                    IN THE SUPREME COURT OF TENNESSEE

                                  AT NASHVILLE




                                              FOR PUBLICATION
STATE OF TENNESSEE,                   )
                                      )     Filed: January 2, 1996
      Appellant,                      )
                                      )      DAVIDSON CRIMINAL
Vs.                                   )
                                      )    HON. ANN LACY JOHNS, JUDGE
EDDIE ARCARO WILLIAMS,                )
                                      )      No. 01-S-01-9503-CR-00033
      Appellee.                       )

                                                           FILED
                                                            December 4,
                                                               2000

                                                           Cecil Crowson, Jr.
For Appellant:                             For Appellee:    Appellate Court Clerk

Charles W. Burson                          Jeffrey A. DeVasher
Attorney General & Reporter                Senior Assistant Public Defender

Michael E. Moore                           John Wiethe
Solicitor General                          Cynthia Burns
                                           Assistant Public Defenders
Gordon W. Smith                            Nashville, Tennessee
Associate Solicitor General
Nashville, Tennessee

Roger Moore
Assistant District Attorney General
Nashville, Tennessee




                                OPINION




COURT OF CRIMINAL APPEALS REVERSED;
JUDGMENT OF TRIAL COURT REINSTATED                      ANDERSON, C.J.
       We granted the State's appeal to consider whether the defendant's federal or

state constitutional right of confrontation was violated by the admission into

evidence of surveillance photographs taken at the scene of the robbery. The Court

of Criminal Appeals decided that the defendant's constitutional right of confrontation

was violated and that the evidence was insufficient as a matter of law to establish

guilt beyond a reasonable doubt. As a result, they reversed the trial court's

judgment of conviction.



       We conclude that neither the state nor federal constitutional right to

confrontation encompasses physical evidence. Accordingly, the defendant's

constitutional right of confrontation was not violated by admission of the

photographs into evidence. We have also determined the evidence is sufficient to

establish guilt beyond a reasonable doubt. Accordingly, the Court of Criminal

Appeals' judgment is reversed and the judgment of the trial court is reinstated.




                                   BACKGROUND

       The defendant, Eddie Williams, was convicted in Davidson County of seven

counts of robbery, one count of aggravated robbery, and one count of attempted

robbery as a result of a string of robberies that occurred between May 23, and

July 4, 1993. The robbery locations included the same Circle K convenience store

on four separate occasions, two Super-X Drugs on two separate occasions, and two

Eckerd Drugs on two occasions.



       The facts relevant to the one robbery conviction dismissed by the Court of

Criminal Appeals are as follows. On June 17, 1992, at around 3:20 a.m., Tom

Powell, a clerk at the Circle K convenience store on Belmont Avenue in Nashville,


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was sweeping the parking lot. As Powell returned to the check-out counter, he was

approached by a man who asked for cigarettes and then demanded that Powell give

him all the money. The robber told Powell that he had a gun, but Powell never

actually saw a gun. Powell gave the robber all the cash in the cash register,

approximately thirty dollars ($30). While removing the money from the cash

register, Powell activated a videotape surveillance camera which took photographs

of the robber during the course of the robbery.



       About a month after the robbery, Powell viewed a pre-trial line-up which

included Williams, but Powell did not identify Williams, or anyone else in the line-up,

as the person who committed the robbery.



       During the course of the trial of this case, Powell testified about the robbery,

but was again unable to identify Williams as the person who committed the crime.

The State, however, introduced fifteen still photographs taken by the videotape

surveillance camera during the robbery, and when shown the photographs, Powell

testified that they accurately depicted the scene inside the store at the time of the

robbery. The photographs were then passed to the jury.



       Ken Alexandrow, the Nashville police officer dispatched to the robbery, also

testified at trial. Alexandrow said that when he arrived at the store, Powell was

upset, but related the details of the robbery and said that the videotape surveillance

camera had been activated during the robbery. Alexandrow also said that Powell

described the robber as a black male, six feet tall, weighing about 150 pounds, with

black hair and brown eyes.




