         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE        FILED
                         FEBRUARY 1999 SESSION
                                                    June 18, 1999

                                                 Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,                  )
                                     )
            Appellee,                )   C.C.A. No. 01C01-9712-CR-00561
                                     )
vs.                                  )   Davidson County
                                     )
DENNY JAMES McABEE,                  )   Hon. J. Randall Wyatt, Judge
                                     )
            Appellant.               )   (Aggravated Robbery)
                                     )


FOR THE APPELLANT:                       FOR THE APPELLEE:

S. RAY WHITE (on appeal)                 JOHN KNOX WALKUP
Attorney at Law                          Attorney General & Reporter
9856 S. Windrow Rd.
Rockvale, TN 37153                       TIMOTHY F. BEHAN
                                         Assistant Attorney General
RAY CULP (at motion for new trial)       425 Fifth Ave. N., 2d Floor
Attorney at Law                          Nashville, TN 37243-0493
439 Battle Ave.
Franklin, TN 37064                       VICTOR S. JOHNSON, III
                                         District Attorney General
PAUL BRUNO (at trial)
Attorney at Law                          LILA STATOM
222 Second Ave. North, Ste. 350          Asst. District Attorney General
Nashville, TN 37201                      222 Second Ave North, Ste. 500
                                         Nashville, TN 37201
RAYBURN McGOWAN, JR. (at trial)
Attorney at Law
222 Second Ave. North, Ste. 416
Nashville, TN 37201


OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE
                                     OPINION

              The defendant, Denny James McAbee, stands convicted of

aggravated robbery for the carjacking of Earl Glen "Bubba" Lackey, Jr. on April 19,

1996. McAbee received his conviction at the conclusion of a jury trial in the

Davidson County Criminal Court. He was subsequently sentenced to serve fourteen

years in the Department of Correction consecutively to a previously imposed

sentence of six years and one day for an aggravated burglary conviction. In this

direct appeal, McAbee raises two issues of alleged error. First, he claims the

photographic lineup conducted was improper. Second, he claims prosecutorial

misconduct in witness intimidation and in failing to disclose exculpatory information

during discovery. Following a review of the record, the briefs and oral arguments

of the parties, and the law, we affirm the judgment of the trial court.



                                          I

              In his first issue, McAbee alleges the trial court erred in failing to

suppress evidence regarding a photographic lineup from which the victim selected

him as the perpetrator of the crime. The essence of his complaint is that the lineup

was "a result of the efforts of an officer with a personal score to settle" who

manipulated the photographs to the defendant's prejudice.



              A patrol officer assigned to the area in which the crime took place

conducted an investigation which led him to suspect the defendant as the

perpetrator. With the assistance of a detective, the patrol officer assembled a

photographic lineup consisting of pictures of the defendant and five other individuals

who shared similar characteristics with the defendant. This was approximately the

seventh photographic lineup the patrol officer had assembled. The officer took the

lineup to the victim's home and asked the victim whether anyone in it looked familiar

from the robbery. The victim immediately selected the defendant's photograph.

                                          2
              At the suppression hearing, the defendant claimed that his photograph

was much more recent than those of the other individuals represented. He argued

that the officer put the lineup together himself, rather than leaving that to the

detective assigned to the case, to ensure that the victim made an identification of

the defendant.



              "To be admissible as evidence, an identification must not have been

conducted in such an impermissibly suggestive manner as to create a substantial

likelihood of irreparable misidentification." State v. Cribbs, 967 S.W.2d 773, 794

(Tenn.) (citing Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967 (1968)), cert

denied, --- U.S. ---, 119 S. Ct. 343 (1998). In Neil v. Biggers, 409 U.S. 188, 93 S.

Ct. 375 (1972), the Supreme Court identified five factors for assessing reliability of

an identification.   They are:     (1) the opportunity of the witness to view the

perpetrator at the time of the offense, (2) the witness' degree of attention, (3) the

accuracy of the witness' prior description of the perpetrator, (4) the level of certainty

demonstrated by the witness at the confrontation, and (5) the time between the

crime and the identification.



              The victim's identification of the defendant via photographic lineup

easily passes the Neil v. Biggers assessment. The victim had an opportunity to

observe the defendant for a period of time at close range. The crime took place

during daylight hours. The victim's testimony indicates he paid attention to the

perpetrator, who was making him nervous and ultimately threatened him with a gun.

