Assigned on Briefs April 12, 2016
from the Criminal Court for Shelby County No. 1201162 Lee V.
Alphonso Bowen, was indicted by the Shelby County Grand Jury
for one count of aggravated robbery. Following a jury trial,
Defendant was convicted as charged. Following a sentencing
hearing, the trial court ordered Defendant to serve 12 years
in the Tennessee Department of Correction. In this appeal as
of right, Defendant raises the following issues for our
review: 1) whether the trial court erred by allowing
testimony regarding the hearsay contents of an anonymous
note; 2) whether the trial court erred by allowing the State
to impeach Defendant with evidence of a prior conviction; 3)
whether the trial court erred by allowing testimony in
violation of its ruling on a motion in limine precluding
discussion of Defendant's arrest; 4) whether the trial
court erred by asking questions of the State's expert
witness; 5) whether it was plain error for the trial court to
allow a lay witness to give an expert opinion regarding
Defendant's fingerprints; 6) whether the trial court
erred by excluding testimony by Defendant regarding a
photograph; 7) whether the evidence was sufficient to support
Defendant's conviction; and 8) whether the cumulative
effect of the trial court's errors require a reversal of
Defendant's conviction. Having reviewed the entire record
and the parties' briefs, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Stephen Bush, District Public Defender; Trent Hall, Assistant
Public Defender, and Phyllis Aluko, Assistant Public
Defender, Memphis, Tennessee, for the appellant, Alphonso
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Alexia Fulgham Crump,
Assistant District Attorney General, for the appellee, State
T. Woodall, P.J., delivered the opinion of the court, in
which Alan E. Glenn and Robert H. Montgomery, Jr., JJ.,
T. WOODALL, PRESIDING JUDGE
Ahmed testified that on June 24, 2011, she was working behind
the counter at Odaa Grocery, a small convenience store
located on Trigg Avenue, in Memphis. Ms. Ahmed testified that
at approximately 11:00 a.m., a man came into the store and
ordered a pizza. While Ms. Ahmed was talking to him, two
other men crouched behind the counter. One of the men pointed
a gun at Ms. Ahmed's head and demanded that she stay
quiet and show him the money. The gunman took the money from
the cash register. He also took a change jar, a small plastic
bag containing cash, and Ms. Ahmed's purse and keys. One
of the men pulled out a pack of cigarettes, causing others to
fall to the floor, and the gunman picked up some of the
packs. The gunman told her to lie down on the floor and then
left the store.
Ahmed testified that the gunman's face was covered, but
his face became uncovered when he moved around, and she
recognized him from his having been in the store previously.
Ms. Ahmed identified Defendant as the gunman in a
photographic lineup on July 20, 2011. Ms. Ahmed also
identified Defendant at trial, noting that "[h]e's
gained more weight, but it looks like it's him." Ms.
Ahmed was unable to identify Defendant at the preliminary
hearing. She identified another man sitting in the same group
of men as Defendant, and they were all wearing the same
Ahmed testified that Defendant did not return to the store
after the robbery and that when he had previously shopped in
the store prior to the robbery, Defendant did not purchase
"individual cigarettes[, ] [a]lways a pack."
Michael Giaccaglini, of the Memphis Police Department,
responded to the robbery call. He testified that Ms. Ahmed
was visibly shaken when he arrived. She described what
happened to Officer Giaccaglini. Officer Giaccaglini reviewed
the video recording from the surveillance camera. The video
showed one man enter the store and walk to the pizza counter.
Two other men then entered the store. One of the men produced
a gun and approached Ms. Ahmed behind the counter. He pointed
the gun at the victim. The other man reached over the counter
and took cash from the register and cigarettes. The gunman
took cigarettes and "things behind the counter."
Officer Giaccaglini testified that he was unable to obtain a
copy of the video recording because no one in the store knew
how to operate the recording device. The video subsequently
recorded over itself and was not produced as evidence at
following day, Officer Giaccaglini returned to the store
because the owner contacted him with new information
regarding the case. Officer Giaccaglini testified that the
owner of the store had received a note that contained three
nicknames. Officer Giaccaglini did not see the note. He
searched the names in the police database and developed
Defendant as a suspect in the robbery.
