                                                                                        10/24/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               August 20, 2019 Session

                   STATE OF TENNESSEE v. DUSAN SIMIC

               Appeal from the Criminal Court for Davidson County
               No. 2017-D-2344, 2018-A-83   Monte Watkins, Judge
                      ___________________________________

                           No. M2018-01995-CCA-R9-CD
                       ___________________________________


The Defendant, Dusan Simic, was indicted for various offenses committed in the course
of a series of robberies in July and August of 2017. The trial court granted the
Defendant’s motion to suppress out-of-court identifications made by four victims on the
basis that the photographic lineups were unduly suggestive. The trial court and
subsequently this court granted interlocutory review. The State asserts that interlocutory
review is proper and that the trial court erred in determining that the lineups were
suggestive; the Defendant disagrees. We conclude that interlocutory appeal was
improvidently granted. Accordingly, we dismiss the appeal and remand for further
proceedings.

   Tenn. R. App. P. 9 Interlocutory Appeal; Appeal Dismissed; Case Remanded

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Kristen Kyle-
Castelli and Sara Diehl, Assistant District Attorneys General, for the appellant, State of
Tennessee.

Bernard F. McEvoy, Nashville, Tennessee, for the appellee, Dusan Simic.
                                           OPINION

                      FACTUAL AND PROCEDURAL HISTORY

       The Defendant was identified through the use of photographic lineups by four
separate victims in a series of robberies, and he was charged with the carjacking of Ms.
Sandra Ortiz-Munoz committed on July 20, 2017; with the aggravated robbery of Ms.
Ortiz-Munoz on the same date; with the aggravated robbery of Ms. Maria Zarco
committed on July 30, 2017; with two counts of aggravated assault committed against
Ms. Zarco’s minor children on the same date; with the robbery of Ms. Lesvia Turcios-
Hernandez committed on July 30, 2017; with the aggravated robbery of Ms. Loida Correa
committed on August 1, 2017;1 with two counts of aggravated assault committed against
Ms. Correa’s minor children on the same date;2 and with various other offenses,
including evading arrest in a motor vehicle, theft of a license plate from Mr. Paul Pickard,
driving under the influence (“DUI”), driving with a suspended or revoked license, and
possession of drug paraphernalia, all committed on August 2, 2017.

        The Defendant moved to suppress the out-of-court identifications made by the
four victims of the robberies on the basis that the various lineups were impermissibly
suggestive. In its brief summarizing the facts related to the identifications, the State
recited that a vehicle had been stolen from Ms. Ortiz-Munoz, that Ms. Turcios-Hernandez
had obtained a license plate number that established that the stolen car was used in
robbing her, that the stolen vehicle was matched through surveillance footage to the
vehicle used in the robbery against Ms. Correa, and that it was “the same vehicle the
Defendant was seen driving days after that attack.” The State also argued that, even if the
court were to determine that the lineups were unduly suggestive, the witness
identifications were nevertheless reliable. At the hearing, the parties agreed to address
only whether the lineups were impermissibly suggestive, leaving the question of
reliability, which might require testimony from the victims, for a later time.

        The trial court held a hearing and issued a written ruling which addressed both the
suggestiveness of the lineups and the reliability of the identifications, ultimately
concluding that the out-of-court identifications must be suppressed. The trial court
recited the legal standard for reliability and made factual determinations relevant to
reliability, finding that “[e]ach alleged victim had an opportunity to observe the
defendant, observed the defendant in close proximity, gave a description of the
defendant, gave a positive identification of the defendant, and identified the defendant

       1
        The offenses committed on August 1, 2017, were charged in a separate indictment.
       2
        We glean from the motions filed in the trial court that the victims of these assaults were
Ms. Correa’s minor children.
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within the same day to within two weeks of the encounter.” The trial court found that no
statements were made during the lineups and that the victims chose the Defendant
“unequivocally.”

       The trial court then found the lineups were unduly suggestive. Initially, the trial
court found that the complexions, hairstyles, and hair color of the subjects of the
photographs were “somewhat similar.” However, the trial court found that these
characteristics were “grossly dissimilar” from the witness descriptions, noting that “[t]he
photographic lineups contain individuals of different ages, different complexions,
different hairstyles and color than the descriptions given by the victims.” The court
found that the lineups were faulty because they contained photographs of subjects “older
than the defendant, of a different race than defendant, and different from the descriptions
given by the witnesses.” The court also observed that “the lineup was comprised in such
a way that the suspect would stand out among the other photos in the lineup.” The court
granted the motion to suppress.

