Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 12, 2014
Appeal from the Criminal Court for Davidson County No. 2011-B-1707 Steve R. Dozier, Judge
Jeffrey A. DeVasher (on appeal) and Jonathan Wing (at trial), Nashville, Tennessee, for the Defendant-Appellant, Narrell Christopher Pierce.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.
CAMILLE R. McMULLEN, JUDGE
This appeal stems from the attempted robbery of Lewis Street Market on March 15, 2011. The Defendant was implicated in the incident and subsequently indicted by the Davidson County Grand Jury for attempted aggravated robbery, especially aggravated kidnapping, attempted first degree murder, employing a firearm during the commission of or attempt to commit a dangerous felony, possession of a handgun by a convicted felon, and theft of property. Upon the State's motion, the trial court dismissed the especially aggravated kidnapping charge and the theft of property charge.
Prior to trial, the Defendant filed several pretrial motions to suppress (1) the victim's identification testimony, (2) evidence obtained as a result of the Defendant's arrest, and (3) evidence obtained pursuant to a search warrant. Specifically, he argued that the identification procedures and circumstances surrounding the photographic lineup identification were "so inherently suggestive that they gave rise to an irreparable risk of misidentification" and that any later identifications were tainted by the initial identification procedures; that the arrest warrant for the Defendant's arrest contained false information; and that the search warrant for the Defendant's Lexus and cellular phone did not establish probable cause.
At the suppression hearings, held on August 28 and September 5, 2012, Anthony Wilfert testified that in March 2011, he was a detective with the Metropolitan Nashville Police Department ("NPD"). On March 15, 2011, he responded to a report of a robbery and shootout at the Lewis Street Market. Detective Wilfert met with the victim, Kamil Alakabi, who described the two suspects as African American males. Detective Wilfert also viewed the Lewis Street Market's surveillance video and located shell casings throughout the building.
During his investigation, Detective Wilfert developed the Defendant as a possible suspect and compiled a photographic lineup that included the Defendant. The software used to compile the lineup arranged the photograph of a suspect with five other people matching the description of the suspect. Detective Wilfert entered data for height range, facial hair, race, hair length, and hairstyle consistent with the Defendant. Detective Wilfert then met with the victim to show him the lineup. Prior to showing the victim the lineup, Detective Wilfert advised him that there was no significance to the order of the photographs in the lineup and that he should not assume that the lineup contained a photograph of the suspect. The victim signed a standard police department form indicating that he understood the procedures. Detective Wilfert also told the victim that he could take as much time as he needed to make an identification and that he should not make an identification unless he was "absolutely certain" about his identification.
The victim looked at the lineup for several minutes, and Detective Wilfert "advised him if it were easier[, ] . . . to discard those that he knows it is definitely not and to focus on individual photos that he may be comparing." The victim told Detective Wilfert that he was "definitely sure" that four of the photographs did not depict the suspect and that he was still comparing two photographs. Detective Wilfert advised the victim again that "he need[ed] to be absolutely certain that if he cho[se] one, that it was the person that came into his store." The victim then identified photograph number 3, which depicted the Defendant, and stated, "Number 3 looks like him; all others don't resemble him." Detective Wilfert told the victim that he needed to be "100 percent sure" that he identified the correct person, and the victim responded, "That's him, none of the others were him." Detective Wilfert recorded the victim's statement on the identification form in the victim's presence, and the victim signed the form to acknowledge it as his statement.
Based on the victim's identification, Detective Wilfert obtained an arrest warrant for the Defendant. In the affidavit for the arrest warrant, Detective Wilfert indicated that the victim "positively identified" the Defendant as the gunman. The application also stated that Detective Wilfert had compared the Defendant's photograph with the surveillance video, and the gunman appeared to be the Defendant. Detective Wilfert acknowledged that the victim did not state that he was "positive" when he identified the Defendant. He explained that the phrase "positive identification" was used in the police department to mean that a witness chose one of the six photographs in the lineup without assistance or guidance from anyone, and the detective verified that the witness was "certain" that he identified the person who committed the crime. Based on his conversations with the victim, Detective Wilfert believed that the victim positively identified the Defendant. After the Defendant's arrest, Detective Wilfert also obtained a search warrant for the Defendant's vehicle and cellular phone.
On cross-examination, Detective Wilfert agreed that he initially had no suspects in the case and that he released the surveillance video to local news outlets and received a tip that led him to the Defendant. He also agreed that the victim gave an initial description of the suspects to the responding officer and could not recall whether he compared this description to the description he received from the victim. Detective Wilfert insisted that he did not assist the victim in selecting a particular photograph in the lineup and noted that he verified that the victim was "certain number three is it."
