompanied him to the police

station. She said she informed Investigator Loeffler after he arrested the Defendant that the

car did not run. She said that other than defense counsel, only the assistant district attorney

general had asked her any questions about the case. She said that while the Defendant was

under arrest, she used Mr. Fisher’s Nissan to travel to and from her work. She said they

purchased the white Mazda van after the robbery.

Ms. Sweat testified that on the date of the robbery, she and the Defendant had plans

to clean the house, haul away garbage, and take care of the Defendant’s grandnieces. She

said the nieces were two years old and five weeks old. She said they planned to keep the

children all night. She stated that after they hauled away the garbage, they went to a pawn

shop and bought a video camera. She said she wanted to make a video of the children

because they did not get to spend a lot of time with them. She said they left the pawn shop,

picked up the children, and returned home, where she stayed the rest of the night. She said

the Defendant left the house at about 6:00 p.m. She said her nephew picked up the

Defendant and took him to her nephew’s house. She said her nephew was selling the

Defendant a black Oldsmobile. She said the Defendant called her and informed her that he

would take longer than expected because the car had a flat tire. She said the Defendant

returned home before 8:00 p.m. She said spider webs were underneath the Cadillac’s hood.

She said she told the police that the car did not run. She stated that while she and the

Defendant were seated in general sessions court awaiting a hearing, Det. Loeffler pointed

them out to the victim.

On cross-examination, Ms. Sweat testified that she received a letter from the assistant

district attorney general and that she met with him the week before trial. She said she could

account for the Defendant’s whereabouts, her whereabouts, and her children’s whereabouts

on the day of the robbery and on the day following the robbery.

Ms. Sweat testified that a family member drove the Cadillac to Mr. Hood’s shop in

September 2003. She said that she drove the car in July 2004 and that it did not run properly.

She said she parked it on the street for about four or five days. She said she called Mr. Hood,

who came to her house in July 2004 and gave an estimate on repairs. She said the car would

not “crank[] back up.” She said they pushed the car into the driveway. She stated that the

-18-

license tag had expired and that she confirmed the rust around the bolts made it impossible

to remove the license tag. She agreed that she was concerned someone had stolen the license

tag and that Det. Price had told her it would be a good idea to remove it from the car. She

said she did not know why her daughter tried to remove the license tag in Det. Price’s

presence, but she agreed that she asked her daughter to remove it. She agreed that if the tag

number had been given as being involved in a robbery, it was a mistake.

Ms. Sweat testified that on the day of the robbery, she and her husband returned home

about 5:00 p.m. She said her husband left the house again with her nephew around 6:00 p.m.

She acknowledged that the Defendant planned to watch a movie with her and her nieces and

that the movie started at 9:00 p.m. She said that the Defendant’s brother came to their house

twice, once after 8:00 p.m. and again between 9:30 p.m. and 9:45 p.m. She said that he did

not stay long. She said that he wanted the Defendant to ride with him to Nashville. She said

that he talked to the Defendant outside on the porch. She said that she walked outside onto

the porch at one point and a neighbor saw them. She said the neighbor was not at the trial

because he was in the military in Kentucky. She said that she and the Defendant watched the

11:00 p.m. news and went to bed. She said that her daughter, her son-in-law, and her mother

were also with them when they watched the movie. She agreed that the other adults could

establish the Defendant’s whereabouts during that time period.

In rebuttal, Det. Loeffler testified that he did not recall pointing at Ms. Sweat and the

Defendant in general sessions court. On cross-examination, he said that he did not deny that

it happened but that he could not remember. On redirect examination, he said he would not

do something like point out a defendant to a victim.

Ms. Duncan testified on direct examination that she did not meet Det. Loeffler on the

day when Ms. Sweat said they were in general sessions court. On cross-examination, the

victim testified that she appeared only one time in general sessions court for hearings related

to the Defendant’s case.

ANALYSIS

I.

The Defendant first contends that the evidence was insufficient to convict him of

committing the aggravated robbery. The State argues that the evidence was sufficient to

support the Defendant’s conviction. Our standard of review when the sufficiency of the

evidence is questioned on appeal 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).

This means that we may not reweigh the evidence, but must presume that the jury has

resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence

-19-

in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Any questions about the credibility of the

witnesses were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

The statute under which the Defendant was convicted provides, “Aggravated robbery

is robbery as defined in [Tennessee Code Annotated section] 39-13-401 . . . [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. § 39-13-402 (2003). The

Defendant’s reliance on Judge v. State, 539 S.W.2d 340 (Tenn. Crim. App. 1976), is

misplaced. In Judge, the victim of a burglary saw the perpetrator’s license tag number and

recorded it. The victim later misplaced the paper and provided the license tag number to the

police from memory. She identified the defendant from a photograph, and she identified him

again at the trial. The jury convicted the defendant of second-degree burglary. Although this

court reversed and remanded the case on other grounds, it held that the evidence of the

memorized license tag number and in-court identification was sufficient to support the

defendant’s conviction. Id. at 342, 346. In this case, the victim not only memorized the

license tag number, she wrote it down within minutes of viewing it.

