            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            OCTOBER 1996 SESSION
                                                        September 30, 1997

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk

STATE OF TENNESSEE,                 )    NO. 01C01-9601-CC-00011
                                    )
      Appellee                      )    MAURY COUNTY
                                    )
v.                                  )    HON. JIM T. HAMILTON, JUDGE
                                    )
MICHAEL AMOS                        )    (Attempted Second Degree Murder,
                                    )    Especially Aggravated Robbery)
      Appellant                     )
                                    )


FOR THE APPELLANT                        FOR THE APPELLEE

Michael D. Noel                          John Knox Walkup
2400 Crestmoor Road, Ste. 318            Attorney General and Reporter
Nashville, Tennessee 37215               450 James Robertson Parkway
                                         Nashville, Tennessee 37243-0493
L. Robert Grefseng
28 Public Square                         John R. Collier
Columbia, Tennessee 38401                Assistant Attorney General
                                         450 James Robertson Parkway
                                         Nashville, Tennessee 37243-0493

                                         T. Michael Bottoms
                                         District Attorney General
                                         P.O. Box 459
                                         Lawrenceburg, Tennessee 38464

                                         Jesse Durham
                                         Assistant District Attorney General
                                         P.O. Box 1619
                                         Columbia, Tennessee 38402

                                         J. Lee Bailey, III
                                         Assistant District Attorney General
                                         P.O. Box 1619
                                         Columbia, Tennessee 38402


OPINION FILED:_______________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                         Opinion

       The appellant, Michael Amos, appeals as of right his convictions following a

jury trial for the offenses of attempted second degree murder and especially

aggravated robbery. He argues on appeal that:

       (1) The trial judge erred when he did not grant the appellant a continuance

when a material alibi witness failed to appear on the day of the trial;

       (2) The trial judge erred when he did not allow the appellant to read prior

recorded testimony of the missing alibi witness into evidence;

       (3) The trial judge erred when he refused to allow the appellant to use a prior

recorded statement to impeach the State’s “eyewitness” to the crimes;

       (4) The trial judge erred when he refused to allow a photograph of the

appellant wearing rings on his left hand into evidence; and

       (5) The evidence was insufficient to support the conviction of especially

aggravated robbery.

       Following a careful review of the record on appeal and the applicable law, we

find that no reversible error appears on the record, and we, therefore, affirm the

appellant’s convictions.

                                   Factual Background

       On January 17, 1995, Officer William Doelle of the Maury County Sheriff’s

Department and Officer William Gault from the Columbia Police Department enlisted

the services of an undercover informant, Mike Wiley, to assist them in attempting to

make undercover drug purchases in a housing project operated by the Columbia

Housing Authority. The officers provided Wiley with five twenty-dollar bills for his use

in attempting to make street purchases of crack cocaine. The officers planned to

monitor any drug transactions through a concealed microphone placed on the

undercover informant. The officers also hid a video camera in the informant’s van in

order to establish a visual record of any transaction.



                                            2
        To execute the undercover operation, the informant drove around the south-

side part of the housing authority until he made contact with the appellant and another

unidentified African-American man. One of the two men told Wiley to drive around the

block one more time and then come back. When the informant returned, the appellant

and the other man approached the van and Wiley told them that he wanted to buy a

twenty-dollar rock of crack cocaine. The unidentified man handed the informant a

white rock which at first appeared to be crack cocaine, but when Wiley looked closer

he thought it looked more like a piece of wax. Wiley asked the two men if the rock

was real cocaine. In response, the appellant pulled out a gun and held it to the

informant’s head, saying, “Is this real?” The appellant also demanded that Wiley

return the cocaine-like substance, and for some unknown reason, Wiley refused to

relinquish the substance. At that time, the appellant fired the pistol three times into

the driver’s compartment of the van with the last bullet striking Wiley’s arm.

