The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1997 SESSION
June 24, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. No. 03C01-9610-CR-00383
)
Appellee, ) MONROE COUNTY
)
VS. ) HON. MAYO MASHBURN, JUDGE
)
MATTHEW L. MOATES, ) (Agg. Robbery)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
W. HOLT SMITH JOHN KNOX WALKUP
209 Tellico Street North Attorney General and Reporter
Madisonville, TN 37354
MICHAEL J. FAHEY, II
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JERRY N. ESTES
District Attorney General
RICHARD NEWMAN
Assistant District Attorney General
P.O. Box 647
Athens, TN 37303
OPINION FILED:
AFFIRMED
CHRIS CRAFT,
SPECIAL JUDGE
OPINION
Defendant, Matthew L. Moates, appeals as of right from a jury conviction for
aggravated robbery. Moates presents four issues for our review: 1) whether the
evidence was sufficient to sustain the conviction; 2) whether the trial judge erred in
failing to institute procedures mandated by Batson v. Kentucky and improperly allowed
the State to exclude the only black member of the jury venire; 3) whether the State
improperly withheld from Defendant a plea bargain agreement with a state witness;
and 4) whether a photo line-up was unduly suggestive and should have been
suppressed. We affirm the judgment of the trial court.
FACTS
The facts of this case involve the armed robbery of a Phillips 66 convenience
store in Sweetwater, Monroe County, Tennessee. Kay Lowe testified at trial that she
was working at the store the night of the robbery, and her nephew, Tim West, was
staying with her. At around 5:00 am, a man entered the store ostensibly to buy a
carton of cigarettes. As Ms. Lowe rang up the sale, he produced a gun and said, “Now
I want all your money.” After she gave him the cigarettes and cash drawer he ordered
them both to lie face down on the floor. At first, Tim West thought he was joking, but
he told him, “Get over here. This is no joke,” and both obeyed. They waited on the
floor until another customer came in, and then called the police. Both victims
described the robber to the police as a white male with long dark hair and a
moustache, a red checkered shirt and possibly blue jeans. They both identified the
defendant as the robber in a photo line-up shown them three months later, and also
in court at trial. Ms. Lowe also testified that some time later she saw someone that
looked like the robber at the local Krystal drive-in window, and called the police, but
that nothing came of it.
Mary Ann Clingan testified that during the time of the robbery, while her
husband was serving time in jail, the defendant was staying with her. The morning of
the robbery she and the defendant were returning to Bradley County from Sevierville
when she pulled off the highway onto the Phillips 66 store lot, and gave the defendant
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two dollars to get her some cigarettes. She parked around the side of the store and
could not see into the store. The defendant was wearing a red, multicolored flannel
shirt and blue jeans. After about five minutes, he came running out of the store with
a black gun in his hand, and later showed her about $150 which he said he got at the
store. They then continued on to her house. She claimed she did not call the police
because she was afraid for her children. At the time of the trial, she was under house
arrest, charged with being an accessory after the fact to the robbery.
The defense called two witnesses. One testified that Ms. Lowe told her the
robber was six feet tall, had long black hair, was tan, and that she had seen him at a
local restaurant some time after the robbery. The other witness testified that the
morning of the robbery the police asked him to go down to the station, took his picture,
and questioned him about the robbery, stating they were looking for “a local guy.”
SUFFICIENCY OF THE EVIDENCE
The Defendant contends the evidence was insufficient to prove guilt beyond a
reasonable doubt. In Tennessee, great weight is given to the result reached by the
jury in a criminal trial. A jury verdict accredits the state’s witnesses and resolves all
conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be
drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978). Moreover, a
guilty verdict removes the presumption of innocence which the appellant enjoyed at
trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474
(Tenn. 1973). The appellant has the burden of overcoming this presumption of guilt.
Id.
Where sufficiency of the evidence is challenged, the relevant question for an
appellate court is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307(1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).
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The weight and credibility of the witnesses’ testimony are matters entrusted exclusively
to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984); State
v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
Both victims in this case identified the defendant twice as the man who robbed
them at gunpoint of money and cigarettes, first in a photo line-up and then in court
during the trial. The officer who conducted the line-up testified the defendant’s picture
was identified “almost immediately.” A witness who was living with the defendant at
the time testified she drove the defendant to and from the store the morning of the
robbery, that he was dressed in clothes matching the description of the robber, came
running out of the store with a gun in his hand, and had $150 that he later told her he
had taken from the store. Defense proof tending to suggest that the robber may have
been a local resident was obviously rejected by the jury in the face of the state’s proof.