The crux of the Defendant’s sufficiency challenge is to the identity of the perpetrator.

The Defendant does not deny that the victim was robbed. He maintains that this is a case of

mistaken identity and that he did not rob her. Taken in the light most favorable to the State,

the evidence at the trial established that the victim and Mr. Mackey identified the Defendant

as the perpetrator of the crime both during a photograph lineup and at the trial. The victim

testified that the man who robbed her held up his hand, which was concealed by a newspaper,

as if he carried a gun. She described the perpetrator’s vehicle as a cream or yellow-colored

Cadillac. The victim remembered the license tag number and noted that it was a disabled

driver’s tag. She wrote down the license tag number within minutes of seeing it. She

testified that she worked with numbers and that she had correctly remembered a sequence

of numbers after seeing it one time. The license tag number was registered to a Cadillac

belonging to the Defendant’s mother-in-law, and the Cadillac was located at the Defendant’s

home. Although it was painted white, the car was dirty and streaked with mud. The victim

also identified the Cadillac parked at the Defendant’s house as the one used in the robbery.

The license tag number matched the number the victim provided to the police. We presume

the jury resolved all conflicts in the testimony and that it accredited the victim’s and

eyewitness’s testimony over the Defendant’s. We hold that the evidence was legally

sufficient to support the Defendant’s conviction for aggravated robbery.

-20-

II.

The Defendant contends that he was denied the right to a fair trial when the State

suborned perjury in its direct examination of the victim. The Defendant claims that the

victim made “undeniably deliberate lies” at the trial when she stated that she thought the

Defendant was hiding a gun and that “he meant business.” The Defendant says these

statements are in direct contradiction to the victim’s statements recorded on the responding

officer’s in-cruiser video immediately following the robbery. During the video, the victim

remarked, “I just didn’t believe he really had a gun,” and “The whole thing was kind of

laughable.” The video was not played for the jury at the trial, but it was received in evidence

during the sentencing hearing and included in the appellate record. As we understand the

Defendant’s argument, because the State had reviewed the video before the trial and did

nothing to alert the jury to what he alleged were the victim’s lies, the State engaged in

prosecutorial misconduct. The State responds that it did not commit prosecutorial

misconduct when it asked the witness about her perceptions of the robbery.

Prosecutorial misconduct does not constitute reversible error unless the outcome was

affected to the Defendant’s prejudice. State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001). In

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), this court set out the

following considerations for determining if the prosecutor’s conduct could have improperly

prejudiced the defendant and affected the verdict:

1. The conduct complained of viewed in context and in light of

the facts and circumstances of the case.

2. The curative measures undertaken by the court and the

prosecution.

3. The intent of the prosecutor in making the improper

statement.

4. The cumulative effect of the improper conduct and any other

errors in the record.

5. The relative strength or weakness of the case.

See State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (approving these factors in

determining if the misconduct resulted in reversible error).

-21-

The Defendant cites Clarke v. State, 402 S.W.2d 863 (Tenn. 1966), for the proposition

that evidence admitted erroneously necessitates a reversal of a conviction if “‘it operated to

the prejudice or harm of the accused, or deprived him of a substantial right or a fair trial . .

. where the record shows nothing which can fairly be said to cure the effect of such error.’”

Id. at 869 (quoting 24B C.J.S. Criminal Law, § 1915 (2) p. 53). Clarke involved an officer’s

testimony that a defendant refused to take a paraffin test which might have shown whether

the defendant had recently fired a gun. Several days later, the trial judge instructed the jury

not to consider this evidence when it deliberated its verdict. Our supreme court held that

although incompetent proof had been introduced, the trial judge withdrew it and that with a

proper instruction, no cause for reversal existed. Id. at 869-70.

Considering the Judge factors, we are unpersuaded that reversible error occurred, nor

do we believe that Clarke is applicable to the Defendant’s case. A review of the record

reveals that the State asked questions about the victim’s perceptions during the robbery. As

one of the elements of aggravated robbery, the State was required to prove “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 (2003 & Supp. 2004). Although the victim stated on the video

she did not believe the Defendant had a gun, she also testified at trial that the only way for

her to have confirmed that suspicion “would have been to put my--my face in front of what

might possibly have been a gun.” Her comment that “the whole thing was kind of

laughable,” was made immediately after she told the responding officer that the Defendant

had apologized to her for robbing her. When taken in context, the comment more reasonably

relates to the Defendant’s conduct after the robbery and not to the victim’s lack of fear during

the commission of the offense. On cross-examination, the Defendant was afforded the

opportunity to question the victim regarding contradictions in her testimony, and he did so.