        On South Way Boulevard, which was approximately one block away, Officers

Doelle and Gault were monitoring the transaction through the radio transmissions from

the van. They heard the informant first say, “Don’t shoot!,” and then a few seconds

later say, “I’ve been shot!,” as he drove off in the van.1 The officers immediately

started driving towards the scene of the shooting and on the way they intercepted the

informant who told them that he had been shot and that he was going to the hospital.

As the officers got closer to Sycamore Street, they saw two African-American men

running south on West Willow Street, with one man wearing what appeared to be tan

or brown coveralls and the other man wearing a Dallas Cowboy’s starter jacket.

Officer Gault got out of the car and began pursuing them on foot up an embankment

and behind some houses. He then saw the two men running through a creek close to

the appellant’s house, and he intercepted the appellant a few seconds later in his



        1
         The m icrophone and the transmission equipment were designed to cut out loud noises, such as
gun shots, to protect the hearing of the listener. Therefore, the sound of the gun fired inside the car was
not audible to the office rs.

                                                    3
driveway at 112 Sycamore Street.2 The officers never apprehended the man wearing

the Dallas Cowboy’s jacket.

        At the time of his arrest, the appellant was wearing tan heavy-duty pants which,

according to the testimony of Officer Beth Lovett, were wet around the ankles. The

appellant was also wearing a few gold chains and a gold watch on his left wrist, and

he was in possession of a wrench and some miscellaneous items, including some

change and possibly two rings. The rings were found in his pocket, not on his fingers,

when he was arrested. On the porch of the house, the police found an aqua-colored

ball cap, which, according to the officer’s observation, was similar to a cap worn by

one of fleeing men. Several police officers searched the area surrounding the crime

scene and the appellant’s house, but they did not find a tan jacket, a face mask worn

by Wiley’s assailant, the weapon used in the shooting, any drugs, or the twenty-dollar

bill that changed hands during the drug transaction. A sample taken from the

appellant’s hands, however, revealed that both were covered with gunshot residue

and that the palm of appellant’s left hand had sufficient gunshot residue to indicate

that he could have fired a weapon with that hand.

        At trial, both the informant and an independent eyewitness identified the

appellant as the shooter. They testified that the appellant, during the drug transaction,

was wearing what appeared to be tan heavy-duty coveralls or a matching jacket and

pants looking like coveralls, a face mask, and an aqua-colored ball cap. They further

testified that the unidentified man was wearing a Dallas Cowboy’s starter jacket and a

face mask. The video recording made during the transaction was introduced into

evidence by the State and was played before the jury three times.3 Apparently, the



        2
          Officer Gault testified that it took one and one-half to two minutes from the time they realized
that the informant had been shot until he arrested the appellant. He also testified that the foot chase
lasted approxim ate ly forty-five seconds and that during that tim e he lost s ight of the appellant one tim e
for appro xim ately ten s eco nds and ano ther tim e for app roximately five to s ix secon ds.

        3
         Although the video recording was introduced and marked as State’s Exhibit 1 during trial, it was
never made a part of this record on appeal. Consequently, we were unable to view the contents of the
recording during our review of the record in this case.

                                                       4
video depicted the two assailants wearing the clothing as identified by the two

witnesses, and it also showed that the shooter was left-handed and that he was

wearing a gold watch on his left hand, but no rings on that hand.

      Six witnesses, including the appellant, testified for the defense. The appellant

testified that earlier on the day of the shooting he had gone to a body shop to obtain a

repair estimate. He said that he was accompanied by Steve Kinnard. After obtaining

his estimate, he testified that he returned to his home at 112 Sycamore, a short

distance from the shooting. The appellant said that although he was on the street

where the shooting occurred, he was some distance away. When he heard gunfire,

the appellant testified that he left the area and was in his driveway when confronted

and arrested by Officer Gault. He testified that he had been wearing his rings earlier

in the day, but had removed them and placed them in his pocket in order to work on a

motorcycle.

      Nathan Hill testified that he was sitting outside near the location of the shooting.

He testified that he saw the appellant some distance away from the van at the time of

the shooting and that the appellant was with Steve Kinnard.

