        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                February 2, 2016 Session

                 STATE OF TENNESSEE v. TERRELL HAYES

                 Appeal from the Criminal Court for Shelby County
                   No. 13-03971     J. Robert Carter, Jr., Judge




                No. W2015-00661-CCA-R3-CD - Filed April 22, 2016
                        _____________________________

Defendant, Terrell Hayes, was convicted of two counts of aggravated robbery after a jury
trial. Defendant was sentenced to an effective sentence of ten years. After the denial of a
motion for new trial, Defendant timely sought an appeal. The following issues are
presented for our review: (1) whether the trial court improperly prohibited Defendant
from introducing evidence about codefendant Timothy Williams‘s prior robbery charge;
and (2) whether the trial court erred in failing to grant a mistrial and/or allowing counsel
to testify as a witness for the defense. After a review, we determine the trial court erred
in refusing to allow Defendant to question witnesses about the prior robbery. However,
we determine the error was harmless. Defendant failed to raise the issue with regard to
counsel‘s testimony in the motion for new trial. This issue is waived. Accordingly, the
judgments of the trial court are affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS, J., joined. CAMILLE R. MCMULLEN, J., concurring in results only.

M. Haden Lawyer, Memphis, Tennessee, for the appellant, Terrell Hayes.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Meghan Fowler,
Assistant District Attorney General, for the appellee, State of Tennessee.




                                        OPINION
                                   Factual Background

       This is Defendant‘s direct appeal from a jury‘s verdict in the Criminal Court of
Shelby County for two counts of aggravated robbery. He and Timothy Williams were
indicted by the Shelby County Grand Jury in September of 2013 for their role in the
robbery of a Wendy‘s restaurant in Memphis.

       Quiouna Patterson and Marilyn Downs were employees of the Wendy‘s
restaurant. On December 17, 2012, when they were closing the restaurant for the night,
they were approached as they were exiting by a man with a gun, later identified as
Defendant. The women were forced back inside the restaurant. The gunman was
followed by two other men, one of whom was identified as codefendant Williams. Ms.
Downs opened one safe. The men accompanying Defendant took coin trays from the
safe, put it into a trash can, and removed it from the restaurant. Ms. Patterson‘s cell
phone was also taken during the incident. Two other men, Andrew Jones and someone
named ―Mookie,‖ were also identified as being involved in the crime. Security footage
from the store next door revealed three men loitering in the parking lot for approximately
thirty minutes before they entered the restaurant.

        Mr. Williams was identified by police as a suspect when his fingerprints were
found on coin trays and a cooking pan that were taken from the restaurant and recovered
after the robbery.

        Ms. Patterson identified Defendant after viewing several photo lineups. She noted
that she got a ―very good look‖ at Defendant during the ordeal and that he had ―twists‖ in
his hair at the time of the robbery but did not have the same hairstyle in the photograph.
On the back of the photo lineup she wrote, ―looks familiar, hair kind of different, looks
like the guy with the gun that robbed Wendy‘s, I am certain this is the guy with the
pistol.‖ The arresting officer, Darnell Gooch, confirmed that Defendant had twists in his
hair on the day of the arrest and a different hairstyle at the time of trial. Ms. Downs also
identified Defendant from a photo lineup and in court. She was ―100 percent‖ sure of her
identification of Defendant but admitted that she was unable to identify him at a previous
hearing because it was ―kind of dark‖ and everyone was seated.

       During the cross-examination of Ms. Patterson, counsel for Defendant sought to
show Ms. Patterson photographs of three of Mr. Williams‘s codefendants from his
previous robbery conviction. The trial court did not allow counsel to show her the
photographs but told counsel that he could show the photographs to the victims outside of
the courtroom. Apparently, at some point after the testimony of Ms. Patterson, counsel
for Defendant showed the photographs to Ms. Downs, the other victim, outside the
courtroom. This occurred prior to Ms. Downs‘s testimony. During the cross-
examination of Ms. Downs, counsel for Defendant showed the witness two photographs
                                            -2-
of Mr. Williams‘s prior codefendants. Ms. Downs testified that she recognized the
picture as a ―picture of a person—a person that‘s a criminal.‖ She testified that she did
not know who was in the photographs but recalled looking at the photographs earlier and
saying that the men in the photographs looked familiar.

