                                                                                     07/28/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                         Assigned on Briefs April 15, 2020

                 STATE OF TENNESSEE v. JEREMY WARD

               Appeal from the Criminal Court for Davidson County
                   No. 2017-A-492    Mark J. Fishburn, Judge
                    ___________________________________

                          No. M2019-00852-CCA-R3-CD
                      ___________________________________


A jury convicted the Defendant, Jeremy Ward, of aggravated robbery, aggravated
burglary, employment of a firearm during the commission of or attempt to commit
aggravated burglary, and being a felon in possession of a firearm. On appeal, the
Defendant asserts that the evidence regarding identity was insufficient to support the
conclusion that he was the culprit, that the trial court erred in denying his motion to
suppress the victim’s show-up identification, and that the trial court erred in denying
relief when the State produced discovery mid-trial. After a thorough review of the
record, we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT W. WEDEMEYER, JJ., joined.

Timothy Carter, Nashville, Tennessee, for the appellant, Jeremy Ward.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Lody Powers
and Brian Ewald, Assistant District Attorneys General, for the appellee, State of
Tennessee.


                                      OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The victim, Ms. Nika Walter, was robbed in her home at gunpoint in the presence
of her three small children by three masked men carrying guns, and she gave a physical
description of the offenders to law enforcement. The Defendant, whose appearance
matched the description of one suspect, was apprehended nearby, and the victim
identified the Defendant as one of the suspects in a “show-up” shortly after the crime.
Although the Defendant was not carrying a gun, a gun was found in a trashcan located in
the immediate area of his arrest. While in jail, the Defendant made several incriminating
statements in recorded telephone calls with his wife. At trial, the Defendant challenged
the evidence establishing his identity. The Defendant presented evidence that he had left
his car after an argument with his wife and that he was mistaken for the robber while
searching for an acquaintance.

                                       Motion to Suppress

        Prior to trial, the Defendant moved to suppress the victim’s show-up identification
on the basis that the identification procedure was unnecessarily suggestive and not
reliable. At the hearing, the State introduced a recording of the preliminary hearing, at
which the victim testified that on November 28, 2016, she was at her home on Litton
Avenue with her three children, who were ages five, three, and five months, when three
men carrying guns forced their way into the apartment, all asking for cash and for the
victim’s boyfriend, Mr. Stacy Ray.1 As pertinent to the suppression issue, two of the
perpetrators were wearing black, and one was wearing all gray. One of the men in black
kept near the victim, keeping his gun aimed at her the entire time. This man had tattoos
on his neck and made her walk around the home for fifteen minutes as the perpetrators
looked for items to steal. The other perpetrator in black was short, with hair that would
have been an afro if it had been combed out. The perpetrator in gray was wearing a gray
hoodie, gray jogging pants, and black Air Jordan shoes, and he was heavyset. The victim
testified that all three men had guns. She stated at first she believed all the guns were
black but later said that she only knew for certain that the gun of the man who stayed near
her was black. All three men had their faces covered so that she could not see their noses
or mouths. The men stayed approximately twenty minutes and took a backpack into
which they placed her MacBook and a necklace. She stated that other than the man who
held his gun on her, the men did not actually say anything to threaten her or her children.
When the men left, she was able to use a tablet to call Mr. Ray, who alerted the police.
An officer drove her to the driveway of a home next to some construction, which was
within yards of the apartment complex, for a show-up identification. She identified the
Defendant based on his size, hair, and clothing but not based on any other identifying
characteristic.




      1
          Mr. Ray also goes by Mr. Stacy Warfield.
                                                 -2-
       The preliminary hearing also included the testimony of Detective Clinton
Schroeder of the Metropolitan Nashville Police Department (“MNPD”), who was a patrol
officer at the time. Law enforcement received a description of the offenders, one of
whom was a black man who was tall, heavyset, and wearing gray. Detective Schroeder
stated that a responding officer saw a man attempt to enter a nearby house and flee to a
construction area upon seeing the marked vehicle. Law enforcement used a dog to track
the suspect, who was wearing gray sweatpants and a gray zip-up hoodie, and the suspect
was apprehended near a shed in the driveway of a home. Police found a handgun with a
black grip and silver slide approximately eight feet away in a trash can.

        Officer Charles Wakefield of the MNPD testified at the suppression hearing that
he responded to the emergency call at Litton Avenue on November 28, 2016, and began
to set up a perimeter to prevent the escape of the suspects. Officer Wakefield turned off
his emergency equipment, drove past the apartment complex, and turned onto an adjacent
street, Bronte Avenue, where he observed a man walking down the driveway of a
residence toward the street. As Officer Wakefield approached, the man changed his
course, walking back up the driveway to the porch. The man “acted like he was getting
his keys out to open the front door of the house.” Officer Wakefield continued down the
street and then turned his car around, at which point the man “took off running.” The
location where Officer Wakefield spotted the man was approximately one hundred yards
from the victim’s residence, and the man matched the description of the suspect in gray.
The man ran towards a church at the intersection of Bronte and Litton Avenue, and
Officer Wakefield lost sight of him. A K-9 officer was called to the church to start
tracking the suspect, and the Defendant was apprehended approximately fifteen minutes
later on Litton Avenue.

        Detective Rachael Sacco of the MNPD testified at the suppression hearing that she
responded to an emergency call regarding the robbery. She transported the victim for the
show-up when a suspect was apprehended. Detective Sacco testified that the Defendant
was detained minutes after Detective Sacco responded to the scene and that the victim’s
identification took place less than forty minutes after the emergency call was received.
Detective Sacco elaborated that the dispatch came in shortly after 8:00 p.m., that she
arrived on the scene at 8:15 p.m., and that the victim’s identification took place
approximately at 8:41 p.m.

       Detective Sacco testified that the Defendant was detained less than a mile from the
scene of the crime. The victim was informed that police wanted her to determine “if the
person that was detained was the suspect that was inside her home,” and she was
transported in the back of a police vehicle, with the “cage … opened,” to the scene of the
arrest. The scene was illuminated by streetlights, the patrol car’s headlights, and the
patrol car’s spotlight, and the victim identified the Defendant “pretty quickly” at a
                                          -3-
distance of approximately fifteen yards. Detective Sacco did not recall if the victim
could see tattoos on the Defendant’s neck from that distance or if the Defendant was
handcuffed. The victim viewed the Defendant standing outside next to an officer and
near a patrol car which contained the dog used by law enforcement.

       Officer Randy Hines of the MNPD assisted in setting up a perimeter to prevent the
escape of suspects after the crime. He recalled that a description of the suspects was
released almost immediately after his arrival and that K-9 officers responded in
approximately ten minutes. The offenders were described as three black men, two
wearing black and one wearing a gray sweatshirt. The man in gray was described as
being around six feet, one inch tall and weighing around two hundred and sixty pounds.
A suspect was detained approximately thirty minutes after Officer Hines arrived.

        The trial court found that law enforcement responded within minutes of the crime,
that the Defendant was apprehended within a few blocks of the offense a few minutes
after the arrival of law enforcement, and that the victim was able to identify the
Defendant through his clothing, build, and hair approximately forty minutes after the
emergency call. The trial court denied the motion to suppress, concluding that the show-
up was an on-the-scene investigatory procedure conducted shortly after the commission
of the crime and that it was not unnecessarily suggestive.

                                         Trial

      At trial the victim testified that as she was feeding her children dinner, someone
knocked on the door. She could not determine who was at the door above the noise of
her children and small dog, so she cracked the door and was pushed back into the
apartment as three masked black men with guns entered, demanding cash and asking for
Mr. Ray. The victim did not know who the men were.

