Assigned on Briefs February 3, 2015.
Appeal from the Circuit Court for Hardin County No. 9649 C. Creed McGinley, Judge.
Guy T. Wilkinson (on appeal), District Public Defender, Camden, Tennessee; and Benjamin S. Harmon (at trial), Savannah, Tennessee, for the Defendant-Appellant, Gerald Stephen Cassell.
Joe L. Brown, Savannah, Tennessee, for the Defendant-Appellant, Brian James Beckwith.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Hansel J. McCadams, District Attorney General; and Ed N. McDaniel, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.
CAMILLE R. MCMULLEN, JUDGE.
This appeal stems from the robbery of Livingston's Jewelry in Savannah, Tennessee by two individuals on the afternoon of April 16, 2012. The Hardin County Grand Jury jointly indicted Cassell and Beckwith after they were implicated in the robbery. Prior to trial, both Defendants filed motions to suppress identification evidence and to preclude eyewitness testimony regarding identification.
William Bell testified that he was previously a police officer in Maryland for about twenty-four years before retiring and moving to Hardin County, Tennessee. On April 16, 2012, he and his eleven-year-old daughter were in Livingston's Jewelry when an armed robbery occurred. He said that he "got a good look" at one of the men whose face was uncovered when the man entered the store. Bell further stated that he "got a very good look" at the other man who first entered the store with his face covered up to the nose, but whose face was later uncovered when he left.
As the men were leaving, one man asked Bell and store owner Randy Livingston for their car keys. Bell then obtained a handgun from Livingston and pursued the men. Bell said that he recognized the men from the jewelry store but not because of photographs that had been shown to him by the police. Bell stated that he observed the two men as they entered the store, while they were in the store, and when they left. He identified the Defendants as the men who had robbed the jewelry store.
During cross-examination by Cassell's attorney, Bell said that he was involved in many robbery investigations while he was a police officer in Maryland. Prior to this incident, he had been in Livingston's Jewelry once before. On the day of the robbery, he and his daughter were in the back of the store near the cash register. Bell said that it was immediately apparent that the men were robbing the store because the man with the covered face had a gun in his hand and the other man had a bag. Bell said that the two men were in the store for about five minutes, and he observed them the entire time. He testified that he stared directly at both men because they kept ordering him to keep his hands on his head.
On the day of the incident, Bell provided a statement to police and was shown some photographs. He could not recall during the hearing whether he identified both individuals from a photographic lineup on the day of the robbery or on the following day. He agreed that the Savannah police showed him a still photograph from a Walmart surveillance video of just the two suspects, but he was unsure whether he was shown that picture before or after the photographic lineup. When he was shown the Walmart picture, the police asked him if he could identify the men. The police did not tell him that the two men in the photograph were the robbery suspects. He denied that he saw pictures of the Defendants on television or in the newspaper. Bell believed that both Defendants were included in the same photographic lineup. He said he could identify the Defendants' faces, but he did not know their names.
During cross-examination by Beckwith's attorney, Bell said that he could see the suspects through both his direct and peripheral vision. He stated that the unarmed man approached him several times and told him to keep his hands on his head. He said that the other man did not have his face covered with a shirt the entire time, and he observed the man's face multiple times while the man was near the safe. Bell agreed that he had identified pictures two and five from a lineup of six photographs with 100 percent certainty. He testified that he did not pay attention to the background of the pictures in the lineup.
After the State's proof, Cassell's attorney called Officer T.J. Barker, a twenty-one year veteran of the Savannah Police Department. Officer Barker investigated the instant robbery at Livingston's Jewelry, interviewed Bell and Livingston, and spoke to witnesses who saw a small red car leave the scene. On April 17, he took a statement from Bell at the police department, showed him surveillance photographs from WalMart, and asked Bell if he recognized the two men. The police had obtained photographs from Walmart because the robbery suspects left duct tape at the crime scene, and some duct tape had been stolen from Walmart that day. These still photographs from Walmart were released to the media and depicted the Defendants entering the store as well as their clothing and vehicle.
Officer Barker acknowledged that Bell returned to the police station on April 23, 2012, to view a lineup of six photographs. He agreed that Bell had already viewed the Walmart surveillance photographs of the two Defendants. Officer Barker compiled the lineup based on the description of the robbery suspects, and he used photographs of men with very short dark hair as well as men with light hair. While compiling the lineup, he did not notice a difference between the backgrounds of the two suspects and the other four men. Officer Barker thought the photographs were "pretty close, " and he advised the witnesses that the lineup may or may not include photographs of the guilty parties. He agreed that Bell identified only one suspect on the day of the robbery and then identified both men the following day based on the Walmart photographs. He said that the lineup consisted of color photographs.
Following the hearing, the trial court made oral findings and denied the motion to suppress. The court concluded that the identification procedure was not unduly suggestive and that the identification was reliable under the totality of the circumstances.
