State of Tennessee v. Quawn L. Lillard

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 17, 2002

STATE OF TENNESSEE v. QUAWN L. LILLARD

Direct Appeal from the Criminal Court for Davidson County

No. 2000-A-18 Steve R. Dozier, Judge

No. M2001-02136-CCA-R3-CD - Filed November 15, 2002

The defendant, Quawn L. Lillard, appeals his Davidson County Criminal Court convictions for

aggravated robbery and aggravated assault. On appeal, he insists that the convicting evidence is not

legally sufficient to support his convictions, and he claims that the trial court should not have

admitted the identification testimony of one of the victims. After review, we affirm the judgments

of the trial court.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODA LL

and ALAN E. GLENN, JJ., joined.

Edward S. Ryan, Brentwood, Tennessee (at trial); and Dwight E. Scott, Nashville, Tennessee (at trial

and on appeal), for the appellant, Quawn L. Lillard.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The events giving rise to the defendant’s aggravated robbery and aggravated assault

convictions transpired on the evening of August 20, 1999 in West Nashville. Eighteen-year-old

Dalton Pitts was visiting his girlfriend, Fatima Jones. Jones lived with her mother, Claudette Burns,

at 3861 Georgia Court. On the evening of August 20, Burns was at the residence. Pitts and Jones

were in Jones’s bedroom; the couple were sitting on the bed, and Pitts was playing Super Nintendo.

A neighborhood “block party” was underway that evening. Area residents were

milling about outside, and numerous individuals went in and out of Ms. Burns’s residence. At this

juncture, the participants’ accounts of what happened diverge, and we summarize the evidence from

the standpoint most favorable to the state.

Pitts testified that during the evening, he gave Jones a one-hundred dollar bill and

asked her to go to the store and get change. Pitts worked as a manager at Krystal, and he needed

smaller denominations in bills for bus fare to get to work the next morning. Pitts stated that when

Jones returned, she informed him that the store had closed. Pitts continued to play Nintendo, and

later two young men appeared in the bedroom doorway. Pitts testified that he recognized one of the

men, whom he identified as “Melvin.” Pitts said that he had seen Melvin before on the basketball

court, but Pitts had never met Melvin’s companion, the defendant.

Pitts related that they “asked [him] did [he] want to go to the store so [he] could get

some change.” Pitts said that he told them “naw,” and the men left. The men returned, and “[t]his

time when came back, uh, they had a gun.” Pitts explained that the gun was a sawed-off shotgun.

Melvin was holding the gun, and the defendant demanded that Pitts surrender his money. The

defendant asked for the money three or four times. Then the defendant asked Melvin for the

shotgun, and Melvin began demanding the money from Pitts. Pitts testified that when he did not

comply with the demands, the defendant fired a shot in Pitts’s direction that lodged in the bed frame.

The shot “just barely missed” his leg, Pitts stated. After the weapon was discharged, Pitts promptly

handed over the one-hundred dollar bill, and the men ran out of the house. Pitts related that after the

shot was fired, Jones “took off running.”

After the men left, Pitts waited a few minutes before he went downstairs. He testified

that Ms. Burns contacted the police. During the investigation, Pitts said that Jones told the police

that the men were “Melvin” and “Quawn.” The police took Pitts downtown where he met with a

detective who showed him two different sets of photographs. From one set, Pitts stated that he

identified “Melvin.” He made no identification from the other set of photographs. Pitts explained

that the other man who robbed him did not have hair, whereas all the men in the second set of

photographs had hair. Discounting the hair, Pitts testified that the person shown in the sixth picture

was the other assailant. Pitts identified the defendant at the preliminary hearing as one of the

assailants, and at trial, Pitts again identified the defendant.

Ms. Burns testified at trial that, among others, the defendant and Melvin Waters came

to her residence on August 20. Ms. Burns knew the defendant because the defendant’s sister lived

two houses from Ms. Burns. She did not know Melvin Waters, and she had not seen him before that

evening. Ms. Burns said that she wanted the men out of her house, and eventually they left. To keep

the men from returning, Ms. Burns walked down the street to find Shawn Lillard, the defendant’s

sister, to ask for her help.

