                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     July 11, 2005 Session

                STATE OF TENNESSEE v. CLINTON BURNS, III

                       Appeal from the Criminal Court for Knox County
                             No. 78802    Ray L. Jenkins, Judge



                    No. E2004-01632-COA-R3-JV - FILED JULY 29, 2005


Clinton Burns, III, (DOB: 06/07/86), a juvenile, was adjudged delinquent by the Knox County
Juvenile Court, having been found to have committed the adult offense of aggravated robbery. He
appealed to the trial court, which, after a bench trial, affirmed the judgment of the juvenile court.
The defendant appeals, contending that the trial court erred in denying his motion to suppress the
testimony of the victim because of the unduly suggestive nature of the procedure used to identify
him. He further argues that the trial court erred in refusing to afford him a jury trial. We hold that
the trial court properly denied the defendant’s motion to suppress, but that it erred in denying the
defendant a jury trial. Accordingly, we affirm the trial court’s order denying the motion to suppress,
but reverse the judgment of the trial court affirming the judgment of the juvenile court. Case
remanded for a new trial.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                   Affirmed in Part; Reversed in Part; Case Remanded

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.

Mark E. Stephens, District Public Defender; and Robert C. Edwards, Assistant Public Defender,
Knoxville, Tennessee, for the appellant, Clinton Burns, III.

Paul G. Summers, Attorney General and Reporter; and John H. Bledsoe, Assistant Attorney General,
Nashville, Tennessee, for the appellee, State of Tennessee.

                                             OPINION

                                                  I.

       On September 23, 2003, the Check Cash Store on Broadway in Knoxville was robbed at
gunpoint. After the robber fled the scene, Teshia Clapp, the store clerk, called the police. Officer
Joseph Huckleby of the Knoxville Police Department responded to the scene where he met with Ms.
Clapp and obtained a description of the suspect. Officer Huckleby learned from another officer –
Officer Susan Coker – that the defendant had left Fulton High School earlier that morning and that
he matched the description furnished by Ms. Clapp.

       Since the defendant is a juvenile, Officer Huckleby contacted his parents. The defendant’s
mother brought him to the police station, where he was fingerprinted and photographed. The crime
technicians used his photograph as a part of a computer-generated photographic line-up, which
contained the photographs of the defendant and five other black males, two of whom, including the
defendant, had skin of a darker complexion than that of the other four.

        Officer Huckleby showed the photographic line-up to Ms. Clapp and asked her if she could
identify the individual who robbed the store. Ms. Clapp picked out the defendant, circled his
photograph and signed her name below his photograph. Following this, Officer Huckleby indicated
that, based on Ms. Clapp’s identification, he intended to formally arrest the defendant who was
already at the police station. He told Ms. Clapp that he was going to take the defendant into custody,
and that this would require him to move the defendant from one part of the police station to another.
The room in which Ms. Clapp was located had a two-way window. When Officer Huckleby walked
with the defendant in front of the window, Ms. Clapp identified him as the individual who had
robbed the store.

         There is some dispute in the record regarding Officer Huckleby’s conversation with Ms.
Clapp prior to the time that he passed in front of the window with the defendant. Both of them
testified at the suppression hearing. Ms. Clapp testified as follows:

               A. After I did the [photographic] lineup, when the detective had
               taken it, he hadn’t came back and thanked me or anything, ‘cause I
               picked the one and then he left. And he came back and he asked me
               if I would mind looking at an individual that walked by to see if that
               was the same person. When he walked by, that was the same guy. I
               had a panic attack in the Police Department in a little, closed window
               room when he walked by.

(Emphasis added). On the same subject, Officer Huckleby testified thusly:

               Q. Now, you told her – when she asked you if she could see him in
               person, you told her, no, absolutely not, that wouldn’t be right?

               A. That’s exactly what I told her. Now, there was conversation after
               she picked him out of a photo lineup, and I told her that I had to go
               get him. And she asked could she see him, and I told her, no, but I
               said you’ll probably see him when I bring him on the other side of the
               room. . . .