The initial description the victim gave of the perpetrator supports the identification

he made of the defendant from the lineup.1 By all accounts, the victim chose the


       1
       The victim testified at the suppression hearing and at trial that he initially
described the perpetrator's hair as dark brown or black, which is consistent with
the defendant's photograph from the lineup. Other physical characteristics
described by the victim match the defendant's photograph. However, as

                                           3
defendant from the lineup quickly and was confident in his identification. The lineup

was conducted on May 7, 1996, a brief time after the April 19, 1996 crime.



              In this appeal, the defendant argues that the officer who prepared and

conducted the photo lineup had a vendetta against the defendant that should be

considered in assessing the fairness of the procedure. The problem with this

argument is that the defendant offered no proof whatsoever at the suppression

hearing of any vendetta. It was not until trial that the defendant presented this

evidence through an admitted drug-abusing witness who claimed she had been

intimate with the officer. She testified that the officer frequently denigrated the

defendant and the witness' friendship with him. She claimed the officer asked her

questions about the defendant and made statements that he was going to see the

defendant put in jail.



              This evidence came too late to benefit the defendant in his quest for

suppression.2 If the defendant desired to have the trial court consider the officer's

alleged vendetta against the defendant in conjunction with the motion to suppress,

he should have presented this evidence at the suppression hearing.3 In fact, the


discussed in section II.B. below, the police report completed by the first officer to
respond to the crime scene recounted that the perpetrator had "BL" hair, which
the reporting officer testified stood for "blond." The information from the police
report was not introduced until trial, and according to the defense, never
revealed during pre-trial discovery. See section II.B., infra. Even if the evidence
from the police report had been available to the defense at the time of the
suppression hearing, the victim was positive in his lineup identification. Further,
use of the abbreviation "BL" could be ambiguous, as it represents the first two
letters of both "blond" and "black."
       2
       Furthermore, the verdict may be viewed as signifying that its veracity was
discounted by the jury.
       3
       We acknowledge our supreme court's recent ruling that the appellate
courts may consider evidence presented at trial, as well as at the suppression
hearing, in evaluating the propriety of a trial court's ruling that a search warrant
was validly executed. See State v. Henning, 975 S.W.2d 290 (Tenn. 1998). We
decline, however, to apply that case to the situation at bar. First, the defendant
does not seek the benefit of the Henning ruling; he has wholly ignored the fact

                                          4
evidence was not presented until the defendant's case-in-chief, after the evidence

of the victim's identification of the defendant from the photo lineup had already been

admitted. Cf. State v. Sims, 952 S.W.2d 286, 290 (Mo. App. 1997) (in determining

propriety of trial court's ruling on suppression motion, appellate court may consider

evidence presented at hearing on motion to suppress and introduced at trial prior

to introduction of evidence of pretrial identification sought to be suppressed).4



              Notwithstanding the defendant's failure to present the evidence of the

alleged vendetta in time for it to be considered in conjunction with the motion to

suppress, the evidence adds nothing to the defendant's argument for suppression.

Even assuming the officer may have been unusually zealous in preparing a photo

lineup and presenting it to the victim, there is no indication the officer suggested that

the victim should pick the defendant from the lineup. Moreover, we disagree with

the defendant's characterization that the officer otherwise manipulated the process

through the selection of photographs. Contrary to the defendant's arguments, his

picture is not distinctive as compared with the others in the lineup due to age of the

photographs, presence of acne, and hair color.



              Accordingly, the trial court did not err in denying the defendant's

motion to suppress the pretrial lineup.



                                           II

              The defendant raises two claims of prosecutorial misconduct. The first



that the evidence of the alleged vendetta was not presented until trial. Second,
Henning dealt with a search warrant, not pretrial identification. Third, the trial
evidence considered in Henning was used by the appellate court to support the
correctness of the trial court's ruling, not to give the non-prevailing party a
second chance to make his case for suppression.
       4
       Sims is cited in the Tennessee Supreme Court's Henning decision
discussed supra at note 3. See Henning, 975 S.W.2d at 298.

                                           5
is an appropriate issue to be viewed through the framework for prosecutorial

misconduct claims. The second is more properly considered as a potential violation

of Brady v. Maryland.



                                           A

              The defendant contends that prosecutorial misconduct occurred when

a potential defense witness was intimidated and ultimately changed her prospective

trial testimony after she was visited in jail by the investigating police officer.5



              When an issue of prosecutorial misconduct is presented, the proper

inquiry is "whether the improper conduct could have affected the verdict to the

prejudice of the defendant." Harrington v. State, 215 Tenn. 338, 340, 385 S.W.2d

758, 759 (1965).