       The victim described one man as having a dark complexion and a tattoo on his
neck and wearing all black; this man kept a black gun pointed at her the entire time.
There was also a shorter man wearing dark clothing. The third man was “bigger,” had a
“low cut,” and was wearing a gray hoodie, gray pants, and black Air Jordan shoes. All
three had guns, and she described the guns as automatic. Because of their masks, she
could only see their eyes and the upper part of their faces, including parts of their
hairstyles. The man in gray pointed a gun at her five-year-old, who was crying and
screaming, and told the child to be quiet. The men eventually put her laptop into one of
her children’s old backpacks, took her necklace, and left. She described summoning help
through Mr. Ray and through her brother because she could not locate her telephone.



                                          -4-
       She testified that after she gave a description to police, they took her to identify a
potential suspect. The police shined a light on him, and she knew from “how big he was
and his weight,” from “the shape of his body, … and what he was wearing,” and from his
hairstyle that it was the man in gray who had entered her home. The victim identified the
Defendant at trial as the man in gray.

       The victim testified on cross-examination that the handguns that she could see
were black. She denied having told police that the Defendant had a tattoo. She
acknowledged she had told the defense investigator who came to her home that she knew
the Defendant, but she testified that what she meant was that Mr. Ray was acquainted
with him and that she knew of the Defendant through Mr. Ray. She elaborated that Mr.
Ray did not realize the Defendant was his acquaintance because Mr. Ray knew the
Defendant as “J. Main” or “J. Man” and did not know the Defendant’s legal name. When
Mr. Ray saw the Defendant appear at the preliminary hearing, Mr. Ray recognized the
Defendant as his acquaintance “J. Main.” The victim reiterated that she did not
remember ever seeing the Defendant prior to the crime, and she said, “I didn’t really –
no, I mean, I didn’t know him. I’ve never had a conversation with him. I never
remember seeing him. If I was to see him out on the street today, I wouldn’t even know
who he was.”

      The victim was not aware whether Mr. Ray owed anyone money. She agreed that
the police had fingerprinted her home. She testified that during the show-up, she
understood that she was being taken to see a suspect in the robbery. She described
looking at the Defendant from the back of a police vehicle through the front window.
The Defendant was illuminated by a light. There were no other civilians present at the
show-up. The victim recalled that there were surveillance cameras at the apartment
complex, but she did not ever review any recordings from them. She testified that she
was never asked to see “photo line-ups or anything of that nature” at a later date.

        The victim acknowledged that she at first told police she thought the offenders had
taken a shoebox, but she testified that she later realized it was the box in which she kept
her laptop. The victim acknowledged a drug conviction for possession of cocaine with
intent to sell in 2009. She testified that the suspects did not ask for drugs and that Mr.
Ray did not sell drugs.

       Asked about later contact with investigators regarding the case, the victim stated
that she at one time experienced a panic attack when she saw a group of teenagers at the
apartment. Mr. Ray contacted the apartment manager, Ms. Ollie London, who realized
that one of the teenagers had been banned from the apartment. The victim stated that if a
responding police officer stated that the victim had called the police to say she saw one of
the suspects, that would be inaccurate because she did not recall calling the police,
                                            -5-
although Ms. London might have. She denied having told Ms. London that she
recognized one of the suspects at the complex by his eyes and denied that she was afraid
to discuss a different suspect because he lived at the apartment complex.

       Detective Whitney Heinze was a patrol officer at the time and responded to the
emergency call. She spoke to the victim, who was visibly upset and crying. The victim
showed her several items that had been touched by the offenders, and the victim
described the offenders. One of the offenders was a black man who was wearing all gray,
over six feet tall, and heavyset, weighing approximately two hundred and sixty pounds.

        Officer Wakefield testified consistently with his testimony at the suppression
hearing that he turned right from Litton Avenue onto Bronte Avenue and saw a large-
framed man in gray walk down the driveway of the second or third house, turn and walk
back up the driveway, go up to the front door, and then flee when Officer Wakefield
turned his vehicle around. Officer Wakefield was dispatched at 8:03 p.m. and saw the
man approximately five minutes later. The man ran through the parking lot of the church
on the corner and back onto Litton Avenue toward the apartment complex, where there
was construction, and Officer Wakefield lost sight of him. Officer Wakefield stated that
he chose to drive down Bronte Avenue because the back yards of the houses on that street
abutted the apartment complex. While there was a six- to eight-foot tall metal fence
enclosing the apartments, Officer Wakefield testified that when there were “issues in that
area, people will jump the fence and run over that direction towards the railroad tracks.”
A K-9 officer tracked an individual beginning at the church where Officer Wakefield had
lost sight of the man in gray. The Defendant was taken into custody near a detached
garage approximately twenty to thirty minutes after Officer Wakefield first saw him.
Officer Wakefield testified that the Defendant had the same clothing and body type as the
individual he had first seen on the driveway. Officer Wakefield left the scene at 9:36
p.m. Officer Wakefield acknowledged it would be difficult for someone weighing two
hundred and sixty pounds to climb over the fence, but he stated juveniles frequently leapt
the fence.

       K-9 Officer Terry Burnette’s dog, Spike, started to track a suspect on Bronte
Avenue, next to the church. The dog turned onto Litton Avenue and went a few steps
past the driveway of the home neighboring the church. At that point, the dog circled back
and lifted his head. Officer Burnette stated that the dog would keep his nose to the
ground when tracking but would lift his head when he was close enough to the source of
the scent that he could locate the suspect’s odor on the air. As the dog began to walk up
the driveway, the Defendant walked out from behind the house, saying, “I give up.”
Officer Burnette stated that his habit was to put the time he arrived on the scene in his
report and that he had put 9:15 p.m. He stated it was possible he was mistaken about the

                                          -6-
time. He acknowledged it was damp and had been raining but stated that the weather had
not affected Spike, who had performed particularly well that night.

       Detective Rachael Sacco testified generally consistently with her testimony at the
suppression hearing regarding the show-up. She stated she told the victim, “we have
someone in custody that could match the description and she could positively or
negatively identify him.” She stated at trial that the victim identified the Defendant
“[a]lmost immediately.” She did not recall any information regarding the suspects
pointing guns at the children, and she recalled that the suspects were carrying black
handguns.

        Detective Clinton Shroeder testified consistently with his preliminary hearing
testimony that he had helped take the Defendant into custody and that a silver and black
handgun was found inside a trashcan about eight feet from where the Defendant was
apprehended. The Defendant was wearing all gray, including a gray hooded sweatshirt,
and his front side was wet. The Defendant volunteered that he had been arguing with his
girlfriend. Detective Shroeder agreed that the Defendant was compliant, that no stolen
property was recovered, and that the Defendant probably expressed confusion regarding
the arrest. The Defendant gave his residence as an address on Porter Road located
approximately one mile from the robbery.

       Crime scene photographs taken by Officer Douglas Belcher show that the weapon
was a semi-automatic handgun which had a silver slide but was black on the lower half of
the barrel and the grip. The trash can contained a black plastic trash bag, an aluminum
can, and the gun. Officer Belcher testified that the gun was fully loaded with fourteen
bullets in the magazine and none in the chamber. Officer Belcher agreed that there was
some dirt and organic material in the grooves of the gun and that the gun and trash
appeared dry, although it had been raining earlier.

       The parties stipulated that a fingerprint from the magazine of the weapon excluded
the Defendant. The weapon was also submitted for DNA analysis, which was performed
by Ms. Julie Ellis, a forensic scientist at the MNPD crime laboratory. DNA recovered
from the grip and from the trigger had at least two contributors, but no comparisons were
performed due to the complexity and scarcity of the recovered DNA.