(Emphasis added).


                                                 -2-
        On September 24, 2003, the State filed a petition in the Knox County Juvenile Court
charging the defendant with committing the delinquent act of aggravated robbery. A juvenile court
referee found the defendant to be delinquent. The defendant appealed to the trial court. The
defendant subsequently filed a motion to suppress the victim’s identification of him. This motion
was denied.

         The State subsequently filed a motion contending that the defendant was not entitled to a jury
trial in his de novo appeal from the juvenile court.1 The trial court granted the State’s motion.
Thereafter, the defendant was tried before the criminal court judge on June 3, 2004, and June 9,
2004. At the conclusion of the trial, the court found the defendant guilty of aggravated robbery
beyond a reasonable doubt. The defendant appeals.

                                                        II.

       The defendant presents two issues for our review: (1) whether the trial court erred in denying
his motion to suppress Ms. Clapp’s identification; and (2) whether the trial court erred in denying
him a jury trial.

                                                        III.

                                                        A.

       With respect to the motion to suppress, the defendant argues that the trial court erred in
denying his motion because, according to him, the procedure used to identify him was unduly
suggestive.

        In reviewing a trial court’s ruling on a motion to suppress, we must uphold the court’s
findings of fact unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996). It is incumbent upon the trial court as the trier of fact to assess witness credibility, the
weight and value of the evidence, and the resolution of conflicts in the evidence. Id. As to the trial
court’s application of the law to the facts, however, we review that application de novo, according
no presumption of correctness to the court’s conclusions. State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997).

                                                        B.

        “To be admissible as evidence, an identification must not have been conducted in such an
impermissibly suggestive manner as to create a substantial likelihood of irreparable
misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998) (citing Simmons v. United
States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). It therefore follows that any


        1
          The Tennessee Supreme Court has held that a juvenile defendant in his or her appeal to criminal court does
not have to affirmatively ask for a jury trial. See State v. Johnson, 574 S.W .2d 739, 741 (Tenn. 1978).

                                                        -3-
identification procedure initiated by the police that is impermissibly suggestive and gives rise to a
“very substantial likelihood of irreparable misidentification” violates a defendant’s due process
rights. State v. Loveday, No. E1999-01090-CCA-R3-CV, 2000 WL 1337658, at *4 (Tenn. Crim.
App. E.S., filed September 18, 2000) (citing Simmons, 390 U.S. at 384, 88 S.Ct. at 971).

         Law enforcement officers employ a variety of identification techniques. One such procedure
is referred to as a “showup” or a one-on-one confrontation. A “showup” occurs when a suspect or
a single photograph of that individual is presented to a victim or other witness. Cribbs, 967 S.W.2d
at 794. Generally speaking, we have condemned showups as being “inherently suggestive and unfair
to the accused.” State v. Thomas, 780 S.W.2d 379, 381 (Tenn. Crim. App. 1989). Both the United
States Supreme Court and our state appellate courts have limited the use of such “showups” to
situations where (1) there are imperative circumstances necessitating the procedure, or (2) the
showup occurs as an on-the-scene investigatory procedure following the commission of the crime.
Id. (citations omitted).

         It is clear beyond any doubt that Officer Huckleby knew that he was going to be walking the
defendant past the window of the room where Ms. Clapp was located. Furthermore, it is clear that
Ms. Clapp knew that the defendant was going to be moved in front of that window. Against this
background, we must determine if Officer Huckleby’s movement of the defendant in front of the
window was “impermissibly suggestive.” See id. at 382. If so, we must then determine if it
“create[d] a very substantial likelihood of irreparable misidentification.” Id. In making this latter
determination, we must decide if the witness’s identification is still reliable based on the totality of
the circumstances surrounding the identification. Id. We apply the following factors established by
the United States Supreme Court for assessing the reliability and admissibility of a witness’s
identification: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2)
the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the defendant;
(4) the level of certainty that the witness demonstrates at the confrontation; and (5) the time between
the crime and the identification. Id. (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382,
34 L.Ed.2d 401 (1972)). These factors are weighed against the corrupting effect of a suggestive
procedure. State v. Strickland, 885 S.W.2d 85, 88 (Tenn. Crim. App. 1993).

