                                                                                      05/09/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               January 4, 2017 Session

                   STATE OF TENNESSEE v. HEATH BELL

                   Appeal from the Criminal Court for Shelby County
                       No. 13-01286    Lee V. Coffee, Judge


                           No. W2016-00136-CCA-R3-CD



The Defendant, Heath Bell, was convicted by a Shelby County Criminal Court jury of
first degree premeditated murder and first degree felony murder. The trial court merged
the convictions and sentenced the Defendant to life imprisonment. The Defendant raises
the following five issues on appeal: (1) whether the trial court erred by denying his
motion to suppress tainted eyewitness identification testimony; (2) whether his due
process rights were violated by the State’s withholding of exculpatory evidence of a
possible third party perpetrator; (3) whether the trial court erred by not granting his
request for a new trial based on the newly discovered exculpatory evidence; (4) whether
the evidence was sufficient to establish his identity as one of the perpetrators; and (5)
whether the trial court erred by limiting his closing argument. 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 CAMILLE R. MCMULLEN, JJ., joined.

Monica A. Timmerman (on appeal) and Michael E. Burton (at trial), Memphis,
Tennessee, for the appellant, Heath Bell.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Samuel D. Winnig,
Tracye N. Jones, and Colin A. Campbell, Assistant District Attorneys General, for the
appellee, State of Tennessee.
                                       OPINION

                                         FACTS

        On the night of February 15, 2013, the victim, Joe Howell, was shot to death in his
newly leased Hyundai Trailblazer in the parking lot of the Pendleton Place Apartments in
Memphis. Fifteen hundred dollars in cash, which the victim earlier had on his person,
was missing when his body was discovered in his vehicle. Kayla Jennings and her
boyfriend, James Edwards, identified the Defendant and his co-defendant, Nicholas
Augustus, as two men with guns they had seen acting in a suspicious manner in the area
shortly before the shooting. In addition, Chamere Talley, the sister of the victim’s
girlfriend, informed the police that she looked out her apartment after hearing gunshots
and saw the Defendant and a second man in dreadlocks running near the victim’s crashed
vehicle. Ballistics evidence revealed that two different guns were fired at the victim and
that shots entered from both the driver’s and the passenger’s side of the vehicle.
Although the Defendant claimed to have been with his girlfriend in East Memphis at the
time, cell phone records revealed that phone calls were made and received by his cell
phone in the area of the shooting around the time the victim was shot. The Shelby
County Grand Jury subsequently indicted the Defendant and Mr. Augustus with the first
degree premeditated murder and first degree felony murder of the victim and the
employment of a firearm during the commission of a dangerous felony. The men were
tried together before a Shelby County Criminal Court jury, which found the Defendant
guilty of both murder counts and Mr. Augustus not guilty of both counts. The trial court
dismissed the firearm charge, merged the Defendant’s murder convictions, and sentenced
him to life imprisonment.

                                  Suppression Hearing

        Prior to trial, the Defendant filed a motion to suppress the eyewitness
identification of Ms. Jennings, arguing that any courtroom identification made by her
would be impermissibly tainted because she had been present at earlier court hearings in
which the Defendant was dressed in prison attire and addressed by name by the trial
judge. The Defendant asserted that such a procedure was “at best, equal to, and at worst,
far more suggestive, than a ‘show-up identification.’”

       At the May 1, 2015 suppression hearing, held out of the presence of the Defendant
and Mr. Augustus, Ms. Jennings testified that on the night the victim was shot she was
walking across the street toward her apartment complex with her then-boyfriend, James
Edwards, when he pushed her in the back several times and said, “Don’t you see them
n****s over there? They look like they fixing to do something.” When she looked in the
direction he indicated, she saw two men with guns standing at the corner of an apartment
                                            -2-
building.    Frightened, she and Mr. Edwards hurried home to her apartment.
Approximately five to ten minutes later, they saw that “the apartment complex was full”
of police cars and ambulances.

       Ms. Jennings testified she had never seen the two gunmen before that night and
did not provide any descriptions of them to the police. However, she accompanied Mr.
Edwards, who was subpoenaed as a witness, to the preliminary hearing held
approximately one month after the shooting, and immediately recognized the Defendant
and Mr. Augustus when they entered the courtroom as the two armed men she had seen
that night. She was seated in one of the last rows of the courtroom and recognized the
men before their names were called or they were otherwise identified. She also
recognized the men as the gunmen during a March 23, 2015 court hearing in the case in
which the trial court threatened to put her in jail because she had an outstanding warrant.
During that latter hearing, the trial judge had her sit in one of the “jail chairs”
approximately ten feet from the Defendant and Mr. Augustus. She was seated in the
courtroom for approximately three minutes before the judge called her to come up to the
microphone, and she was seated in one of the “jail chairs” in the same row as the men for
two to three minutes. No one pointed out the men to her at either court hearing, and she
was not influenced in her recognition of them by Mr. Edwards’ identifications. Instead,
she immediately recognized them at both hearings based on their “facial structures” from
having seen them on the night of the shooting. She estimated that she was less than half a
football field’s length from the Defendant and Mr. Augustus at the time she saw them
standing at the corner of the apartment building.

