FILED                       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
March 25, 2008                               AT NASHVILLE
                                          MARCH SESSION, 1995
Cecil Crowson, Jr.
 Appellate Court Clerk




                 STATE OF TENNESSEE,         )
                                             )    No. 01C01-9410-CC-00369
                         Appellee            )
                                             )    MAURY COUNTY
                 vs.                         )
                                             )    Hon. Jim T. Hamilton, Judge
                 JAMES POLK,                 )
                                             )    (Aggravated Robbery)
                         Appellant           )



                 For the Appellant:               For the Appellee:

                 Dana C. Holloway                 Charles W. Burson
                 810 S. Garden Street             Attorney General and Reporter
                 Post Office Box 339
                 Columbia, TN 38402-0339          Sharon S. Selby
                                                  Assistant Attorney General
                                                  Criminal Justice Division
                                                  450 James Robertson Parkway
                                                  Nashville, TN 37243-0493


                                                  T. Michael Bottoms
                                                  District Attorney General

                                                  Jesse Durham
                                                  Asst. District Attorney General
                                                  Post Office Box 1619
                                                  Columbia, TN 38401




                 OPINION FILED:

                 AFFIRMED



                 David G. Hayes
                 Judge
                                     OPINION



       The appellant, James Polk, appeals from a conviction for aggravated

robbery entered in the Circuit Court of Maury County. The appellant contends

that the trial court should have ordered a new trial pursuant to Rule 33(f) of the

Tennessee Rules of Criminal Procedure.



       After a review of the record, we affirm the judgment of the trial court.



       On September 8, 1993, Jack Lightfoot, a part-time employee of the Four

Sixes liquor store in Mt. Pleasant, observed a young black male enter the store.

Lightfoot, a former principal at a Mt. Pleasant school, recognized the person's

face but "couldn't put a name to it." The young male walked past Lightfoot to a

cooler where the store kept half-pints and pints of liquor, picked up a bottle of

vodka, walked up to the register, and set the bottle down on the counter.

Lightfoot rang up the purchase and announced the purchase price. When the

register drawer opened, the young male said, "Give me your money," and

displayed a small semi-automatic weapon in his right hand. Lightfoot complied,

and the robber left the store, taking approximately $1,125.00.



       Lightfoot called the police, and shortly thereafter, Officer Tommy Goats of

the Mt. Pleasant Police Department arrived at the scene. Lightfoot told Officer

Goats that he had been robbed by a black male in his early twenties,

approximately six feet, three inches tall, and weighing about 150 to 160 pounds.1

Lightfoot also told Officer Goats that he was sure that he recognized the robber



       1
        At trial, Lightfoot testified that he had informed Officer Goats that "he was
probably wrong" about the robber's weight. He stated that "I didn't take into
account his height, . . . I knew his weight would have been more being taller."
Lightfoot also stated at trial that he described the robber as weighing about 170
pounds. The pre-sentence report reveals that the appellant is six feet, six inches
tall and weighs 215 pounds.

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as a former pupil, but he could not recall his name. The following week,

Lightfoot went to the police station and examined a book of photographs. While

looking through the photographs, he identified the appellant's picture as a

photograph of the man who had robbed him. A few days later, Officer Goats

arranged a photographic lineup, whereby he showed several photographs to

Lightfoot and asked him to identify the man who had robbed the store. Lightfoot

selected a photograph of the appellant. Based upon this information, Officer

Goats talked to friends and relatives of the appellant. The appellant eventually

came to the station voluntarily. Officer Goats testified that the following

transpired while he was talking to the appellant:

       I advised him he had been identified in a robbery. He made
       the statement -- I am trying to find it in my report where I can
       -- he made the statement to the effect that he said, "well,
       what's the clerk's name at the store [?] [H]e probably knows
       me from school."



       At the appellant's trial, Lightfoot identified the appellant as the man who

had robbed the store. On cross-examination, the appellant's counsel alleged

that Lightfoot had been unable to positively identify the appellant at the pre-trial

hearing.2 Lightfoot denied this allegation.