       Officer Ryan Matson attempted to obtain fingerprints from the victim’s home. He
was able to lift approximately five fingerprints from the scene. The parties stipulated that
some of the prints were of no value. Fingerprints from a shoebox lid and the corner of an
end table excluded the Defendant.



                                           -7-
       The State also introduced into evidence numerous telephone calls made by the
Defendant to the telephone number of his wife, Ms. Amber Ward. Several of the calls
contained statements from which it could be inferred that the Defendant was speaking
about the weapon the police had confiscated or the circumstances of his fleeing the crime.

        Mr. Terry Faimon, the director of communication research and court liaison for
the district attorney’s office, monitored several telephone calls made by the Defendant
while he was in custody. Mr. Faimon testified that calls made from prison were made
using an individual PIN number assigned to the inmate. He had encountered inmates
using one another’s PIN numbers “hundreds” of times, and while monitoring the
Defendant’s calls, he heard the Defendant state he was using another inmate’s number.
Through listening to hours of telephone calls, he became familiar with the Defendant’s
voice. Mr. Faimon stated that calls from “booking” made near the arrest date would not
be associated with a particular PIN but that he was able to search these calls by looking
for calls made to the Defendant’s wife’s telephone number. The State introduced three
calls the Defendant made from booking, three he made with his own PIN, and three using
another inmate’s PIN.

       The prosecutor introduced a disk containing the calls into evidence, but with the
court’s permission and without objection, the recordings played at trial were copies of the
calls which had been downloaded to the prosecutor’s computer. The prosecutor later
sought to impeach a witness, the Defendant’s wife, with the recordings entered as
exhibits but was unable to play the first two calls. Defense counsel explained his
understanding that the jail’s system required a special software. The parties agreed that
the prosecutor would begin cross-examination without playing the recordings and that the
issue of the recordings would be revisited, but it was not. Because no substitution was
ever made for this exhibit, we were unable to review the first two calls.

       In a call made on November 29, 2016, the Defendant asked his wife what
happened and described being arrested on “bogus charges.” He recounted how he had
told police that he and his wife were arguing and that he got out of the car to stop the
argument from going further. He told his wife he did not know the reason for his arrest.
His wife gave him the name of a man who had called, and he appeared confused, asking
if she was referring to his brother. His wife told him she was referring to his cousin and
that she had asked the man to call someone else, and the Defendant repeated numerous
times that that had been “stupid,” because “cuz will be like, ‘cuz had my…’” and he
concluded, “and they got that one.”

       On the same day, the Defendant called his wife, identifying himself through the
automated system as “Main.” The Defendant’s wife told him that someone had called,
and the Defendant asked her if she had “his” or “the other one.” Ms. Ward said she did
                                           -8-
not, and he asked her who did and told her to call “Six O.” He then referred to the “other
phone.” Ms. Ward informed him that a man kept saying he needed “the other one,” and
asking where the “other thing” was. The Defendant interrupted her as she was speaking
and cut her off.

       On the same day, the Defendant spoke to a man, telling him, “I got another one for
you, though.” When the man asked about the “other one,” the Defendant told him it was
“put up.” During a later call, the Defendant told the same man, “They got everything.”
The man asked the Defendant if they were “cool.”

        The Defendant again talked to his wife, observing that “they” should have waited.
He said, “I seen where y’all came there down the street, though.” He told his wife, “By
the time I came across the fence, y’all was already gone all the way up the street
already.” He told her the arrest was ten to fifteen minutes “after cuz car went up the
street.”

       On the day of the preliminary hearing, December 7, 2016, the Defendant discussed
the preliminary hearing testimony with his wife. He laughed at the victim’s explanation
of the fact that she thought the robbers left with a shoebox, observing that only drug
dealers keep money in shoeboxes. He told his wife that the victim had testified that his
gun was all black and pointed out that the recovered gun was black and gray. The
Defendant said, “It was so crazy, our guns wasn’t even all black.” He elaborated, “One
of my guns is black.”

       Mr. Faimon acknowledged that out of over 164 calls, he only found a few that he
played to the jury. He also acknowledged that in several calls, both the Defendant and
his wife expressed surprise and confusion that he was arrested.

        The parties stipulated that the Defendant had a prior drug-related felony, and the
State finished presenting evidence on the second day of trial. The following morning, the
Defendant filed a motion to continue based on a late disclosure of evidence from the
prosecution. The parties informed the court that on the previous day, Detective James
Rummage, who had not testified but was present in court, gave the prosecutor a folder
which contained a photographic line-up relevant to the case. The line-up had been
presented to the victim to see if she could identify a juvenile suspect. This was the same
juvenile suspect whom the victim had discussed with the apartment manager, Ms.
London. The defense noted that Ms. London was expected to testify that the juvenile had
two known acquaintances who matched the description of the robbery suspects. The
defense further noted that the victim did not identify the juvenile from the line-up and
that she had denied in her testimony ever being shown a line-up. The Defendant
requested either a mistrial or a continuance. The trial court ruled that the Defendant
                                          -9-
could recall any of the State’s witnesses, including the victim, to cross-examine them
about the line-up, but it denied a further continuance or mistrial.

       The Defendant gave testimony suggesting that this was a case of mistaken
identity. According to the Defendant, on November 28, 2016, he resided at his aunt’s
house with his wife, and he asked his wife to take him from his aunt’s house to see his
children at their mother’s home on Porter Road. The Defendant’s relationship with the
children’s mother was a point of contention, and he and his wife argued in the car. When
they got to Porter Road around 8:00 p.m., he told his wife to wait in the car, but she left.
He testified that his conversations in the jail calls referred to her leaving the Porter Road
address and not waiting for him. He discovered his children and their mother were not
home, and he had no telephone to contact his wife. He decided to walk to his cousin’s
house on Litton Avenue because it was closer than his aunt’s home. His cousin was not
home, so he decided to go to the home of a friend of his hairstylist, Ms. Valerie “Meme”
Dansby, on Litton Avenue. The porch light was on, so he kept knocking on the door. No
one answered, and he began to leave, but he turned around to knock again. When he
came off the porch and started down the driveway, he saw the police dog and was
ordered on the ground. He testified he never touched the trash can. The Defendant
asserted that during the show-up, the police only turned him to face the victim for a short
period of time. His clothing was wet on the front because he was made to lie on the
ground during the arrest. He denied going by the nickname “J. Main” or being
acquainted with Mr. Ray. He stated he used the PIN of other inmates because his PIN
was malfunctioning. He denied that the gun from the trash can was his and implied that
the police planted it in the trashcan during a brief window where they turned off the lights
illuminating the area.

        The Defendant denied telling Detective Rummage he lived on Porter Road. He
acknowledged having told the detective that he got out of the car because he did not want
the argument with his wife to go “further.” He acknowledged saying that he and his wife
were arguing, that he got out of the car, that she pulled away, and that he then went to
find a telephone. He agreed he did not mention visiting his children in his prior statement
but stated it was because Detective Rummage did not ask.

       The Defendant denied ever having been on Bronte Avenue, asserting that
Detective Wakefield may have seen one of the actual perpetrators on Bronte Avenue. He
stated that the yellow house on Litton Avenue where he was apprehended was the house
of Ms. Dansby’s friend, but he denied ever going toward the back of the house where the
shed was. He asserted the K-9 officer was lying when he said the Defendant surrendered
by saying, “I give up.”



