        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 January 16, 2013 Session

                  STATE OF TENNESSEE v. DOMINIC LYONS

                 Appeal from the Criminal Court for Davidson County
                    No. 2011-B-1735    Cheryl Blackburn, Judge




                   No. M2012-01635-CCA-R9-CD - Filed May 2, 2013


In this interlocutory appeal, the State challenges the trial court’s ruling suppressing the out-
of-court identification of the defendant via a photograph array and the subsequent in-court
identification by the same witness at the suppression hearing. The State contends that the
trial court erred by deeming the identification procedure unduly suggestive. Discerning no
error, we affirm the judgment of the trial court.

            Tenn. R. App. P. 9; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and P AUL G. S UMMERS, S R. J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Megan King, Assistant District
Attorney General, for the appellant, State of Tennessee.

Sunny Eaton and Richard McGee, Nashville, Tennessee, for the appellee, Dominic Lyons.

                                          OPINION

               The offenses giving rise to this case occurred on April 6, 2010, at the Atlantis
Nightclub in Nashville. On that night, the defendant argued with the security guard at the
club after the guard denied the defendant entry for failure to conform to the dress code. Later
that evening, a car drove past the Atlantis Nightclub, and a passenger in the car fired a gun
toward the entrance of the club. One person, Jessica Gates, identified the defendant as the
shooter from a photograph array shown to her by Detective Larry Peck. The defendant filed
a motion to suppress Ms. Gates’s identification, arguing that the procedure utilized by
Detective Peck was unduly suggestive. Following a hearing conducted in three parts, the
trial court agreed with the defendant and suppressed the identification. The trial court later
granted the State permission to seek interlocutory review of its order via Rule 9 of the
Tennessee Rules of Appellate Procedure, and this court granted the State permission to
appeal.

              In this interlocutory appeal, the State contends that the trial court erred by
suppressing Ms. Gates’s identification of the defendant, claiming that the procedure
employed by Detective Peck was not unduly suggestive. The defendant asserts that the trial
court did not err.

               At the suppression hearing, Detective Larry Peck of the Metropolitan Nashville
(“Metro”) Police Department testified that he was called to investigate a shooting at the
Atlantis Nightclub on April 6, 2010. He said that he learned from witnesses that the
defendant had argued with the club’s bouncer, Ira Thompson, after Mr. Thompson denied
him entry into the club because he was not wearing appropriate footwear. The defendant left
and returned a second time to request entry. Mr. Thompson again denied him entry based
upon the earlier kerfuffle, and the defendant “became upset and ripped down the curtain to
the club and walked off.” A short time later, a dark-colored car drove by, and a passenger
in the car fired several shots at the entrance of the club, striking two people.

               Based on information that the defendant had been involved in an argument at
the club, Detective Peck included his photograph in a photograph array that he showed to
Jessica Gates, who other witnesses claimed had “gotten a good look at the suspect.” During
this first showing, which occurred on the day following the shooting, Ms. Gates did not
identify the defendant or any other person as the shooter. Detective Peck said that he
doubted Ms. Gates’s honesty because “it was clear and compelling to [him] that she actually
saw, you know, the shooter that night.” According to Detective Peck, he telephoned Ms.
Gates three weeks later and asked her to come to the police station so that he could “talk to
her about the case and things like that.” He said that he did not recall Ms. Gates’s giving him
any information over the telephone.

              Detective Peck testified that during this second encounter, which was recorded,
he told Ms. Gates that she had failed to identify the suspect from the first photograph array,
and “[s]he said, yeah, I know it was number four right about that time.” He said that this
revelation indicated to him that Ms. Gates had “misled the investigation on purpose for
whatever her reasons were.” He said that “just to cover all angles,” he showed the same
photograph array to Ms. Gates a second time. At that time, she pointed to “number four and
stated that was him.” He insisted that he did not call Ms. Gates to the station on April 21 to
show her the photograph array but to “really bring out the truth because . . . [he] knew she
was lying or holding back.” He claimed that he did not seek a warrant for the defendant’s

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arrest based upon Ms. Gates’s identification but “based on the fact that she pretty much lied
to me the first time and she already knew who he was.”