Randy Livingston testified that he had owned Livingston's Jewelry in downtown Savannah, Tennessee for the past thirty-five years. On April 16, 2012, he was estimating the cost of a ring repair for William Bell and Bell's minor daughter when two men entered the store. The man who was armed with a gun said, "'This is a robbery. Everybody on the floor.'" After Bell and his daughter were on the ground, the unarmed man began removing diamond jewelry from the floor cases, and the armed man demanded that Livingston open the safe. Livingston complied and gave the man a money clip with $200. The man also took some scrap gold from the safe and about $700 from the cash register. The robbers continued to remove items from behind the jewelry counters and placed them in a canvas tent bag. Livingston estimated that the men were in the store for five minutes.
Livingston stated that he had never experienced a robbery at his business before and that he had installed video surveillance after the incident. He cooperated with the robbers because he was concerned for the safety of his customers. When the robbers left, Bell identified himself as a retired police officer and asked for a firearm, which Livingston gave him. Livingston immediately called the police as Bell chased after the men. He said that Bell later returned with the robbers' bag. Livingston valued the jewelry inside the bag to be worth almost $27, 000. However, he never recovered any of the cash or three bracelets valued at around $560. He identified the Defendants in court as the men who, "[w]ithout a doubt, " robbed his store on April 16, 2012.
During cross-examination by Cassell's attorney, Livingston said that the robbers produced "an automatic weapon" as soon as they entered the store. He did not believe that the men wore gloves, though he stated that he paid more attention to the gun and to their faces than to their clothing. He said that he was not on the floor for long because the men ordered him to open the safe and the cash register. Livingston stated that the two men had close-cropped hair and were about five feet and nine inches tall. He said that the armed man was wearing a cap and had his T-shirt pulled up over his face, but his face was only briefly covered. The unarmed man was wearing sunglasses. He testified that he "got a very good look at them." Livingston agreed that he provided a police statement on April 16 but stated that he was testifying from firsthand experience. He told the police that he was not certain about clothing but that he paid attention to the facial structure of the men. He acknowledged that he might have initially told the dispatcher that one of the men had a bandana or handkerchief over his face, but he testified that the man's face was covered with a pulled-up T-shirt. Livingston said that he never identified the robbers from any pictures, though he identified them at a preliminary hearing. He agreed that he saw Walmart photographs of the Defendants. During cross-examination by Beckwith's attorney, Livingston testified that the preliminary hearing occurred a year ago and that only Cassell was present.
William Bell provided the same testimony as he did at the hearing on the motion to suppress. In addition, he said that he began his law enforcement career as a patrol officer and spent several years as a detective, a K-9 officer, and an undercover narcotics officer. He agreed that his training enabled him to recognize individuals better. He stated that the armed robbery occurred at around 3:40 p.m. on April 16, 2012, because he had just picked his daughter up from school, and they went directly to Livingston's Jewelry. The man who "was holding a semi-automatic stainless steel revolver" ordered Livingston to open the safe, and the other man took pieces of jewelry from the cases and put them into a blue bag. Bell could clearly see the unarmed man because his face was uncovered and because they spoke to each other after the man repeatedly asked him to keep his hands on his head. The armed man had his lower face covered to the tip of his nose when he entered the store, but Bell could clearly see the man's face as he left because his face was uncovered. He said he "made a lot of eye contact" with the armed man because he was concerned with how the robbery would end. Bell concentrated on the facial features of the suspects due to his law enforcement training and because he feared for the safety of his young daughter. He stated, "[I]f someone points a weapon at my eleven-year-old daughter, it's a face I'm going to remember." He identified the Defendants in court as the perpetrators of the robbery and said he had "absolutely" no doubt in his mind.
Bell further testified that when he confronted the unarmed man with the bag outside of the store, the suspect ran away. The man then slipped and dropped his bag and continued running past some restaurants. After the robbers disappeared from view, Bell recovered the bag and returned to the store. On the evening of the robbery, the police showed him some photographs. The following day, the police showed him a picture of two men entering Walmart and asked if he could identify them. Bell said he recognized the men in the picture as the robbery suspects. The Walmart photograph was time-stamped "4/16/2012 14:14:37" and was admitted into evidence.
During cross-examination by Cassell's attorney, Bell agreed that he told police that the perpetrators were "white males, mid-twenties, thin build[.]" He did not recall describing the robbers' hair or clothing. He disagreed that his description was vague because articles of clothing could be discarded or altered. Bell denied that he had difficulty seeing the robbery suspects while he was kneeling on the floor. He agreed that the police showed him Walmart surveillance photographs of the Defendants. However, he disagreed that the police asked him, "Are these the guys?" Bell acknowledged that he was shown a photographic lineup of six individuals at a later date. During cross-examination by Beckwith's attorney, Bell stated that he observed the man whose face was no longer covered for about fifteen seconds. He believed that he first identified the other suspect during the photographic lineup. He was only aware of two robbery suspects.