      William Hall, appellant’s next-door neighbor, testified that he heard what

sounded like firecrackers and thereafter saw some boys running in the back of his

house down a creek and toward the highway away from his house.

       Milton Murray testified that he had known the appellant for twenty years and

opined that the appellant was truthful and honest. Murray acknowledged that he was

aware that the appellant had previously been convicted of robbery.

       The appellant’s mother testified that her son lived with her and did not own a ski

mask. She had no knowledge of any of the events surrounding the shooting, but she

testified that her son owned rings that he normally wore.

       Based upon the foregoing evidence, the jury found the appellant guilty of

attempted second degree murder and especially aggravated robbery. The trial court

later sentenced the appellant to a term of twelve years imprisonment for his conviction

                                           5
of attempted second degree murder and to a term of twenty-five years for his

conviction of especially aggravated robbery. He was also assessed a fine of $15,000

for each offense. The sentences were ordered to be served consecutively to each

other and consecutive to a previous six-year sentence for an earlier robbery

conviction.

                                             I.

       The appellant first contends that the trial court erred in denying his motion for a

continuance when a material alibi witness failed to appear on the day of the trial. This

issue is without merit.

       The appellant’s theory at trial was that even though he was present on the

street when the shooting occurred, he was standing next to Steve Kinnard some

distance away from the shooting and that upon hearing the gunshots, he and Kinnard

left the street for the appellant’s house. To support his theory, the appellant planned

to call two witnesses who would testify that they had seen or had been standing next

to the appellant when the shooting occurred. One of those witnesses, Steve Kinnard,

failed to appear at trial. The appellant’s counsel, believing that Kinnard would

voluntarily appear at trial, failed to issue a subpoena to secure his attendance until the

day before trial. After learning that the subpoena had not been served on Kinnard and

that Kinnard was not present on the morning of trial, counsel for the appellant made

an oral motion for a continuance. The motion was not supported by counsel’s

affidavit.

       Whether to grant or deny a motion for a continuance is within the trial court’s

sound discretion and the denial of such a motion will not be overturned on appeal

absent a clear showing that the trial court abused its discretion to the prejudice of the

defendant. State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982); Baxter v. State, 503

S.W.2d 226, 230 (Tenn. Crim. App. 1973). When a continuance is sought because a

witness is unavailable, the party seeking to offer that witness is required to file a

written motion which sets forth the grounds for the continuance with particularity

                                             6
unless the trial court permits an oral motion. State v. Dykes, 803 S.W.2d 250, 256

(Tenn. Crim. App. 1990), see Tenn. R. Crim. P. 47. The motion must be supported by

an affidavit stating:

       (a) the substance of the facts that the accused expects to prove through
       the unavailable witness, (b) sufficient facts to establish the relevance
       and materiality of the unavailable witness, (c) that the testimony would
       be admissible if the witness were available, (d) that the testimony is not
       merely cumulative to other testimony, (e) that the witness will be
       available at a later date, and (f) diligence was exercised to obtain the
       presence of the witness.

Dykes, 803 S.W.2d at 256-57 (footnotes omitted); see State v. Zirkle, 910 S.W.2d

874, 884 (Tenn. Crim. App. 1995); see also Tenn. Code Ann. § 40-18-103 (1990).

“The failure to file a . . . properly drafted affidavit, standing alone, will justify the denial

of the motion without a hearing.” Dykes, 803 S.W.2d at 257.

       In this case, appellant’s oral motion for continuance was not supported by

affidavit and therefore, the trial judge was well within his discretion in denying the

motion. Moreover, even if an affidavit had been filed, it is unlikely that the

appellant would have satisfied the Dykes test. First, the testimony of Steve Kinnard

was cumulative to that of other witnesses that the appellant presented at trial.

Moreover, the appellant failed to show diligence in insuring that Steve Kinnard would

be present at trial. As indicated above, the appellant’s counsel did not issue a

subpoena for Kinnard until one day before the trial.

                                               II.