        Prior to the start of the second day of trial, counsel for Defendant made a motion
for a mistrial. Counsel stated that he showed two photographs of Mr. Williams‘s prior
codefendants to Ms. Downs outside the courtroom. When she observed the photographs
outside the courtroom she indicated that she recognized the men from the robbery.
During her testimony, Ms. Downs stated that she did not recognize the men in the
photographs. Counsel argued that Defendant had a right to impeach Ms. Downs and that
he could not be a witness for his client so the trial court had to grant the mistrial. The
trial court denied the mistrial.

        Codefendant Williams testified for the State that he was at home when Defendant,
Andrew Jones, and Mookie drove to his house. He was unaware where they were going
or what they were doing until they got about halfway to the restaurant. Mr. Williams
admitted that he originally told police that he was not involved in the robbery. When
confronted with the fact that his fingerprints were found on the coin trays, Mr. Williams
told police that Mr. Jones went into the restaurant first, whereas at trial he stated that
Defendant went inside first. Mr. Williams claimed it was a misunderstanding, that he
―said it wrong‖ when he told police Mr. Jones went in first. Mr. Williams told police that
Mr. Jones waited by the car. After the robbery, the men separated. At the time of the
robbery, Mr. Williams was dating Defendant‘s sister. He also acknowledged a prior
conviction for solicitation of robbery.

       Mr. Williams testified that he quit school in ninth grade and that he could not read
or write. Sergeant Casey Minga interviewed Mr. Williams. Sergeant Minga did not
think there was a misunderstanding during the taking of the statement. Mr. Williams
clearly indicated that Mr. Jones was the first to enter the restaurant. After interviewing
Mr. Williams, Sergeant Minga did not investigate anyone else because his statement was
consistent with the videotape evidence and the statements of the victims.

        Lucinda Johnson, Defendant‘s sister, testified that she dated Mr. Williams and
eventually broke off the relationship. She did not describe Defendant and Mr. Williams
as friends. They did not spend time together on a regular basis.

       Defendant‘s girlfriend, Brittany Brown, testified. At the time of trial, she and
Defendant had known each other for ten years. Ms. Brown and Defendant lived together
at the home of Ms. Brown‘s mother. There was a strict midnight curfew at the house.
Ms. Brown‘s mother locked the door after midnight.

                                           -3-
       Defendant testified at trial that he was friends with Mr. Jones but not Mr.
Williams. Defendant admitted that he knew Mr. Williams because of his sister but that
they did not spend time together. Defendant claimed that he did not know anyone named
Mookie but that he had a cousin named ―Pookie.‖ Defendant denied ever having a ―gold
twist‖ hairstyle.

       The jury found Defendant guilty of two counts of aggravated robbery. The trial
court sentenced Defendant to concurrent ten-year sentences. Defendant filed a timely
notice of appeal after the denial of a motion for new trial.

                                         Analysis

             I. Denial of Mistrial/Prevention of Testimony by Trial Counsel


        Defendant argues that the trial court ―erred by prohibiting defense counsel from
testifying for the purpose of impeaching the victim‘s inconsistent statement‖ and by
refusing to grant a mistrial once defense counsel became a necessary witness.
Specifically, Defendant complains that trial counsel was unable to adequately impeach
Ms. Downs‘s testimony without testifying as a witness. The State argues that Defendant
raises this issue for the first time on appeal and, therefore, it is waived.

       At trial, Ms. Downs testified that Defendant was the gunman during the robbery.
Trial counsel sought to show Ms. Downs pictures of Mr. Williams‘s former criminal
associates in order to determine if she could identify any of the men as participants in the
robbery. The trial court refused to allow counsel to do so but informed counsel that he
could show the photographs to the witness outside the courtroom after her testimony.
Counsel argued the next day that he showed Ms. Downs photographs of two of Mr.
Williams‘s former associates outside the courtroom and she indicated that she recognized
them from the robbery. When counsel questioned Ms. Downs on cross-examination, the
following exchange occurred:

       [Counsel]: Do you recall looking at those pictures, earlier?