The evidence is more than sufficient to support the conviction for aggravated robbery.
This issue is without merit.
THE BATSON ISSUE
Next, the defendant argues that the trial court erred by permitting the state to
exercise a peremptory challenge to dismiss a female black juror in violation of the rule
in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). In Batson, the United
States Supreme Court held that the prosecutor's use of peremptory challenges to
intentionally exclude jurors of the defendant's race violated his right to equal protection
under the fourteenth amendment to the U.S. Constitution. In Powers v. Ohio, 499 U.S.
400, 111 S. Ct. 1364 (1991), the Supreme Court upheld the principles in Batson but
eliminated the requirement that the defendant and the wrongfully excluded juror be of
the same race in order for there to be an equal protection claim. Therefore even
though the Defendant is a white male, he can still challenge the exclusion of a black
female from the jury venire, if he can show she is excluded on the basis of race. See
State v. Ellison, 841 S.W.2d 824, 826 (Tenn. 1992).
During jury selection, a female black juror was peremptorily challenged by the
State, without objection. The jury was sworn, opening statements were made by the
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State and the Defendant, and then outside the presence of the jury the Defendant’s
attorney asked the State to show a “non-discriminatory reason for having excused this
juror.” The prosecutor responded:
The reason that she was excused, your Honor, was because of her address.
It’s a known drug area. I asked the police officer. He said that because of the
area that she lived in, that it was a drug area, and he recommended that we
excuse her. I concurred in that.
The trial judge noted the defense objection for the record, without ruling on whether
or not he found the reason was “non-discriminatory,” and the first witness was called.
The Defendant now objects to the excusal of the black juror. This issue was
waived by Defendant when he failed to object at the time of the exercise of the
peremptory challenge, or at least prior to the swearing of the jury. “The appropriate
time for [a Batson objection] is prior to the acceptance and swearing in of the jury. After
a party has assured the court that the jury as impaneled is acceptable, that party will
not be heard to complain of the makeup of the jury panel. This issue, based upon a
motion not timely made, is overruled.” State v. Peck, 719 S.W.2d 553, 555 (Tenn.
Crim. App. 1986). See also T.R.A.P. 36(a). Furthermore, even if this issue had not
been waived, this Court finds it to be without merit. The trial judge, in his written order
overruling the Motion for New Trial, found that
[the juror] was peremptorily challenged by the state. Following [the juror’s]
challenge and excusal, another juror was seated and accepted by the State and
Defendant. Following this, two alternate jurors were accepted by the State and
Defendant. Thereafter, the indictment was read and both counsel made
opening statements, following which a recess was declared.
During the recess, Defendant’s attorney, for the first time, raised an
objection to the State’s peremptory challenge of [the juror]. State’s counsel
responded that his challenge of [the juror] was based upon the prosecuting
officer advising him that [the juror’s] address was in a known drug area of the
city. No mention was made as to whether said area was predominately black.
Based on the State’s representation, it is the Court’s finding that the
State’s explanation did not raise the specter of being racially based or
motivated, but instead was racially neutral.
The trial judge accepted the explanation of the State. We cannot substitute our
judgment for that of the trial court or declare error absent a finding that the trial judge
abused his discretion. State v. Melson, 638 S.W.2d 342, 347 (Tenn.1982). The
reason given by the State was sufficient, and we find no abuse of discretion.
The explanation need not be persuasive nor plausible. So long as
discrimination was not inherent in the explanation, the reason will be accepted
as race neutral. What is meant [in Batson] by a 'legitimate reason' is not a
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reason that makes sense, but a reason that does not deny equal protection.
Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896 (Tenn. 1996) , citing
Purkett v. Elem, 514 U.S. at , 115 S. Ct. at 1771(1995), and Hernandez v. New
York, 500 U.S. 352, 359, 111 S. Ct. 1859 (1991).