               During cross-examination, Detective Peck admitted that the only description
Ms. Gates provided of the shooter was that he was a light-skinned black male wearing a hat.
He said that surveillance video showed a number of people and cars near the front entrance
of the night club when the shots were fired. He testified that the first photograph array he
showed to Ms. Gates was in color and that the defendant’s picture was in the number four
position. He also showed the same array to several other witnesses. Those witnesses, he
conceded, identified the defendant as the person who argued with the bouncer at the night
club, but none of them identified the defendant as the shooter. Ms. Gates did not identify the
defendant as either the person who started the argument or as the person who fired the shots.
During the ensuing three weeks, Detective Peck received information that the defendant was
at the night club on the night of the shooting and that the defendant was not the only
individual ejected from the club that night. Detective Peck acknowledged that there was
media coverage of the shooting during that same time period.

               Detective Peck reiterated that he contacted Ms. Gates prior to her coming to
the police station on April 21. He denied that Ms. Gates mentioned the photograph array
during their telephone conversation, explaining that he “kept it brief so she wouldn’t run
from me or hang up the phone or what is it people who become uncooperative do.” He said
that when she entered the interview room, she told him that the shooter was “number four”
before she was shown the photograph array. He acknowledged that, at that point, he showed
her the same photograph array, albeit in black and white, that he had shown her on April 7.
That array included the defendant’s photograph in position number four. He admitted telling
Ms. Gates that “she saw the shooter.”

               Detective Peck admitted that the defendant was the focus of his investigation
despite information that another person may have been involved. He claimed that although
his report mentioned only a single tip that the defendant was the shooter, he actually had
multiple tips leading him to suspect the defendant.

               Metro Detective Dean Haney testified that he had worked as a police officer
for over 31 years and had investigated more than 1,000 cases involving an eyewitness
identification made from a photograph array. Detective Haney said that he was not involved
in the investigation of the Club Atlantis shooting but was asked to review the identification
procedure by the defendant. During his review, he examined the photograph array, in black
and white form, and the video recording of the identification made by Ms. Gates on April 21,
2010. Detective Haney said that during that identification, Detective Peck told Ms. Gates
that she “got a pretty good look at the guy” and that she had failed to identify their “target

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subject” when she first viewed the array. Detective Haney said that both statements should
not have been made because “it pretty much suggests that your suspect is in that line-up and
you did not pick him out.” He testified that making such a statement was a direct violation
of departmental policy regarding photograph arrays. He said that detectives also violated
departmental policy by telling Ms. Gates that if the defendant was not “put off the street he
could do it again, next time it could be you.” Detective Haney said that this statement
“show[ed] some type of . . . coercion.” Detective Haney said that the greatest problem with
the identification procedure was “the suggestiveness of saying that you did not pick the
person, letting them know that the person is in that line-up.”

              During cross-examination, Detective Haney testified that it was his belief that
Ms. Gates’s identification of the defendant from the photograph array was tainted.

               A video recording of Ms. Gates’s identification of the defendant was exhibited
to the suppression hearing. In the video, Ms. Gates denies being frightened when viewing
the photograph array on April 7, 2010. Detective Peck told her that it was his opinion that
she “got a pretty decent look at the guy” and that “[t]he target subject [police] were looking
at, you didn’t pick him out.” At that point, Ms. Gates said that she “had been thinking about”
her failure to make a positive identification from her first viewing of the array, that she could
“remember the lineup,” and that the “number that [she] can think of . . . is four.” When
asked why she did not pick the individual in position number four during her first viewing
of the array, she said that she did not know but that “after trying to think about it . . . it’s
number four.” She said that she was “about 95 percent” certain that the individual in position
number four was the shooter.

               When Detective Peck left the room to retrieve a copy of the photograph array,
another detective told Ms. Gates that she was “the best witness” and that she had already
indicated that “the guy that argued was the shooter.” He told her that it was important for her
to make an identification because “he may do it again and it may be you.” When shown the
photograph array, this time in black and white, Ms. Gates said, “I still say four.” At that
point, Detective Peck asked her to provide a statement and to give a reason why she did not
make an identification the first time she was shown the array so that police could “make it
clear” that she had not been coerced to make an identification. After she made the
identification, the other detective confirmed that other information indicated that the
defendant was the shooter and that, in fact, the defendant “had been trying to apologize” for
shooting Ms. Gates’s friend.