Ms. Burns located Shawn Lillard sitting outside. While the women were talking,

Jones ran outside the house and up to Ms. Burns. Jones was talking about “Quawn.” Ms. Burns and

Shawn Lillard headed toward Ms. Burns’s residence. Ms. Burns testified that when they got to the

front door, they heard a gunshot. Ms. Burns said that she entered the house, and Melvin Waters ran

past her and out of the house. Ms. Burns tried to stop the defendant. She stated that she stood in his

path and wrestled with him. Ms. Burns saw that the defendant was carrying a gun. After the

defendant escaped, Ms. Burns went upstairs to check on everyone. Ms. Burns testified that she

-2-

found Pitts in the bedroom, and she saw the bullet hole in her daughter’s bed. She described Pitts

as being “very upset.” Ms. Burns could not recall if the television was on in her daughter’s room

when she entered, but she remembered that the lights were on in the room.

Ms. Burns contacted the police, and after they arrived she identified one of the men

as “Quawn Lillard,” the defendant. She told the police that she did not know the other assailant’s

name. Ms. Burns said that Shawn Lillard waited for the police and that she talked to the police when

they arrived.

Shawn Lillard appeared and testified pursuant to a material witness summons issued

by the trial court. The defendant is her twin brother, and Pitts is her cousin. Shawn Lillard stated

that she had been drinking during the evening of August 20. At the time of the robbery, she said that

she was sitting outside on a brick wall approximately 30 feet from Ms. Burns’s house. Shawn

Lillard denied ever seeing the defendant at the Burns residence that evening. She denied that anyone

asked her to come to the Burns residence. Shawn Lillard testified that “all [she] heard was someone

screaming.” Shawn Lillard identified the screamer as Jones. Shawn Lillard claimed that Jones was

saying, “Mama, Mama, Mama, Melvin, Melvin.” Shawn Lillard said that she asked the girl what

was wrong, but Jones refused to tell her.

Shawn Lillard testified that she did not go to Burns’s residence after encountering

Jones, who was upset and screaming. Shawn Lillard said that Ms. Burns came to her a short time

later asking to use the telephone. Ms. Burns wanted to call the police. Shawn Lillard stated that she

would not loan a telephone to Ms. Burns because the battery on her cordless telephone was low.

Shawn Lillard was asked repeatedly about her brother’s whereabouts that evening. Shawn Lillard

finally admitted that she saw the defendant that evening; she said that the defendant came up to her

while she was sitting outside and asked her for a drink. Shawn Lillard said that no one was with the

defendant at that time.

After the police arrived, they questioned Shawn Lillard. She said the police wanted

to know the defendant’s name, age, date of birth, and other personal information. She denied telling

the police that she saw the defendant coming out of the Burns residence. Shawn Lillard claimed one

of the police officers threatened her with eviction if she did not cooperate. Shawn Lillard transported

Pitts, Jones, and Ms. Burns to the police department to look at photographs. She insisted, however,

that she was not asked to look at any pictures and that she did not identify “Melvin” from the

photographs.

Detective William Stewart was the lead investigator assigned to the robbery. He

spoke with Shawn Lillard at the scene. Detective Stewart testified that Shawn Lillard told him that

her brother was involved and that her brother’s name was “Quawn.” Shawn Lillard also told

Detective Stewart that she did run up to the Burns residence, that she saw her brother and Melvin

coming down the stairs, and that her brother had a shotgun. Detective Stewart testified that he made

no threats or promises to Shawn Lillard to persuade her to implicate her brother.

-3-

Detective Jeff Ball was responsible for the photographic lineups that were shown to

the robbery witnesses. He testified that he spoke with Shawn Lillard at the police station and that

she provided information about “Melvin.” Detective Ball entered the information into the police

computer, and it identified 53 pages of African-American males with the first name “Melvin.”

Detective Ball stated that Shawn Lillard identified the robbery suspect “Melvin” by looking through

the images on the computer screen. Detective Ball explained that he then put together a

photographic lineup containing the co-defendant’s picture, and he prepared a separate photographic

array containing the defendant’s picture. Jones identified both the defendant and the co-defendant

from the photographic lineup. Pitts identified only the co-defendant.

The state’s final witness was Fatima Jones. She recalled being in her bedroom with

Pitts when she first heard someone come into her room. She looked up and saw the defendant and

the co-defendant. At first, she was not alarmed; then she heard a demand for Pitts to turn over his

money followed by a warning, “I’m not playing with you.” Jones testified that when she looked

around, she saw the defendant pull out a gun. Jones explained that she was scared, so at that point

she jumped up and ran out of the house to find her mother. Jones found her mother and Shawn

Lillard, and everyone ran back to the house. Jones stated that halfway to the front porch, the gun

discharged. Jones saw both men run out of the house and down a hill. According to Jones, Shawn

Lillard gave her brother’s name to the police when they arrived. Jones never heard anyone threaten

Shawn Lillard. Later, at the police station, Jones was able to identify the defendant and the co-

defendant from the photographic arrays.