       Hoyt Phillips, a forensic scientist for the Tennessee Bureau of

Investigation, was called by the defense to testify. Phillips testified that he had

processed the bottle of vodka handled by the robber for fingerprints. Hoyt was

able to develop four identifiable and one unidentifiable latent fingerprints, none of

which matched the appellant's fingerprints.




       Rick Osburn, an attorney who represented the appellant at the preliminary

hearing, also testified for the defense. Osburn testified that, to the best of his


       2
           A tape made of the preliminary hearing was inaudible.

                                          3
recollection, Lightfoot had not been able to conclusively identify the appellant as

the robber at the preliminary hearing.



       At the conclusion of the proof, the jury returned a verdict of guilty. The

trial court sentenced the appellant to twelve years confinement as a standard

offender. Subsequently, the appellant filed a motion for new trial under Rule

33(f). A hearing on the motion was held on July 29, 1994. The trial court denied

the appellant's motion.



       The appellant contends that the trial court erred in failing to grant the

appellant's motion for a new trial on the ground that the verdict was contrary to

the weight of the evidence. In support of this proposition, the appellant argues

that the State's only eyewitness, Jack Lightfoot, "admitted at the preliminary

hearing that he could not positively identify the defendant as the person who

robbed him. He also failed to give a similar physical description of the

defendant." The appellant also points to the fact that the "bottle that was directly

handled by the suspect, and from which identifiable fingerprints were taken, did

not indicate a match with the fingerprints of James Polk."



       Rule 33(f) of the Tennessee Rules of Criminal Procedure is the modern

equivalent to the common law "thirteenth juror rule".3 The "thirteenth juror rule"

allows the trial court, after a jury verdict of guilty, to grant a new trial if the trial

court disagrees with the jury about the weight of the evidence. Tenn. R. Crim. P.

33(f); Curran v. State, 157 Tenn. 7, 4 S.W.2d 957, 958 (1928).



       Pursuant to Rule 33(f), a trial judge has the mandatory duty to serve as



       3
       The "thirteenth juror rule" was abandoned in this state in 1978, see State
v. Cabbage, 571 S.W.2d 832 (Tenn. 1978), but was reinstated with the 1991
promulgation of subsection (f) of Tenn. R. Crim. P. 33. See State v. Barone,
852 S.W.2d 216 (Tenn. 1993).

                                              4
the thirteenth juror in every criminal case. State v. Carter, 896 S.W.2d 119, 122

(Tenn. 1995). The trial judge's approval of the jury's verdict is a necessary

prerequisite to imposition of a valid judgment. Id. See also Messer v. State, 385

S.W.2d 98, 101 (Tenn. 1964); State v. Burlison, 868 S.W.2d 713, 719 (Tenn.

Crim. App. 1993). Notwithstanding this mandatory duty, Rule 33(f) does not

require the trial judge to make an explicit statement on the record. Carter, 896

S.W.2d at 122. Moreover, an order by the trial judge denying a motion for new

trial provides this court with the presumption that the trial judge has served as

the thirteenth juror and approved the jury's verdict. Id. If such an order is

entered by the trial judge, he may be reversed only if the record demonstrates

the trial judge's dissatisfaction or disagreement with the jury's verdict or the

weight of the evidence. Id. See also Helton v. State, 547 S.W.2d 564, 566

(Tenn. 1977); Messer, 385 S.W.2d at 98.




       In the case now before us, the trial judge denied the appellant's motion for

a new trial. The trial judge expressly stated his approval of the jury's verdict by

stating: "Mr. Polk told [the officer] 'I guess he recognized me from my high school

days.' I mean, that to me, that did it. That nailed the coffin shut, so, I am going

to overrule the motion." We find that the trial judge properly fulfilled his duty to

act as the thirteenth juror and approve the verdict of the jury. This issue is

without merit.



       The judgment of the trial court is affirmed.



                                    ____________________________________
                                    David G. Hayes, Judge



CONCUR:



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__________________________________
Jerry Scott, Presiding Judge



__________________________________
Joseph M. Tipton, Judge




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