           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 Assigned on Briefs June 29, 2010

      STATE OF TENNESSEE v. NAPOLEON STEPHAN MEREDITH

               Direct Appeal from the Criminal Court for Davidson County
                       No. 2008-C-2378   Cheryl Blackburn, Judge




                    No. M2009-01428-CCA-R3-CD - Filed March 30, 2011


A Davidson County Criminal Court Jury convicted the appellant, Napoleon Stephan
Meredith, of two counts of aggravated robbery. The trial court imposed a total effective
sentence of nine years in the Tennessee Department of Correction. On appeal, the appellant
argues that the trial court erred in failing to allow the appellant to be viewed from a close
distance by the jury and that the error forced him to relinquish his Fifth Amendment right not
to testify. Upon review, we affirm the judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

Caesar Cirigliano, Nashville, Tennessee, for the appellant, Napoleon Stephan Meredith.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Victor
S. Johnson, III, District Attorney General; and Jeff Burks, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                 OPINION

                                        I. Factual Background

      At trial, the victims, Belinda Louise Becerra and Jose Becerra,1 testified that they were
married but that in April 2008, because of marital difficulties, Mrs. Becerra was living with


       1
           Jose Becerra testified through an interpreter at trial.
her daughter at the Holly Hills apartment complex on Humbar Drive in Nashville. On April
26, 2008, the Becerras met at the apartment to discuss their marital problems. They went out
to eat, and, upon returning, Mr. Becerra parked in front of the apartment.

        The victims testified that as they sat in the car talking, a silver Ford Taurus parked
behind them. Two black males, one of whom they identified as the appellant, got out of the
Taurus and approached the driver’s side of Mr. Becerra’s car. The appellant told Mr. Becerra
“that this was a robbery, that he wanted the money.” The other perpetrator pointed a gun at
Mr. Becerra. Mrs. Becerra implored her husband to comply with the perpetrators’ demands.
        The victims said that the appellant “yanked” Mr. Becerra out of the car. The appellant
searched Mr. Becerra’s pockets while the gunman reached in the car and grabbed Mrs.
Becerra’s purse. The appellant took Mr. Becerra’s wallet, which contained his identification
and approximately $160. The appellant asked the gunman if he had “it,” meaning Mrs.
Becerra’s purse. When the gunman said he did, the perpetrators left. The victims said the
men walked away “like nothing ever happened.”

        The victims testified that after the perpetrators left, Mrs. Becerra ran to a neighbor’s
apartment, borrowed a telephone, and called police. When officers arrived, Mrs. Becerra
recounted the events. She described the appellant as a black male with shoulder-length
braids. She said he had red beads in his hair and was wearing blue jean shorts and a white
t-shirt. She also described the perpetrators’ car, including the license plate number. She
testified that she did not recall giving the officers an estimate of the appellant’s height or
weight. Mr. Becerra testified that his wife did most of the talking because he had difficulty
speaking English; however, he agreed with the statements she gave.

        Patrol Officer Gerry Gann and Detectives Derry Baltimore and Daniel Henkel testified
that they responded to the scene after the robbery complaint. The officers recalled that in
addition to the description testified to by the Becerras, the victims also estimated that the
appellant was 5'10" tall and weighed approximately 170 pounds. The officers acknowledged
that the victims did not mention seeing any additional distinguishing features, such as a scar,
on the perpetrators.

      Officer Gann stated that after the Becerras described the encounter, he used the
computer in his patrol vehicle to research the license plate number given by the Becerras.
He then gave the detectives the information he obtained.

       Detectives Balitmore and Henkel testified that the young woman who was the
registered owner of the vehicle had been issued a traffic citation three weeks prior to the
incident. The detectives went to the address listed on the citation and discovered that it was



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an apartment complex. The detectives drove around the apartment complex and located a
silver Taurus with a license plate number matching the description given by the victims.

        The detectives said that after they located the vehicle, they parked nearby. After
fifteen minutes of surveillance, they saw two black females and two black males, one of
whom was the appellant, get into the Taurus. The detectives testified that the men matched
the descriptions given by the victims. The detectives followed as the appellant drove to a
Shell gas station. At the station, the detectives approached the vehicle and arrested the
appellant.