        Ms. Jennings recalled that one of the two men was an inch or an inch and a half
taller than the other one and had a lighter complexion. She also recalled that the taller,
lighter-skinned man was wearing a red jacket. She could not, however, relate any
specific facial features or hairstyles of either man. Nevertheless, she testified that she
would be able to recognize both men from their facial structures if she saw them again.

       At the conclusion of the hearing, the trial court overruled the motion to suppress
the identifications, accrediting Ms. Jennings’ testimony that she immediately recognized
the Defendant and his co-defendant when they entered the courtroom at the preliminary
hearing and that her identifications were based on her experience the night of the
shooting rather than any outside influences. The court also found that the circumstances
under which the original viewing occurred rendered her identification reliable.

                                          Trial

                                      State’s Proof

                                            -3-
       At trial, the victim’s wife, Juwana Howell, testified that she last saw the victim
alive at approximately 6:00 p.m. on February 14, 2013, when he left alone in his just-
leased Hyundai Trailblazer with approximately $1500 in cash in his pocket.

       Terrence Harrold testified that at approximately 10:20 p.m. on February 15, 2013,
he was leaving the Pendleton Place Apartments with friends when he saw a SUV in the
bushes that appeared to have been in an accident. The vehicle was still running, and a
nonresponsive man was slumped over the steering wheel. Before the police arrived, Mr.
Harrold saw a woman approach the passenger’s side of the vehicle, open the door, reach
in, and turn the ignition off before leaving the scene.

       Officer Hal Owens of the Memphis Police Department testified that Mr. Harrold
flagged him down to report a wrecked vehicle in the bushes at the Pendleton Place
Apartments. The first officer to arrive, he secured the scene until other officers
responded. To the best of his memory, both the glove box and the console of the vehicle
were open when he arrived.

       Officer James P. Smith, a crime scene officer with the Memphis Police
Department, identified various photographs of the crime scene as well as five spent shell
casings -- two 9-millimeter and three 40-caliber -- that were recovered from the scene.
The vehicle’s glove box, console, and hatchback were all open when he arrived, and no
money was recovered from the victim’s body or the vehicle.

       James Edwards testified that in February 2013 he lived with Kayla Jennings in the
Kimball Cabana Apartments next-door to the Pendleton Place Apartments. He knew
both the Defendant, who went by the nickname “Bean,”1 and Mr. Augustus from the
neighborhood. On the afternoon of February 15, 2013, he saw the Defendant at about
5:00 p.m. when he was returning from a store. At about 10:00 or 10:30 p.m. that same
day, he and Ms. Jennings were walking back together from another trip to the store when
he noticed the Defendant and Mr. Augustus standing by the corner of the Pendleton Place
Apartments. He first recognized the Defendant because he was wearing the same clothes
he had on earlier in the day. The area was well-lit by street lights, and Mr. Edwards was
able to see that Mr. Augustus was standing with the Defendant. Both men had guns in
their hands and appeared to be “up to something.”

      Mr. Edwards testified that he feared the men were about to “come at [him],” so he
pushed Ms. Jennings in the back and instructed her to quicken her pace. As he and Ms.
       1
         Mr. Edwards said he did not know how to spell the nickname, but he would spell it as it
sounded to him as “B-e-a-n.” Elsewhere in the trial transcript, the Defendant’s nickname is spelled as
“Bing.”

                                                 -4-
Jennings hurried home, he kept watching the Defendant and Mr. Augustus through the
fence “trying to make sure they didn’t shoot through the fence or [anything].” No more
than fifteen or twenty minutes after he and Ms. Jennings reached home, he looked out the
door to see the lights of emergency vehicles in the apartment complex. Mr. Edwards
acknowledged that he and Ms. Jennings had been drinking and smoking marijuana that
day but said he was not “too intoxicated” and was aware of his surroundings at the time
he saw and recognized the Defendant and Mr. Augustus.

       Mr. Edwards testified that he did not want to get involved in the case, but police
detectives obtained his telephone number and called him. He first met with a detective at
a neighborhood pizza restaurant, where he told the detective that he wanted “to leave
[Ms. Jennings] out of it” because he did not “know what they would try to do to her or
her kids.” He later went to 201 Poplar, where he positively identified the Defendant and
Mr. Augustus from photographic spreadsheets as the gunmen he had seen that night. Mr.
Edwards identified the photographic spreadsheets, which were admitted as exhibits and
published to the jury. He testified that he received $1000 for a CrimeStoppers’ tip he
reported, but that was the only money he received in connection with the case. He was
subpoenaed to appear as a witness and was not being paid anything for his court
testimony.

        On cross-examination Mr. Edwards acknowledged that he and Ms. Jennings had
been drinking alcohol and smoking marijuana throughout the day on February 15, 2013,
as they celebrated his recent graduation from Vatterott College. He testified that he
identified the Defendant from the photographic lineup he was shown by police on
February 19 and identified Mr. Augustus from another photographic lineup on February
25, 2013. On February 26, he gave his formal written statement to police about what he
had witnessed. He acknowledged he was incorrect in his preliminary hearing testimony
that the Defendant and Mr. Augustus were within twenty-five feet of him when he saw
them and that they were probably further away. He was adamant, however, that he was
certain in his identifications.