        With these principles in mind, we turn to the facts of the instant case. When the victim
arrived at the police station, she was handed a photographic line-up that contained six photographs.
All six photographs were of black men, although two were darker-skinned than the other four. When
the victim reviewed the photo array, she identified the defendant as the person who held her up.
Although the line-up consisted of four light-skinned blacks and two dark-skinned blacks, Ms. Clapp
stated that the difference in skin color did not impact her identification of the defendant.

        Prior to the photographic line-up, the victim asked to see the individual in custody. Officer
Huckleby informed her that they no longer conducted line-ups where a witness is afforded the
opportunity to see a suspect in person. Consequently, he told her that she could not see the
individual he was holding. As previously noted, however, the officer told her that she would
probably see him because he had to walk the defendant from one end of the office to the other, and,
in so doing, would pass in front of the room where she was located. The victim testified that Officer

                                                  -4-
Huckleby specifically asked her if she would be willing to look at the suspect as he walked in front
of the window. She also testified that she wanted to see the defendant in person in order to confirm
her identification. When the defendant passed by the room, she recognized him as the perpetrator
of the hold-up and, as a consequence, had a panic attack.

        Based upon our review of the evidence, we conclude that the showup was unduly suggestive.
Not only did Officer Huckleby inform the victim that the defendant would be walking by the room
in which she was located, he escorted the defendant after he had been handcuffed. Presenting a
handcuffed suspect for identification has been deemed a practice that is unnecessarily suggestive.
See Webb v. Havener, 549 F.2d 1081, 1086-87 (6th Cir. 1977); State v. Beal, 614 S.W.2d 77, 81
(Tenn. Crim. App. 1981). The officer testified that there was no secure area in which to place the
defendant; however, he placed the victim in a room with a window, thereby enabling her to see the
defendant. Furthermore, the officer did not explain why the witness could not have been placed in
another room and thereby avoid this showup. We further find that the showup conducted by the
officer was “unnecessarily” suggestive. This was not a case where the showup was justified due to
imperative circumstances or an on-the-scene investigatory procedure. See Thomas, 780 S.W.2d at
381.

        Despite our determination that the showup was suggestive, we cannot say that Ms. Clapp’s
identification was unreliable so as to warrant the granting of the defendant’s motion to suppress the
identification. In reaching this conclusion, our underlying analysis is undertaken pursuant to the
previously-noted factors set forth in Neil v. Biggers. First, we find that the victim had a sufficient
opportunity to see the perpetrator. She saw the defendant when he entered the store. His face was
not covered as he approached her. It was morning and the room was illuminated by fluorescent
lights. The description that she was able to furnish to Officer Huckleby evinces her degree of
attention. For example, she reported to the officer that he was wearing a black t-shirt, black jeans,
a black toboggan, had braided hair, and was approximately five feet, nine inches tall. In general
terms, her description of the robber’s facial features was consistent with the photograph of the
defendant. Furthermore, the photographic identification occurred less than 24 hours from the time
of the incident. The victim testified that she was “positive” of her choice of the defendant in the
photo array. However, she also testified that she wanted to see the defendant in person to confirm
that she had, in fact, selected the correct person. We find that this does not detract from her level
of certainty as to her identification of the defendant. Accordingly, we cannot say that there was a
“very substantial likelihood of irreparable misidentification.” Cribbs, 967 S.W.2d at 794. We
therefore find that the trial court did not err in denying the defendant’s motion to suppress.

                                                 IV.