       The appellant next contends that the trial court erred in not allowing the prior

recorded testimony of Steve Kinnard into evidence. This issue is without merit

       On February 7, 1995, the Maury County Circuit Court held a probation

revocation hearing for the purpose of determining whether or not to revoke the

appellant’s probationary sentence from a previous offense. Apparently, the ground

relied upon by the State for the probation revocation was the appellant’s participation

in the present offenses. At that hearing, Steve Kinnard testified that he and the

appellant were standing together near the appellant’s house when the shooting

                                               7
occurred and that the appellant therefore could not have fired the pistol into Wiley’s

van. Since Kinnard was never served with his subpoena to be a witness in the

present case, the appellant argues that Kinnard was an “unavailable” witness and that

his testimony from the probation revocation hearing should have been admitted as

former testimony under Tennessee Rule of Evidence 804(b)(1).

        Tennessee Rule of Evidence 804(b)(1) provides that when a witness is

unavailable to testify at trial, his or her former testimony will be allowed into court if it

was:

        [t]estimony given as a witness at another hearing of the same or a
        different proceeding or in a deposition taken in compliance with the law
        in the course of the same or another proceeding, if the party against
        whom the testimony is now offered had both an opportunity and a similar
        motive to develop the testimony by direct, cross, or redirect examination.


Id. For a witness to be considered “unavailable,” the party offering the testimony has

to show that the witness “is absent from the hearing and the proponent of [the]

statement has been unable to procure the declarant’s attendance by process.” Tenn.

R. Evid. 804(a)(5). This issue is most common in cases where state prosecutors seek

to introduce former testimony of “unavailable” witnesses. In those cases, courts have

required prosecutors to satisfy a two-prong test to protect the defendants’ Sixth

Amendment right to confrontation. This test provides that “it must be shown that the

[witness] whose prior testimony is offered at trial is truly ‘unavailable’ after a good faith

effort by the prosecutorial authorities to obtain his presence . . . [and that] once it is

shown that he is ‘unavailable’ the evidence must carry its own ‘indicia of reliability.’”

State v. Arnold, 719 S.W.2d 543, 548 (Tenn. Crim. App. 1986) (quoting Ohio v.

Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2539, 2542-43, 65 L.Ed.2d 597 (1980)).

        We find that this test should apply equally to prosecutors and defendants who

seek to admit the former testimony of an “unavailable” witness under Tennessee Rule

of Evidence 804(b)(1). We will, therefore, analyze this case under the above stated

test.


                                               8
       Here, we find no evidence that the appellant made a good-faith effort to obtain

Kinnard’s presence at trial. The appellant’s counsel knew that Kinnard disappeared

one week before the trial, however, the appellant has failed to introduce any evidence

that he attempted to locate Kinnard during that week. The record indicates that the

appellant had access to Kinnard’s girlfriend and that the appellant’s mother was able

to relay information and assist in locating Kinnard. Furthermore, the appellant did not

try to subpoena Kinnard until the day before trial. Thus, we conclude that the

appellant failed to make a good-faith effort to ensure Kinnard’s presence at trial.

Accordingly, we need not address the second prong of the test or discuss whether

Kinnard’s testimony qualified as former testimony.

                                            III.

       The appellant’s next contends that the trial judge erred when he refused to

admit in evidence a photograph of the appellant wearing rings on his left hand. This

issue is without merit.

       The video recording of the drug transaction apparently showed that the

individual firing the gun into the van wore no rings on his left hand. The appellant

claimed that he almost always wore two gold rings on his left hand and, therefore, he

could not have been the person firing the gun on the video tape. At trial, the appellant

attempted to prove this claim through witness testimony and an undated photograph

of himself wearing two rings on his left hand. Immediately before he attempted to

introduce the photograph, he testified that he had not been wearing the two rings

when he was arrested after the shooting. The trial judge excluded the photograph

stating that it was irrelevant.

       All relevant evidence is admissible unless it is specifically excluded by state or

federal constitution, statute or rule. Tenn. R. Evid. 402. Relevant evidence is

“evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would without the evidence.” Tenn. R. Evid. 401. Whether evidence is relevant is

                                            9
within the trial court’s sound discretion and its findings will not be overturned absent a

clear showing of abuse of discretion. State v. Leath, 744 S.W.2d 591, 593 (Tenn.