       Mr. Edwards could not recall having said in the preliminary hearing that Mr.
Augustus was trying to cover his face and could not with certainty recall that detail at the
time of trial. What he was certain of was that both men were armed with guns and that
both were acting in a suspicious manner as if “fixing to get ready to do something[.]” He
acknowledged that his clear view of the men lasted only approximately two seconds as he
walked from the middle of the street toward his apartment complex. He also
acknowledged that there was a six-foot wooden privacy fence between the apartment
complexes. He insisted, however, that he was able to watch the men through the
numerous broken and missing boards of the privacy fence as he and Ms. Jennings
continued to their apartment. He reiterated that he first recognized the Defendant, who
                                            -5-
was wearing a red coat, by his clothing, and he acknowledged that he had seen him
“many times” in the past wearing a red coat.

       In response to questions from the jury, Mr. Edwards testified that he reported the
CrimeStoppers’ tip after the detective informed him he could receive money for
providing a tip about the crime. He did not call CrimeStoppers before he met with the
police because he “wasn’t in it for the money” and knew nothing about the possibility of
being paid until the detective told him about it.

       Kayla Jennings reiterated her preliminary hearing testimony about how she saw
the armed men standing at the corner of the Pendleton Place Apartments after Mr.
Edwards pointed them out to her, how she was frightened and hurried home, and how she
saw the emergency lights in the Pendleton Place Apartment parking lot approximately ten
minutes after they reached her apartment. She testified she had never seen the men
before that night, had not wanted to become involved in the case, and had not talked to
any lawyers or investigators about it until 2015, when she started receiving subpoenas.
She indicated that Mr. Edwards had not wanted to be involved either, testifying that he
“got a warrant” because he had not wanted to go to the preliminary hearing. She said she
accompanied him when he went to the preliminary hearing and was present in the
courtroom when he identified the Defendant and Mr. Augustus. She made a positive
courtroom identification of both the Defendant and Mr. Augustus as the gunmen she had
seen that night and testified that she had not received any CrimeStoppers’ cash in the
case.

       On cross-examination, Ms. Jennings acknowledged that she was intoxicated at the
time she saw the men. She testified that the men were standing in a dark corner and that
she saw them for only about two seconds before they were blocked from her view by the
wooden privacy fence. She said she accompanied Mr. Edwards at each of his meetings
with the police but never told the officers that she had seen the men. She agreed that the
only description she was able to provide of the men at an earlier court proceeding was
that one was slightly taller than the other and had lighter skin. When asked to turn her
face to the wall and provide a description of the Defendant and his co-defendant without
looking at them in the courtroom, she was unable to do so. Nonetheless, she insisted that
she had immediately recognized the men when they entered the courtroom at the
preliminary hearing.

       Dominique Talley, the victim’s girlfriend, testified that the victim, who was
driving a new vehicle, dropped her off on February 15, 2013, at the back side of the
Pendleton Place Apartments, where her sister, Chamere Talley, lived. She explained that
the victim dropped her off there instead of her own home because she had another
boyfriend and the victim was married, and they were therefore “creeping,” or “sneaking
                                           -6-
off,” to see each other. Approximately thirty minutes after she entered the apartment, she
heard gunshots. A little later, she heard a commotion outside, went out, and saw a
number of people, including police officers, gathered around the victim’s wrecked
vehicle.

       The witness could not recall having told a police officer during an interview the
day after the shooting that she had turned off the victim’s vehicle but had not removed
anything from it. She insisted, in fact, that it could not be true because she had not gotten
that close to the vehicle. She said she did not check on the victim and could not recall
any particulars about the condition of the vehicle, other than that it was wrecked.

       Chamere Talley testified that she knew the Defendant, who was one of her
neighbors at the Pendleton Place Apartments, by the nickname “Bing.” She had also seen
the co-defendant, Mr. Augustus, who lived “down the walk,” but she did not know him.
She testified she did not know who was responsible for the victim’s death, had not seen
anyone around the area on the night he was killed, and did not see the Defendant that day.
She acknowledged, however, that she signed a February 18, 2013 statement to the police
in which she said that she had seen the Defendant and a second man in dreadlocks
running from the direction of the victim’s rolling vehicle immediately after she heard
gunshots. She insisted that the statement was coerced and fabricated by the police, who,
she claimed, kept her handcuffed to a chair for three or four hours, cursed her, and
threatened to charge her with murder and remove her three children from her custody.

       The witness testified that she made up the descriptions she provided to the police
of the perpetrators. She stated that she and the Defendant had never been romantically
involved and she had no idea how the police came up with the portion of her statement in
which she allegedly said they had been dating. She testified she made up the portion of
her statement about the Defendant’s having talked about his “Ruger.” Later in her direct
examination testimony, however, she claimed that the police fabricated that portion of the
statement. She said the portion of her statement was true in which she said she heard
approximately eight gunshots about ten or fifteen minutes after her sister arrived at her
apartment and told her that she had just been dropped off by the victim, who had gone
around the corner to “serve someone.”

