           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE              FILED
                         JUNE 1998 SESSION
                                                     October 13, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 01C01-9707-CC-00270
           Appellee,            )
                                )    WILLIAMSON COUNTY
VS.                             )
                                )    HON. DONALD P. HARRIS,
EDDIE L. COLEY, JR.,            )    JUDGE
                                )
           Appellant.           )    (Aggravated Robbery)



FOR THE APPELLANT:                   FOR THE APPELLEE:


JOHN HENDERSON                       JOHN KNOX WALKUP
Public Defender                      Attorney General & Reporter

VANESSA PETTIGREW BRYAN              KAREN M. YACUZZO
LARRY D. DROLSUM                     Asst. Attorney General
Asst. Public Defenders               John Sevier Bldg.
P.O. Box 68                          425 Fifth Ave., North
Franklin, TN 37065-0068              Nashville, TN 37243-0493

                                     JOE D. BAUGH
                                     District Attorney General

                                     MARK PURYEAR
                                     DEREK SMITH
                                     Asst. District Attorneys General
                                     P.O. Box 937
                                     Franklin, TN 37064




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                             OPINION



                  The defendant was indicted for aggravated robbery, a class B felony. His

first trial resulted in a hung jury. Upon retrial, the jury convicted him as charged.

Following a sentencing hearing, he was sentenced as a Range I standard offender to

twelve years incarceration, the maximum sentence. The defendant now appeals,1

arguing that the trial court erred in excluding expert testimony regarding eyewitness

identification, that the convicting evidence was insufficient as a matter of law, and that his

sentence was excessive because the trial court failed to give due weight to certain

mitigating factors. We affirm.



                  On July 15, 1995, the victims, Sarah Blumberg and Jennifer McMillen, were

working at a Baskin-Robbins ice cream shop in Brentwood. Around 1:00 p.m., the

defendant, a nineteen-year-old African-American man, entered the store, looking no more

suspicious than any customer. Ms. McMillen commented to Ms. Blumberg that the

defendant’s black t-shirt with unusual writing across it was “cool.” While the victims were

preparing the defendant’s order, the defendant pointed a gun at them and ordered them

to the ground. The defendant stood only a few feet from the victims, both of whom were

afraid they would be killed. One of the victims was instructed to put the store’s money

into a bag. The defendant then ordered both victims to the walk-in freezer in the back of

the store, telling them that if they came out of the freezer while he was still there, he

would shoot them. The victims remained in the freezer until they heard a customer enter

the store and call for a clerk, at which point they went to the store next door and called

the police.



                  The police failed to find any fingerprints or other physical evidence at the


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           The defendant requested permission to late-file his notice of appeal, which this Court granted.

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crime scene. However, that afternoon, each of the victims gave separate descriptions

of the robber as an obese African-American man around 5'9"2 and in his twenties, and

each helped the police prepare separate composite pictures of the robber. Nine days

after the robbery, Ms. Blumberg identified the defendant in a photographic line-up. Five

months after the robbery, Ms. McMillen identified the defendant in the same photographic

line-up.



                At trial, the sole issue of dispute was one of identification. The State’s case

rested on the victims’ testimony and their pre-trial and in-court identifications of the

defendant as the robber. On cross-examination, both of the victims admitted that in the

photographic line-up, the defendant was the only one wearing an unusual black t-shirt.

Ms. Blumberg also testified that she expected to find a picture of the robber in the

photographic line-up, and Ms. McMillen conceded that prior to looking at the photographic

line-up, she knew a suspect was already in custody awaiting trial.



                The defendant presented an alibi defense and maintained that another

suspect, whom the police failed to adequately investigate, committed the robbery. The

defendant’s uncle testified that he was with the defendant the day of the robbery,

including the time it occurred. Another defense witness, Brandon Duhon, testified that

he was working at a store near Baskin-Robbins at the time of the robbery. According to

his testimony, he had seen an old yellowish car drive by his store thirty minutes before

the robbery. He then watched the two African-American males who were in the car

approach the Baskin-Robbins store. After the robbery, he reported to the police what he

had seen, describing the car and describing the driver as a tall, slender man with braided

hair. He could not describe the passenger. He told police that the car had looked



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         Ms. Blumberg, who is 5'6", testified that the robber was a few inches taller than she, and Ms.
McM illen testified that th e robbe r stood 5 '9".

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“suspicious” as if the driver and the passenger were “casing” the area. Upon further

examination, he admitted that the car seemed “suspicious” only after he had heard about

the robbery.