       [Ms. Downs]: Yes.

       [Counsel]: And when you looked at them earlier, you said that they looked
       familiar to you.

       [Ms. Downs]: Yes.

       [Counsel]: I just want to be clear that they no longer look familiar to you?
                                            -4-
      (A brief pause was had in the proceedings).

      [Ms. Downs]: I guess they look familiar, but I‘m not – they look familiar
      to me.

      [Counsel]: In what way do they look familiar?

      [Counsel for State]: Judge.

      [The Court]: Again, y‘all may approach.

      (A bench conference was had in the proceedings).

      [The Court]: [Counsel for Defendant], I think, are you saying they look
      familiar, unless she is going to make an identification, it is just not relevant.

      [Counsel]: My concern, Your Honor, is that after she told me earlier that
      she heard all of this at the –

      [The Court]: No, my concern is that she got under oath and has told you
      when y‘all were chatting what you wanted to hear and then once she got
      under oath she was hesitant to say, ―I identify this person.‖ And I think she
      definitely can ask it, but what I think that what you‘re asking her to do is
      identify someone and she is clearly unwilling to say under oath that this is
      somebody.

             . . . . [Conclusion of bench conference.]

      [Counsel]: Are you unable to identify this photo?

      [Ms. Downs] Yes, sir.

The next day, counsel for Defendant moved for a mistrial. He argued to the trial court
that he questioned Ms. Downs in the hallway and she told him that the men in the
pictures looked like the men that robbed the store and that he could not serve as both
counsel and a witness. The trial court denied the mistrial, stating:

             You know, when it is an oral conversation and it‘s your
      characterization that she said something different, you know, I just don‘t
      see that. I mean, she testified here and I take you at your word that it is
      your belief that she felt more familiar with the photos, whatever they were,
                                            -5-
       when you were showing them to her by yourself, under none of the
       safeguards that anybody ever had, you‘re showing her a single shot
       photograph going, ―Weren‘t these the people that were with you,‖ or
       whatever.

              And again, I don‘t know what you did. But you show that and then
       you call the witness and only because you asserted that you had a good
       faith basis for the fact that she may recognize them, that I let you ask that in
       front of the jury. And then, under oath, she said, no.

               And then you said, ―Didn‘t you just tell me that?‖ And she was,
       equivocal, at best. I don‘t recall her saying, ―No, I never told you that.‖
       She just kept saying, ―I‘m not sure. I am not certain.‖ And had she said,
       ―No, I never told you that,‖ then I think you would be, probably, entitled to
       impeach to that limited extent. But, she was just equivocal about it. I think
       that it was very clear that she wasn‘t sure what, or who those [men] were.
       She did say in front of the jury at one point that she thought one of them
       looked familiar. She couldn‘t say from where and you tried – I mean, all
       you can do without speaking for the witness is to say, ―she just was
       unwilling, or unable.‖

Counsel for Defendant argued that he had the right to impeach the testimony. The trial
court commented that ―to the extent that you cross-examined on it, you did‖ but that the
court was ―not inclined to grant a mistrial at this point.‖ Counsel for Defendant did not
make an offer of proof as to his testimony or ask to be removed from the case.

        In the motion for new trial, Defendant argued that the trial court erred in failing to
grant the mistrial. At the hearing on the motion, the argument regarding this issue was
whether the trial court erred in failing to grant a mistrial. Now, on appeal, Defendant
argues that the trial court erred by refusing to let Counsel testify and that the trial court
erred in refusing to grant a mistrial. To the extent that Defendant failed to raise the issue
with regard to counsel testifying in the trial court below, it is waived on appeal. A party
may not litigate or assert a new basis or ground for relief on appeal. See Tenn. R. App. P.
3(e) (―[I]n all cases tried by a jury, no issue presented for review shall be predicated upon
error in the admission or exclusion of evidence, jury instructions granted or refused,
misconduct of jurors, parties or counsel, or other action committed or occurring during
the trial of the case, or other ground upon which a new trial is sought, unless the same
was specifically stated in a motion for a new trial; otherwise such issues will be treated as
waived.‖ (emphasis added)); see also State v. Leach, 148 S.W.3d 42, 55 (Tenn. 2004).