The police arrested the defendant and Waters. Waters was charged with aggravated

robbery of Pitts, aggravated assault of Jones, and with three other offenses (disorderly conduct,

resisting arrest, and criminal impersonation) arising from his conduct when apprehended. The

defendant was charged only with aggravated robbery and aggravated assault. The defendant and

Waters were tried jointly. At the conclusion of the state’s proof, the defense rested. The jury

convicted Waters of facilitation of aggravated robbery, aggravated assault, resisting arrest, and

criminal impersonation. The jury convicted the defendant, as charged, of aggravated robbery and

aggravated assault. The trial court sentenced the defendant as a multiple offender to fourteen years

for the aggravated robbery to be served concurrently with a six-year sentence for the aggravated

assault.

Sufficiency of the Evidence

On appeal, the defendant complains that the evidence was insufficient to support his

convictions for aggravated assault and aggravated robbery. He bottoms his grievance on what he

characterizes as the numerous and significant inconsistencies in the testimony of the state’s witnesses

and their motives to testify falsely. He also refers to the inadequate police investigation, such as the

failure to check for fingerprints or recover the shotgun.

A criminal conviction may be set aside only when the appellate court finds that the

“evidence is insufficient to support the finding by the trier of fact beyond a reasonable doubt.” Tenn.

-4-

R. App. P. 13(e). “A jury verdict, approved by the trial court, accredits the testimony of the

witnesses for the state and resolves all conflicts in favor of the state’s theory.” State v. Hatchett, 560

S.W.2d 627, 630 (Tenn. 1978); State v. Price, 46 S.W.3d 785, 818 (Tenn. Crim. App. 2000), perm.

app. denied (Tenn. 2001). Following the conviction, the appellate court reviews the evidence in the

light most favorable to the state and affords the state the benefit of all inferences that may be

reasonably drawn from the evidence. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). This

means that issues of the credibility of witnesses and the weight to be ascribed to their testimony are

matters entrusted to the trier of fact and are not issues for appellate analysis. Price, 46 S.W.3d at

818.

Moreover, a verdict against the defendant removes the presumption of innocence and

raises a presumption of guilt on appeal, State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973); Anglin

v. State, 553 S.W.2d 616, 620 (Tenn. Crim. App. 1977), which the defendant has the burden of

overcoming, State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

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) (1997). A

robbery becomes aggravated when it is “[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” or

“[w]here the victim suffers serious bodily injury.” Id. § 39-13-402(a)(1), (2) (1997).

In relevant part, assault is defined as “[i]ntentionally or knowingly caus[ing] another

to reasonably fear imminent bodily injury.” Id. § 39-13-101(a)(2) (1997). An assault becomes

aggravated when, inter alia, a defendant “[u]ses or displays a deadly weapon.” Id. § 39-13-

102(a)(1)(B) (Supp. 2001).

In our view, the evidence presented was sufficient to support a finding beyond a

reasonable doubt by a rational trier of fact that the defendant was guilty of aggravated robbery of Mr.

Pitts. The defendant and Waters entered Jones’s bedroom and demanded money from Pitts. When

Pitts declined to hand over his money, the defendant fired a sawed-off shotgun, which “just barely

missed” Pitts’s leg. At that point, Pitts surrendered his money, and the men ran out of the room.

Likewise, regardless whether Jones was or was not in the bedroom when the shotgun was discharged,

she testified that she was in the room and heard the demand for the money and the threat, “I’m not

playing with you.” She said that she saw the defendant pull out a gun. Understandably fearful of

being shot, Jones bolted from the room and ran out of the house in search of her mother. From this

proof, a reasonable jury was entitled to conclude that the defendant committed aggravated robbery

and aggravated assault.1

1

Facilitation of aggravated robbery and facilitation of aggravated assault were the only lesser-included offense

instructions given. Considering the overwhelming evidence that a shotgun was brandished and discharged, the failure

to instruct on any other ap plicable lesser-included offenses was harm less beyond a reaso nable doubt. See State v. Allen,

69 S.W .3d 1 81, 1 90 (Tenn. 20 02) (where elem ents distinguishing the grea ter, charged offense are “uncontested and

supported by overwhelming and uncontroverted evidence,” failure to instruct may be harmless error).

-5-

Identification Testimony

The defendant also challenges his convictions in this case on the basis that Jones’s

pretrial identification should have been suppressed. The defendant argues that the identification was

tainted because Shawn Lillard informed Jones that Shawn Lillard had seen the defendant before he

went into the Burns residence. The trial court conducted a pretrial hearing on the suppression motion

and issued a written order setting forth its findings of fact and conclusions of law.