                                          -3-
        On this evidence, a Davidson County Criminal Court jury convicted Williams

of this robbery, as well as the eight other counts previously identified. The trial court

imposed the maximum sentence on each conviction,1 and ordered all sentences to

be served consecutively, resulting in an effective sentence of one hundred and sixty-

two (162) years.



        Williams appealed. The Court of Criminal Appeals reversed and dismissed

the one robbery conviction resulting from count five of the indictment, but affirmed

the trial court judgment with respect to the remaining convictions and sentences,

leaving intact an aggregate sentence of one hundred and forty-seven (147) years.



        Explaining their rationale for reversal, the Court of Criminal Appeals said that

"[t]he photographs, which are the only evidence against the appellant, do not

contain an image that can be identified as the appellant beyond a reasonable

doubt." Moreover, the Court of Criminal Appeals concluded that "[s]ince no

witnesses identified the appellant and no other proof was introduced to connect the

appellant with this robbery, . . . the jury's verdict of guilty was based upon their

identification of the appellant as the perpetrator from the surveillance photographs.

The jury thus became unsworn witnesses against appellant in direct violation of his

right under the Sixth Amendment 'to be confronted with the witnesses against him.'"



        Thereafter, we granted the State's application for permission to appeal, and

for the reasons discussed below, now reverse the judgment of the Court of Criminal

Appeals and reinstate the judgment of the trial court.




        1
           The trial court imposed a fifteen-year sentence for each robbery conviction, a thirty-year
sentence for the aggravated robbery conviction, and a twelve-year sentence for the conviction of
attem pt to c om mit r obb ery.

                                                   -4-
                                  CONFRONTATION CLAUSE

       The State argues that the Confrontation Clause of the state and federal

constitutions are not implicated by introduction of the surveillance photographs into

evidence in this case.



       Resolution of this issue requires only an examination of the text of the

constitutional provisions in question. The Sixth Amendment to the U.S. Constitution,

which is applicable to the states through the Fourteenth Amendment,2 provides that

"[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him." (Emphasis added.) The corresponding provision of

the Tennessee Constitution provides "[t]hat in all criminal prosecutions, the accused

hath the right . . . to meet the witnesses face to face." Tenn. Const. art. I, § 9

(emphasis added).



       Although the language is not identical, both the federal and state

constitutional confrontation provisions are restricted, by their own terms, to

"witnesses" and do not encompass physical evidence or objects, such as

photographs. See Johnson v. State, 715 S.W.2d 441, 443 (Ark. 1986); Starkes v.

United States, 427 A.2d 437 (D.C. 1981); Evans v. State, 499 So.2d 781, 783 (Miss.

1986); State v. T.L.W., 457 So.2d 566, 567 (Fla. Dist. Ct. App. 1984); United States

v. Restrepo, 994 F.2d 173, 183 (5th Cir. 1993); United States v. Herndon, 536 F.2d

1027, 1029 (5th Cir. 1976).



       Indeed, we have previously held that the confrontation clause provides two

types of protection for criminal defendants: the right to physically face the witnesses

who testify against the defendant, and the right to cross-examine witnesses. State


       2
           Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 92 3 (1965).

                                                  -5-
v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992); Pennsylvania v. Ritchie, 480

U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40, 53 (1987). Accordingly, we

conclude that introduction of the surveillance photographs into evidence did not

violate the defendant's federal or state constitutional right to confrontation.




                          SUFFICIENCY OF THE EVIDENCE

       We next consider whether the evidence is sufficient, as a matter of law, to

support the jury's verdict on the robbery count in question. The State and the

defendant agree that the photographs were properly authenticated and admitted as

evidence relevant to the clerk's testimony that a robbery took place on the date and

at the location charged in the indictment.



