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State v. Bowen

Court of Criminal Appeals of Tennessee, Jackson

November 15, 2016

STATE OF TENNESSEE
v.
ALPHONSO BOWEN

          Assigned on Briefs April 12, 2016

         Appeal from the Criminal Court for Shelby County No. 1201162 Lee V. Coffee, Judge

         Defendant, 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 trial court.

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

          Stephen Bush, District Public Defender; Trent Hall, Assistant Public Defender, and Phyllis Aluko, Assistant Public Defender, Memphis, Tennessee, for the appellant, Alphonso Bowen.

          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 of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Facts

         Ibsitu 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.

         Ms. 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 clothing.

         Ms. 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."

         Officer 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 trial.

         On the 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.

         Officer 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.

         Nathan 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.

         Carrie 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.

         Defendant 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."

         Analysis

         Hearsay

         Defendant 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.

          During 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.

         Following 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 the investigation.
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.

         A trial 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 (2015).

         "Hearsay" 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.

         When an 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 ...


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