                                           - 10 -
       The Defendant acknowledged it was his voice on the telephone calls. Asked what
his wife meant when she said in one of the calls that she “got Elijah and everything. I got
both of them,” he said she might have been talking about a different day.2 Asked about a
call where he told her that if she had just done what he had said, he could have just
jumped back in, he explained he was talking about her leaving him at his children’s
mother’s house on Porter. He did not recall saying the guns were not all black. He did
not recall saying that by the time he got over the fence, “you all was already gone all the
way up the street already.” He recalled saying he was arrested ten or fifteen minutes after
“you all left, after Cuz car went up the street” but stated he did not “understand the
conversation right there.” He asserted that no one else was with him and his wife that
night.

        Ms. Valerie “Meme” Dansby testified that she is a cosmetologist and that the
Defendant was her client from 2014 until the early part of 2016. Ms. Dansby’s ex-
boyfriend lived in a yellow house on Litton Avenue next to the apartments where the
robbery took place, and she sometimes would meet clients there. The Defendant was
acquainted with her ex-boyfriend, and she still saw the Defendant occasionally after the
last time she fixed his hair.

       The Defendant’s wife, Ms. Amber Ward, testified that on November 28, 2016, she
and the Defendant lived with the Defendant’s aunt on South 8th Street. The mother of
the Defendant’s three children lived on Porter Road, about one mile from the robbery,
and the Defendant asked Ms. Ward to take him there that evening. She dropped him off
at Porter Road around 8:20 or 8:30 p.m. Ms. Ward recalled that they were arguing, and
she decided she would not wait for him at his children’s mother’s home as he had wanted
but would leave to return to his aunt’s house. The Defendant did not have a telephone
with him, but she expected him to use the telephone of his children’s mother to call her
when the visit concluded. He contacted her from custody and was confused regarding his
arrest. She stated she picked up his clothing as part of his personal belongings. His
clothes were predominantly gray, but the jacket had a polo horse on it and the pants had
three thick stripes.

       On cross examination, Ms. Ward acknowledged that the location where the
Defendant was arrested was not on the route from Porter Road to the Defendant’s aunt’s
home. She acknowledged that, a few months before the arrest, she had signed a
document under oath that the Defendant resided on Porter Road. She explained he used
that address but lived with her at his aunt’s home. Ms. Ward stated the Defendant did not


        2
          We infer that this line of questioning relates to the two telephone calls which were not submitted
in a readable format.
                                                  - 11 -
have guns but acknowledged that a prior document, signed under oath, showed that she
had stated the Defendant had or had access to guns.

        She did not recall the Defendant’s asking her during a recorded telephone call why
she did not come back or her responding that she was right there and got “both of them.”
She agreed that the Defendant told her in one of the telephone calls that if she had waited
as she was supposed to do, he would have just jumped back in, but she stated that he was
referring to picking him up from his children’s mother’s house. She did not recall the
telephone call in which the Defendant told her that by the time he came across the fence
“you all” had gone up the street. She agreed that her testimony was that she was alone
that night. She also did not recall him saying he was taken into custody ten to fifteen
minutes after “you all” left.

        The Defendant cross-examined the victim further in light of the late-produced
line-up. The victim testified that she thought she recalled discussing the robbery with
Ms. London but did not recall saying she recognized the offenders by their eyes. She also
recalled the day she panicked because she saw the juvenile who she thought might be one
of the robbers. She did not recall talking with an officer about it or going to the police
precinct. After hearing an audio recording of the line-up involving the juvenile, she
recalled the conversation and agreed it was probably at the precinct. She recalled the
detective placing pictures on the table. She clarified that the line-up was intended to see
if she could identify one of the two offenders who had escaped and not intended to
correct a misidentification of the Defendant. She stated she did not choose anyone from
the line-up because she was not one hundred percent sure she could identify anyone and
denied that she failed to make an identification because she was afraid to identify a
culprit who lived in the same apartment complex as she did.

       Ms. Ollie London testified that she asked the victim if she could recognize the
culprits on the day after the crime, and the victim told her, “all I could see was the eyes.”
She recalled a confrontation on the day after the robbery between Mr. Ray and the
juvenile suspect, who lived on the property with his grandmother and who had a gun
during the confrontation. She testified that in 2016, the fence around the complex was
old and some bars had been pulled approximately eighteen inches apart. The juvenile
was five feet, six or seven inches tall, and was skinny. Ms. London spoke to the police
approximately a week after the robbery regarding the juvenile and regarding the
juvenile’s associate, “Big Homie.” She described “Big Homie” as five feet, nine inches
tall, with dreads in his hair that were “dipped” to be a reddish-blonde. She had never
previously seen the Defendant. Ms. London testified that the surveillance cameras were
not operational at the time of the crime because they had been disconnected due to the
construction.

                                           - 12 -
       Detective Rummage testified that he was the lead detective on the case and that he
interviewed the Defendant after the Defendant’s arrest. The Defendant did not have a
telephone at the time he was arrested. The Defendant told Detective Rummage that he
lived on Porter Road with his wife. He said that he and his wife argued in the car and
that he got out of the car in the area in which he was apprehended, but he did not say
precisely where he got out. The Defendant told Detective Rummage that he was trying to
go to the home of a friend of his hairdresser, but he did not know the friend’s name. He
stated that he was knocking on the door of the house on Bronte Avenue because his
hairdresser’s friend lived there. He never said he was attempting to visit his children or
children’s mother or that he was planning to go home to his aunt’s house.

       Detective Rummage acknowledged he did not interview Mr. Ray, that the
Defendant’s clothing was not kept as evidence, that he did not speak to Ms. London, that
he never went to the apartment complex, that he did not investigate the Defendant’s alibi,
that despite having an apartment number for “Big Homie,” he never attempted to find
him at the apartment or confirm who the occupants were through utility bills. Detective
Rummage stated that he could not remember the victim identifying the Defendant by a
neck tattoo but that he may have seen the Defendant’s neck tattoo during the interview
and may have told the Defendant that the victim could identify it as an interview
technique. The Defendant’s booking photograph showed a faint tattoo on his neck.
Detective Rummage acknowledged that another police officer continued to try to
question the Defendant after the Defendant asked for an attorney because the other
officer did not hear the Defendant’s request.

      Detective Rummage contacted the victim to present her with a photographic line-
up which he created on December 15, 2016. The victim saw the line-up in the first week
of January and did not make an identification, and he did not have her sign the
photographic line-up. According to Detective Rummage, the juvenile in the line-up was
approximately five feet, six or seven inches tall and weighed one hundred and forty-five
pounds. The line-up was an attempt to identify an additional suspect rather than correct a
misidentification of the Defendant.

       The Defendant presented the testimony of Mr. Buddy Mitchell, a former police
officer who worked as a private investigator. Mr. Mitchell interviewed the victim briefly,
and she told him, “[W]ell, I know Jeremy Ward and he stuck a pistol in my kid’s – to his
head, and I know him, and he’s going to jail and that’s it.” Mr. Mitchell also spoke to
Ms. London and discovered an additional suspect through her, but he was unable to find a
police report supplement showing further investigation. The Defendant’s clothing had
not been taken into evidence. After Ms. London gave him the nicknames of the
additional suspect’s associates, he was able to discover their real names. Mr. Mitchell
submitted photographs of the area around the apartment complex. He identified an area
                                          - 13 -
near the third house down from the church where there was a significant drop and brick
wall after the apartment fence.