      On cross-examination, the witness testified that she had also repudiated the
statement at the preliminary hearing, held only a few weeks after she signed her
statement. She said on the day of her statement, the police arrested her at her workplace,
placed her in handcuffs, brought her to an interview room, handcuffed her to the table,
and interrogated her for hours, calling her a “f***ing liar” when she denied any
knowledge of the crime. According to her testimony, it was only after the officers

                                             -7-
threatened to take her children from her and charge her with first degree murder that she
signed the statement.

       On redirect examination, the witness denied that she was afraid she would be
charged with murder because she knew she had informed the Defendant in a telephone
call on the day of the victim’s murder that the victim had money on him. On recross-
examination, she agreed that there was nothing in her statement to police about her
having informed the Defendant that the victim was carrying cash.

        Detective Fausto Frias of the Memphis Police Department’s Homicide Bureau
testified that when Mr. Edwards first met with him at the restaurant to relate what he had
witnessed, he was accompanied by a woman. He acknowledged that Mr. Edwards asked
that his girlfriend be “left out of it” in exchange for his coming forward and that he
agreed to try to honor that request.

        Detective Frias testified that he and Sergeant Brown interviewed Chamere Talley
on February 18, 2013, which resulted in her signed statement. He said she did not appear
to be under the influence of alcohol or narcotics, exhibited no difficulty in reading her
advice of rights form, and initialed and signed the advice of rights form and her
statement. The interview took place at the homicide office. She was not in custody at the
time the interview began but was handcuffed and taken into custody when it became clear
that she had lied about her contacts with the Defendant. Detective Frias explained that
“discrepancies” in a prior interview with other investigators led to the February 18
interview, during which he asked if there was anything in her telephone that could be
considered evidence in the murder investigation. She answered “No, no, here,” handing
him her phone. As he was looking through it, he asked if she knew the Defendant, and
she replied that she did not. He then asked her why the Defendant’s phone number was
in her phone. In response, she broke down crying, repeatedly said that she did not want
to die, and expressed fear for the safety of herself and her children. Detective Frias said
it was at that point that he had her “shackled” by handcuffing one of her ankles to the
chair in which she was sitting.

        Detective Frias testified that he read Ms. Chamere Talley the advice of rights form
and that she signed it at 3:59 p.m. She signed her completed statement at 6:52 p.m. In
the interim between the signed waiver of rights and the signed statement, officers gave
her water, let her calm down, dealt with other matters, and returned periodically to the
interview room, where she provided pieces of information that they verified before
continuing with the interview. She never asked for a lawyer. Detective Frias
acknowledged that he and Sergeant Brown may have screamed obscenities at her during
the interview process because she was, in their opinion, being untruthful. He denied that
he threatened to lock up Ms. Talley for first degree murder or to take her children from
                                            -8-
her. Detective Frias did, however, tell her that she could be locked up for giving a false
statement to a police officer and could be charged with murder if they discovered “that
she had any involvement in [the] murder[.]” He also asked her who would care for her
children if she went to jail.

        Detective Frias read Ms. Chamere Talley’s statement aloud, in which she
identified the Defendant as the man she had been dating for two months and whom she
saw running near the victim’s vehicle immediately after she heard gunshots. Detective
Frias said that the words in the statement were entirely Ms. Talley’s and that no one told
her what to say. The portion of the statement in which she was asked to describe what
occurred reads as follows:

              My sister knocked on the door around 10:15, and I opened it to let
      her in, and I asked her how did she get to my house. She said [the victim]
      dropped her off, and he was going around the corner to serve someone.
      About ten to fifteen minutes passed, and I started to hear gunshots. It was
      about eight in all.

               My mother and my nine-year-old son and my nephew and my sister
      were in the house. My sister started putting everybody on the floor, and I
      went to the door to look. The shooting was over, and I looked out the door,
      and I saw [the Defendant] and another dude running [from] the direction of
      . . . a gray truck past the dumpster. I recognized [the Defendant] from the
      side of his face and the cap he had on because I saw him with that cap on
      before.

             I didn’t know, but later on, I found out that that was [the victim’s]
      truck – that that was [the victim] in the truck.

       Detective Frias testified that during a February 25, 2013 interview with the
Defendant, the Defendant denied any involvement in the murder and claimed to have
been at his girlfriend’s East Memphis apartment at the time. The Defendant also denied
talking to Mr. Augustus on the phone that day, either before or after the shooting. Mr.
Augustus informed Detective Frias during a February 26, 2013 interview that he had
heard the gunshots and run to see what was happening and that his fingerprints would be
found on the victim’s vehicle because he had touched the driver’s door. In response to a
juror question, Detective Frias testified that he understood Ms. Chamere Talley’s
expression that the victim was going to “serve someone” to mean that the victim was
going to make a drug sale.



                                           -9-
       On cross-examination, Detective Frias testified that when it became clear to him
that Ms. Chamere Talley was lying during her interview, he raised his voice to her and
said, “I can’t believe you’re going to sit here and lie for this mother f*****.” He
acknowledged that she described the second suspect as having dreadlocks and that Mr.
Augustus did not have dreadlocks when he interviewed him on February 26, 2013.