Our review, at this stage, is quite narrow. Unless the evidence preponderates

otherwise, the trial court’s findings of fact on suppression issues are to be affirmed. See State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The trial judge is entrusted to decide questions of witness

credibility and to resolve conflicts in the evidence. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

In conducting our review, the “[t]estimony presented at trial may be considered . . . in deciding the

propriety of the trial court’s ruling on a motion to suppress.” State v. Perry, 13 S.W.3d 724, 737

(Tenn. Crim. App. 1999). Our review of the trial court’s application of law to the facts, however,

is conducted under a de novo standard of review. See Walton, 41 S.W.3d at 81.

“To be admissible as evidence, an identification must not have been conducted in

such an impermissibly suggestive manner as to create a substantial likelihood of irreparable

misidentification." State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998) (citing Simmons v. United

States, 390 U.S. 377, 88 S. Ct. 967 (1968)). In Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972),

the Supreme Court identified five factors for assessing the reliability, and therefore the admissibility,

of an identification. They are: (1) the opportunity of the witness to view the perpetrator at the time

of the offense; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description

of the perpetrator; (4) the level of certainty demonstrated by the witness at the confrontation; and (5)

the time between the crime and the identification. Id. at 199, 93 S. Ct. at 382. These factors for

evaluating the reliability of an identification have been adopted in this state. See Rippy v. State, 550

S.W.2d 636, 640 (Tenn. 1977); Bennett v. State, 530 S.W.2d 511, 515 (Tenn. 1975).

As the trial court noted in its written order, no evidence or argument is advanced in

this case that the procedure conducted by Detective Ball was suggestive in some way. The detective

gave a straightforward explanation how the two photographic lineups were constructed by a

computerized process. According to the trial court, the physical characteristics of the individuals

depicted in the photographs are not “grossly dissimilar,” and in many instances are “strikingly

similar.” See State v. Edwards, 868 S.W.2d 682, 694 (Tenn. Crim. App. 1993). We note that the

lineups are not included in the appellate record, see State v. Price, 46 S.W.3d 785, 812 (Tenn. Crim.

App. 2000) (duty of appellant to supply adequate appellate record for determination on the merits);

the defendant, however, does not challenge the accuracy of the trial court’s characterization, and we

perceive no basis to reject the characterization. Moreover, there appears to be no grounds to attack

how the lineups were presented to the witnesses. Detective Ball did not suggest to Jones that the

defendant’s photograph would be among those she would be viewing. Jones, in fact, testified that

when the detective showed her the photographs, he told her that the assailants may or may not be in

the photographs.

-6-

The defendant’s argument, consequently, reduces to the claim that Jones’s

identification of the defendant was tainted by the earlier conversation with Shawn Lillard who said

that she had seen her brother before the incident occurred. The trial court examined the factors set

forth in Neal v. Biggers and found that Jones had two opportunities to view the assailants. The first

time was when the men came into the bedroom, and she saw them a second time as they fled from

the residence after the shot was fired. At the suppression hearing, Jones testified about the lighting

conditions in her room. She believed that the bedroom light was extinguished but that the bathroom

light was on; at any rate, Jones insisted that the light from the television, which Pitts was using to

play Nintendo, was adequate to see the men clearly. The trial court credited this testimony, as it was

entitled to do.

Regarding the witness’s degree of attention, the trial court pointed out that Jones

recognized the defendant when he entered the bedroom. She saw the gun in the defendant’s hand

and described it at the hearing as a “sawed off shot gun with no handle.” As for accuracy, certainty,

and time interval between the crime and the identification, the trial court noted that Jones provided

the defendant’s name to the police and that she had spoken with both men shortly before the offense

was committed. Jones, moreover, testified at the hearing that she knew the defendant particularly

well. Detective Ball, the trial court found, said that Jones identified the defendant’s photograph

“immediately with no hesitation.” The lineup itself, the trial court found, was conducted within one

to two hours after the robbery. See State v. Carter, 682 S.W.2d 224, 226 (Tenn. Crim. App. 1984).

From the evidence presented and weighing the relevant legal criteria, the trial court

“accredit[ed] the testimony of the witnesses and [found] that the factors weigh heavily in favor of

the reliability of the identification.” The identification, therefore, was admitted at trial. Our review

convinces us that the trial court applied the correct legal standards and that the proof does not

preponderate against its ruling that the identification was reliable and, therefore, admissible.

Based on the foregoing and the record before us, we affirm the judgments of the trial

court.

____________________________________

JAMES CURWOOD WITT, JR., JUDGE

-7-