       Detective Kimberly Brown, who was a patrol officer at the time, was dispatched to
the apartment complex at some point after the crime because the victim had stated that
she saw two men, one of whom had a neck tattoo and resembled one of the men who
robbed her. Detective Brown spoke to Ms. London because the victim believed Ms.
London would know the identity of the men whom the victim had seen. Detective Brown
obtained the names of the individuals, but she did not interview them at the time. She
acknowledged she had not put the date on her supplemental report. On cross-
examination, Detective Brown clarified that the victim did not believe she had
misidentified anyone but believed she had seen another one of the three men involved.
The juvenile whom the victim had seen had a neck tattoo and was at the apartment
complex with a man known as “Big Homie.” Ms. London gave a description of “Big
Homie” and the apartment numbers where the juvenile could be found and where “Big
Homie” could be found.

       The Defendant presented the testimony of Mr. Ray, who testified that he was
taking a dog to the vet at the time the victim called him from her tablet to report the
robbery. He called 911. Mr. Ray testified that he did not keep large amounts of cash but
acknowledged that he had prior convictions for possession of cocaine and sale of cocaine.
He recalled the victim saying that one man had a tattoo on his neck and was heavyset.
The others were smaller and also had tattoos. Mr. Ray testified that he recognized the
Defendant at the preliminary hearing as his acquaintance “J. Main.” He had not
previously known the Defendant’s actual name and did not realize he was acquainted
with the person who had been apprehended in relation to the crime. Mr. Ray knew the
Defendant through one of Mr. Ray’s neighbors. The neighbor was frequently at Mr.
Ray’s home, and Mr. Ray stated the Defendant may have been in his home once.

       The jury convicted the Defendant of aggravated robbery, aggravated burglary,
employment of a firearm during the commission of or attempt to commit aggravated
burglary, and being a felon in possession of a firearm. The trial court sentenced the
Defendant to serve twelve years for aggravated robbery, ten years for aggravated
burglary, ten years for employment of a firearm, and four years for being a felon in
possession of a weapon. The charge for employment of a firearm was ordered to be
served consecutively to the underlying offense of aggravated burglary under statute, and
the remaining convictions were ordered to be served concurrently for an effective twenty-
year sentence.

       At the motion for a new trial, the Defendant raised several issues, including a
challenge to the admission of the show-up identification, the failure to grant a
                                         - 14 -
continuance based on the untimely disclosure of the photographic line-up of the juvenile,
and the sufficiency of the evidence related to identity. The trial court denied the motion
for a new trial, and the Defendant appeals.

                                         ANALYSIS

                               I. Sufficiency of the Evidence

       The Defendant asserts that the trial court erred in denying his motion for judgment
of acquittal because the evidence did not establish his identity as the perpetrator of the
offenses. We conclude that although the evidence establishing the Defendant’s identity is
certainly not overwhelming, it is legally sufficient to uphold the verdict.

        If the evidence at trial is insufficient to sustain a conviction, a trial court may enter
a judgment of acquittal. Tenn. R. Crim. P. 29(b). This judgment may be rendered at the
close of the State’s proof or at the close of evidence, and it may be rendered before or
after the jury’s verdict. State v. Little, 402 S.W.3d 202, 211 (Tenn. 2013). In deciding a
motion for judgment of acquittal, the trial court must determine the legal sufficiency of
the evidence. State v. Collier, 411 S.W.3d 886, 892 (Tenn. 2013). “The standard by
which the trial court determines a motion for a judgment of acquittal is, in essence, the
same standard that applies on appeal in determining the sufficiency of the evidence after
a conviction.” Little, 402 S.W.3d at 211. Accordingly, the trial court must take the
strongest legitimate view of the State’s proof and draw all reasonable and legitimate
inferences in favor of the prosecution. Collier, 411 S.W.3d at 893. If any rational trier of
fact could have found the essential elements of the offense, then the motion for judgment
of acquittal should be denied. Finch v. State, 226 S.W.3d 307, 318 (Tenn. 2007). A
distinction arises between a challenge to the sufficiency of the convicting evidence and a
challenge to the trial court’s denial of a motion to acquit only when the defendant
introduces proof after the State rests its case. See id. at 316. When the defendant does
not stand on a motion for judgment of acquittal made at the close of the State’s proof, the
appellate court may then consider evidence introduced after the close of the State’s case-
in-chief in assessing the sufficiency of the evidence. See id. at 314, 316-17.
Accordingly, while the Defendant frames the issue as a challenge to the denial of a
motion for judgment of acquittal, we evaluate the Defendant’s challenge to the identity
evidence as a challenge to the sufficiency of the proof that he was the perpetrator,
considering all the proof that was introduced at trial.

       This court must set aside a finding of guilt if the evidence is insufficient to support
the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P.
13(e). The question before the appellate court is whether, after reviewing the evidence in
the light most favorable to the State, any rational trier of fact could have found the
                                             - 15 -
essential elements of the crime beyond a reasonable doubt. State v. Pope, 427 S.W.3d
363, 368 (Tenn. 2013). This court will not reweigh or reevaluate the evidence, and it
may not substitute its inferences drawn from circumstantial evidence for those drawn by
the trier of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). The jury’s guilty
verdict, approved by the trial judge, accredits the State’s witnesses and resolves all
conflicts in favor of the prosecution. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
The trier of fact is entrusted with determinations concerning witness credibility, factual
findings, and the weight and value of evidence. Smith, 436 S.W.3d at 764. In reviewing
the sufficiency of the evidence, we grant the State the strongest legitimate view of the
evidence and all reasonable inferences that can be drawn from the evidence. State v.
Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). “A verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, and on appeal the
defendant has the burden of illustrating why the evidence is insufficient to support the
verdict rendered by the jury.” Reid, 91 S.W.3d at 277. “Circumstantial evidence alone is
sufficient to support a conviction, and the circumstantial evidence need not exclude every
reasonable hypothesis except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297
(Tenn. 2012).

       The Defendant was convicted of aggravated robbery, which is the intentional or
knowing theft of property from the person of the victim by violence or putting the victim
in fear, accomplished with a deadly weapon or by the display of any article used or
fashioned to lead the victim to reasonably believe the article to be a deadly weapon.
T.C.A. §§ 39-13-401(a), -402(a)(1). Theft is knowingly obtaining or exercising control
over property without the owner’s effective consent and with intent to deprive the owner
of property. T.C.A. § 39-14-103(a). As charged here, aggravated burglary is committed
by entering a habitation without the effective consent of the property owner and
committing or attempting to commit a theft. T.C.A. §§ 39-14-402(a)(3), -403(a). As
charged, employment of a weapon during a dangerous felony required the State to show
that the Defendant employed a firearm during the commission of or attempt to commit a
dangerous felony and that the Defendant had a prior felony conviction. T.C.A. § 39-17-
1324(b), (h)(2), (i)(1)(H). To show that the Defendant was a felon in possession of a
weapon, the State had to show that the Defendant unlawfully possessed a firearm after
having been convicted of a felony drug offense. T.C.A. § 39-17-1307(b)(1)(B).

       While the Defendant does not contend that the evidence failed to establish that the
victim was subjected to an aggravated robbery and burglary committed with a firearm, he
asserts that the evidence was insufficient to show that he was the perpetrator of the
crimes. Identity is an essential element of every crime. State v. Bell, 512 S.W.3d 167,
198 (Tenn. 2015). The identification of the perpetrator of a crime is a question of fact for
the jury. State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005). In resolving questions of
fact, such as the identity of the perpetrator, “‘the jury bears the responsibility of
                                           - 16 -
evaluating the conflicting evidence and accrediting the testimony of the most plausible
witnesses.’” Pope, 427 S.W.3d at 369 (quoting State v. Hornsby, 858 S.W.2d 892, 897
(Tenn. 1993)). Circumstantial evidence may establish identity. Bell, 512 S.W.3d at 198-
200 (concluding circumstantial evidence that the defendant was the perpetrator was
sufficient to uphold the verdict).

