                                                     FILED
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON
                                                         July 26, 1996
                           MARCH 1996 SESSION
                                                     Cecil Crowson, Jr.
                                                     Appellate Court Clerk
STATE OF TENNESSEE,               )   NO. 02C01-9509-CR-00264
                                  )
            Appellee              )   SHELBY COUNTY
                                  )
V.                                )   HON. JOSEPH B. DAILEY
                                  )   JUDGE
WILLIE D. ROBINSON,               )
                                  )    (Felony Murder)
      Appellant                   )


FOR THE APPELLANT:                    FOR THE APPELLEE:

James V. Ball                         Charles W. Burson
217 Exchange Avenue                   Attorney General and Reporter
Memphis, Tennessee 38105              450 James Robertson Parkway
                                      Nashville, Tennessee 37243-0493

                                      William David Bridgers
                                      Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, Tennessee 37243-0493

                                      John W. Pierotti
                                      District Attorney General

                                      Phillip Gerald Harris
                                      Assistant District Attorney General
                                      Criminal Justice Center
                                      Third Floor
                                      201 Poplar Avenue
                                      Memphis, Tennessee 38103




OPINION FILED:

AFFIRMED


William M. Barker, Judge
                                        OPINION

        The appellant, Willie D. Robinson, was indicted on two counts of murder by a

Shelby County Grand Jury. The first count of the indictment alleged that the appellant

committed the murder of Martha Jean Favati during the commission of a felony. The

second count of the indictment alleged that the appellant committed the premeditated

and deliberate murder of Martha Jean Favati. The jury found the appellant guilty on

count one (1), felony murder. The trial court sentenced him to life imprisonment. On

appeal, the appellant argues only that the evidence was insufficient as a matter of law

to support the conviction.

        We affirm the judgment of the trial court.

        On the evening of December 9, 1992, Martha Jean Favati was shot and killed

as she unloaded her car while parked in her mother’s driveway. Ms. Favati’s car keys

and a sack of items were taken during the robbery.

         When Officer Doreen Shelton of the Memphis Police Department arrived on

the scene after the shooting, the victim was lying in the driveway with a blanket placed

over her body and the passenger door of her car was open. Officer Shelton testified

that the area was well lit by two nearby street lights and by the porch lights of

surrounding homes. The officer testified that during her preliminary investigation of

the crime scene, the lighting conditions were good enough that she did not need to

use her flashlight.

        Sheri Lynn Leith Derrick lived across the street from where Ms. Favati was

shot. Ms. Derrick placed the appellant and his unidentified accomplice at the murder

scene within seconds after the victim was shot. Ms. Derrick testified that on the

evening of the murder, she was sitting in her living room when she heard a car pull

into Ms. Favati’s mother’s driveway. As was her custom, Ms. Derrick went to the front

door to see who it was and saw that it was Ms. Favati. After returning to her living

room, Ms. Derrick heard something that sounded “like a backfire” from the street. Ms.



                                             2
Derrick returned to her glass front door and saw Ms. Favati lying on the ground. She

then saw the appellant standing behind the car and the appellant’s accomplice

standing in the street holding a handgun. Ms. Derrick heard the appellant’s

accomplice tell the appellant to “come on” and then watched the pair run between her

house and her next-door neighbor’s house.

        Ms. Derrick never wavered in her testimony that one of the two men she saw

standing next to the victim’s car was the appellant. She and Officer Shelton gave

similar testimony as to the light conditions on the night of the murder. Ms. Derrick

described the clothing worn by the appellant and was able to see his face clearly

because the street was lit by several porch lights and at least one streetlight. Just

three days after the murder, Ms. Derrick identified the appellant from a photo array as

the man she saw fleeing the crime scene moments after the shooting. She told

investigators that on the night of the shooting the appellant’s hair was shorter than in

the photo and that he did not have facial hair as he did in the photo. When the

appellant was arrested and photographed on December 13, 1992 his hair appeared

significantly shorter than it did in the photo used in the array from which Ms. Derrick

identified him. However, his faint mustache and goatee appeared similar in both

photos. Ms. Derrick also recognized the appellant at his preliminary hearing. Finally,

when Ms. Derrick identified the appellant during her testimony at trial, she stated that

she was “absolutely positive” that the appellant was one of the two men she saw just

after the shooting.