David Payment, of the Memphis Police Department, processed
the crime scene. Officer Payment dusted for fingerprints
around the areas the suspects may have touched, including the
cash register drawer and some of the packs of cigarettes
found on the floor. On one of the cigarette packs, Officer
Payment was able to lift a fingerprint for analysis.
Gathright, a latent print examiner for the Memphis Police
Department, analyzed the latent print and found a positive
match to a print of Defendant that was on file in the
Automated Fingerprint Identification System
("AFIS"). Mr. Gathright explained that when he
entered the print into AFIS it returned "respondents,
" or known prints on file via "an arrest number of
a number that's unique to the individual that it belongs
to." In Defendant's case, the number was a Shelby
County Sheriff's Office number.
Preston, of the Department of Records and Identification of
the Shelby County Sheriff's Department, took
Defendant's fingerprints on the second day of the trial
and compared them to prints that Mr. Gathright found through
AFIS. Ms. Preston also found them to be a match.
testified that he shopped at the Odaa Grocery every day.
Defendant frequently bought cigarettes and pizza at the
store. Defendant testified that he continued to shop at the
store after the robbery. Defendant explained why his
fingerprints were found on a pack of cigarettes. He testified
that Ms. Ahmed handed him the pack of cigarettes, but he only
wanted to buy three individual cigarettes out of the pack,
which he testified that he often did. Defendant denied that
he was involved in the robbery. He testified that he was
"a victim of mistaken identity."
contends that the trial court erred by allowing the State to
present testimony regarding the note containing the nicknames
of the alleged perpetrators. The State responds that the
testimony was not hearsay because it was not offered for the
truth of the matter asserted.
a jury-out hearing, Officer Giaccaglini testified that the
store owner contacted the police after he received a note
containing the nicknames of men who committed the robbery.
Officer Giaccagliani did not see the note. He input the names
into a police database and linked one of the nicknames to
Defendant. Defense counsel objected to the admission of the
testimony as hearsay for which there are no valid exceptions.
the jury-out hearing, the trial court ruled as follows:
In this case, the officer received information from the store
owner that says, I have, you know, some note with some names
on this that may have possibly been involved allegedly, and
based on his receiving that note, he searched the database
and was able to come up with the name of [Defendant], a
certain name, stated a certain date of birth and an address,
and as a result of that, it shows what he did and it shows
So the statements or these statements are not being offered
for the truth of the matter asserted, not being offered to
show those things that were allegedly contained on the note,
if there was, in fact, a note, but just to show what this
officer did, why he did it, and not to allow that information
- and the Court rules that it's not prejudicial towards
the Defendant, that the probative value is not substantially
outweighed by the danger of unfair prejudice, but it allows
this information to be placed in a contextual background. And
if that information is not, in fact, provided to the jury, it
would create a conceptual void and would allow the jury to
speculate unreasonably and perhaps prejudicially as to why
this officer did what he did and how he was able to link,
allegedly, this Defendant to this alleged aggravated robbery.
court's factual findings and credibility determinations
made in the course of ruling on a hearsay objection are
binding on a reviewing court unless the evidence in the
record preponderates against them. Questions of law,
including whether a statement was hearsay and whether it fits
under one of the exceptions to the hearsay rule, are subject
to de novo review. Kendrick v. State, 454 S.W.3d
450, 479 (Tenn. 2015), cert. denied, 136 S.Ct. 335
is defined as "a statement other than one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted."
Tenn. R. Evid. 801(c). A "statement" is "(1)
an oral or written assertion or (2) nonverbal conduct of a
person if it is intended by the person as an assertion."
Tenn. R. Evid. 801(a). Hearsay is not admissible except as
allowed by the rules of evidence or other applicable law.
Tenn. R. Evid. 802.
out-of-court statement is offered not for the truth of the
matter asserted but to explain an officer's actions, it
is not hearsay and its admission is not error. See State
v. Miller, 737 S.W.2d 556, 559 (Tenn. Crim. App. 1987).
This type of evidence, however, can be devastating to an
accused and could be the subject of great prosecutorial
abuse. Even if such evidence is not hearsay, a balancing test
should be applied and the probative value ...