              At the motion for new trial, the defendant's lead trial attorney testified

that he had met with the incarcerated witness prior to trial, and she had

corroborated another defense witness' report of having had an affair with the police

officer in question. Further, counsel testified that the incarcerated witness told him

the officer had pulled her over on many occasions to inquire about the defendant's

whereabouts. Defendant's lead counsel visited the incarcerated witness a few days

later, at which time she said the officer had been to see her since counsel's last

visit.   Counsel testified that the witness said she would not give testimony

unfavorable to the officer because she had pending charges and thought he had

influence over the disposition of these charges. Because he was uncertain after

this meeting how this witness would testify, lead counsel elected not to call this


         5
        The state's argument, consisting of lengthy quotation from the trial court's
order, a cursory statement that "the trial court is correct," and lacking citation to
authority other than that contained in the quoted material from the trial court's
order, is of little assistance to this court in probing the merits of this issue.

                                           6
witness at trial. Counsel also testified that the witness told him the officer had taped

their conversation. Despite counsel's requests to the state for a copy of the tape,

he had never received one.



               The defendant's trial co-counsel testified that he was present during

lead counsel's latter conversation with the incarcerated witness. He testified that

although the incarcerated witness did not per se recant what he understood her

prospective testimony would be, she minimized her knowledge of relevant

information.



               The incarcerated witness testified at the motion for new trial. She

acknowledged having told the defendant's trial counsel that the defense witness had

confided that she and the investigating officer had a sexual relationship. However,

the incarcerated witness testified that she never believed anything the defense

witness told her. The incarcerated witness testified that she had seen a police car

at the defense witness' house only two times, and one of those times she was

certain that the officer present was not the investigating officer. She denied that the

investigating officer had ever stopped her to inquire about the defendant's

whereabouts. She admitted that the investigating officer visited her in jail; however,

she denied that she felt threatened by him. To the contrary, she claimed she did

not want to testify because she knew the defendant was guilty and did not want to

assist his defense.



               The officer in question testified that he met with the incarcerated

witness in keeping with his normal practice of interviewing all witnesses. He talked

with the witness about her prospective testimony; however, he denied threatening

her. He testified he told the witness to tell the truth. The officer testified that a tape

recording was made of his conversation with this witness. He gave the tape to the

                                            7
assistant district attorney assigned to the case but had no knowledge of its

whereabouts at the time the motion for new trial was heard.6



              From this evidence, the trial court found "no credible evidence of

coercion or intimidation by the investigating officer . . . and no evidence of

misconduct by the district attorney." Specifically, the court found no evidence that

the officer threatened the incarcerated witness or coerced her into changing her

testimony.   Furthermore, the court found that the defendant had failed to

demonstrate any prejudice from any of the foregoing allegations.



              On appellate review, the defendant has not convinced us of the error

of the trial court's ruling. The evidence presented at the hearing on the motion for

new trial, while unusual, fails to demonstrate any wrongdoing by the state.



                                         B

              The defendant also claims the prosecution withheld exculpatory

evidence in the form of a police report indicating the perpetrator's hair was blond,

rather than the dark brown color of the defendant's hair.



              In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the United

States Supreme Court held that the prosecution has the duty to furnish exculpatory

evidence to the accused upon request. Any "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, 373 U.S. at 87, 83 S. Ct. at 1196-97. The

duty to disclose extends to all "favorable information" regardless of whether the


       6
       The tape was not received as evidence at that hearing nor is it a part of
the record on appeal.

                                         8
evidence is admissible at trial. State v. Marshall, 845 S.W.2d 228, 232-33 (Tenn.

Crim. App. 1992); Branch v. State, 4 Tenn. Crim. App. 164, 168, 469 S.W.2d 533,

536 (1969). In United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380

(1985), the Supreme Court held that both exculpatory and impeachment evidence

fall under the Brady rule. Cf. Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763

(1972) (nondisclosure of state's deal with witness violated defendant's due process

rights).



              Before an accused is entitled to relief under Brady, he must establish

several prerequisites: (a) the prosecution must have suppressed the evidence; (b)

the evidence suppressed must have been favorable to the accused; and (c) the

evidence must have been material. See Bagley, 473 U.S. at 674-75, 105 S. Ct. at

3379-80; Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; Workman v. State, 868

S.W.2d 705, 709 (Tenn. Crim. App. 1993); State v. Marshall, 845 S.W.2d 228, 232;

Strouth v. State, 755 S.W.2d 819, 828 (Tenn. Crim. App. 1986). In State v.