Crim. App. 1987); Gray v. State, 235 S.W.2d 20 (Tenn. 1950).

       We find that the trial court did not abuse its discretion when it excluded the

photograph of the appellant wearing two rings on his left hand. Both the appellant and

his mother had already testified that the appellant wore rings on his left hand. The

photograph, which illustrated one undated instance in time, would have been

cumulative to that testimony. Furthermore, the appellant failed to establish when the

photograph was taken, and since rings can easily be removed and put back on, one

picture of the appellant wearing rings a few weeks before the shooting has little, if any,

relevance. See Hardy v. State, 519 S.W.2d 400, 402 (Tenn. Crim. App. 1974)

(“[D]emonstrative evidence such as [a] photograph should be admitted with great

caution where it is corroborative of evidence representing physical characteristics as

transitory as long or short hair, sideburns, mustaches, or beards.”).

       Even if the photograph were relevant to a material issue of fact, we find that in

light of the evidence in the record on appeal, the trial court’s error would have been

harmless beyond a reasonable doubt. Tenn. R. App. P. 36(b); Tenn. R. Crim. P.

52(a). The appellant was identified as the shooter by the informant and an

independent eye witness, and the video recording also confirmed that the appellant

and the shooter had similar characteristics and wore similar clothes.

                                            IV.

       The appellant next argues that the trial judge erred in refusing to allow counsel

for the appellant to play a previously recorded audio taped interview of State witness

Norm Hogue for impeachment purposes. This issue is without merit.

       Before trial, the appellant’s counsel conducted phone interviews with an eye

witness, Norm Hogue, who had identified the appellant as the person firing the gun

into the van. During the cross-examination of Hogue, the appellant sought to play the

taped interviews to impeach Hogue by showing that his recorded statements

                                            10
contained racial bias and were inconsistent with his testimony. After the appellant

notified the trial court of his intention, the trial court, outside the presence of the jury,

reviewed the statements and compared them to Hogue’s testimony at trial. The trial

court found that the statements were not impeaching.

       The decision to admit or exclude evidence is left to the trial court’s sound

discretion and will not be disturbed unless it is arbitrarily exercised. State v. Hawk,

688 S.W.2d 467, 472 (Tenn. Crim. App. 1985); State v. Baker, 785 S.W.2d 132, 134

(Tenn. Crim. App. 1989). We have reviewed Hogue’s testimony at trial and

compared it to his recorded phone conversation with the appellant’s counsel. We find

no evidence that Hogue was racially biased against the appellant or that his phone

conversation was inconsistent with his testimony at trial, even though he did express

discontent with some of the activities that took place in the housing authority. We,

therefore, find that the trial court did not arbitrarily limit cross-examination of the

witness.

                                              V.

       The appellant next contends that the evidence introduced at trial was

insufficient to support his conviction of especially aggravated robbery. Specifically, he

asserts that the evidence presented at trial did not establish the elements of robbery,

as charged, beyond a reasonable doubt. Although we find this to be a close issue, we

conclude that the record sufficiently supports the judgment of the trial court.

       When a defendant challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in determining

whether “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, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are

required to afford the State the strongest legitimate view of the proof contained in the

record as well as all reasonable and legitimate inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

                                              11
       Questions concerning the credibility of witnesses, the weight and value to be

given to the evidence, and any factual issues raised by the evidence are resolved by

the trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State, and a presumption of guilt replaces the presumption of

innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

       A defendant challenging the sufficiency of the proof has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned

by the trier of fact. This Court will not disturb a verdict of guilt for lack of sufficient

evidence unless the facts contained in the record and any inferences which may be

drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to

find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).