Kamil Alakabi, the owner and operator of Lewis Street Market, testified that on March 15, 2011, two men attempted to rob his store at gunpoint. The victim recalled that at approximately 9:00 p.m. that evening, he was organizing the shelves in his store with one of his employees when two men, later determined to be the Defendant and Travis Bowman, entered the store. They walked directly towards the victim, and the Defendant put a gun in his face. The victim grabbed the gun, and the Defendant punched him and knocked him to the ground. The two men then approached the other employee, and the victim retrieved his own gun. The Defendant fired several shots at the victim, and the victim returned fire. The two men then ran out of the store and fled the scene. The victim immediately called the police to report the incident. He described the suspects and viewed the surveillance video with the responding officers.
The victim recalled being shown a photographic lineup by police and identifying the Defendant as the gunman. He said that he told Detective Wilfert that he was "50 percent sure that's him." He agreed that Detective Wilfert reviewed the procedure forms with him prior to showing him the lineup and that he signed the forms indicating that he understood the procedures. He also agreed that he placed his initials by photograph number 3 and stated at the time, "Number 3 is most like him; the others don't resemble him." The victim attended a subsequent court hearing and identified the Defendant as the man who shot at him and attempted to rob him. He again identified the Defendant as the perpetrator during the suppression hearing.
On cross-examination, the victim agreed that he had never seen the Defendant prior to the robbery. He also agreed that the gunman wore sunglasses and a hat, making it harder to see him, and that the gunman pulled out his gun very quickly and surprised the victim. He recalled that the entire incident happened very quickly and was over within one or two minutes. The victim reiterated that he told Detective Wilfert he was "50 percent certain" that the photograph he selected depicted the gunman. He agreed that seeing the surveillance video and subsequent photographs made him more certain that he had selected the man who shot at him.
Following the hearing, the trial court took the matter under advisement and issued an order on October 4, 2012, denying all three motions.
The victim's testimony at trial was largely consistent with his testimony at the suppression hearing. He clarified that after being knocked to the ground by the Defendant, the Defendant and Mr. Bowman approached the victim's employee and held a gun to his face. While the perpetrators focused their attention on the other employee, the victim retrieved a nine millimeter handgun from his pocket. Before he could fire any shots, however, the magazine fell out of his gun, and the Defendant began firing his own weapon at the victim. The victim retrieved the magazine and returned fire. The Defendant then continued to shoot at the victim while he and Mr. Bowman fled the store. After the perpetrators fled the store, the victim called 911. Police responded to the scene, interviewed the victim, and collected evidence at the store. During their investigation of the scene, officers collected one 40-caliber cartridge case. Two more 40-caliber shells were later discovered by the victim and collected by NPD officers. The victim also provided police with the surveillance video that captured the incident and turned over his gun for analysis. Several days after the shooting, the victim identified the Defendant in a photographic lineup as the gunman who attempted to rob his store.
Detective Wilfert's testimony was likewise consistent with his testimony at the suppression hearing. As the lead detective assigned to the case, he met with the responding officers and interviewed the victims. The police department's surveillance unit retrieved the surveillance video from the victim's store and released it to local news stations. Several days later, Detective Wilfert received a tip that led him to develop the Defendant as a suspect. He compiled a photographic lineup and showed it to the victim, who identified the Defendant as the gunman. Detective Wilfert obtained an arrest warrant for the Defendant, and the Defendant was arrested the following day, March 18, 2011, at his mother's residence as he exited his vehicle. Inside of the vehicle, police discovered a handgun under the driver's seat. A fingerprint lifted from the gun matched the Defendant, and forensic analysis by the Tennessee Bureau of Investigation revealed that this handgun fired the .40 caliber casings recovered from the Lewis Street Market.
After the Defendant's arrest, police seized the Defendant's vehicle and cellular phone, and Detective Wilfert obtained a search warrant for both pieces of property. Upon searching the Defendant's car, police officers discovered a blue baseball cap, two pairs of sunglasses, and a magazine for a Glock .40 caliber pistol. A series of text messages were recovered from the Defendant's cellular phone and read into evidence. These messages discussed the Defendant taking a "major loss" on his money and having a "near-death" experience as a result of a "shootout."
Travis Bowman, the Defendant's cousin, testified that he was the other individual that entered the Lewis Street Market with the Defendant on March 15, 2011. Earlier that evening, they met two other men at an apartment complex in east Nashville, and all four left together in a white Pontiac. Mr. Bowman recalled that during the car ride, the Defendant and the driver of the Pontiac discussed "some money" and said they "needed money." Mr. Bowman claimed, however, that he did not know the Defendant intended to rob the Lewis Street Market. The driver pulled into Lewis Street Market, and the Defendant exited the car and walked towards the store. While looking for his money clip, Mr. Bowman found a handgun on the floorboard of the car and asked the other two passengers whether they had dropped anything. The driver told Mr. Bowman, "[N]o, that's for you. . . . [Y]ou need to get out and help your cousin."