Spurlock, this court recognized a fourth prerequisite to relief, that "the accused must

make a proper request for the production of the evidence, unless the evidence,

when viewed by the prosecution, is obviously exculpatory in nature and will be

helpful to the accused." State v. Spurlock, 874 S.W.2d 602, 609 (Tenn. Crim. App.

1993) (citations omitted). The defendant bears the burden of proving a Brady

violation by a preponderance of the evidence. State v. Edgin, 902 S.W.2d 387, 389

(Tenn. 1995).



              In the case at bar, the initial police report indicated the suspect's hair

was "BL." The officer who prepared the report testified "BL" stood for blond and

that the victim had described the perpetrator's hair as "blondish." On the other

hand, the victim testified that he had initially described the perpetrator's hair as dark

brown or black. The defendant's hair is dark brown.

                                           9
              During the investigation, the victim identified two individuals whom he

suspected may have been involved. Both of these individuals have blond hair.

Further, an officer testified that he had arrested these individuals for stealing a

vehicle and burning it prior to the victim's car being stolen and burned. The victim

testified, however, that he grew up with one of these individuals and was sure that

this person had not been the carjacker, although he thought this person might have

had someone else commit the crime.            An officer interviewed the individuals

identified by the victim as potential suspects, and he received information

implicating the defendant from one of these individuals.           Based upon this

information, the officer prepared the photo lineup, choosing a photograph of the

defendant and five individuals who shared similar characteristics with the defendant.

Each of the individuals depicted in the lineup had brown hair.



              At the motion for new trial, McAbee's trial counsel testified that he did

not learn about the police report describing the suspect's hair with the abbreviation

"BL" until the trial was underway. As a result of the belated disclosure, he claimed

he was unable to investigate.



              The trial court found that the defense failed to carry its burden of

proving a Brady violation.



              We begin our analysis with the fourth prerequisite for relief. It appears

that discovery was conducted in this case; however, if "a proper request for the

production of the evidence" was made by the defense, it has not been included in

the record on appeal. See Spurlock, 874 S.W.2d at 609. Thus, we direct our

inquiry to whether "the evidence, when viewed by the prosecution, is obviously

exculpatory in nature and will be helpful to the accused." Id. The evidence in the

case at bar does not fulfill this criteria. The victim's hair color was only one of

                                         10
several physical characteristics described by the victim on the day of the crime. The

description he recounted at trial that he had given on the day of the crime is

remarkably similar to the defendant's photograph in the lineup.             The victim's

testimony that he described the perpetrator as having dark brown or black hair was

at odds with the officer's testimony that the victim had said the perpetrator had

blond hair; however, the victim’s testimony that he described the perpetrator as

having possibly black hair was not contradicted per se by the report, which depicted

the perpetrator’s hair as “BL”. The inconsistent evidence of the perpetrator's hair

color was fully probed by the defense at trial. The defendant claims on appeal that

he was "denied . . . the possibility of developing other credible suspects" at trial by

the non-disclosure of this evidence. Although he had the opportunity at the hearing

on the motion for new trial to prove that such evidence could have been developed,

he failed to carry that burden.



               Furthermore, although the evidence was suppressed, the information

in the report is not material. See Bagley, 473 U.S. at 674-75, 105 S. Ct. at 3379-80.

In that regard, "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 worthy of confidence."

Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566 (1995). In this case, the

jury had before it evidence of the inconsistency between the police report and the

victim's account of a suspect with dark brown or black hair, as well as evidence that

the possible suspects named by the victim had blond hair. Notwithstanding, the jury

convicted the defendant. At the motion for new trial, the defendant had the

opportunity to prove any matter which the state's failure to disclose the police report

deprived him of proving at trial, yet he offered no evidence supporting a finding of

materiality and undermining confidence in the verdict.




                                           11
              It bears repeating that the evidence of hair color was but a portion of

the victim's physical description of the perpetrator. In addition, the victim chose the

defendant from a photographic lineup. Viewed in context of all of the evidence

presented, the report indicating the perpetrator had "BL" hair was not material under

the standard of Kyles. Cf. State v. Beal, 614 S.W.2d 77, 80-81 (Tenn. Crim. App.

1981) (due process rule of Brady not violated where minor inconsistencies in initial

description of perpetrator not disclosed during discovery but revealed during pretrial

suppression hearing and exposed by defense counsel at trial).



              The trial court correctly determined that no Brady violation had been

demonstrated.



              Finding no error requiring reversal, we affirm the judgment of the trial

court.




                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE


CONCUR:



_______________________________
DAVID G. HAYES, JUDGE



_______________________________
JOHN EVERETT WILLIAMS, JUDGE




                                          12