        The State filed a motion for permission to appeal this order under Tennessee Rule
of Appellate Procedure 9. The State noted in its motion that the parties had agreed to
limit proof at the hearing to suggestiveness and to postpone any proof regarding
reliability but did not request relief regarding this irregularity. The State asserted that
interlocutory appeal was necessary to prevent irreparable injury because “[i]f the State is
forced to proceed to trial without the photographic lineups and a jury acquits without
being allowed to consider important evidence, the State is left without an avenue for
recourse.” During the extremely brief hearing on the motion, defense counsel stated that
he did not believe the motion required proof. The trial court agreed that no proof would
be necessary and made statements appearing to indicate that it would reflexively grant a
motion for interlocutory appeal. The trial court’s order granting appeal stated that the
suppressed evidence constituted “the bulk” of the case.

       A divided panel of this court granted the State’s application for interlocutory
appeal. In granting the appeal, this court adopted the reasons supporting interlocutory
appeal set out by the trial court and approved the trial court’s findings that “the
suppressed evidence ‘constitut[es] the bulk of the State’s case’ and ‘it would be almost
impossible for the State to prove the defendant’s guilt’ without it.” State v. Dusan Simic,
No. M2018-01995-CCA-R9-CD, at *3 (Tenn. Crim. App. Jan. 31, 2019) (order). The
court concluded that the suppression eliminated any reasonable probability of successful
prosecution. Id.

       One judge dissented from the decision to grant interlocutory appeal, concluding
that the merits of the suppression issue should not be reached because the State had made
no showing of irreparable injury. Id. (Woodall, J., dissenting). The dissent observed that
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the trial court’s ruling did not prevent the State from asking the witnesses to make an
identification during trial and that the State had introduced no proof regarding how the
suppressed pretrial identifications would affect the strength of its case. Id. at *1, 3.
Likewise, the dissent concluded that the State had not shown that the courts had not
established a uniform body of law. Id. at *2. Observing that the State had “utterly
failed” to demonstrate irreparable injury, the dissent concluded review was inappropriate.
Id. at *3. The dissent also concluded that, on the record before us, the trial court abused
its discretion in granting interlocutory appeal both because its oral ruling appeared to
indicate that it would routinely grant Rule 9 applications and because its finding that the
evidence constituted the bulk of the State’s case was not supported by the evidence. Id.
at *6-7.

                                       ANALYSIS

       On appeal, the State argues that the trial court erroneously suppressed the evidence
and that the Defendant essentially waived any argument opposing the granting of
interlocutory appeal. The Defendant responds that the appeal was improvidently granted
and that the trial court did not err in suppressing the evidence. We conclude that because
the State has failed to carry its burden of showing irreparable injury, the appeal was
improvidently granted and must be dismissed.

        The State generally has no right to appeal in a criminal prosecution “unless the
right is expressly conferred by a constitutional provision or by statute.” State v. Meeks,
262 S.W.3d 710, 718 (Tenn. 2008). A statute conferring such right will be strictly
construed to encompass only the circumstances listed in the statute, and the State may not
appeal pursuant to a general grant of appellate jurisdiction. Id. As pertinent here,
Tennessee Rule of Appellate Procedure 9 permits trial and appellate courts to consider a
discretionary appeal from an interlocutory order in a criminal case. Tenn. R. App. P.
9(a), (f). However, “interlocutory appeals to review pretrial orders or rulings, i.e., those
entered before a final judgment, are ‘disfavored,’ particularly in criminal cases” because
they may create piecemeal litigation and delay. State v. Gilley, 173 S.W.3d 1, 5 (Tenn.
2005) (quoting United States v. MacDonald, 435 U.S. 850, 853 (1978)). Accordingly, “it
is incumbent on the party seeking the appeal—in this case the State—to satisfy the court
or courts that there are appropriate grounds for an interlocutory appeal.” Meeks, 262
S.W.3d at 720.

