         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 5, 2007

                  STATE OF TENNESSEE v. TOMMY ROSCOE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 05-01808    Chris B. Craft, Judge



                     No. W2006-01605-CCA-R3-CD - Filed July 11, 2007


The defendant, Tommy Roscoe, was convicted of robbery, a Class C felony, and sentenced as a
Range III, persistent offender to twelve years in the Department of Correction. He raises two issues
on appeal: (1) whether a pretrial photographic identification procedure was impermissibly
suggestive; and (2) the sufficiency of the evidence. Following our review, we affirm the judgment
of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and J.C.
MCLIN , JJ., joined.

James M. Gulley and Deena Knopf, Memphis, Tennessee, for the appellant, Tommy Roscoe.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                             FACTS

        Testifying through an interpreter, the victim, Mario Mejia, said that on October 3, 2004, he
went to visit a friend at an apartment complex located at 1400 Court Avenue in Memphis. After he
got out of his green pickup truck, he was approached by two African-American men. One of the men
grabbed him by the neck and shirt, pushed him against a wall, and took his wallet containing $70 to
$80 and his keys. The two men then sped off in Mejia’s truck. Mejia said that he paid $3,900 for
the truck and had owned it for “six to seven months.” The police later recovered Mejia’s truck, and
it was returned to him undamaged the night after the robbery, but a hydraulic jack was missing.
Mejia gave a statement at the police station and viewed a photographic lineup but was unable to
make an identification. The police subsequently brought another photographic lineup to his
apartment, and he was able to identify the defendant as the man who “grabbed” him by the neck and
robbed him of his truck.

        Mejia said that, when his attacker grabbed him by the neck, they were face-to-face and that
he recognized the photograph of the defendant as someone he previously had seen in his
neighborhood. Mejia was unable to make a courtroom identification of the defendant. However,
at a court proceeding on December 2, 2004, Mejia identified a different man as the perpetrator.

          Also testifying through an interpreter, Mario Ortiz said that on October 4, 2004, his
roommate awakened him at about 10:00 p.m. and told him that “he found an American who was
selling [a] truck.” Ortiz met with the seller whom he described as a short, white man about “40 years
old or older.” The truck was a green 1995 Nissan, and Ortiz thought it was stolen because “the
American” was selling it for a very low price and did not have a title of ownership. Ortiz wrote
down the vehicle identification number and gave it to a friend who contacted the police. The police
subsequently arrested the seller.

        Stephen Thornton testified that he was arrested while trying to sell the victim’s truck to Ortiz
and charged with theft of property over $1000 as a result. Thornton said that he got the truck from
the defendant the night he was arrested and identified the defendant in the courtroom. Thornton
explained that he had been “panhandling” in a Kroger parking lot when the defendant “pulled up”
and asked him if he wanted “to make some money” by selling the truck. The defendant told him that
he had gotten the truck “from somebody off of Court Street.” Thornton and the defendant then drove
the truck to the Macon Manor Apartments on Macon Road. As Thornton talked to Ortiz and tried
to negotiate a price for the sale of the truck, the defendant waited nearby. After agreeing to take
$800 for the truck, Thornton wrote out a “bill of sale” stating “I, Stephen Thornton, sell my truck
to Mario Ortiz,” and copied the vehicle identification number onto the document. However, before
he gave the “bill of sale” to Ortiz, “something didn’t feel right,” so he decided “not to do it.” As
Thornton walked away, he was apprehended by the police.

        Officer Joseph Johnson of the Memphis Police Department testified that he arrested Thornton
at the apartment complex and that Thornton said he had gotten the truck from “a male black.”

        Sergeant Robert Scoggins of the Memphis Police Department Robbery Bureau testified that
he was the investigator in charge of the robbery. On October 5, 2004, he took a statement from the
victim and showed him a photographic lineup from which no identification was made. Sergeant
Scoggins also took Thornton’s statement the day after he was arrested for attempting to sell the
victim’s truck to Ortiz. Thornton told him that he got the truck from a man named “Roscoe” near
the intersection of Poplar and Cleveland. Scoggins prepared a photographic lineup for Thornton who
identified the defendant as the man from whom he had received the truck. Subsequently, on October
11, 2004, Sergeant Scoggins showed the same photographic lineup to the victim who also identified
the defendant.



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         Officer Roosevelt Coleman, a communications supervisor for the Memphis Police
Department, testified for the defense that an event chronology document is created when citizens call
the police department and speak with dispatchers. Officer Coleman confirmed that an event
chronology was created twenty minutes after midnight on October 3, 2004, regarding an automobile
theft at 1400 Court Avenue.