       The Defendant in particular notes that the victim at one point testified, “If I was to
see him out on the street today, I wouldn’t even know who he was.” The Defendant
argues that the entire case hinged on the victim’s eyewitness identification and that her
testimony amounted to an acknowledgment that she was incapable of positively
identifying the Defendant.

       However, the State presented evidence apart from the victim’s identification, and
we conclude that the totality of the proof, while certainly not overwhelming, was
sufficient to support the verdict. At trial, the victim testified that three masked, armed
men entered her home and robbed her at gunpoint. She described one of the men to
responding officers as heavyset, over six feet tall, weighing over two hundred and fifty
pounds, and wearing all gray, including a gray hooded sweatshirt. Minutes after the
crime, Officer Wakefield saw a man matching the description of the assailant in gray at a
nearby home on Bronte Avenue. The man behaved suspiciously by changing his course
halfway down the driveway of the home, returning to the porch, and pretending to unlock
the front door prior to fleeing the marked police vehicle. A police dog tracked this man
from where Officer Wakefield lost sight of him to where the Defendant was apprehended.
When the dog turned into the driveway of the home on Litton Avenue where the
Defendant was apprehended, the Defendant came out from behind a shed and said, “I
give up.” The Defendant’s front side was wet. The Defendant, in his testimony, denied
ever having been on Bronte Avenue, but Officer Wakefield testified that the Defendant
was the person he saw running from the home on Bronte Avenue. A trash can eight feet
from the arrest site yielded a gun which was placed on top of a black trash bag. The
Defendant’s height, weight, clothing, race, and haircut matched the victim’s description.
The victim testified that she was permitted to view the Defendant shortly after the crime
and identified him as one of the assailants. However, she was clear that she could only
identify him by his build, his clothing, and his hair and that she could not identify him by
his facial features. The victim’s statement that she would not know the Defendant on the
street was made in the context of explaining that, prior to the crime, she was not
acquainted with the Defendant. She stated, “I didn’t really – no, I mean, I didn’t know
him. I’ve never had a conversation with him. I never remember seeing him. If I was to
see him out on the street today, I wouldn’t even know who he was.” The victim
confirmed that she identified the Defendant only because his physique, clothing, and hair
were consistent with the assailant’s.

                                           - 17 -
        The Defendant also made incriminating statements during telephone calls with his
wife. After the preliminary hearing, he laughed about the victim’s testimony that all of
the guns were black, saying “It was so crazy, our guns wasn’t even all black.” He
acknowledged in the call, “One of my guns is black,” but at trial he testified, “I don’t
carry guns.” During a telephone call with his wife on the day after his arrest, the
Defendant told his wife that “they” should have waited, observing, “By the time I came
across the fence, y’all was already gone all the way up the street already.” Evidence
established that a fence separated the apartment complex where the crime occurred from
Bronte Avenue and that this fence was scalable and an occasional route for fleeing
juveniles. The Defendant acknowledged that during another call the day after his arrest,
his wife told him she “got Elijah and everything. I got both of them.” The jury could
have inferred she was referring to the two other suspects. The Defendant told his wife
that if she had just done what he had asked, he could have jumped back in. While he
testified this statement was in reference to a visit to his children, the Defendant did not
tell law enforcement anything about leaving his home on South 8th to visit his children
on Porter Road on the night of the offenses. Instead, he told police that he lived on Porter
Road with his wife and that he got out of the car during an argument with his wife
because he did not want the argument to go further. The Defendant held telephone
conversations from which it could have been inferred that he had borrowed another
man’s gun and that the man was looking for the gun. The Defendant denied going by the
nickname “J. Main,” although he introduced himself as “Main” in one of the recorded
telephone calls.

        While the Defendant presented an alternate sequence of events in which he walked
from Porter Road in search of two acquaintances after being abandoned by his wife at his
children’s mother’s home, the jury could have discredited this version of events after
hearing the Defendant and his wife refer in the telephone calls to companions despite
their claim that no one had been with them, after hearing the Defendant refer to his wife
and others driving off as he was coming across the fence, and after hearing the Defendant
state, “[O]ur guns wasn’t even all black.” We cannot say that no rational juror could
have found that the evidence established the Defendant’s identity beyond a reasonable
doubt.

                               II. Show-Up Identification

       The Defendant challenges the trial court’s denial of the motion to suppress the
victim’s identification during a pretrial show-up. The State responds that the trial court
correctly concluded that the show-up in this case was proper. We conclude that because
the show-up constituted an on-the-scene investigatory procedure, it was not unnecessarily
suggestive.

                                           - 18 -
       A trial court’s findings of fact in a suppression hearing are binding on the
appellate court unless the evidence preponderates against them. State v. Clark, 452
S.W.3d 268, 282 (Tenn. 2014). Questions regarding the “credibility of the witnesses, the
weight and value of the evidence, and resolution of conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). The party who prevails at the trial level is entitled to the strongest legitimate view
of the evidence and to reasonable and legitimate inferences which may be drawn from it.
State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012). Mixed questions of law and fact are
reviewed de novo with no presumption of correctness. State v. Meeks, 262 S.W.3d 710,
722 (Tenn. 2008).

       When law enforcement have procured suggestive circumstances leading a witness
to identify a suspect, the principles of due process limit the admissibility of such
evidence. Perry v. New Hampshire, 565 U.S. 228, 232 (2012). A show-up, “when ‘a
single person is presented as a suspect to a viewing eyewitness,’” is inherently suggestive
and “unfair to the accused.” State v. Thomas, 780 S.W.2d 379, 381 & 381 n.1 (Tenn.
Crim. App. 1989) (quoting United States v. Sanders, 547 F.2d 1037, 1040 (8th
Cir.1976)). Such a procedure is in general “‘highly suspect.’” State v. Moore, 596
S.W.2d 841, 843 (Tenn. Crim. App. 1980) (quoting Marsh v. State, 561 S.W.2d 767
(Tenn. Crim. App. 1977)).

        Although a show-up is, by its very nature, suggestive, due process is not
implicated unless the identification procedure used by law enforcement is “both
suggestive and unnecessary.” Perry, 565 U.S. at 238-39 (citing Manson v. Brathwaite,
432 U.S. 98, 107, 109 (1977)); see State v. Martin, 505 S.W.3d 492, 500 (Tenn. 2016).
As the Supreme Court has explained, its decisions excluding evidence pertaining to
unreliable identifications “turn on the presence of state action and aim to deter police
from rigging identification procedures, for example, at a lineup, showup, or photograph
array.” Perry, 565 U.S. at 233. Absent improper actions by law enforcement, the
reliability of the proof may be tested “through the rights and opportunities generally
designed for that purpose, notably, the presence of counsel at postindictment lineups,
vigorous cross-examination, protective rules of evidence, and jury instructions on both
the fallibility of eyewitness identification and the requirement that guilt be proved beyond
a reasonable doubt.” Id.