        The defendant also argues that he was improperly denied his right to a jury trial on his appeal
from juvenile court to criminal court. As this issue presents a question of law, we review the trial
court’s judgment de novo, according no presumption of correctness to its findings. S. Constructors,
Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).



                                                 -5-
        The first case in Tennessee to address this matter, i.e. whether a juvenile defendant has a
constitutional right to a jury trial where the charge of delinquency was predicated on a felony
offense, was Arwood v. State, 463 S.W.2d 943 (Tenn. Ct. App. 1970). There we held that a juvenile
defendant did possess such a right. Id. at 946. Relying on United States Supreme Court precedent,
we noted the High Court’s recognition of rights to be afforded to juveniles in delinquency
proceedings that were comparable to those afforded to criminal defendants. Id. at 945. For instance,
we cited a case where the Supreme Court had held that juveniles charged with criminal acts were
entitled to constitutional safeguards such as timely notice of the charges, a right to counsel, and a
right against self-incrimination. Id. (citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527
(1967)). In keeping with the Supreme Court’s extension of various rights to juveniles, we extended
the right to a jury trial on appeal to juveniles charged with delinquency predicated on the commission
of a felony. Id. at 946.

        The following year, the United States Supreme Court released its decision in McKeiver v.
Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), a case that was pending before
the High Court at the time we decided Arwood. In McKeiver, the Court held that a juvenile does not
have a federal constitutional right to a jury trial. Id. at 545, 1986. The court articulated a number
of reasons for its decision, including, among others, that the Court had declined to extend all rights
of adult defendants to juveniles, that such a ruling could have an adverse impact on juvenile
proceedings, and that several states, in light of earlier Court precedent, had determined that the
Federal Constitution did not confer a right to a jury trial to juveniles. Id. at 545-50, 1986-89.
However, in the course of its discussion, the Court noted a limitation on its holding, stating that

                [i]f, in its wisdom, any State feels the jury trial is desirable in all
                cases, or in certain kinds, there appears to be no impediment to its
                installing a system embracing that feature. That, however, is the
                State’s privilege and not its obligation.

Id. at 547, 1987.

        Although we did not have the benefit of McKeiver when we decided Arwood, the appellate
courts of this state have had several opportunities to revisit our decision in Arwood and, despite
McKeiver, have, at least tacitly, upheld the ruling in Arwood. In State v. Johnson, 574 S.W.2d 739,
740 (Tenn. 1978), the Tennessee Supreme Court addressed the issue in the context of deciding
whether or not a juvenile must exercise his demand for a jury trial when appealing his delinquency
finding to a circuit court. The High Court cited Arwood in the context of our discussion of the rights
of juveniles in delinquency proceedings, noting that although delinquency proceedings are akin to
civil matters in some respects, the juvenile has a right to counsel, a right of confrontation, a privilege
against self-incrimination, and the right to have guilt established beyond a reasonable doubt. Id. at
741 (citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re Winship, 397 U.S.
358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). The Tennessee Supreme Court ultimately held that
since an adult is entitled to a jury unless he explicitly waives that right, similarly, a juvenile who fails
to request a jury trial should not be deprived of one. Id. Although Arwood was not discussed at


                                                    -6-
length, it was cited for the proposition that a juvenile is entitled to a jury trial on his appeal to the
circuit court.

        The interplay between Arwood and its progeny and McKeiver is most clearly stated in the
Supreme Court’s opinion in State ex rel. Anglin v. Mitchell, 596 S.W.2d 779 (Tenn. 1980). The
issue before the Anglin court was whether a judge who was not a licensed attorney could adjudicate
delinquency. Id. at 780. One of the issues addressed in the opinion was the State’s argument that
our state Supreme Court was bound by United States Supreme Court precedent. Id. at 788. In
discussing the jurisdiction of the Tennessee Supreme Court in relation to that of the United States
Supreme Court, our Supreme Court used the interplay between McKeiver and Johnson, which latter
case affirmed Arwood, to demonstrate the impact of United States Supreme Court precedent:

                While we accord great deference to the Supreme Court of the United
                States and abide, without question, its declarations denouncing
                deviations from the Constitution of the United States, this does not
                relieve this Court from the sworn obligation to subject any given
                question to analysis and examination in the light of the Constitution
                of Tennessee, designed to determine whether our own constitution
                requires a greater protection.