       Detective Henkel said that the next day, he visited the victims at Mrs. Becerra’s
daughter’s apartment. He showed the victims photographic lineups, and they both identified
the appellant as the perpetrator who took Mr. Becerra’s wallet. However, they were unable
to identify the gunman. At the end of the first day of trial, the State concluded its case-in-
chief.

        Thereafter, defense counsel asked the court to allow the appellant to stand close to the
jurors so they could observe a distinctive scar on his forehead. When the trial court noted
that the jury had been able to observe the appellant throughout trial, defense counsel stated
that “the victims saw him pointblank.” The trial court cautioned defense counsel that the
appellant would not be allowed to get that close to the jury but said that the appellant could
stand and face the jury or introduce a photograph of the scar.

        At the beginning of the second day of trial, defense counsel renewed his request. He
argued that the trial court’s denial of his request to have the appellant stand close to the jury
deprived the appellant of the right to present a defense. Counsel further argued, “This is an
identification case and I believe that it’s prejudicial [and] unfair . . . for the Jury not to have
the same view of [the appellant as the victims had].” The trial court again stated that it
would not allow the appellant to get “within two feet of the Jury.”

       As defense counsel continued to argue that the jury needed to see the appellant’s scar
because identification was important, he noted that he “cross examined the cops on it [but
there] was no identification of his scar.” Defense counsel then offered three alternatives to
the appellant standing close to the jury. First, he stated that the appellant could be shackled
under the front table while the jurors came by to look at him. The trial court denied this
request. Second, counsel stated that a video projection of the appellant’s face could be
shown on a screen to the jury. The court noted that it did not have the equipment to
accommodate counsel’s suggestion and denied this request. Third, counsel stated that he
took photographs of the appellant the previous evening. He asked that he be allowed to
submit the photographs, but he stated that if he did so, he would need to become a witness

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in order to authenticate the photographs. The court noted that defense counsel “should have
thought of that before [he] did it that way.”

       The court informed the appellant that he could stand “in the well” or that other
witnesses, such as friends or family members, could be called to testify regarding the
appellant’s scar. The court also stated that the appellant could choose to testify about his
scar.

        Following the trial court’s denials of his requests, the appellant chose to testify. The
appellant told the jury that he had a “gigantic” scar after an incident two years before
required him to have twenty-six stitches on the left side of his forehead. He acknowledged
that he had a prior conviction for misdemeanor theft. He said that he was in the Taurus when
he was approached by the detectives but that he had no involvement in or knowledge of the
robbery.

       Based upon the foregoing, the jury found the appellant guilty of the aggravated
robbery of Mrs. Becerra and the aggravated robbery of Mr. Becerra. The trial court imposed
a sentence of nine years for each conviction and ordered that the sentences be served
concurrently.

        On appeal, the appellant argues that the trial court erred by not allowing him “to be
viewed directly by the jury,” thereby depriving him of his right to present a defense. The
appellant contends that this error required him “to give up one right in order to exercise his
other right,” namely relinquishing his Fifth Amendment right against self-incrimination so
he could be viewed more closely by the jury.

                                         II. Analysis

       As the appellant correctly maintains, a criminal defendant has a right to present a
defense. This right is guaranteed by the Sixth Amendment and the Due Process Clause of
the Fourteenth Amendment of the United States Constitution. State v. Brown, 29 S.W.3d
427, 432 (Tenn. 2000). However, our supreme court has explained that this right is “not
absolute.” Id. (internal quotation marks omitted) (quoting Chambers v. Mississippi, 410 U.S.
284, 295 (1973)). Notably, the right may be tempered by “other legitimate interests in the
criminal trial process,” such as the need to “comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment of guilt and
innocence.” Id. (internal quotation marks omitted) (quoting Chambers, 410 U.S. at 295,
302). The right of an accused to present a defense is not abridged as long as the restrictions
are not “arbitrary or disproportionate to the purposes they are designed to serve.” Id.