         Belinda Johnson, the appellant’s girlfriend, and Toria Slater testified that the

appellant was with them watching a movie on the evening that the victim was

murdered. The appellant did not testify.

        The appellant’s sole argument is that the evidence was insufficient to support

the conviction. The appellant contends that Ms. Derrick’s opportunity to view the

assailants was limited by time, distance, and darkness, and that she was mistaken



                                            3
about her identification of the appellant as one of the two killers. The appellant

contends that without Ms. Derrick’s unreliable testimony there would be no evidence

to support the conviction. In essence, the appellant asks this court to reweigh the

evidence from the trial. This we may not do. It is well-settled that questions

concerning the credibility of witnesses, the weight and value to be given the evidence,

as well as factual issues raised by the evidence are resolved by the trier of fact, not

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

        Where the sufficiency of the evidence is challenged, the relevant question for

this court is whether, after reviewing the evidence in the light most favorable to the

prosecution, 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, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983);

T.R.A.P. 13 (e).

        A guilty verdict, approved by the trial judge, accredits the testimony of the

witnesses for the State and resolves any conflicts in favor of the State's theory. State

v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). On appeal, the State is entitled to the

strongest legitimate view of the evidence and to all reasonable inferences which might

be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). A verdict

against the defendant removes the presumption of innocence and replaces it with a

presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474 (Tenn. 1973). The

defendant has the burden of overcoming the presumption of guilt. State v. Brown, 551

S.W.2d 329 (Tenn. 1977).

        The State presented uncontroverted proof that Martha Jean Favati was killed

during the commission of a robbery on December 9,1992 at approximately 7:45 p.m.

There was compelling evidence that the appellant was one of the two men seen by

Ms. Derrick on the evening of the murder and that the two men robbed and killed the

victim. The appellant’s defense was that he was at the home of his girlfriend watching



                                            4
    a movie at the time of the murder. The jury obviously found Ms. Derrick’s testimony

    more credible than that of the appellant’s witnesses, as was its prerogative. Cabbage,

    571 S.W.2d at 835 (Tenn. 1978). After reviewing all of the proof in this case we

    conclude that, viewed in the light most favorable to the State, the evidence established

    beyond a reasonable doubt that the appellant participated in the robbery and killing of

    Martha Jean Favati. Accordingly, this issue is without merit.



            Although not raised by the appellant as an issue on appeal, we deem it

    appropriate to review the sufficiency of the trial court’s charge to the jury on the issue

    of eyewitness identification.1 In State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995),

    the Supreme Court set forth the following charge as the charge to be given by the trial

    courts of this State when identity is a material issue in a case.

                  One of the issues in this case is the identification of the
                  defendant as the person who committed the crime. The
                  state has the burden of proving identity beyond a
                  reasonable doubt. Identification testimony is an expression
                  of belief or impression by the witness, and its value may
                  depend upon your consideration of several factors. Some
                  of the factors which you may consider are:

                  (1) The witness’ capacity and opportunity to observe the
                  offender. This includes, among other things, the length of
                  time available for observation, the distance from which the
                  witness observed, the lighting, and whether the person who
                  committed the crime was a prior acquaintance of the
                  witness;

                  (2) The degree of certainty expressed by the witness
                  regarding the identification and the circumstances under
                  which it was made, including whether it is the product of
                  the witness' own recollection;

                  (3) The occasions, if any, on which the witness failed to
                  make an identification of the defendant, or made an
                  identification that was inconsistent with the identification at
                  trial; and



1
 The appellant requested the United States v. Telfaire, 469 F.2d 552, 557 (D.C.Cir. 1972)
charge at trial, which the trial court declined to give. However, the appellant has not
raised as an issue on appeal that the trial court erred in refusing to give the Telfaire
instruction.

                                                 5
                   (4) The occasions, if any, on which the witness made an
                   identification that was consistent with the identification at
                   trial, and the circumstances surrounding such
                   identifications.