       Moreover, the granting of a mistrial is a matter resting within the sound discretion
of the trial court and will not be reversed absent an abuse of discretion. State v. Nash,
                                             -6-
294 S.W.3d 541, 546-47 (Tenn. 2009). A mistrial should only be granted when there is a
―manifest necessity‖ for such action. Id. In this case, Defendant actually created the
situation about which he now complains. Counsel questioned the witness about the
photographs in the hallway and wanted to testify to show that her statements in the
hallway were somewhat different than her statements on the stand during cross-
examination. Counsel was ultimately able to question Ms. Downs on the stand about the
identification of the photographs and she denied knowing the men. However, counsel
sought to use his own testimony to impeach her testimony in which she denied making
the identifications in the hallway. The trial court did not abuse its discretion in denying a
mistrial. The evidence against Defendant was overwhelming. Both of the victims
identified Defendant as the gunman prior to trial and again at trial. Defendant is not
entitled to relief on this issue.

                              II. Right to Present a Defense

       On appeal, Defendant insists that the trial court prevented Defendant ―from
presenting a defense by precluding him from questioning the witnesses about the details
of [Mr.] Williams‘s prior robbery and his prior codefendants.‖ Defendant relies on State
v. Flood, 219 S.W.3d 307, 315-16 (Tenn. 2007), to support his argument that he should
have been permitted to introduce the existence of the prior codefendants and the
circumstances of the prior robbery into evidence. The State, on the other hand, argues
that the trial court excluded the evidence because it was not relevant and, in any event,
Defendant waived the issue by failing to make an offer of proof that would allow this
Court to analyze the excluded evidence under Flood.

       Evidence must be relevant to be admissible. Tenn. R. Evid. 402. Evidence is
considered relevant if it has ―any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.‖ Tenn. R. Evid. 401. However, relevant evidence ―may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.‖ Tenn. R. Evid. 403.
Prejudicial evidence is not excluded as a matter of law. State v. Carruthers, 35 S.W.3d
516, 577 (Tenn. 2000) (citing State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App. 1993)).
The term ―undue prejudice‖ has been defined as ―‗[a]n undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.‘‖
State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory
Comm‘n Notes). We review a trial court‘s decision regarding the admissibility of
evidence under an abuse of discretion standard. State v. Banks, 271 S.W.3d 90, 116
(Tenn. 2008).

      In this case, Defendant argues that because his primary defense was that Mr.
Williams named Defendant as the perpetrator in order to protect his ―true accomplices‖—
                                            -7-
people with whom he committed a prior robbery—the trial court excluded critical
evidence when it refused to allow Defendant to introduce evidence about Mr. Williams‘s
prior offense and the failure of the police to investigate those known criminal associates.
During the investigation, Mr. Williams admitted his involvement in the crime and
implicated Defendant as the gunman. Prior to trial, the State filed a motion in limine
seeking to prohibit Defendant from asking Mr. Williams about a prior conviction for
solicitation of robbery and why the accomplices in that crime were not questioned by the
police. The State argued that if Defendant could ask these questions, the State would be
entitled to show that two of Mr. Williams‘s three criminal associates were in jail at the
time of the Wendy‘s robbery. Defendant, in turn, argued that Mr. Williams was
threatened by his former criminal associates before being questioned by police. The trial
court permitted Defendant to question the police about their general investigation but
prohibited direct mention of or questioning about Mr. Williams‘s accomplices in the
solicitation of robbery conviction. The trial court stated that the determination to exclude
the evidence was on the basis of relevance, commenting:

              You were simply assuming because a person who is going to be a
       witness, you think, or that I think, in this case, has been convicted of
       another offense, with others, that those people would be more likely to be
       the individual that committed the second offense. And I don‘t find that.

               I mean, I don‘t see that as relevant. You can ask this officer did he
       investigate anybody else. Your point was that once Mr. Williams named
       your client and they took his pictures and he was identified in two separate
       photospreads, they stopped looking for others. And that is your argument
       to the jury and you‘re free to make it.