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(internal quotation marks omitted) (quoting United States v. Scheffer, 523 U.S. 303, 308
(1998)).

       As we stated earlier, defense counsel asked that the appellant be allowed to stand “a
foot or two” in front of the jury so they could see that he had a distinctive scar on his
forehead which was never mentioned by the victims, calling their identification of the
appellant as the perpetrator into question. After the trial court denied the request, counsel
asked that the jury be allowed to come to the front table to see the appellant. When that
request was also denied, counsel asked that the appellant’s face be displayed on a projection
screen for the jury. The court refused, stating that the court did not possess the necessary
equipment. Finally, counsel asked that the photographs he took of the appellant the previous
afternoon be admitted but stated that he might have to testify in order to get the photographs
admitted as an exhibit. The court advised that the appellant could put on the desired proof
in other ways, such as by standing “in the well”; by having a witness, such as a friend or
family member, testify regarding the scar; or by having the appellant testify about his scar.
The appellant ultimately chose to testify. On appeal, the appellant argues that the trial court
erred by refusing to allow him to get close to the jury, thereby infringing upon his right to
present a defense, and that the error forced him to relinquish his right not to testify.

        The court denied the appellant’s request to stand close to the jury, citing safety
concerns. This court has previously held that “[t]he determination to allow the display of
body parts and physical traits to the jury is within the sound discretion of the trial court.”
State v. David Lee Richards, No. 03C01-9207-CR-230, 1993 WL 80536, at *3 (Tenn. Crim.
App. at Knoxville, Mar. 23, 1993) (citing State v. Davis, 706 S.W.2d 96 (Tenn. Crim. App.
1985)). Generally, a trial court’s decision not to allow such a display “will not be overturned,
especially where the jury had ample opportunity to view the defendant during the course of
the trial.” State v. Turner, 675 S.W.2d 199, 206 (Tenn. Crim. App. 1984). In the instant
case, the trial court noted that the jury had the opportunity to view the appellant throughout
trial. Therefore, we conclude that the trial court did not infringe upon his right to present a
defense by refusing his request to stand close to the jury.

        The appellant’s contention that the trial court essentially forced him to forfeit his Fifth
Amendment right against self-incrimination so that he could show his scar during his
testimony is similarly unavailing. Generally, the Fifth Amendment to the United States
Constitution and article I, section 9 of the Tennessee Constitution provide a privilege against
self-incrimination to those accused of criminal activity. See State v. Callahan, 979 S.W.2d
577, 581 (Tenn. 1998). The court advised the appellant that he could present proof about his
scar in a variety of ways, such as through photographs, the testimony of a friend or family
member, or the appellant’s testimony. Defense counsel took photographs of the appellant
but, upon stating that he might need to testify to have the photographs admitted as exhibits,

                                                -5-
counsel did not pursue this option. Additionally, the appellant chose not to present the
testimony of a friend or family member regarding his scar. The appellant also rejected
another option offered by the court by electing not to stand “in the well” which was closer
to the jury.

        We further note that the appellant could have asked the victims and/or the officers
about the scar on the appellant’s face during cross-examination. Although counsel elicited
on cross-examination that the victims did not mention the appellant had a scar, he failed to
point out that the appellant had a noticeable scar on his forehead. Finally, we again note that
the jury was able to see the appellant throughout the trial, albeit not in the manner desired by
the appellant. Considering the foregoing, we conclude that the trial court did not improperly
infringe upon the appellant’s Fifth Amendment rights. Cf. State v. Brandon Mobley, No.
E2006-00469-CCA-R3-CD, 2007 WL 1670195, at *14 (Tenn. Crim. App. at Knoxville, June
11, 2007) (stating that a defendant was not entitled to relief on Fifth Amendment grounds
when he felt “forced” to testify following the trial court’s exclusion of an expert’s testimony).

                                       III. Conclusion

        In sum, we conclude that the trial court did not err in denying the appellant’s request
to stand close to the jury and did not violate the appellant’s Fifth Amendment right against
self-incrimination by essentially “forcing” him to testify. Accordingly, we affirm the
judgments of the trial court.

                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE




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