       While a show-up identification is inherently suggestive, there are circumstances
under which a show-up procedure may nevertheless be necessary. In Tennessee, courts
have concluded that a show-up may be necessary when: “(a) there are imperative
circumstances which necessitate a showup, or (b) the showup occurs as an on-the-scene
investigatory procedure shortly after the commission of the crime.” Thomas, 780 S.W.2d
at 381 (footnotes omitted). Accordingly, “on-the-scene investigatory confrontations
                                           - 19 -
within a reasonable time after the commission of an offense are permissible,” as “‘such a
course does not tend to bring about misidentification but rather tends under some
circumstances to insure accuracy.’” Moore, 596 S.W.2d at 844 (quoting Bates v. United
States, 405 F.2d 1104, 1106 (D.C. Cir. 1968)). In particular, a witness may exonerate an
innocent suspect and thereby permit law enforcement to conduct a timely search for the
culprit. Moore, 596 S.W.2d at 844; see Simmons v. United States, 390 U.S. 377, 384-85
(1968) (holding that suggestive photographic identification was necessary because law
enforcement officers were investigating a serious felony and needed “swiftly to
determine whether they were on the right track, so that they could properly deploy their
forces”). The validity of a show-up as an on-the-scene investigatory tool hinges on the
continuity of time and place between the offense and the identification. Moore, 596
S.W.2d at 844; see State v. Beal, 614 S.W.2d 77, 81-82 (Tenn. Crim. App. 1981)
(concluding that a show-up conducted at the scene of the crime ten days after the robbery
was unnecessarily suggestive).

        If an identification procedure is found to be both suggestive and unnecessary,
suppression is required when the improper identification procedure created a “substantial
likelihood of misidentification.” Neil v. Biggers, 409 U.S. 188, 198 (1972). In making
this determination, the court must assess the reliability of the identification, which is the
“linchpin” of the admissibility analysis. Mason v. Brathwaite, 432 U.S. 98, 114 (1977);
see State v. Bonds, 502 S.W.3d 118, 138-39 (Tenn. Crim. App. 2016). The court must
evaluate whether the identification was reliable under the totality of the circumstances.
Biggers, 409 U.S. at 199. Factors include the “opportunity of the witness to view the
offender at the time of the crime, the witness’s degree of attention, the accuracy of the
prior description of the offender, the level of certainty of the witness at the confrontation,
and the length of time between the crime and the confrontation.” Beal, 614 S.W.2d at 82
(citing Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199; Rippy v. State, 550 S.W.2d
636, 639-40 (Tenn. 1977)).

        We conclude that the show-up, while clearly suggestive, was not unnecessarily so
because it was part of an ongoing and uninterrupted investigation conducted close in time
and location to the crimes. The police responded quickly to the report of a robbery and
observed an individual who matched the description of one of the robbers on a street
adjacent to the victim’s home. This man changed his course when he observed the
marked vehicle, stood on the porch of a house as though opening the door, and then ran
from the porch when the vehicle turned around. He was apprehended within yards of the
apartment complex, and a gun was discovered in a trash can eight feet from the arrest
location. The Defendant was first seen approximately five minutes after law enforcement
were dispatched to the scene, and he was arrested approximately fifteen to thirty minutes
later, after a K-9 officer tracked him from the location where Officer Wakefield lost sight
of him. The victim identified the Defendant by his clothing, hair, and atypical physique
                                            - 20 -
approximately forty minutes after the initial emergency call was placed. The show-up,
which was conducted close in time and location to the crime, was used as an on-the-scene
investigatory tool by law enforcement and was necessary to determine the continued
course of their investigation. Because the show-up was not both suggestive and
unnecessary, the trial court did not err in determining that the evidence could be admitted
without offending due process. See State v. Tomario Walton a.k.a. Quadricus Dean, No.
W2011-01082-CCA-R3-CD, 2012 WL 3193366, at *6-8 (Tenn. Crim. App. Aug. 6,
2012) (the suspect being presented to the victim getting out of a police vehicle after being
apprehended less than an hour after the report and within three miles did not render the
show-up unnecessarily suggestive, but law enforcement’s statement to the victim that the
defendant had been found with her property did render it unnecessarily suggestive); State
v. Cory Shane Rollins, No. E2008-01407-CCA-R3-CD, 2010 WL 342653, at *5-6 (Tenn.
Crim. App. Feb. 1, 2010) (show-up qualified as an on-the-scene investigatory procedure
when the defendant was seen “pretty close” to the crime scene within twenty to thirty
minutes of the crime and the victim identified him within an hour)3; State v. Vidal L.
Strickland, No. M2002-01714-CCA-R3-CD, 2003 WL 22243440, at *12-13 (Tenn. Crim.
App. Sept. 30, 2003) (the show-up was part of an on-the-scene investigatory procedure
when the handcuffed suspects were presented next to a police vehicle with headlights
shining on them within an hour of the crime while law enforcement were still on the
scene and in the process of responding to the offense). At trial, the Defendant was able to
demonstrate through cross-examination that the victim’s identification was based on the
fact that the Defendant’s hair, clothing, and large physique matched that of the suspect.
The jury was aware that the victim never saw the Defendant’s face and could not identify
him by his features. We conclude that the trial court did not err in denying the motion.

                        III. Failure to Disclose Photographic Line-Up




        3
          We note Cory Shane Rollins incorrectly states that Tennessee courts have adopted a strict rule
barring evidence of unnecessarily suggestive confrontations. 2010 WL 342653, at *5 (observing that
“[w]hile the federal courts declined to adopt a ‘strict rule barring evidence of unnecessarily suggestive
confrontations,’ Tennessee courts have adopted such a rule” (quoting Biggers, 409 U.S. at 199)).
Tennessee courts have in fact proceeded to analyze the totality of the circumstances under Biggers when
an identification procedure has appeared unnecessarily suggestive. See Bonds, 502 S.W.3d at 139 (“The
Biggers test for reliability is only triggered if the identification procedures were conducted in an
impermissibly suggestive manner.”); Tomario Walton a.k.a. Quadricus Dean, 2012 WL 3193366, at *8
(“Having found the showup unnecessarily suggestive, we must consider whether the totality of the
circumstances under the Biggers factors indicates that the identification was reliable despite the
unnecessary suggestiveness of the showup.”); Beal, 614 S.W.2d at 82 (“However, under Tennessee law,
as under federal law, the existence of an unnecessarily suggestive identification procedure will not trigger
the application of a per se rule of exclusion.”).
                                                  - 21 -
       The Defendant asserts that the State’s failure to produce evidence related to the
photographic line-up prior to trial was a violation of Brady v. Maryland, 373 U.S. 83, 87
(1963) and Tennessee Rule of Criminal Procedure 16. He asserts that the trial court erred
in denying a continuance or mistrial based on the violations. The State responds that the
Defendant failed to raise the mistrial issue in his motion for a new trial and that it is
accordingly waived. The State also argues that the evidence was not material under the
Brady standard and that the trial court’s remedy of allowing the Defendant to recall
witnesses was adequate.

       Initially, we agree with the State that the Defendant waived the mistrial issue by
failing to include it in his motion for a new trial. See Tenn. R. App. P. 3(e). The
Defendant does not ask for plain error relief. On the other hand, the Defendant properly
preserved the challenge to the trial court’s denial of his motion for a continuance. The
Defendant sought relief under both Brady and Tennessee Rule of Criminal Procedure 16.
We conclude that because the material was disclosed in time for its effective use at trial,
there was no violation of Brady and that the trial court did not abuse its discretion in
fashioning a Rule 16 remedy.

                                        A. Brady

       The suppression of evidence favorable to the accused is a due process violation
when the evidence is material to guilt or punishment. Brady, 373 U.S. at 87. In order to
establish a violation based on the withholding of favorable evidence, the defendant must
demonstrate that: (1) the defendant requested the evidence or that it was obviously
exculpatory; (2) the State suppressed evidence in its possession; (3) the evidence that was
suppressed was favorable to the accused; and (4) the evidence meets the standard of
materiality. State v. Jackson, 444 S.W.3d 554, 594 (Tenn. 2014). The defendant has the
burden of proving a violation by a preponderance of the evidence. State v. Edgin, 902
S.W.2d 387, 389 (Tenn. 1995), as amended on rehearing (Tenn. July 10, 1995).