                   Again, the state has the burden of proving every element of
                   the crime charged, and this burden specifically includes the
                   identity of the defendant as the person who committed the
                   crime for which he or she is on trial. If after considering the
                   identification testimony in light of all the proof you have a
                   reasonable doubt that the defendant is the person who
                   committed the crime, you must find the defendant not
                   guilty. 2
             Id.

            The decision in Dyle had not been released at the time of the trial in this case.

    However, the Court specifically stated that its holding was to be applied to cases on

    appeal at the time the opinion was released. This case was on appeal when Dyle was

    released. As Dyle requires us to do, we have reviewed the propriety of the charge in

    this case and hold that because the charge was substantially similar to the charge

    promulgated in Dyle, the trial court did not commit reversible error when it gave the

    following charge.

                          The court charges you that the identity of the
                   defendant, Willie D. Robinson, must be proven in the case
                   on the part of the State to your satisfaction, beyond a
                   reasonable doubt. In other words, the burden of proof is
                   on the State to show that the defendant now on trial before
                   you is the identical person who committed the alleged
                   crime with which he is charged. In considering the
                   question of the identity of a person, the Jury may take into
                   consideration the means and opportunity of identification, if
                   any; whether it was light or dark; the distance intervening;
                   the dress or clothing worn; the character and color of
                   same; the size, height, and color of the individual; whether
                   known to him, and if so, how long, and if seen before,
                   under what circumstances; whether running or moving
                   rapidly, standing still, walking fast or slow at the time
                   claimed to the person testifying; the color of the hair; hat
                   worn; facial expression or features and appearance;
                   whether with or without moustache and beard; whether

2
 In Dyle, the court held that a trial court’s failure to give the instruction when requested
by an accused is plain error. If not requested by the defense, the failure to give the new
charge is subject to harmless error analysis. In this case, the appellant could not possibly
have requested the Dyle charge as the decision had not been released at the time of trial.
We therefore do not hold the appellant responsible for not requesting this charge. For the
same reason, the trial court could not have known to give the Dyle instruction.

                                                  6
                  person said to be identified was white, black, dark, yellow,
                  or light color; masked or not; the voice and speech.

                          All these things when shown in the proof may be
                  considered by the jury in determining the question of
                  identity. The word identity means the state or quality of
                  being identical, or the same; it means sameness.
                  Identification means the act of identifying or proving to be
                  the same. The word “Identify” mans [sic] to establish the
                  identity or tho prove to be the same as something
                  described, claimed or asserted.

                          The Court charges you that if you are satisfied from
                  the whole proof in this case, beyond a reasonable doubt,
                  that the defendant, Willie D. Robinson, committed the
                  crime charged against him, and you are satisfied, beyond a
                  reasonable doubt, that he has been identified as the
                  person who committed the crime charged, then it would be
                  your duty to convict him. On the other hand, if you are not
                  satisfied with the identity from the proof, or you have a
                  reasonable doubt as to whether he has been identified
                  from the whole body of the proof in this case, then you
                  should return a verdict of not guilty. (Emphasis added).


            The underscored portion of the above quoted charge reflects the essence of

    what the Dyle instruction conveys to the jury. As in Dyle, the trial court instructed the

    jury that eyewitness identification may be affected by a variety of factors, and such

    factors must be taken into account when assessing the reliability of such testimony.

    Id. at 612.

             Ms. Derrick was subjected to a thorough and probing cross examination;

    however, she never wavered in her testimony identifying the appellant as one of the

    two men she saw fleeing the murder scene. Crucial to our decision in this case is our

    determination that the trial court’s charge reflected the concerns addressed in the Dyle

    charge. Accordingly, we conclude that there was no reversible error in the instruction

    given to the jury on the issue of identity, 3 and the evidence supports the conviction.

            The judgment of the trial court is affirmed.


3
   While we commend the trial court in this case for giving so complete a charge without
benefit of knowing that our Supreme Court would shortly hold that the pattern instruction
frequently used by trial courts on the issue of identity is inadequate, we remind the trial
courts of this state to give the Dyle charge in its entirety when identity is a material
issue.

                                                 7
                                WILLIAM M. BARKER, JUDGE


CONCUR:




JOE B. JONES, PRESIDING JUDGE




GARY R. WADE, JUDGE.




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