      Memphis Police Officer Jonas Holguin testified that he took the Defendant into
custody on February 25, 2013, at his girlfriend’s apartment, which was located near
Mount Moriah and Kirby in East Memphis.

      The parties stipulated that a 9-1-1 call about the shooting was received at 10:23
p.m. on February 15, 2013.

        Michael Tycer, an employee of Cricket/AT&T, identified various documents that
were admitted into evidence, including a record of the Defendant’s cell phone calls, the
company’s “call towers,” and the “coverage maps” of those towers. According to those
records and Mr. Tycer’s testimony, several calls were made and/or received between the
Defendant and Ms. Chamere Talley and the Defendant and Mr. Augustus on February 15,
2013, including a 9:44 p.m. call with Ms. Talley, a 10:28 p.m. call with Ms. Talley, and a
10:36 p.m. call with Mr. Augustus. Based on the location of the tower used for those
calls, in an area near the shooting, Mr. Tycer estimated that the odds the Defendant’s cell
phone was located at the East Memphis apartment of the Defendant’s girlfriend at the
time the calls were made were “infinitesimal[ly] small.” The records also showed that a
number of phone calls were exchanged between the Defendant and Ms. Chamere Talley
and the Defendant and Mr. Augustus on the day after the murder took place.

       Memphis Police Officer Charles Cathey, the crime scene investigator who
processed the victim’s vehicle, testified that the vehicle’s glove box and console were
open, no money was found in the vehicle, and no usable fingerprints were recovered. He
also identified photographs that showed that bullets were fired into the vehicle on both
the driver’s and passenger’s side.

       Tennessee Bureau of Investigation Agent Eric Warren, who analyzed the shell
casings and bullet fragments submitted for analysis in the case, testified that the two 9-
millimeter shell casings were fired from the same 9-millimeter weapon and the three 40-
caliber shell casings were fired from the same 40-caliber weapon.

      Dr. Marco Ross, the Shelby County Deputy Chief Medical Examiner who
performed the autopsy of the victim’s body, testified that the victim had four entrance
gunshot wounds, including a fatal wound to the left chest that pierced his heart.

                                           -10-
                                 Co-Defendant Augustus’ Proof

       Dejuano Echols testified that Mr. Augustus, who had a “low haircut” at the time,
was with him at a Pendleton Place apartment on the night of February 15, 2013, when
they both heard gunshots. On cross-examination, he acknowledged he told police that he
had gone alone to get some food and saw the police cars in the parking lot when he
returned. He explained that he lied to the police because he realized they suspected Mr.
Augustus of murder, and he did not want to be associated with the case.

       Jennifer Hoff, a private investigator, testified that she measured the distance from
the middle of the street, where Mr. Edwards and Ms. Smith saw the gunmen, to where
they reported the gunmen were standing and found it to be approximately 175 to 185 feet.

                                    Defendant’s Proof

       The Defendant elected not to testify and presented no evidence in his defense.

                       Co-Defendant Augustus’ Additional Proof

        Dr. Jeffrey Neuschatz, an expert in eyewitness identification, testified that beyond
eighty feet, it becomes “very, very difficult” for anyone to accurately identify a face due
to the inability to distinguish detail. According to his testimony, other factors that tend to
reduce the accuracy of an identification, which were present in this case, included
whether the witness was in a “high stress” situation, whether a weapon was involved, the
amount of time the witness was exposed to the individual, whether the individual’s head
or face was covered, and whether the viewing occurred when it was dark. He also
described “clothing bias” as the tendency of an eyewitness who was unable to get a good
look at an individual’s face to be misled into an identification based on clothing,
especially if the clothing is generic. On cross-examination, he agreed that an
eyewitness’s familiarity with an individual would make it easier for him or her to make a
positive identification of that individual.

                                  State’s Rebuttal Proof

       Sergeant Brad Webb of the Memphis Police Department testified that Dejuano
Echols told him that when he returned to the Pendleton Place Apartments after going out
for food on the night of the shooting, police cars and ambulances were in the parking lot,
and that he later learned a homicide had taken place. He said Mr. Echols mentioned
nothing to him about having been with Mr. Augustus that day.



                                            -11-
                                        ANALYSIS

                 I. Denial of Motion to Suppress Identification Testimony

        The Defendant contends that the trial court erred by denying his motion to
suppress the eyewitness identification testimony of Kayla Jennings, arguing that it was
impermissibly tainted by her presence at court hearings at which the Defendant was
dressed in jail attire and addressed by name by the trial court. The Defendant argues that
Ms. Jennings’ “identification of the Defendant for the first time” at the hearing on the
motion to suppress “was the equivalent of a showup identification.” The State responds
by arguing, among other things: that Ms. Jennings’ identification of the Defendant at the
preliminary hearing was not a “showup procedure” because it was accidental, was not
orchestrated by the State, and involved no improper State action; that her identification
testimony was reliable and shown to have an independent basis apart from her viewing at
the preliminary hearing; and that any error in admitting her testimony was harmless in
light of Mr. Edwards’ strong identification testimony.

