Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 9, 2014
Appeal from the Criminal Court for Davidson County No. 2013B1414 Cheryl A. Blackburn, Judge
James O. Martin, III, Nashville, Tennessee, (on appeal); and Andrew Beasley, Nashville, Tennessee, (at trial), for the appellant, Gary D. Scales.
Herbert H. Slatery, III, Attorney General and Reporter; Benjamin J. Ball, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P. J., delivered the opinion of the Court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
At approximately noon on June 2, 2012, Charles Dubuisson was driving on Jefferson Street in heavy traffic when he witnessed Defendant grab the victim, who was walking with a cane, and take him to the ground. He also noticed that Defendant put both hands in the victim's front pockets and took something out. Defendant then "stood up, walked stiff armed and looked around a few times, and then walked at a very fast pace away." Mr. Dubuisson testified that he watched Defendant walk past a tent toward the back of the Family Dollar building. Mr. Dubuisson also saw a white female with strawberry blonde hair who appeared to be with Defendant. Mr. Dubuisson used his cell phone to call police. He returned to the scene and spoke with an officer. Mr. Dubuisson later identified Defendant from a photographic line-up. He also identified Defendant at trial. Mr. Dubuisson testified that he attempted to identify the female from a photographic line-up. He picked out a photograph but later called police and told them that he had picked the wrong woman from the line-up. Mr. Dubuisson testified that he did not pay as much attention to the woman as he did Defendant at the time of the robbery. He was "very sure" of his identification of Defendant.
Officer Michael Evans of the Metropolitan Nashville Police Department testified that he was dispatched to a robbery call at approximately 12:15 p.m. on June 2, 2012, involving the victim, Sam Bolden. Officer Evans noticed that the victim appeared to be disheveled, and he thought that there was a cut on the victim's elbow so Officer Evans called for an ambulance. He said that the area was located "probably 150 yards west of the Captain D's" on Jefferson Street. Officer Evans knew the victim, and he testified that the victim usually walked with a cane. He said that the victim had been arrested from time to time for public intoxication and disorderly conduct. Officer Evans learned that four-hundred dollars was taken from the victim during the robbery. He also spoke with a witness at the scene by the name of Mr. Dubuisson. Officer Evans took a report and forwarded the case to a detective.
The sixty-six year old victim, Sam Bolden, testified that on June 2, 2012, he was eating at the Captain D's located "there at 10th, 11th and Jefferson" across from Taco Bell. He noticed that a cashier in the restaurant was threatening to call police on Defendant and Defendant's girlfriend, Bonnie Hall, because they did not pay for their food. He said that he had never seen Ms. Hall before but he had seen Defendant. Mr. Bolden told the cashier not to call police, and he paid for the couple's food. He noted that he had a "roll" of money on his person of approximately three or four hundred dollars.
Mr. Bolden testified that when he left Captain D's, he noticed Defendant standing behind the door, and Defendant began walking behind him. He said,
And [Defendant] bear hugged me where I couldn't reach down in my pockets, and he couldn't reach his hand down 'cause he couldn't pull my roll of money out and he couldn't get a fist outta there, either. That's the only way he can get his hand out, and he couldn't get his hand out. So he tossed me on the sidewalk and I skinned my legs up. And so I had my cell phone with me and I called the police. And the police caught him down the street, down on 10th and Jefferson down in that area. And they caught him and they brought him back up there. And so, yeah, that's him right there. That's him.
The victim testified that Defendant took the money out of his pockets while he was on the ground.
On cross-examination, the victim testified that he had frequently seen Defendant while walking up an down Jefferson Street. Concerning Defendant's identity, the following exchange took place:
Q. Do you see the person who robbed you in court today?
A. Do I see him? Uh, well. I, yeah.
Q. What do you mean yeah?
A. Yes, I see him. That look like him right over there. He's in the family.
Q. When you say it looks like him - -
A. He's in the family but, you know. He came, used to come up there and eat Larry's food and, you know, and sometimes spend the night up there, him and his old, his girlfriend. She's real tacky, on the tacky side. They stayed ...