Christy Shelby and Kamela Hill were parked outside of Livingston's on the day of the offense. Each witness testified that at around 3:30 or 4:00 p.m. they observed two men run out of the jewelry store. Shelby saw one man with the duffle bag run into the middle of the road and then drop the bag there. She then observed another man exit the store with a gun at his side. Shelby did not recognize the two men at the time, but she later saw their picture in the newspaper and identified them as the individuals who had robbed the jewelry store. Hill observed that the men were dressed oddly for a hot day and thought to herself, "[H]e looks just like somebody who would be a robber on TV." She noticed that one man had a large, dark duffle bag. She watched as he darted through the parked cars and crossed the street. Hill then saw Bell exit the store and yell across the street. When she turned around, she saw the bag in the middle of the road and the suspects leaving through the alley. She later saw pictures of the two men in the newspaper.
On cross-examination, Shelby stated that the two men who exited Livingston's Jewelry were running quickly. She did not observe any individual looking into the window of a vehicle. She agreed that the third man who left the store was also running. Shelby did not recall seeing the two suspects with a gun, though she did observe the third man with a gun at his side. In her police statement from the day of the robbery, she described the men as wearing a hat, sunglasses, and long sleeves. She saw several photographs at the time, but they were not pictures from Walmart. Shelby did not know why her police statement was dated April 18, 2012. Hill said that she did not notice the first suspect, but she did see the second man walking quickly. She said that he was definitely wearing a hat and sunglasses. She stated that the men were about to run across the street when Bell yelled for them to stop. She agreed that the newspaper picture was next to an article about the robbery suspects.
Jamie Franks was also parked near Livingston's Jewelry on the day of the offense. He testifed that while he was in his truck, he observed two suspicious men running from behind the building. They appeared to be out-of-breath and paused for a few seconds to speak to each other. Franks observed one of the men remove his hat and throw it on the ground. They fled the scene in a red Pontiac Grand Am that was parked there. The vehicle did not have a Tennessee license plate. Franks heard sirens and saw a police car drive by, but he did not know what had happened. On cross-examination, Franks said that the two men were about twenty yards from his truck. He did not recall seeing either man wearing any sunglasses or bandanas. He said that the men were in their mid-twenties and were about five feet and eight or ten inches tall. He did not clearly see their faces.
Investigator Timmy Keen of the Savannah Police Department testified that he responded to an armed robbery call at Livingston's Jewelry on April 16, 2012. After he arrived at the scene, Bell provided him with a blue tent bag that contained jewelry and other items, including two rolls of duct tape. On cross-examination, Investigator Keen said that on the day of the robbery, he secured the crime scene, interviewed some witnesses, and contacted Walmart. The police obtained formal statements from witnesses on the following day.
In a bench conference, Cassell's attorney objected to any testimony from Walmart employee Jeanie Coffman regarding the contents of a surveillance video from the store, asserting a violation of the best evidence rule. The trial court overruled the objection and held that the defense could renew the objection during the witness's testimony. Jeanie Coffman, the loss prevention manager at the Walmart store in Savannah, testified that on April 16, 2012, Investigator Keen contacted her and asked if the store was missing any rolls of duct tape. When she advised the police that there were two rolls missing, Investigator Keen asked her to determine who had taken the tape. Coffman reviewed the surveillance videos from the store's security cameras and created numerous still photographs from the recordings. She identified photographs from April 16, 2012, of two individuals in the Walmart parking lot and inside the store. There were also photographs of a red car in the parking lot, and the earliest photograph was time-stamped "14:12:59, " or 2:12 p.m. Coffman said that she selected still photographs of these two individuals because she reviewed the video surveillance and saw them shoplift duct tape. The Walmart photographs were admitted into evidence as a collective exhibit.
On cross-examination, Coffman conceded that the surveillance photographs did not include any pictures of duct tape. She said that the duct tape was shown in the video recording, which was not available at trial. She testified with 100 percent certainty that the two missing rolls of duct tape from Walmart were the same as the duct tape recovered from Livingston's Jewelry. She said that the duct tape was Gorilla brand and had a different size, color, and label from the other duct tape that was sold at Walmart. Coffman filed a police report for the missing duct tape, though the matter was never prosecuted. She acknowledged that other stores in Savannah might also sell Gorilla brand duct tape.
Officer T.J. Barker of the Savannah Police Department testified that he became involved with the robbery investigation on April 17, 2012, because he had the day off on April 16. He recalled that the police released the Walmart surveillance photograph to the local media on April 18 or 19. Officer Barker did not learn the names of the two individuals in the photograph until April 23. At that point, he compiled a photographic lineup, which was shown to Bell at the police station. He said that Bell identified the two Defendants as the perpetrators. Officer Barker then issued warrants and entered them into a national criminal database. Cassell was later apprehended in Toledo, Ohio, and Beckwith was apprehended in Chicago, Illinois. On cross-examination, Officer Barker agreed that he showed the Walmart photograph of the two Defendants to Bell on April 17. On April 23, he asked Bell to review a six-person photographic lineup, and Bell identified the two Defendants as the robbers. He said ...