       The rule in Brady applies “not only to evidence in the prosecution’s possession,
but also to ‘any favorable evidence known to the others acting on the government’s
behalf in the case, including the police.’” Jackson, 444 S.W.3d at 594 (quoting Strickler
v. Greene, 527 U.S. 263, 275 n.12 (1999)). This includes “evidence in police possession
which is not turned over to the prosecution.” Id. Accordingly, the evidence here was in
the possession of the State because law enforcement had the evidence even though the
prosecutor did not know about it.

      The State’s Brady obligations reach all “favorable information,” regardless of its
admissibility. Jordan v. State, 343 S.W.3d 84, 96 (Tenn. Crim. App. 2011).
“Information that is favorable to the accused may consist of evidence that ‘could
                                          - 22 -
exonerate the accused, corroborate[] the accused’s position in asserting his innocence, or
[contain] favorable information that would have enabled defense counsel to conduct
further and possibly fruitful investigation regarding’” a potential defense. Johnson v.
State, 38 S.W.3d 52, 56 (Tenn. 2001) (quoting State v. Marshall, 845 S.W.2d 228, 233
(Tenn. Crim. App. 1992)). Evidence which permits the defense to impugn the reliability
of the State’s investigation, impeach the credibility of witnesses, or bolster the defense’s
position amounts to favorable evidence. Jordan, 343 S.W.3d at 96. Here, the parties
agree that the evidence was impeachment for the victim’s testimony that she did not view
any photographic line-ups or have contact with detectives after her initial report.

       Nevertheless, there is no suppression when the material is disclosed in time for a
defendant to use it effectively at trial. See United States v. Davis, 306 F.3d 398, 421 (6th
Cir. 2002) (finding no Brady violation where the material was disclosed at trial and the
defendant refused an opportunity to postpone the trial); Wayne R. LaFave et al., 6 Crim.
Proc. § 24.3(b) n.88 (4th ed. 2017). “Although the complete non-disclosure of significant
exculpatory evidence often makes an easy case for a due process violation, delayed
disclosure requires an inquiry into whether the delay prevented the defense from using
the disclosed material effectively in preparing and presenting the defendant’s case.”
State v. Caughron, 855 S.W.2d 526, 548 (Tenn. 1993) (Daughtrey, J., dissenting).
Because a violation occurs only when the suppression of material exculpatory evidence
prevents its effective use at trial, “‘Brady generally does not apply to delayed disclosure
of exculpatory information, but only to a complete failure to disclose.’” State v. Justin
Terrell Knox, No. W2014-01577-CCA-R3-CD, 2015 WL 6122257, at *4 (Tenn. Crim.
App. Oct. 16, 2015) (quoting Davis, 306 F.3d at 421). Delayed disclosure constitutes a
due process violation only when the delay causes prejudice to the defendant. Id.

       Here, the material disclosed during trial was relevant to impeach the victim’s
testimony about her contacts with law enforcement. The trial court allowed the
Defendant to recall the victim and to impeach her with the evidence. In ruling on the
motion for a continuance, the trial court asked the Defendant to articulate the prejudice
from the late production, and the Defendant only stated that he had not had the
opportunity to cross-examine the victim and that he would like the opportunity to explore
the circumstances of the line-up with the detective. The trial court permitted the
Defendant to question Detective Rummage regarding the line-up and to cross-examine
the victim about the line-up and about her previous testimony denying that she had never
been shown a line-up.

       The Defendant also argues that the evidence was relevant to his theory of the case
that the juvenile in the line-up was the actual perpetrator. However, the proof at trial
shows that the Defendant was well aware of the juvenile’s identity, having secured Ms.
London, Detective Brown, and Mr. Mitchell as witnesses to testify that the victim had
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suspected the juvenile of involvement. The record is also clear that the juvenile, who was
five feet, six or seven inches tall and weighed one hundred and forty-five pounds, did not
resemble the Defendant, who was six feet, one inch tall and weighed two hundred and
sixty pounds. Accordingly, there was no allegation that the victim mistook the Defendant
for the juvenile; instead, the proof suggested the juvenile may have been one of the other
two men. The Defendant was aware that the victim had seen the juvenile and had made
some allegation that he was involved in the crime but that she subsequently declined to
pursue the allegations. While the Defendant speculates that he “could have developed
another theory of the case” if he had known that the victim failed to identify the juvenile
in a line-up, he makes no particularized allegation regarding how the late disclosure
affected his strategy. We conclude that, because the Defendant was aware of the
juvenile’s identity and was able to explore the implications of the line-up by recalling
witnesses for cross-examination, the material was disclosed in time for its effective use at
trial.

                     B. Tennessee Rule of Criminal Procedure 16

      The Defendant also asserts the failure to produce the material was a violation of
Tennessee Rule of Criminal Procedure 16, which states,

              (F) Documents and Objects. Upon a defendant’s request, the state
       shall permit the defendant to inspect and copy or photograph books, papers,
       documents, photographs, tangible objects, buildings, or places, or copies or
       portions thereof, if the item is within the state’s possession, custody, or
       control and:

              (i) the item is material to preparing the defense;

               (ii) the government intends to use the item in its case-in-chief at
       trial; or

              (iii) the item was obtained from or belongs to the defendant.

Tenn. R. Crim. P. 16(a)(1)(F). In the event of a violation, the Rule provides that the trial
court may order discovery or inspection, grant a continuance, exclude the evidence, or
take other remedial measures. Tenn. R. Crim. P. 16(d)(2). Accordingly, the trial court
should fashion relief which is effective and appropriate. State v. Collins, 35 S.W.3d 582,
585 (Tenn. Crim. App. 2000). Any prejudice accruing to the accused is a factor in
determining what remedy is appropriate. State v. Giles, 493 S.W.3d 504, 521 (Tenn.
Crim. App. 2016). “A trial court has wide discretion in fashioning a remedy for non-
compliance with a discovery order, and the sanction should fit the circumstances of the
                                           - 24 -
case.” State v. Downey, 259 S.W.3d 723, 737 (Tenn. 2008). An abuse of discretion
occurs when the trial court applies an incorrect legal standard or when it reaches a
decision which is against logic or reasoning and which causes an injustice to the party
complaining. State v. Merriman, 410 S.W.3d 779, 791 (Tenn. 2013).

        When the prosecution has failed to disclose discoverable evidence, the burden of
proving “the degree to which the impediments to discovery hindered trial preparation and
defense at trial” falls on the defendant. State v. Brown, 836 S.W.2d 530, 548 (Tenn.
1992). When questioned by the trial court at trial, the Defendant stated that he requested
a continuance or mistrial because he had not been able to cross-examine witnesses or
question the detective regarding the circumstances of the line-up. The Defendant was
generally aware that the victim had made allegations that the juvenile was one of the
other two men involved in the crime, and he had subpoenaed several witnesses to
introduce proof regarding these allegations. We conclude the trial court did not abuse its
discretion in fashioning a remedy by permitting the Defendant to recall witnesses to
cross-examine them in light of the new evidence and to present the testimony of the
detective. State v. Michael Wayne Davis, No. M2010-02108-CCA-R3-CD, 2013 WL
105172, at *10 (Tenn. Crim. App. Jan. 9, 2013) (affirming the trial court’s denial of
sanctions for a discovery violation when the defendant was not able to articulate what
prejudice he suffered or how his trial strategy would have changed if the disclosure of his
prior statement had been timely). Accordingly, the Defendant is not entitled to relief on
this ground.

                                    CONCLUSION

      Based on the foregoing, we affirm the trial court’s judgments.




                                   ____________________________________________
                                    JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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