               Jessica Gates testified that she witnessed a shooting at Club Atlantis on April
6, 2010, and identified the defendant as the shooter. She said that she first saw the defendant
“arguing in the doorway of Atlantis” as she stood outside to use the telephone. She said that

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she observed the defendant “between fifteen to twenty minutes” and that she got a good look
at him. She said the area was well lit despite the late hour. She said that she was near the
curb when she saw “a black tinted car pull up” and then “the windows were rolled down.”
She said that she “saw the gun and the beam and shots were fired.” She said that she was
facing the car and so close that she “could touch the car.” She said that there was nothing
between her and the car but empty space. The defendant, she said, was seated in the
passenger’s seat holding the gun.

               She said that approximately one hour after the shooting she met Detective Peck
at an Eckerd store “off West End to speak.” She testified that she told Detective Peck that
she “saw the black Grand Prix, the tinted window,” but she had not, at that point, “made the
connection between the argument and the shooter.” She did, however, provide “a very vivid
description of . . . . the car, the gun, the shooting.” Ms. Gates testified that she spoke with
Detective Peck “[n]umerous times” between the initial interview at the Eckerd and the
interview when she was first asked to view the photograph array on April 7, 2010. She
claimed that Detective Peck telephoned her “just to make sure that . . . [she] was okay” and
that she telephoned him to “follow up” because she “was really concerned about what was
going on.” She said, “So as things was coming back to me – I was calling him literally like
every fifteen minutes, okay, I remember this, okay, I remember that.” She testified that one
detail she provided during their many conversations was that the shooter was the same
individual who argued with the bouncer outside Club Atlantis.

                Ms. Gates testified that she spoke with Detective Peck and another detective
on April 7, 2010, at an apartment where she was staying with her brothers. It was during that
meeting that she was shown “more than one sheet of pictures” with “six pictures on a page.”
She said that she told Detective Peck that she “thought [she] could identify” the shooter from
one of the photograph arrays but that she was “not a hundred percent sure.” She said she
“gave him it’s possible, but . . . did not give him a hundred percent guarantee.” Ms. Gates
testified that the meeting “ended well” with Detective Peck “laugh[ing] it off” that she was
unable to make an identification.

               According to Ms. Gates, she spoke with Detective Peck “a few weeks or so
after” the shooting and told him that she had “been really thinking about it, and it’s number
four.” She said she begged the detective to allow her to “come back up there to . . . look at
the pictures again to be able to show you.” She testified that the detective relented, and she
went to the police station that same day. Ms. Gates claimed that she was able to make the
identification because she had taken “some days to [her]self . . . . just sitting there really
trying to replay what was going on and exactly what happened.” Ms. Gates said that she did
not feel pressured by detectives to make the identification and that she did not make an
identification when shown the array on April 7 because she “wasn’t mentally ready at that

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point to say what was going on.” She claimed that “a lot of stresses and factors . . . played
into identifying,” including the fact that one of her close friends had been injured in the
shooting. She denied seeing any media coverage of the shooting.

               During cross-examination, Ms. Gates testified that the detectives provided her
with more than one photograph array to examine on April 7, 2010, that they provided her
plenty of time to look at the photographs, and that she “didn’t feel pressured to do anything.”
She admitted that she was unable to identify either the man who was arguing with the
bouncer or the shooter. Ms. Gates denied drinking alcohol or smoking marijuana on the
night of the shooting or at the time she made the identification on April 21, 2010. Ms. Gates
admitted, however, that she had posted on Twitter that she was “wasted” on the evening
before going to court for the suppression hearing. She acknowledged that she had active
accounts on Twitter and Facebook at the time of the shooting and that many of her friends
discussed the shooting via these social media outlets. Ms. Gates said that she did not watch
television between the night of the shooting and the day she made the identification, but she
conceded that she may have seen media coverage of the shooting on social media.

               Ms. Gates agreed that she had spoken to detectives “multiple times” between
April 7, 2010, and the date on which she and Detective Peck discussed her returning to the
police station to view the photograph array a second time. Ms. Gates was adamant that she
viewed more than one photograph array on April 7, 2010, but she was unable to explain how
Detective Peck knew which of those she was referring to when she said the shooter was
“number four.” She said,

                      I told him number four – that may be correct. But
              however – not, let me – if I can finish to explain my thought to
              clear it up. When I told him number four, I did not give a –
              from this particular page. However I spoke to him and it was
              clear in the conversation when we had – because I cannot
              remember now if it was the color picture or the black and white
              picture but we both knew – no, excuse me, I knew who I was
              speaking of. So whether or not he knew what the number four
              I was talking about did not - when I got there, I pointed exactly
              to [the defendant].