       We also agree that the photographs were properly authenticated and

admitted into evidence. Pursuant to Tenn. R. Evid. 901, "[t]he requirement of

authentication or identification as a condition precedent to admissibility is satisfied

by evidence sufficient to the court to support a finding by the trier of fact that the

matter in question is what its proponent claims." One method of authentication

exemplified by the Rule is testimony of a witness with knowledge "that a matter is

what it is claimed to be." Tenn. R. Evid. 901(b)(1). In this case, the photographs

were properly authenticated by that method, as the robbery victim, with personal

knowledge of the robbery, testified that the surveillance camera was activated when

the robbery began and that the photographs fairly and accurately portray the scene

of the robbery. See United States v. Rembert, 863 F.2d 1023, 1026 (D.C. Cir. 1988)

(Discussing various methods of authentication in the context of interpreting the

identical provisions of Fed. R. Evid. 901); see generally "Admissibility of Visual




                                             -6-
Recording of Event or Matter Giving Rise to Litigation or Prosecution," 41 A.L.R. 4th

812 § 3 (1985 & 1995 Supp.).



       The State argues that the identity of the person in the photographs was a

question of fact for the jury, which decision should not be overturned on appeal

unless no rational juror could have found the defendant guilty beyond a reasonable

doubt. The defendant, however, argues that the jury could not have considered the

photographs as proof of identity because the State offered no proof that the person

in the photographs was the defendant.



       We disagree and conclude that the jury appropriately could have considered

the photographs as evidence of identity, despite the State's failure to present proof

that the person in the photographs is the defendant. Photographs, such as those

admitted in this case, have been described as recorded real evidence. Cohen,

Paine & Sheppeard, Tennessee Law of Evidence, § 401.9, p. 83 (2d Ed. 1990). If

properly authenticated, such recordings constitute real evidence from which a trier of

fact is able to draw a first-hand sense impression of the facts, as opposed to

evidence which serves merely to report to the trier of fact the secondhand sense

impression of others. Id. at p. 82; see also Strong, 2 McCormick On Evidence,

§212, p. 3 (4th Ed. 1992); Graham, Handbook of Federal Evidence, §401.2, p. 147-

48 (3rd Ed. 1991).



       Having determined that the photographs were properly authenticated,

admitted, and probative of the issue of identity, the only remaining question is

whether the evidence is legally sufficient to support the jury's finding of guilt. 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


                                           -7-
has the burden of demonstrating that the evidence is insufficient. Id. The State, on

appeal, is entitled to the strongest legitimate view of the evidence and all reasonable

inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). Where, as here, the sufficiency of the convicting evidence is

challenged, the relevant question for an appellate court is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have

found the defendant guilty beyond a reasonable doubt. Tenn. R. App. P. 13(e);

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982).



       Applying the required standard to the facts in this case, we conclude that the

Court of Criminal Appeals erred in reversing the trial court's robbery conviction. The

clerk testified that a robbery occurred on the date and time alleged in the indictment,

and that the surveillance photographs were accurate portrayals of the robbery in

progress. The defendant generally matched the description of the robber given by

the clerk to the police officer dispatched to the scene of the robbery. On the

question of identity, the jurors had before them the photographs taken by the

surveillance camera during the course of the robbery, from which they were able to

draw a first-hand sense impression. Viewing the evidence in the light most

favorable to the State, we conclude that the evidence is sufficient for a rational trier

of fact to find the defendant guilty beyond a reasonable doubt.



                                    CONCLUSION

       Because the defendant suffered no violation of his constitutional right to

confront the witnesses against him, and because the evidence is sufficient as a

matter of law to support the conviction of robbery, the judgment of the Court of


                                           -8-
Criminal Appeals dismissing the conviction is reversed, and the judgment of the trial

court is reinstated. Costs of this appeal are taxed to the defendant, Eddie Williams,

for which execution may issue if necessary.




                                         __________________________________
                                         RILEY ANDERSON, CHIEF JUSTICE


CONCUR:

Drowota, Reid, Birch and White, JJ.




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