       Tennessee Rule of Appellate Procedure 9 observes that such appeals are
discretionary and provides that:

       . . . In determining whether to grant permission to appeal, the following,
       while neither controlling nor fully measuring the courts’ discretion, indicate
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      the character of the reasons that will be considered: (1) the need to prevent
      irreparable injury, giving consideration to the severity of the potential
      injury, the probability of its occurrence, and the probability that review
      upon entry of final judgment will be ineffective; (2) the need to prevent
      needless, expensive, and protracted litigation, giving consideration to
      whether the challenged order would be a basis for reversal upon entry of a
      final judgment, the probability of reversal, and whether an interlocutory
      appeal will result in a net reduction in the duration and expense of the
      litigation if the challenged order is reversed; and (3) the need to develop a
      uniform body of law, giving consideration to the existence of inconsistent
      orders of other courts and whether the question presented by the challenged
      order will not otherwise be reviewable upon entry of final judgment.
      Failure to seek or obtain interlocutory review shall not limit the scope of
      review upon an appeal as of right from entry of the final judgment.

Tenn. R. App. P. 9(a).

       A party wishing to appeal an interlocutory order to an appellate court is taxed with
providing the court with a statement of the issues, “a statement of the facts necessary to
an understanding of why an appeal by permission lies,” a statement of the reasons
supporting interlocutory appeal, and an appendix containing specified parts of the record,
including those “necessary for determination of the application for permission to appeal.”
Tenn. R. App. P. 9(d). Any other party “may” file an answer. Tenn. R. App. P. 9(d).
Granting appellate review constitutes a separate exercise of discretion. Tenn. R. App. P.
9(b).

        We begin by addressing the State’s argument that defense counsel’s statement to
the trial court that he did not believe the motion for interlocutory appeal necessitated
proof precludes him from opposing the State’s request for interlocutory appeal now. This
amounts to an argument that any opposition to interlocutory appeal is waived. However,
as noted above, the State’s right to an appeal must be predicated upon a constitutional
provision or statute. Meeks, 262 S.W.3d at 718. In State v. Gilley, both parties sought
interlocutory review of a trial court’s ruling on a motion to suppress, but the Tennessee
Supreme Court nevertheless concluded that interlocutory appeal was inappropriate. 173
S.W.3d at 5-6; see also State v. Gawlas, 614 S.W.2d 74, 75 (Tenn. Crim. App. 1980)
(concluding that failure to follow the strictures of Rule 9 defeated this court’s
jurisdiction). As in Gilley, our decision to grant interlocutory review is a separate
exercise of judicial discretion, and we conclude that we must exercise our discretion
under the statute regardless of any purported waiver of our consideration of the propriety
of interlocutory appeal.

                                           -5-
        In the case at bar, the State initially sought, and the trial court granted,
interlocutory review based on irreparable injury. In seeking review in this court, the State
also argued the need to “maintain a uniform body of law.” We agree with the dissent of
the panel granting review that the legal standard is the necessity to “develop” not to
“maintain” a uniform body of law, and that the State has not shown that review is
appropriate under this provision. Dusan Simic, No. M2018-01995-CCA-R9-CD, at *2
(Woodall, J., dissenting). In its subsequent brief, the State asserted that the trial court
misapplied the correct legal standard and that this resulted in the development of new
law. However, the State does not argue that there is ambiguity in the established legal
standards pertaining to the suggestiveness of lineups. The trial court’s misapplication of
the correct legal standards might be error, but it does not demonstrate the lack of a
uniform body of law. We likewise reject the State’s argument, which is raised for the
first time in its brief and based on the speculation that a lesser quantum of proof could
result in a hung jury, that review is necessary to prevent needless, expensive, and
protracted litigation.

        The State also argues irreparable injury. Interlocutory appeal may be “especially
appropriate” where “no procedure is otherwise specifically prescribed” for review. Reid
v. State, 197 S.W.3d 694, 699 (Tenn. 2006); see State v. Harrison, 270 S.W.3d 21, 30
(Tenn. 2008) (granting interlocutory review regarding proper procedure for pretrial
psychological discovery in competency determination). “When an order suppresses or
excludes evidence and thereby eliminates the heart of the State’s case, requiring the State
to proceed to trial without the suppressed evidence could result in irreparable injury to the
public’s interest if the accused is acquitted.” Meeks, 262 S.W.3d at 720. Accordingly, if
the suppression of evidence “eliminates any reasonable probability of a successful
prosecution,” this court should exercise its discretion to grant Rule 9 review. Id.
Interlocutory review of suppression determinations allows the parties to review
“questionable rulings” and by providing prompt review, decreases the repetition of error.
Id. at 721.