       When this court reviews a trial court’s ruling on a motion to suppress evidence,
“[q]uestions of 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). Moreover, the party
prevailing at the suppression hearing is afforded the “strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial
court in a suppression hearing are upheld unless the evidence preponderates against those
findings. See id. The application of the law to the facts found by the trial court is a
question of law and is reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001); State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997).

        Due process is violated if an identification procedure is: (1) unnecessarily or
impermissibly suggestive and (2) gives rise to a “very substantial likelihood of
irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). In
Neil v. Biggers, 409 U.S. 188, 199 (1972), the United States Supreme Court established a
two-part test to determine when a defendant’s due process rights have been violated by a
pretrial identification. Under this test, the court first considers whether the identification
procedure itself was unduly or unnecessarily suggestive. Id. If the identification
procedure is found to have been suggestive, the court next considers “whether under the
totality of the circumstances the identification was reliable even though the confrontation
procedure was suggestive.” Id. (internal quotations omitted); see also Stovall v. Denno,

                                            -12-
388 U.S. 293, 302 (1967) (stating that “a claimed violation of due process of law in the
conduct of a confrontation depends on the totality of the circumstances surrounding it”).

        The factors to be considered in evaluating the reliability of an identification
obtained as part of a suggestive identification procedure include: (1) the opportunity of
the witness to view the criminal at the time of the crime; (2) the witness’s degree of
attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level
of certainty demonstrated by the witness at the confrontation; and (5) the length of time
between the crime and the confrontation. See Biggers, 409 U.S. at 199-200. The
corrupting effect of the suggestive procedure is weighed against these factors. See
Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

       There is, however, no need for the court to apply the totality of the circumstances
test outlined in Biggers if it first determines that the identification procedure itself was
neither unnecessarily or impermissibly suggestive nor likely to create a substantial
likelihood of irreparable misidentification. See State v. Biggs, 211 S.W.3d 744, 749
(Tenn. Crim. App. 2006) (citations omitted).

        In denying the Defendant’s motion to suppress, the court, among other things,
accredited Ms. Jennings’ testimony that her identifications were not influenced by Mr.
Edwards or by having seen the Defendant and Mr. Augustus in the courtroom but were
based on her personal experience on the night of the shooting. The court found that Ms.
Jennings’ viewing of the men at the preliminary hearing was not a “showup” and was not
arranged by the State. The court went on to conclude that the two “inadvertent instances”
in which she had been exposed to the men in the courtroom did not impermissibly taint
the identification process, finding, under the Biggers factors, that Ms. Jennings had ample
opportunity to view the gunmen, who were less than fifty yards from her in a well-lit
area; that her attention was very concentrated on them during that time because they were
armed and she was fearful; that her failure to provide a prior description of the gunmen
was the fault of the police department for not interviewing her; that she had made no
earlier erroneous identifications of the gunmen; that she expressed certainty in her
identifications; and that her original recognition of the gunmen at the preliminary hearing
occurred within a relatively short time of when she viewed them on the night of the
shooting. Based on the totality of the circumstances, the court overruled the motion to
suppress the identification testimony.

        We can find no error in the trial court’s ruling. As the court noted, Ms. Jennings
was unequivocal in her testimony that she immediately recognized the Defendant and his
co-defendant when they first entered the courtroom at the preliminary hearing, and before
they were identified or addressed by name. She was also unequivocal that her
identifications had not been influenced by Mr. Edwards or anyone else in the courtroom.
                                            -13-
Although she was unable to describe their facial features at the hearing on the motion to
suppress, she was also unable to describe them when they had just been before her in the
courtroom during her trial testimony, indicating that she is, perhaps, simply not adept at
providing descriptive details. However, she was adamant at both the suppression hearing
and at trial that she recognized the men from having seen their faces on the night of the
shooting. The ability to recognize someone, and the ability to provide a verbal
description of that individual, are two different things. We conclude, therefore, that the
trial court properly denied the Defendant’s motion to suppress Ms. Jennings’
identification.

                 II. Alleged Newly Discovered Exculpatory Evidence

       In interrelated issues, the Defendant contends that his due process rights were
violated by the State’s withholding of exculpatory evidence of a possible third party
perpetrator and that the trial court erred in denying his motion for a new trial based on
such newly discovered evidence. The State argues that the trial court properly denied the
motion for a new trial based on the alleged exculpatory evidence, which consisted of the
fact that the victim was murdered three days before he was to testify for the State in an
attempted murder trial, because the Defendant’s general sessions attorney was aware of
the information, the information was publically available, and the information was
irrelevant to the Defendant’s trial, except to the extent that it invited speculation. The
State further argues that there was no due process violation because the prosecution did
not withhold the evidence from the Defendant and that the evidence was “only
marginally exculpatory, if it was exculpatory at all.” We agree with the State.

       The duty to disclose exculpatory evidence extends to all “favorable information”
irrespective of whether the evidence is admissible at trial. State v. Robinson, 146 S.W.3d
469, 512 (Tenn. 2004); Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001). “[T]he
suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87
(1963). Brady, however, does not require the State to investigate for the defendant, see
State v. Reynolds, 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984), and the State’s duty to
disclose does not extend to information that the defense already possesses or is able to
obtain or to information not in the possession or control of the prosecution or another
governmental agency. State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992).