               Two detectives involved in investigating the robbery were called by the

defense. According to their testimony, when the police found a car matching the

description Mr. Duhon gave them, they discovered the car was registered to Demetrius

Robinson, who lived one to one and one-half miles from the scene of the robbery. Even

though Mr. Robinson was a tall, slender African-American man with braided hair, Mr.

Duhon could not positively identify him. When questioned, Mr. Robinson said his brother,

Tony Smith, had lived with him. The investigating officer believed “Tony Smith” was a

fake name because it was “generic,” and a report later obtained by the police indicated

that Mr. Robinson did not have a brother. The police staked out Mr. Robinson’s

apartment in the hopes of spotting Tony Smith, but to no avail. Finally, state records

disclosed that an “Anthony DeWayne Smith,” born in March 1975, lived at Mr. Robinson’s

address. Although the investigating officer knew a picture of Anthony DeWayne Smith

was on file with the Metro-Nashville police department, he did not include it in any

photographic line-up shown to the victims. He justified this decision on the grounds that

he could neither confirm nor controvert the information Mr. Robinson supplied and

because the victims reported seeing only one robber, not two.



               The defendant also sought to introduce the testimony of Dr. Michael G.

Johnson. According to the defense proffer, Dr. Johnson would testify regarding the

process of eyewitness identification; the relationship between stress and memory for an

event; cross-racial identification; the relationship between the confidence witnesses have

in the accuracy of their identifications and the actual accuracy of their identifications; the

effect time has on the accuracy of remembering something seen; and the suggestibility


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of the photographic line-ups used in the instant case. The State objected to his testimony

on the ground that it was unnecessary to help the jury decide the issue of identification.

The trial court agreed, excluding Dr. Johnson’s testimony.



              Based on the evidence presented to it, the jury found the defendant guilty

of aggravated robbery. At the sentencing hearing, the defendant testified, but did not

dispute anything in the presentence report. The defendant admitted he was arrested as

a juvenile on a weapons charge and was arrested and convicted for shoplifting in July

1994. He also admitted he was arrested for and convicted of three aggravated robberies

in Davidson County in early 1995, although he testified he actually committed robbery

with a gun in Davidson County five to ten different times from late 1994 to early 1995.

He acknowledged he was on bail for the Davidson County robberies at the time of the

Baskin-Robbins robbery in the instant case, and at the time of the sentencing hearing,

he was in the process of serving twenty years in prison for three of those robberies. He

admitted to previously experimenting with marijuana, but he maintained that the last time

he had used it was when he was seventeen years old. He also stated that he had

graduated high school in two years, had been a good student, and had a good past

employment record.



              The defendant’s parents also testified. According to them, the defendant

was not a disciplinary problem while growing up, had been a good student, and had a

satisfactory work record upon graduating high school. Both parents maintained that the

defendant’s recent criminal behavior was “out of character” for him.



              The defendant submitted several mitigating factors for the trial court’s

consideration, including the following: (1) that the defendant had the capacity to adjust

to law-abiding behavior; (2) that the character, habits, mentality, propensities, and


                                            5
activities of the defendant indicated he was unlikely to commit another offense; (3) that

the defendant had an excellent employment record; (4) that the defendant’s educational

background, homelife, sobriety, or satisfactory social adjustment suggested leniency; (5)

that there was a strong possibility of successful treatment and training, and that the

defendant was likely to comply with the terms of probation; and (6) that the defendant had

a good prior performance on probation. The trial court, however, found no mitigating

factors and found the following enhancing factors: (1) that the defendant had a previous

history of criminal conduct; (2) that the offense involved more than one victim; and (3) that

the defendant was on bail at the time of the offense. As such, the trial court sentenced

the defendant as a Range I offender to twelve years in prison, the maximum sentence for

a Class B felony, to run consecutively to the twenty-year sentence the defendant is

currently serving for the Davidson County robberies. The defendant now appeals.



              The defendant first argues that the trial court erred by excluding Dr.

Johnson’s expert testimony on the process of eyewitness identification and that this error

prevented him from rebutting the victims’ eyewitness testimony.              The defendant

recognizes that trial judges retain discretion to admit such expert testimony, but he

maintains that this Court’s opinions in State v. Wooden, 658 S.W.2d 553 (Tenn. Crim.

App. 1983), and State v. Ward, 712 S.W.2d 485 (Tenn. Crim. App. 1986), unfairly

discourage such testimony.