       In Gilley, both the State and the defendant sought review of the trial court’s partial
denial and partial grant of a pretrial motion to suppress. Gilley, 173 S.W.3d at 5. The
Tennessee Supreme Court recognized that if the State’s evidence were excluded and the
defendant were acquitted, the State would be unable to obtain review of the trial court’s
decision. Id. at 6. The Court nevertheless observed, “That alone, however, does not end
the inquiry.” Id. The Court determined that it was error for the lower courts to grant
interlocutory review, concluding that an appellate ruling was not necessary to achieve
uniformity in the law because the trial court would have the flexibility to revise its ruling
based on Tennessee Rule of Evidence 404(b) at trial and because the trial court’s decision
was not likely to result in needless, expensive, and protracted litigation. Id.; compare
State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014) (granting review of the suppression of
                                            -6-
video evidence even though the witness was available to testify “[b]ecause the
constitutionality of the statute presents an issue of first impression and provides the
opportunity to resolve an important question of law and settle an issue of public
interest”).

       Here, if the State were to proceed to trial without the suppressed evidence and the
Defendant were acquitted, there would be no mechanism to review the suppression
decision. This circumstance weighs in favor of interlocutory appeal. Reid, 197 S.W.3d
at 699. However, the Tennessee Supreme Court has cautioned that potential absence of
review alone “does not end the inquiry.” Gilley, 173 S.W.3d at 6.

        This court has considered the quantum of the State’s proof in assessing whether
suppression would work irreparable injury. See State v. Raffael Fansano, No. E2018-
00664-CCA-R9-CD, 2019 WL 1785339, at *7 (Tenn. Crim. App. Apr. 24, 2019) (noting
that the State had stated that there was little evidence other than the suppressed
statement), no perm. app. filed; cf. State v. Boyce Turner, No. E2013-02304-CCA-R3-
CD, 2014 WL 7427120, at *4 (Tenn. Crim. App. Dec. 30, 2014) (suppressing blood test
results would eliminate any probability of a successful prosecution because no field
sobriety tests were performed and the ruling was therefore appealable under Rule 10). In
this case, the State presented merely a conclusory assertion that it would suffer
irreparable injury, but the record contains nothing demonstrating the importance of the
suppressed evidence to the State’s case. See Meeks, 262 S.W.3d at 720. In essence, the
State wishes this court to reflexively grant interlocutory review whenever evidence
favorable to the State is suppressed, but this is not the correct legal standard. Instead, the
legal standard is a showing of “irreparable injury.” Tenn. R. App. P. 9(a).

        As the defense points out, the trial court did not exclude any potential in-court
identifications made by the witnesses for the State. Rule 9(a) directs us to consider “the
severity of the potential injury” and “the probability of its occurrence,” but without any
inkling of the contours of the State’s case, we are unable to follow the dictates of the
Rule. Meeks states that interlocutory review should be granted when suppression of the
evidence would destroy “the heart” of the State’s case. Meeks, 262 S.W.3d at 720.
While we do not decide what showing would demonstrate irreparable injury, we conclude
that the State has not shown irreparable injury here. The State’s own motion described
the evidence as merely “important evidence,” and the prosecution never represented to
the court that the absence of the evidence would in any way hinder the prosecution but
only noted the absence of review. “[I]t is incumbent on the party seeking the appeal—in
this case the State—to satisfy the court or courts that there are appropriate grounds for an
interlocutory appeal.” Id. In this case, the State has not met this burden. We
furthermore agree with the dissent from the panel granting review that the trial court’s
factual finding that the evidence is “the bulk of the State’s case” is not supported by the
                                            -7-
record and that the trial court’s oral ruling implying that it would grant Rule 9 review as a
matter of right applies an incorrect legal standard. Dusan Simic, No. M2018-01995-
CCA-R9-CD, at *6-7 (Woodall, J., dissenting).

       We conclude that the State, by presenting nothing from which we could conclude
that the suppression would cause irreparable injury, has not met its burden. Accordingly,
we determine that review was improvidently granted, and we remand the case for further
proceedings. See State v. Brian J. Hunter, No. 02C01-9708-CR-00309, 1998 WL
473887, at *1 (Tenn. Crim. App. Aug. 14, 1998) (concluding that review was
improvidently granted in part); State v. Michael Barone, No. C.C.A. 89-22-III, 1989 WL
28305, at *1 (Tenn. Crim. App. Mar. 28, 1989). Our determination in no way expresses
an opinion regarding the propriety of the trial court’s ruling suppressing the evidence.

                                     CONCLUSION

      Based on the foregoing reasoning, we conclude that interlocutory appeal was
improvidently granted, and we dismiss the appeal.



                                    ____________________________________________
                                     JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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