FAILURE TO DISCLOSE PLEA BARGAIN AGREEMENT
The defendant next complains that the State had reached a plea bargain
agreement with Mary Ann Clingan, offering her a deal in exchange for her testimony,
but did not disclose the terms of the agreement to Defendant so it could be used
against her in cross-examination to show bias. At a pretrial hearing, Defendant’s
attorney produced an affidavit filed by Wayne Carter, Ms. Clingan’s assistant Public
Defender on charges in Bradley County, which stated that “[a]s part of the
consideration for the agreement the government has offered Mary Clingan (and to
which she has tentatively accepted), Mary Clingan has agreed to testify truthfully in
open court concerning several matters to which she may have been involved.... One
of the matters to which she may be called to testify concerns the alleged robbery of a
gas station in Monroe County, Tennessee.” Another affidavit from the Defendant’s
former assistant Public Defender, Thomas Kimball, in support of his motion to
withdraw, stated that Ms. Clingan’s attorney told him that she was never charged in
Defendant’s case because of the plea bargain. The State insisted at the hearing that
it knew of no such bargain. The trial judge ruled that he had no reason to question the
State’s integrity, and refused to order them to furnish the Defendant something they
didn’t know anything about.
Our Supreme Court has held in State v. Smith, 893 S.W.2d 908, 924 (Tenn.
1994) that an accused has a right to explore on cross-examination promises of
leniency to a prosecution witness to show a motive for testifying falsely for the State,
and that undue restriction of this right may sometimes violate a defendant's right to
confrontation. See also Delaware v. VanArsdall, 475 U.S. 673, 106 S.Ct. 1431 (1986),
and Cohen, Paine and Sheppeard, Tennessee Law of Evidence, § 616.3 (2nd ed.
1990). However, there is no proof in the record, other than the affidavits, that there
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ever was such a plea bargain. Ms. Clingan’s attorney was not called as a witness at
the hearing or at the trial. The duty of the State to disclose under Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194 (1963), does not extend to information that the defense
already possesses or is able to obtain, or to information not in the possession or
control of the prosecution. State v. Wooden, 898 S.W.2d 752, 755 (Tenn. Crim. App.
1994). Furthermore, the trial judge did not restrict the defense in any way from
exploring the bias of Ms. Clingan. She was thoroughly cross-examined by Defendant’s
attorney about a possible plea bargain agreement, and was confronted with the above-
mentioned affidavits, which were read to her in front of the jury. She denied under
oath the existence of any agreement, and insisted that she had been charged with
Accessory after the Fact to the Defendant’s robbery, which charge was still pending
at the time of the trial. In support of her testimony is a copy in the record of Ms.
Clingan’s judgment of conviction for Accessory after the Fact, offered as an exhibit at
Defendant’s sentencing hearing, for which Ms. Clingan received a one year suspended
sentence. There being no proof the State has done anything improper, or that the
Defendant was at all prejudiced in its cross-examination of this witness, this issue has
no merit.
SUGGESTIVENESS OF THE PHOTOGRAPHIC LINE-UP
The Defendant moved to suppress the photographic line-up given the two
victims of the robbery by Officer Long, on the basis that in his opinion the Defendant’s
face appeared larger in his photo than in the other five photos, which might have been
unduly suggestive. After a pretrial hearing on the motion, the trial judge found
“absolutely nothing suggestive about that photographic line-up,” and denied the motion
to suppress. This Court has likewise examined the photo line-up, and finds that
although two photos, one being that of Defendant, were apparently taken at a closer
distance than the other four, making the faces of those two subjects appear slightly
larger, all six photos, showing white males with moustaches and long dark hair, are
remarkably similar in appearance. The line-up does not appear to suggest any one
photo over another. The difference in facial size was explained by Officer Long in the
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suppression hearing as a consequence of his department now having to use a new
hand-held camera, instead of the old one that was mounted on a stand.
A trial court's finding that the identification procedure was not suggestive is
conclusive on appeal unless the evidence preponderates against the judgment. State
v. Davis, 872 S.W.2d 950, 955 (Tenn. Crim. App. 1993). Due process is violated only
if, under the totality of the circumstances, Stovall v. Denno, 388 U.S. 293, 87 S.Ct.
1967 (1967), the identification procedure is found to be so suggestive as to give rise
to "a very substantial likelihood of irreparable misidentification," Simmons v. United
States, 390 U.S. 377, 88 S.Ct. 967 (1968), which was not the case with the line-up
used here. The trial court did not err in denying the motion to suppress.
For the above reasons the judgment of the trial court is AFFIRMED.
CHRIS CRAFT, SPECIAL JUDGE
CONCUR:
JERRY L. SMITH, JUDGE
JOE G. RILEY, JUDGE
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