Mr. Bowman exited the vehicle and told the Defendant to "let this go, " but the Defendant responded, "I got this, " and entered the store. Mr. Bowman followed the Defendant into the store. The Defendant approached the owner and "wrestled [him] to the ground, pulled out the gun, and hit him a few times." As the Defendant approached a second employee in the store, the owner retrieved a gun and "shots began." Mr. Bowman testified that the Defendant shot his weapon first, and the owner returned fire. Mr. Bowman did not fire his gun in the store. The Defendant and Mr. Bowman fled the store and left the scene in the white Pontiac. Mr. Bowman put the gun back on the floorboard of the car and was dropped off at his home. The Defendant told him to "lay low, . . . don't say anything, . . . everything will be alright." Several days later, Mr. Bowman was contacted by police regarding his involvement in the incident.
On cross-examination, Mr. Bowman acknowledged that he had been indicted on a number of counts related to the attempted robbery and, if convicted, would face a lengthy prison sentence. He agreed that he hoped his cooperation with authorities would help him receive a better sentence but denied that he had received any promises in exchange for his testimony. He conceded that after the attempted robbery, he did not contact the police and lied to his family about his involvement. He maintained that he did not know the Defendant intended to rob Lewis Street Market until they pulled into the parking lot and agreed that the Defendant never talked about hurting anyone prior to entering the store.
The State also introduced into evidence recorded phone calls that the Defendant made from the county jail and played them for the jury. In one of those phone calls, the Defendant stated,
[T]ell her I said man, tell Travis to shut the f up. I don't know what the hell he– just tell her man, they can't – just tell her like this: tell her Chris said the case is beat and she should've took [sic] her a** to court and she would've knew [sic] the case was beat.
In another phone call, the Defendant stated,
Man, how 'bout this, man. My momma done [sic] told me Travis done [sic] ran his mouth with some more sh**.
. . .
Oh, and – and Trav? I swear to God, they better keep his a** in PC. They can record this call or whatever. They better keep his a**- wherever the f he at [sic], they better keep him where he at [sic].
Detective Wilfert testified that he understood these phone conversations to be a possible threat directed towards Mr. Bowman, and he notified the Davidson County Sheriff's Office about his concerns.
The State rested its case and the defense did not present any proof. Following deliberation, the jury convicted the Defendant of attempted aggravated robbery, attempted second degree murder, employment of a firearm during the commission of a dangerous felony, and unlawful possession of a handgun by a felon.
Following a sentencing hearing on October 3, 2013, the trial court took the matter under advisement and issued an order on November 2, 2013, sentencing the Defendant as a career offender to 51 years' confinement. On November 25, 2013, the Defendant filed a timely motion for new trial, which was denied by the trial court on December 12, 2013.
It is from this order that the Defendant now appeals.
I. Motions to Suppress. The Defendant argues that the trial court erred in denying his motions to suppress (1) the victim's identification testimony, (2) evidence obtained as a result of the Defendant's arrest, and (3) evidence obtained pursuant to a search warrant. The State asserts that the motions to suppress were properly denied.
It is well-established that "'a trial court's findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.'" State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The Tennessee Supreme Court explained this standard:
Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. So long as the greater weight of the evidence supports the trial court's findings, those findings shall be upheld.
Odom, 928 S.W.2d at 23. However, this court's review of a trial court's application of the law to the facts is de novo with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).
A. The victim's identification testimony.
The Defendant argues that the trial court erred in denying his motion to suppress the victim's photographic identification of the Defendant and any subsequent identification testimony by the victim. He asserts that the photographic lineup procedures used by police were so suggestive as to create an irreparable likelihood of misidentification and that any subsequent identification by the victim was tainted by the initial identification procedures.
Our analysis of this issue is based upon the United States Supreme Court holdings in Simmons v. United States, 390 U.S. 377 (1968), and Neil v. Biggers, 409 U.S. 188 (1972). In Simmons, the Court held that "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384; see also State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998). The risk of an eyewitness making an incorrect identification is greater if the police show the eyewitness a lineup where a single photograph "is in some way emphasized." Simmons, 390 U.S. at 383. In addition, the risk of misidentification increases "if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime." Id. This court has noted that "a lineup would be considered unduly suggestive only when the other ...