              It may no longer be true, as this Court has previously observed, that the

“great weight of authority in this country is that the study of the reliability of eyewitness

identification has not attained that degree of exactitude which would qualify it as a specific

science.” Ward, 712 S.W.2d at 487. Even so, expert testimony on the process of

eyewitness identification is not per se inadmissible in Tennessee. As with any proffered

expert testimony, the admission of expert testimony on the process of eyewitness


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identification remains a matter of the trial court’s sound discretion in each individual case.

See id.; see also McMullen v. State, 23 Fla. L. Weekly S207 (Fla. Apr. 9,

1998)(acknowledging that the majority of states have adopted an “abuse of discretion”

standard for reviewing the admissibility of expert testimony on eyewitness identification).

In the instant case, while the admission of Dr. Johnson’s testimony might have been

helpful to some degree, we do not find abuse of discretion in the trial court’s refusal to

admit it. See Ward, 712 S.W.2d at 487.



              In an issue closely related, the defendant contends that if the trial court

would have admitted Dr. Johnson’s expert testimony, as it should have, then the jury

would have weighed the evidence differently and arrived at a not-guilty verdict. Because

the trial court wrongfully excluded Dr. Johnson’s expert testimony, the defendant

continues, the jury did not have sufficient evidence upon which to base a verdict.

However, we have concluded that the trial court did not abuse its discretion in excluding

Dr. Johnson’s expert testimony. Moreover, we conclude that the victims’ eyewitness

testimony sufficiently supports the jury’s guilty verdict. Accordingly, this argument lacks

merit.



              Finally, the defendant argues that his sentence is excessive. He disputes

neither the applicability of the enhancing factors found by the trial court nor the

consecutive nature of his sentence. Instead, he contends that the trial court erred in

imposing the maximum sentence in the applicable range without giving due weight to the

mitigating factors he presented. The State concedes that three of the suggested

mitigating factors should have been considered, but contends that the trial court’s failure

to do so must be considered harmless error because the applicable mitigating factors are

entitled to so little weight that the sentence imposed is nevertheless proper.




                                              7
              We agree with the State that suggested mitigating factors (1), (2), and (5),

which concern the defendant’s potential for rehabilitation, are not applicable. There was

simply no evidence presented at the sentencing hearing that would support the

consideration of these mitigating factors. To the contrary, the evidence shows that the

defendant’s likelihood of committing other similar crimes is rather high: In July 1994, he

was arrested for shoplifting, and then in late 1994 to early 1995, by his own admission

he committed a large number of aggravated robberies in Davidson County. Then, just

months later, while on bail for those aggravated robberies, he committed the aggravated

robbery charged in this case. Given this, the trial court did not err in not considering

suggested mitigating factors (1), (2), and (5).



              The defendant also contends mitigating factors (3), (4), and (6) should have

been considered by the trial court. The State concedes the application of each of these

mitigating factors, but argues that the application of these factors should not affect the

length of sentence imposed.



              First, we question the applicability of factor (6), that the defendant has a

good prior performance on probation, because the record is confusing as to whether the

defendant was ever on probation and is devoid of evidence that any prior probationary

term was successfully completed. At the sentencing hearing, the defendant maintained

he was placed on probation as a result of his arrest as a juvenile on a weapons charge,

but he also testified that charge was dismissed. According to the presentence report, a

prior weapons charge as a juvenile could not even be verified. The defendant did not

receive probation for any of his other prior convictions. Without some other evidence that

might clarify whether the defendant was placed on probation and if so, successfully

completed it, we are reluctant on this record to determine that factor (6) should apply.




                                            8
              As to factors (3) and (4), even assuming that evidence of mitigation existed,

the applicable enhancing factors---which the trial court obviously gave great weight and

which the defendant does not dispute---so strongly outweigh the mitigating factors that

the mitigating factors pale in comparison. See generally State v. Ruane, 912 S.W.2d

766, 785 (Tenn. Crim. App. 1995)(stating, “Even if some evidence of mitigation exists, the

applicable enhancement factors so strongly outweigh the mitigating factors that the

maximum sentence is warranted.”). The fact that the defendant maintained a couple of

jobs, was a good student, and did not cause his parents disciplinary problems as a child

cannot compete with the considerations that the defendant robbed two victims at gun-

point while on bail for numerous other aggravated robberies. Considering that, the trial

court’s decision to sentence the defendant to twelve years incarceration is not erroneous.



              In sum, the trial court did not abuse its discretion in excluding the proffered

expert testimony on eyewitness identification, and the evidence presented is sufficient to

sustain the jury’s guilty verdict. Moreover, the twelve-year sentence imposed is not

excessive under the circumstances of this case.          The defendant’s conviction and

sentence is affirmed.



                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID G. HAYES, Judge



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