       In this case, the State charged the appellant with especially aggravated

robbery. Count II of the indictment provided that:

       on or about the 17th day of January, 1995, in the State of Tennessee
       and County of Maury, that Michael Amos, before the finding of this
       indictment, did unlawfully and intentionally or knowingly, obtain property,
       to-wit: Twenty ($20.00) Dollars in money, with the intent of depriving
       Michael Wiley of the property and without his effective consent from the
       person of Michael Wiley by violence and accomplished by the use of a
       deadly weapon, to-wit: a gun as a result of which Michael Wiley suffered
       serious bodily injury . . . .(emphasis added).


       The only testimony as to what took place during the drug transaction was

presented by Michael Wiley and in pertinent part provided:

       Q.     Now, if you would, tell us what you did when you departed from
       where Officer Doelle was that day?
       A.     I was in my vehicle, and I was going down Polk Street. And I went
       down there a little ways, and I took a right. And there was a group of
       people standing out there, and I kind of eased by once, and I made the
       block, once again. And some people stopped and talked to me, and I
       told them I wanted to buy some crack. And they said, okay. Make the
       block.




                                              12
              And so, I made the block, again, and I pulled back up. And I
      didn’t pull all the way up to the end of the road. I stopped back from
      there a little ways.
              And two people approached me. And they come over to the car,
      and I told them to go to the other side. And they -- I told them, you
      know, to slam me a twenty. You know, I wanted a $20.00 rock.
              And so this little guy in a Dallas Cowboy’s jacket, he handed me
      the rock. And I looked at it, and it didn’t look real. I said, man, is this
      real? And so, the taller guy, over there, he pulled a gun out, and stuck it
      to my head and said, is this real? And I said, yeah, that’s real.
      Q.      Well, was this upsetting to you when that was done?
      A.      That’s an understatement.
      Q.      Would it be fair to say that it scared the heck out of you?
      A.      It scared the you-know-what out of me.
      Q.      Did you say anything?
      A.      I didn’t know actually what to say. I told him not to shoot me. I
      said, don’t shoot me; don’t shoot me. And he wanted the piece of
      whatever it was he give me back. I don’t know why I didn’t give it back.
      My brain wasn’t working right. But I didn’t give it back, and he
      proceeded to fire off rounds in the automobile. And about the third time
      he shot, he got me in the arm.
      * * *
      Q.      Okay. Now, you mentioned that they were demanding back -- or
      this one was demanding back this item you had purchased. And was it
      you intention to be purchasing a rock of cocaine?
      A.      Yes, sir.
      Q.      Now, what about money? Was there any money? Did somebody
      get some money?
      A.      Yes, sir.
      Q.      And what was that? A $20.00 bill?
      A.      Yes, sir.
      Q.      And did you have some other monies in the vehicle, there?
      A.      Yeah. I had four more twenties in the vehicle with me. That was
      for to make other buys with.
      Q.      Was each buy -- how much was each buy supposed to be?
      A.      About a twenty.

      The jury convicted the appellant of robbing Mr. Wiley of twenty dollars by

violence with the use of a deadly weapon. The record demonstrates that the appellant

stuck a gun to Mr. Wiley’s head with the intent to threaten Mr. Wiley and deprive him

of personal property. At that time, Mr. Wiley was in possession of five twenty-dollar

bills and the white rock, purported to be cocaine. There is no evidence that Mr. Wiley

gave a twenty-dollar bill to the appellant to complete a purchase of the white rock. To

the contrary, Mr. Wiley testified that “someone” took one of the twenty-dollar bills from

him while the appellant pointed his gun at Mr. Wiley and thereafter fired three shots




                                           13
into the cab of the van. The appellant and his accomplice were the only two

individuals near enough to Wiley to take the money.

      Upon viewing this evidence in a light most favorable to the State, we conclude

that the jury was justified in finding beyond a reasonable doubt that the appellant was

guilty of robbery under especially aggravating circumstances. The appellant’s

conviction is based upon sufficient evidence.

      Accordingly, the judgment of the trial court is affirmed.




                                           14
                                      ___________________________
                                      WILLIAM M. BARKER, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE



___________________________________
J. STEVEN STAFFORD, SPECIAL JUDGE




                                 15