Ms. Gates said that she could not remember how many photograph arrays she viewed on
April 21, 2010.

             Ms. Gates admitted that people with whom she communicated on Facebook
and Twitter knew that she was involved in the investigation because they saw her speaking

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to police outside the club following the shooting. She then claimed,

              [P]eople that saw me speaking to them and actually . . . it was
              my brothers. My brothers, only one of them has a Twitter and
              did not get a Twitter account until the year after that this
              incident happened. And everyone else there does not have a
              Facebook – they have a Facebook but a Twitter account. And
              those people were not Facebook and/or Twitter because they
              were with me.

               Upon questioning by the court, Ms. Gates testified that she “believe[d]” that
she had provided police with a description of the person who argued with the bouncer but
that she could not recall the description “verbatim.” She said that all she could recall of that
person, who she claimed was the person who later fired the shots, was that “[h]e was light
skinned, medium height, slender.” She admitted that there was “nothing distinctive” about
the shooter’s appearance. When pressed by the court for a more detailed description, Ms.
Gates claimed to have “been sideswiped” by the questions, explaining, “[I]f you ask me fifty
questions to make me lie, then it’s going to confuse me and throw me off.” She told the court
that she failed to make an identification the first time she viewed the photograph arrays
because she “was honestly stressed out.” She vehemently maintained that she viewed more
than one photograph array on April 7, 2010, and she said that she viewed only a single
photograph array on April 21, 2010. She acknowledged that she knew that police were
targeting a particular individual when she viewed the photograph array on April 21.

              Upon further cross-examination by the defense, Ms. Gates acknowledged that
she did not provide a description of the shooter in the handwritten statement she provided to
police on the night of the shooting. She also admitted that she did not tell police that the
person who had argued with the bouncer was also the shooter, claiming that she did not do
so because “at that time [she] had not made the connection.”

               In its written order granting the defendant’s motion to suppress, the trial court
concluded that although the photograph array was not itself suggestive, “the procedure used
for the subsequent identification was unduly suggestive.” The court found that during Ms.
Gates’s second viewing of the array, Detective Peck “violated procedure by letting her know
the target was, in fact, included in the photographs.” The court also found that Ms. Gates’s
reference to the shooter’s being “Number 4” was not a positive identification because “Ms.
Gates adamantly testified that she had been shown ‘sheets’ of photographs, indicating she
had been shown more than one photo array with pictures numbered one through six.” The
court concluded that the “‘identification’ is further compromised by the fact that the same
photo array had been shown to multiple witnesses who could not identify the shooter but had

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identified ‘Number 4’ as the person arguing outside the club.” These witnesses, including
Ms. Gates, the court observed, were all friends who attended Tennessee State University and
who had the opportunity to confer with one another prior to Ms. Gates’s making the
identification on April 21. The court determined that “the totality of the evidence does not
support an independent basis for the subsequent identifications.” Finally, the court held that,
“due to both the suggestive nature of the second viewing of the photo array coupled with the
fact . . . no evidence indicated Ms. [Gate’s] independent basis for making the identification
after her initial non-identification,” Ms. Gates would be permitted to testify about her
observations on the night of the shooting but “her second identification and her in-court
identifications at the preliminary hearing and suppression hearing” would not be admissible
and she would not be permitted to make an in-court identification of the defendant at trial.

               We review the State’s challenge to the trial court’s order with a few, well-
settled principles in mind. A trial court’s factual findings on a motion to suppress are
conclusive on appeal unless the evidence preponderates against them. State v. Binette, 33
S.W.3d 215, 217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus,
questions of credibility, the weight and value of the evidence, and the resolution of
conflicting evidence are matters entrusted to the trial judge, and this court must uphold a trial
court’s findings of fact unless the evidence in the record preponderates against them. Odom,
928 S.W.2d at 23; see also Tenn. R. App. P. 13(d). The application of the law to the facts,
however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).
We review the issue in the present appeal with these standards in mind.