       The defendant did not testify, and the jury convicted him as charged.

                                             ANALYSIS

                          I. Constitutionality of Photographic Lineup

       On appeal, the defendant argues that the pretrial photographic identification procedure used
by Sergeant Scoggins with the victim violated his constitutional rights. He contends that:

       The pretrial photographic identification procedure was so impermissibly or
       unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable
       misidentification of [d]efendant as the perpetrator of the robbery in violation of the
       Due Process clauses of the Fourteenth Amendment of the United States Constitution
       and Article I, Section 8 of the Tennessee Constitution.

Specifically, the defendant claims that the photographic lineup shown to the victim at his apartment
by Sergeant Scoggins on October 11, 2004, was impermissibly suggestive because it contained “a
fatal defect as [d]efendant’s photograph is the only picture of a black male with a noticeable lazy eye
and scar on his face.” Moreover, the defendant asserts that Sergeant Scoggins “severely heightened
the suggestiveness of the identification procedure by alluding to the fact that the suspect was pictured
in the photographic array.” As such, he argues that “the testimony and evidence pertaining to the
pretrial photographic identification itself should not have been admitted into evidence at trial and
the judgement should be reversed.”

        The trial court held a pretrial suppression hearing where Sergeant Scoggins testified that the
victim gave a description of the robbers prior to viewing the photographic lineup. The victim
described the first robber as an African-American male between thirty and thirty-five years old,
approximately five feet, eleven inches tall, and weighing 160 pounds, with dark skin, a goatee, and
“short, natural hair.” The victim described the second robber as an African-American male about
twenty-seven years old and the same height and weight as the first robber. The victim did not
mention a “lazy eye” or any facial scar in his descriptions.

        Based on that information and the statement Thornton provided after his arrest, Sergeant
Scoggins used a computer program to create the spread of photographs. He told the victim prior to
the viewing that he “had a photographic lineup of possible suspects that he could choose from” but
did not assist him in any way in making an identification. He instructed the victim that “there were
six pictures in [the] photographic lineup so he was to look at [it] and if he saw the person


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responsible, that he was to make an identification. If not, he was not to make an identification.” The
victim did not hesitate in identifying the defendant from the lineup.

       The trial court concluded that neither the photographic lineup itself nor the identification
procedure was constitutionally infirm:

               Well, looking at Exhibit A, which is the photograph, I don’t see a scar and I
       really don’t see a lazy eye. I’m looking at [the defendant’s photograph], which is
       circled. I can’t see a scar. I’m looking at the eyes. The only thing I see different in
       the eyes is one of the eyes there’s a little white dot in one pupil, as a light reflection,
       and there’s not a dot in the other eye.

               Looking at picture six, that person is the same – his eyes are the same way.
       In the other four photographs, they either both eyes have little white dots or they
       don’t have little white dots, but I just don’t see – looking at this picture if you’d
       asked me to describe this person, I wouldn’t have described a scar. I would not have
       described one eye being smaller than the other eye. It just doesn’t appear that way.

               In looking at the defendant in court, I don’t see from here I don’t see a scar
       or a lazy eye. He may have one but I don’t see one. They’re not distinctive.

               As far as telling people they’re possible suspects, I just – I think that everyone
       who looks at a photo spread would know that, otherwise the police are just spinning
       their wheels. They shouldn’t say we’ve caught someone who is in here, see if you
       can identify him. That would be wrong. But saying there are possible suspects and
       making it plural, I think is not suggestive. It doesn’t suggest which of the six, and
       it doesn’t make someone pick someone out because they use the word “possible.”

               ....

                I don’t see that this photo spread is unfair at all. Now whether or not – I
       mean, [defense counsel] is free to argue that to the jury and whether or not the victim
       in this case identified the defendant in the courtroom or not is one thing. But as far
       as these pictures, it just seems to me to be a fair photo spread and it’s not suggestive.
       If you were to show this to me and say pick out the robber, I wouldn’t be able to pick
       any particular person because they all have different characteristics. . . .

               If you look at picture number five, you could argue that there’s some kind of
       scar on his face because he has kind of a scarred face. Number six, there’s a scar –
       appears to be a slight scar over his left eye. I don’t know where the scar is on the
       defendant’s picture other than there seems to be an extra dimple on his left cheek, but
       there are dimples on the left cheek of number five and also number one.



                                                  -4-
                So, for that reason I’m going to find that it’s not so suggestive. Looking at
       case law at our Simmons versus United States 1968 case, . . . convictions based on
       eyewitness identification at trial following a pretrial photographic identification will
       be set aside only if the photographic identification was so impermissibly suggestive
       as to give rise to a very substantial likelihood of irreparable misidentification. And
       I can’t see that in this case. . . .