       In order to establish a Brady violation, a defendant must show that he or she
requested the information, the State suppressed the information, the information was
favorable to his or her defense, and the information was material. State v. Edgin, 902
S.W.2d 387, 389 (Tenn. 1995). Evidence is “material” only if there is a reasonable
                                           -14-
probability that the result of the proceeding would have been different had the evidence
been disclosed to the defense. United States v. Bagley, 473 U.S. 667, 682 (1985).
“Materiality” has been further explained as follows:

             The question is not whether the defendant would more likely than
       not have received a different verdict with the evidence, but whether in its
       absence he received a fair trial, understood as a trial resulting in a verdict
       worth of confidence. A “reasonable probability” of a different result is
       accordingly shown when the government’s evidentiary suppression
       “undermines confidence in the outcome of the trial.”

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678). The
burden of proving a Brady violation rests with the defendant, and the violation must be
proven by a preponderance of the evidence. Edgin, 902 S.W.2d at 389.

       When seeking a new trial based on newly discovered evidence, a defendant must
show that neither he or she nor counsel had knowledge of the evidence prior to trial and
that he or she and counsel exercised reasonable diligence in attempting to discover it
during the trial, that the evidence is material, and that the evidence would likely change
the result of the trial. State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994); State v.
Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997). Whether to grant a new trial
based on newly discovered evidence rests within the sound discretion of the trial court.
Id.

        At the hearing on the motion for new trial, Muriel Malone testified she was the
lead prosecutor for a case in which Curtis Johnson was indicted for the February 18, 2012
attempted first degree murder, employment of a firearm during the commission of a
felony, and aggravated robbery of the victim in the case at bar, Joe Howell. She said both
the victim and his wife were witnesses in the case, which had a scheduled trial date of
February 18, 2013. After she learned of the victim’s murder, the case was continued to
April. The victim’s wife testified for the State at the trial, which resulted in a not guilty
verdict for Mr. Johnson. Ms. Malone believed she discussed with Mrs. Howell whether
or not the victim’s murder could have been related to the victim’s scheduled testimony in
Mr. Johnson’s trial, and she recalled that she definitely discussed with the prosecutor in
the case at bar the fact that they both had cases in which Joe Howell was the victim. She
could not recall if Mr. Johnson was out on bond at the time of the victim’s murder, but
the trial court observed that the records indicated he was.

       On cross-examination, Ms. Malone acknowledged that the original and
superseding indictments in Mr. Johnson’s case were public records and that the
preliminary hearing and trial were open to the public. On redirect examination, she
                                            -15-
conceded that one would have to know that Mr. Johnson was a defendant to search for
the indictments and other information about his case. In response to questioning by the
trial court, she testified that nothing in her investigation led her to believe that the two
cases were related and that she would have asked to be involved in the victim’s murder
case had she believed there was any connection between the two cases. On redirect
examination, she testified that she could not recall if the police investigated whether Mr.
Johnson had any involvement in the victim’s murder. She reiterated, however, that she
had no information linking Mr. Johnson to the victim’s murder case.

       Attorney Justin Gee, who had represented the victim in a drug case a number of
years earlier, testified that he represented the victim and the victim’s wife in connection
with Mr. Johnson’s case after they failed to respond to a subpoena and material witness
warrants were issued for them. To him, the fact that the victim was murdered a few days
before he was scheduled to testify in a case in which he was the “prime victim” was a
“red flag,” indicating there may have been a connection between the two cases. On
September 22, 2015, Mr. Gee and the Defendant’s attorney, who were friends, were
exchanging “war stories” about their respective cases when he realized that the victim in
the Defendant’s case was Joe Howell, who had been the victim in Mr. Johnson’s case. At
the time, he could not recall Mr. Johnson’s name, but he informed the Defendant’s
counsel that Mr. Johnson’s attorney in that case was Art Horne.

       On cross-examination, Mr. Gee conceded that in the course of representing a
criminal defendant, he would routinely investigate the background and any criminal
history of the victim. On redirect examination, he testified that he had been surprised to
learn that the Defendant’s counsel did not already know that the victim in the
Defendant’s case had been the victim in another case and scheduled shortly to testify in
that other case. On recross examination, Mr. Gee testified he learned at some point that
Mr. Johnson’s attorney, Arthur Horne, had represented the Defendant in the case at bar
when it was still in general sessions court.

      The Defendant testified that he did not know Curtis Johnson, was not and had
never been a member of the Vice Lords gang, and was not a member of any gang.2
Attorney Arthur Horne, who represented the Defendant in general sessions court, never
informed him that he represented another individual who had been charged with the
attempted murder of the victim. The Defendant said that, had he been aware of that fact,
he would have informed his current trial counsel.