               An identification procedure that is so impermissibly suggestive “as to give rise
to a very substantial likelihood of irreparable misidentification” violates due process.
Simmons v. United States, 390 U.S. 377, 384 (1968). In Simmons, the Court observed that
“improper employment of photographs by police may sometimes cause witnesses to err in
identifying criminals.” Id. at 383. Noting that “[e]ven if the police subsequently follow the
most correct photographic identification procedures . . . , there is some danger that the
witness may make an incorrect identification,” the Court concluded that the danger of
misidentification “will be increased if . . . the photograph of a single such individual recurs
or 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.” Id. Although it may be
suggestive, an identification may satisfy due process as reliable and admissible if the totality
of the circumstances so warrants. See State v. Brown, 795 S.W.2d 689, 694 (Tenn. Crim.
App. 1990). Following Simmons, the Court established a two-part analysis to assess the
validity of a pre-trial identification. First, the trial court must determine whether the
identification procedure was unduly suggestive. Neil v. Biggers, 409 U.S. 188, 198 (1972).
If the trial court determines that the identification was unduly suggestive, it must then
consider whether, under the totality of the circumstances, the identification procedure was

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nonetheless reliable. Id. at 198-99. Five factors are to be considered when evaluating the
propriety of the identification process: “the opportunity of the witness to view the criminal
at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior
description of the criminal, the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and the confrontation.” Id. at 199-
200.

               Utilizing these standards, we conclude that the record fully supports the trial
court’s suppression of Ms. Gates’s out-of-court and in-court identifications of the defendant.
As the trial court pointed out, the testimony provided by Ms. Gates and Detective Peck was
rife with conflict. For example, although Detective Peck testified that he believed Ms. Gates
to be uncooperative, Ms. Gates insisted that she telephoned the detective frequently to
provide information and follow up on the investigation. In addition, Detective Peck testified
that Ms. Gates was shown only one photograph array on April 7, 2010, but Ms. Gates was
adamant that she had been shown several arrays. Moreover, as the trial court observed, Ms.
Gates was completely unable to explain how Detective Peck could have known which array
she was referring to when she told him, prior to viewing the photograph array on April 21,
2010, that she believed the shooter to be the individual in position number four.

               In making its ruling, the trial court relied heavily on the video recording of the
April 21, 2010 interview. That recording, which is included in the record on appeal, clearly
establishes that Detective Peck told Ms. Gates, prior to showing her the photograph array,
that the picture of the suspect had been included in the array and that she had failed to choose
it. Then, while Detective Peck was gone to retrieve the array to show it to Ms. Gates a
second time, another detective told Ms. Gates that she was the “best witness” and that it was
important that she make an identification because the perpetrator might strike again and that
she might be the next victim. Finally, after Ms. Gates identified the defendant from the array,
that same detective praised her for choosing correctly and told her that other information
confirmed that she had correctly identified the shooter.

              As the video recording demonstrates, the identification procedure in this case
violated several of the principles announced in Simmons. Ms. Gates was informed prior to
viewing the array that the suspect’s photograph was included, and she was shown the exact
same array, with the defendant’s photograph appearing in position number four, two times.
See Simmons, 390 U.S. at 383. Then, after she had made her selection, Ms. Gates was told
that she had chosen correctly, as other evidence suggested the defendant’s guilt. See id.
Thus, the trial court properly concluded that the identification procedure was unduly
suggestive.

              Having concluded that the procedure was unduly suggestive, the trial court then

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ruled that the identification was not otherwise admissible as reliable because “the totality of
the evidence does not support an independent basis for the subsequent identifications.”
Again, the record fully supports the decision of the trial court. Although Ms. Gates claimed
to have provided a “vivid” description of the shooter immediately after the shooting, the
record belied her claim. The description she provided in her first interview of the person
who was driving the car, and that description was vague, at best. She described him only as
a light-skinned black male. She admitted that she did not tell officers that the person who
argued with the bouncer was also the shooter, claiming that she only made the connection
herself just before going for the April 21, 2010 interview. She failed to make an
identification during her first viewing of the photograph array, which took place only a short
time after the shooting.

              Accordingly, the judgment of the trial court is affirmed.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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