        On appeal, a trial court’s findings of fact regarding a motion to suppress are conclusive unless
the evidence preponderates against them. State v. Reid, 213 S.W.3d 792, 825 (Tenn. 2006) (citing
State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001)). Any question about the “credibility of witnesses,
the weight and value of the evidence, and a 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).
Unless the defendant demonstrates that “the evidence preponderates against the judgment of the trial
court, this court must defer to the ruling of the trial court.” Reid, 213 S.W.3d at 825 (citing State
v. Cribbs, 967 S.W.2d 773, 795 (Tenn. 1998)). However, “application of the law to the facts as
determined by the trial court is a question of law which is reviewed de novo on appeal.” State v.
Darrell Toomes, No. W2004-01739-CCA-R3-CD, 2005 WL 1541687, at *6 (Tenn. Crim. App. June
27, 2005) (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

         As our supreme court has previously ruled, the “[p]hotographs contained in a photographic
array do not have to mirror the accused. Instead, the law simply requires that the police refrain from
‘suggestive identification procedures.’” State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998) (quoting
Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972)). Accordingly, a photographic identification
only becomes inadmissible, if, “based upon the totality of the circumstances, ‘the confrontation
conducted . . . was so unnecessarily suggestive and conducive to irreparable mistaken identification
that [the accused] was denied due process of law.’” Darrell Toomes, 2005 WL 1541687, at *6
(quoting Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967, 1972 (1967)). The risk of
irreparable mistaken identification is heightened if one of the photographs in the photographic lineup
“is in some way emphasized,” or if “the police indicate to the witness that they have other evidence
that one of the persons pictured committed the crime.” Simmons v. United States, 390 U.S. 377,
383, 88 S. Ct. 967, 971 (1968).

        Based upon our review of the record on appeal, including the photographic array from which
the victim’s identification of the defendant was made, we conclude that the evidence supports the
determination of the trial court that neither the lineup itself nor the procedure by which it was viewed
was impermissibly suggestive. Moreover, the fact that the victim made no mention of a “lazy eye”
or facial scar in his somewhat detailed description of the defendant before viewing the photographic
lineup further supports the trial court’s denial of the motion to suppress. This issue is therefore
without merit.




                                                  -5-
                                  II. Sufficiency of the Evidence

         Additionally, the defendant argues that the evidence is insufficient to support his robbery
conviction. He contends that because the victim was not able to identify him from a photographic
lineup or “face-to-face” in the courtroom, the evidence linking him to the actual robbery is
insufficient. As for Thornton’s testimony, the defendant asserts that even if it is taken “as one
hundred percent (100%) true, the evidence is still insufficient to allow a rational trier of fact to find
[d]efendant guilty of robbery.” According to the defendant, Thornton’s testimony that the defendant
said he got the truck “from somebody off of Court Street” is not sufficient to establish his
involvement in the robbery. The defendant points to the lack of corroborating physical evidence to
support his argument and claims that “if the jury inferred that because [d]efendant was in possession
of the truck the next day that he robbed [the victim] the night before, that the above inference was
not reasonable in light of the fact that there was extremely poor identification evidence connecting
[d]efendant to the robbery.”

        In consideration of this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e); State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). This rule
applies when the determination of guilt is based upon direct evidence, circumstantial evidence, or
a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-
93 (Tenn. Crim. App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)).

       All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). Our supreme court stated the rationale for this rule:

                This well-settled rule rests on a sound foundation. The trial judge and the
        jury see the witnesses face to face, hear their testimony and observe their demeanor
        on the stand. Thus the trial judge and jury are the primary instrumentality of justice
        to determine the weight and credibility to be given to the testimony of witnesses. In
        the trial forum alone is there human atmosphere and the totality of the evidence
        cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn.
1963)). Additionally, a jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).




                                                  -6-
        Robbery is defined by statute as “the intentional or knowing theft of property from the person
of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2006).
Viewed in a light most favorable to the prosecution, the evidence presented in this case is sufficient
to support the defendant’s conviction. Although the victim was unable to make a courtroom
identification of the defendant, he did identify him as the robber from a photographic lineup eight
days after the robbery, and the discrepancy could reasonably be attributed to the passage of time.
In addition, the victim’s identification, when coupled with Thornton’s testimony that he received the
truck from the defendant, who claimed he obtained it on the same street where the crime was
committed, supports the reasonable inference that the defendant was one of the men who robbed the
victim. This issue is without merit.

                                          CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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