       2
           Among the exhibits the Defendant attached to his Amended Motion for New Trial was an
affidavit attached to the indictment returned against Curtis Johnson, which indicated that Mr. Johnson
shot the victim after the victim had won a large sum of cash from Mr. Johnson and Mr. Johnson’s Vice
Lord associates while gambling.
                                                -16-
        At the conclusion of the hearing, the trial court found that the information about
the victim in the Defendant’s case having been a victim and scheduled to testify in
another case was publically available, was not in the State’s exclusive possession, and
should have been discovered by a defense investigator conducting a routine investigation.
The court, thus, found no discovery violation by the State. The court characterized the
connection the Defendant was attempting to make between his case and Mr. Johnson’s
case as a “quantum leap” and noted that it would not have allowed the evidence at trial,
had defense counsel asked for it, on the grounds that it was irrelevant and that any
probative value it could possibly have was substantially outweighed by the danger of
unfair prejudice and confusing the jury. The court concluded that the information was
not “newly discovered evidence that would have probably made a difference in [the]
trial.”

       We find no error in the trial court’s ruling. The Defendant has failed to establish
that the State suppressed the information, that the information was favorable to the
defense, or that the information was material. As the trial court noted, the victim in this
case was, unfortunately, the victim of two separate violent crimes, but there was nothing
in the record to indicate that the crimes were related. There was also nothing in the
record to establish that the prosecution was in possession of any information suggesting a
link between the two crimes. There is, however, evidence that the Defendant’s original,
general sessions counsel coincidentally represented Mr. Johnson in an attempted murder
case, which involved the same victim in the Defendant’s case. The fact that he,
apparently, did not point this out to the Defendant’s successive counsel suggests that it
did not appear to be relevant or noteworthy to him. We conclude, therefore, that the
Defendant is not entitled to relief on the basis of this issue.

                             III. Sufficiency of the Evidence

       The Defendant contends that the evidence was insufficient to sustain his
conviction, arguing, specifically, that the proof was not strong enough to establish his
identity. When the 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 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt.”); 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). 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). “A guilty verdict by
                                            -17-
the jury, approved by the trial judge, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). 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 (1966) (citing Carroll v. State, 370 S.W.2d 523
(1963)). “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.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       The Defendant asserts that his co-defendant was acquitted on “nearly identical”
proof, with the only differences being the recanted identification statement of Ms.
Chamere Talley and the alibi witness for Mr. Augustus, who was shown to have lied to
the police. The Defendant argues that the fact that his cell phone may have been used in
the area of the shooting “does not indicate that [he] committed [the] murder.” He also
questions the weight and credibility of the testimony of Mr. Edwards and Ms. Jennings,
both of whom were admittedly intoxicated when they saw the Defendant “acting
suspicious[ly]” in the area before the shooting. The State disputes the Defendant’s
characterization of the evidence against him and his co-defendant as being “nearly
identical,” pointing out that proof was presented that the co-defendant did not match the
dreadlocked appearance of the second man seen running near the victim’s vehicle and
that he, unlike the Defendant, provided an alibi witness. The State further argues that the
proof was more than sufficient to sustain the Defendant’s conviction. We agree with the
State.

        Both Mr. Edwards and Ms. Jennings positively identified the Defendant as one of
the two gunmen they had seen lurking in the area immediately before the shooting, and
Ms. Chamere Talley gave a statement to police identifying the Defendant as one of two
men she saw “running [from] the direction” of the victim’s crashed vehicle immediately
after she heard gunshots. Both Mr. Edwards and Ms. Chamere Talley were familiar with
the Defendant and, therefore, presumably able to more easily recognize him than
someone unacquainted with him. In addition, despite the Defendant’s claim to have been
in a completely different area of the city, his cell phone was active in the area around the
                                            -18-
time of the shooting. In sum, the evidence was more than sufficient for the jury to find
that the Defendant was one of the two armed men who shot and killed the victim and
robbed him of his cash. We conclude, therefore, that the evidence is sufficient to sustain
the Defendant’s conviction.

                           IV. Limiting of Closing Argument

       The Defendant contends that the trial court erred by unreasonably limiting his
closing argument, which prevented defense counsel from “cover[ing] the portions of his
argument dealing with jury instructions, admissions against interest, identity, and burden
of proof.” The State argues that the trial court properly exercised its discretion to prevent
defense counsel from “rambl[ing] on indefinitely.” We, again, agree with the State.

        Although “closing arguments are a valuable privilege that should not be unduly
restricted,” and attorneys are given great leeway in arguing their positions, the trial court
has “significant discretion in controlling these arguments, to be reversed only upon a
showing of an abuse of that discretion.” Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)
(citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). The record reflects that the
trial court interrupted defense counsel with the instruction to “start wrapping up your
argument” only after counsel had been talking for a considerable length of time. At the
hearing on the motion for new trial, the trial court observed that, according to its notes,
the State’s closing argument for both defendants, including rebuttal argument, took
approximately fifty minutes, the co-defendant’s closing argument took fifty minutes, and
the Defendant’s argument had gone on for an hour at the time that the court instructed
counsel to start wrapping it up. The court also observed for the record that, at the
conclusion of the trial, one of the jurors made the “gratuitous statement” that the
arguments were too long and the jurors did not know how much longer they “could have
actually sat there,” had the court not stepped in to instruct counsel to start wrapping up
his argument.

       In light of the record, we can find no abuse of discretion in the trial court’s having
limited the Defendant’s closing argument to a reasonable length of time. Accordingly,
we conclude that the Defendant is not entitled to relief on the basis of this issue.

                                     CONCLUSION

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

                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE
                                            -19-
