           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



                                           6
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



                                           7
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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