As noted above, we presume that the jury resolved all conflicts in the testimony and all

questions about witness credibility. We hold that the State did not engage in prosecutorial

misconduct when it asked the victim to describe her perceptions during the robbery and that

the victim’s testimony was not erroneously admitted into evidence.

III.

The Defendant contends that the State impermissibly shifted the burden to the defense

when it questioned why additional alibi witnesses were not called. The State responds that

it did not commit prosecutorial misconduct by noting the lack of alibi witnesses. The

following exchange occurred during the State’s cross-examination of the Defendant’s wife,

Ms. Sweat:

[THE STATE] And aside from the neighbor that

was out on the porch, there were

-22-

other adults there in the house

watching that movie, right?

A. Yes, sir.

[THE STATE] That would be your–

A. My daughter.

[THE STATE] –daughter, her husband–

A. Her husband and my mother.

[THE STATE] And your mother?

A. Yes, sir.

[THE STATE] And all t h o s e i n d i v id u a l s

could–could establish what the

[D]efendant was doing during that

time period; isn’t that right?

A. Yes, sir.

[THE STATE] And are any of them here?

[DEFENSE COUNSEL] Your Honor, I’m going to object at

this point. We are not required to

prove anything. We put this

witness on. We don’t have to put

on four witnesses to say they were

all at the same house.

[THE STATE] I can ask about other witnesses–

THE COURT That’s–that’s–no.

[THE STATE] –to what she’s testifying to.

THE COURT No, no. Sustained.

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A prosecutor may comment on a defendant’s failure to call a material witness whose

testimony would be expected to be favorable. See State v. Francis, 669 S.W.2d 85 (Tenn.

1984). The evidence must satisfy a three-prong test before the state may comment on a

missing witness: “(1) that the witness had knowledge of material facts, (2) that a relationship

exists between the witness and the party that would naturally incline the witness to favor the

party; [and] (3) that the missing witness was available to the process of the court.” Delk v.

State, 590 S.W.2d 435 (Tenn. 1979). However, “[t]he mere fact that a party fails to produce

a particular person who may have some knowledge of the facts involved does not justify

application of the inference against him.” Francis, 669 S.W.2d at 89. The Delk criteria are

to be strictly construed because of the potentially damaging effect on the rights of a criminal

defendant. Id.

We conclude that the prosecuting attorney’s comments regarding the Defendant’s

failure to call alibi witnesses were improper. The proper Delk foundation was not laid before

the State attempted to question the witness about other missing witnesses. However, the

ultimate issue is not whether the prosecuting attorney’s remarks were improper, but whether

the improper remarks could have affected the verdict. See Judge v. State, 539 S.W.2d 340,

344-45 (Tenn. Crim. App. 1976); T.R.A.P. 36(b).

As noted in the previous section, Judge set out factors for evaluating whether a

prosecuting attorney’s conduct could have improperly prejudiced a defendant and affected

the verdict. Applying the factors, we first note that defense counsel immediately objected

to the prosecuting attorney’s question, before the witness was allowed to respond. Second,

the judge sustained the objection and the witness was dismissed. In addition, following a

jury-out hearing that took place immediately before the parties presented their closing

arguments, the trial judge ruled that it would not allow the State to raise the issue of missing

alibi witnesses during its closing arguments. Third, the jury was instructed before the trial

began that the law presumed the Defendant innocent and that the Defendant was not required

to prove his innocence. Fourth, as the prosecuting attorney’s question is the only error we

discern in the Defendant’s appeal, there can be no cumulative effect of improper conduct.

Fifth, although the evidence was not overwhelming, it was based upon a firm identification

of the Defendant and the license plate of the car that was used. In light of the Judge factors,

we cannot say that the prosecuting attorney’s question more probably than not affected the

outcome of the trial. See T.R.A.P. 36(b).

IV.

The Defendant contends that the trial court erred when it allowed into evidence the

Defendant’s prior convictions that were too old and stale. The State filed a notice of intent

to impeach the Defendant’s credibility based on convictions for (1) robbery on September

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11, 1978, (2) third-degree burglary on December 6, 1978, (3) burglary of an automobile on

December 6, 1978, (4) third degree burglary on December 5, 1984, and (5) escape on

February 4, 1988. See Tenn. R. Evid. 609. The trial court ruled that if the defendant

testified, it would not allow cross-examination on the 1978 convictions but that it would

allow the State to question the Defendant regarding his 1984 burglary and 1988 escape

convictions.

Tennessee Rule of Evidence 609(b) provides in pertinent part:

Evidence of a conviction under this rule is not admissible if a

period of more than ten years has elapsed between the date of

release from confinement and commencement of the action or

prosecution; if the witness was not confined, the ten-year period

is measured from the date of conviction rather than release.