                Thus, although the Supreme Court in McKeiver v. Pennsylvania, 403
                U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), held that the Due
                Process Clause of the Fourteenth Amendment did not assure the right
                to a jury trial in the adjudicatory phase of a state juvenile court, this
                Court, in State v. Johnson, 574 S.W.[2d] 739 (Tenn. 1978), declared
                that a juvenile “charged with an offense which would constitute a
                felony” is entitled to a jury trial on appeal to the Circuit Court for a
                de novo trial.

Id. at 789. The Court further delineated its responsibility to the Tennessee Constitution relative to
the Federal Constitution, stating that

                [a] state court can not under a state constitution restrict the rights of
                its citizens contrary to the rights granted by the Federal Constitution;
                but a state court can grant to its citizens broader and more
                comprehensive rights under the state constitution than as allowed by
                the Federal Constitution.

Id. (quoting Merchants Bank v. State Wildlife Resources Agency, 567 S.W.2d 476, 479 (Tenn. Ct.
App. 1978)).

       We find that our Supreme Court’s statements in Anglin are a complete answer to the matter
before us. Although the United States Supreme Court held in McKeiver that the Federal
Constitution does not oblige states to furnish jury trials to juveniles, the Court clearly stated that it

                                                  -7-
was within an individual state’s discretion to determine if it would extend the right to a jury trial to
juveniles. McKeiver, 403 U.S. at 548, 91 S.Ct. at 1987. Therefore, as evidenced by the discussion
of the cases herein, it is clear to us that the Tennessee Supreme Court has determined that under the
Tennessee Constitution, juveniles are entitled to a jury trial upon appeal to the circuit or criminal
court.

        The State argues that the Tennessee Supreme Court’s language cited herein is merely dicta
and therefore should not be binding on this court. In fact, the State goes so far as to delineate the
difference between obiter dictum and judicial dictum, arguing that our Supreme Court’s statements
affirming the holding of Arwood are obiter dictum.2 Therefore, so the argument goes, it is not
binding precedent. We find this argument to be without merit. As our Supreme Court has stated ,

                  trial courts must follow the directives of superior courts, particularly
                  when the superior court has given definite expression to its views in
                  a case after careful consideration. Accordingly, inferior courts are not
                  free to disregard, on the basis that the statement is obiter dictum, the
                  pronouncement of a superior court when it speaks directly on the
                  matter before it, particularly when the superior court seeks to give
                  guidance to the bench and bar. To do otherwise invites chaos into the
                  system of justice.

Holder v. Tennessee Judicial Selection Comm’n, 937 S.W.2d 877, 881-82 (Tenn. 1996) (internal
citations omitted). We understand our role as an “inferior court.” We cannot ignore that which our
Supreme Court has clearly delineated.

        We therefore hold that under the Tennessee Constitution, a juvenile is entitled to a jury trial
on appeal of his or her delinquency proceeding to the circuit or criminal court. Accordingly, we find
that the trial court erred when it denied the defendant a jury trial.

                                                          V.

        The order of the trial court denying the motion to suppress is affirmed. The judgment of the
trial court affirming the juvenile court’s finding of delinquency is reversed and this matter is
remanded to the trial court for a new trial. Costs on appeal are taxed to the State of Tennessee.



                                                                _______________________________
                                                                CHARLES D. SUSANO, JR., JUDGE



         2
          “Obiter dictum” is generally defined as “a remark or opinion uttered by the way.” Staten v. State, 232 S.W .2d
18, 19 (Tenn. 1950).

                                                          -8-