After the trial court stated that it determined that the evidence was irrelevant, the trial
court went on to make what we perceive as a finding of the prejudicial nature of the
evidence under Tennessee Rule of Evidence 403. The trial court commented that
evidence of Mr. Williams‘s prior robbery conviction was ―propensity evidence.‖ The
trial court explained that just ―because Mr. Williams was convicted of a robbery related
charge[], . . . that [does not mean that] somehow you should be able to try to bring in
extrinsic evidence and enter it . . . You want to cross[-]examine him about the details of
a conviction which is no part of this case, other than to the effect that the jury may, if
they choose, weigh it as to the credibility of Mr. Williams, the fact that he has been
convicted [and this will not be permitted].‖ Counsel for Defendant argued at trial that the
evidence was to be admitted to impeach the investigation and Mr. Williams‘s testimony.
Now, on appeal, Defendant argues that the trial court prohibited him from asking about
the former criminal associates of Mr. Williams, something that was, in his view, ―critical
in rebutting the victims‘ identification of [Defendant]‖ because the identification of
Defendant by the victims was unreliable.
                                            -8-
       The State submits that because Defendant failed to make an offer of proof
regarding this evidence, he has waived this issue. See State v. Innocent S. Nzamubereka,
No. E2009-00755-CCA-R3-CD, 2011 WL 255368, at *12 (Tenn. Crim. App. Jan. 20,
2011) (citing Flood and determining that issue waived for failure to make an offer of
proof with regard to excluded testimony). We disagree as we are able to determine from
the record what the excluded testimony would have been, at least with regard to the
existence of the previous conviction and the codefendants and the victim‘s identification
of photographs of Mr. Williams‘s former codefendants.

        Moreover, we conclude that the evidence was relevant and the trial court abused
its discretion in excluding the evidence. ―It has long been recognized by the courts of
this state that an accused is entitled to present evidence implicating others in the crime.‖
State v. Powers, 101 S.W.3d 383, 394 (Tenn. 2003) (citing Sawyers v. State, 83 Tenn.
694, 695 (1885)). The Powers Court stated that the determination of whether such
evidence is admissible is one of relevancy. Identity of the perpetrator was certainly at
issue herein. Thus, presentation of evidence tending to prove someone else may have
committed the crime was relevant to bolster Defendant‘s theory that Mr. Williams and his
former codefendants were actually the persons who committed the crime. Mr. Williams
certainly had motive to implicate Defendant as a perpetrator in the crime in order to
lessen his own culpability for the offense. While the strength of this defense is not iron-
clad and Defendant was allowed to introduce at least the fact of Mr. Williams‘s prior
conviction for solicitation of robbery on cross-examination, he was not able to directly
ask Sergeant Minga about why Mr. Williams‘s former associates were not pursued as
possible suspects and was prohibited from further questioning of the victims about
whether they recognized the former associates. Consequently, we determine the trial
court abused its discretion by refusing to allow admission of relevant information about
the identity of the perpetrator. Any analysis under Flood is foreclosed based on our
determination that the trial court abused its discretion in excluding the evidence.

        However, any error was harmless. The State‘s case was not entirely dependent on
the testimony of Mr. Williams, the codefendant. Both of the victims identified Defendant
as the gunman from a photographic lineup and in court. Further, counsel for Defendant
was ultimately able to question Ms. Downs about the photographs of the former
codefendants on cross-examination. She admitted that she said previously that they
looked familiar but that she could not identify the men. The jury heard this attempt to
impeach the victims‘ identification of Defendant and obviously, by their verdict, believed
that the victims identified Defendant as the perpetrator. Moreover, the State had already
informed the trial court that if Defendant were allowed to pursue this line of questioning,
they would introduce evidence that the former associates were actually in jail at the time
of the robbery. Lastly, there was no evidence that the former associates were in any way
connected with the robbery. Defendant is not entitled to relief on this issue.
                                            -9-
                                 Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

                                             _________________________________
                                             TIMOTHY L. EASTER, JUDGE




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