Evidence of a conviction not qualifying under the preceding

sentence is admissible if the proponent gives to the adverse party

sufficient advance notice . . . and the court determines in the

interests of justice that the probative value of the conviction . .

. substantially outweighs its prejudicial effect.

Id. For purposes of Rule 609(b), the “date of release” is the date on which the sentence

expires. State v. Thompson, 36 S.W.3d 102, 110-11 (Tenn. Crim. App. 2000). At a pre-trial

hearing on the admissibility of the Defendant’s prior convictions, the trial court stated it

believed the Defendant’s convictions for robbery were stale, and it instructed counsel to raise

the issue of the burglary and escape convictions’ admissibility again before the Defendant

testified. At the trial, defense counsel stated that the Defendant would not testify based on

the trial court’s ruling that the State would be allowed to cross-examine the Defendant on the

prior burglary and escape convictions. The following exchange took place:

[DEFENSE COUNSEL]: Judge, I would–I only add for the

record I think at this point–and part

of that is based on your Honor’s

ruling that the State would be able

to cross-examine him on a burglary

and an escape charge that fall

outside the time limit. But–that’s

my understanding, it that was your

ruling. They couldn’t talk about

the robbery–

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THE COURT: No. I said to bring it up again

before he testified, if he testified.

[DEFENSE COUNSEL]: Well, of course, your Honor, that

has to play into the calculus of

whether he testifies–

THE COURT: I understand, but I did [sic] make

that specific ruling.

[DEFENSE COUNSEL]: Would your Honor care to make

that specific ruling now?

THE COURT: Well–

[DEFENSE COUNSEL]: As I understand it, it was about one

year–the State says 11 years since

he was released, so it was about a

year outside the 10-year rule.

THE COURT: Yes.

[DEFENSE COUNSEL]: As I understand that rule in reading

it, it appears to me that some of the

case law says that you have to look

at whether or not the conduct

complained of is relevant to the

truthfulness in this case.

THE COURT: Yes.

[DEFENSE COUNSEL]: That that’s w hat the rule

c o n te m p l a te s . T h a t’s m y

understanding.

THE COURT: It may be a bit stale, but–all right.

Rule 609 generally prohibits impeachment of a witness by convictions that are more

than ten years old. If the convictions are more than ten years old, the court must determine

whether “in the interests of justice . . . the probative value of the conviction, supported by

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specific facts and circumstances, substantially outweighs its prejudicial effect.” Tenn. R.

Evid. 609(b). The trial court believed that the Defendant’s convictions were more than ten

years old, but it did not determine that their probative value outweighed their prejudicial

effect. However, the presentence report shows that the Defendant’s confinement for his 1984

conviction for burglary and 1988 conviction for escape did not expire until July 28, 1996.

The State argues, and we agree, that these two prior convictions were not more than ten years

old at the time of the commencement of the action against the Defendant by presentment on

March 29, 2005. Therefore, these convictions were properly admissible into evidence. We

hold that the trial court did not abuse its discretion when it ruled that the Defendant could be

cross-examined about his prior convictions for burglary and for escape.

V.

The Defendant next contends that the trial court erred in failing to afford him the right

to poll the jury. In his brief, the Defendant says that the trial court did not ask him if he

wanted to have the jury members polled individually. He asserts that after the jury returned

its verdict, Ms. Sweat collapsed and defense counsel sought to console her. He says that

“[w]hen counsel turned around the judge and jury were gone.” The State responds that the

trial court did not preclude the Defendant from individually polling the jurors regarding their

verdict.

The Defendant relies on Clark v. State, 97 S.W.2d 644 (Tenn. 1936), as authority to

correct the jury’s verdict. However, the court in Clark refused to reconvene a jury after it had

been discharged. Id. at 647.

The trial court has the discretion to determine the means by which the jury is polled.

See State v. Clayton, 131 S.W.3d 475, 479 (Tenn. Crim. App. 2003). The polling is

sufficient so long as the “‘answer of the juror . . . indicates with reasonable certainty that the

verdict is his [or her] own.’” Id. (quoting Dixon State & Heading Co. v. Archer, 291 S.W.2d

603, 609 (Tenn. Ct. App. 1956)). The record reflects that the trial court conducted a poll of

the jury after the verdict was read, and each of the jurors indicated he or she had reached a

unanimous verdict by raising his or her right hand. The Defendant is not entitled to relief on

this issue.

VI.

Finally, the Defendant contends that juror misconduct prevented him from receiving

a fair trial. However, he has failed to support this issue with any argument, any citation to

authorities, or any references to the record. See Tenn. R. Crim. App. 10(b). He is not

entitled to relief on this issue.

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CONCLUSION

Based on the foregoing and the record as a whole, we affirm the judgment of the trial

court.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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