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State v. Bumpas

Court of Criminal Appeals of Tennessee, Nashville

September 1, 2017

STATE OF TENNESSEE
v.
DEEWAINE MIKEL BUMPAS

          Session April 18, 2017

         Appeal from the Criminal Court for Davidson County No. 2013-D-2827 J. Randall Wyatt, Jr., Judge

         In October 2013, the Davidson County Grand Jury indicted the Defendant-Appellant, Deewaine Mikel Bumpas, in count one for aggravated robbery occurring on June 19, 2013; in count two for attempted aggravated robbery occurring on June 26, 2013; and in count three for aggravated robbery occurring on July 3, 2013. The trial court, at the State's request, severed counts one and two, and the parties proceeded to trial on count three. A jury subsequently convicted Bumpas, as charged, of the July 3, 2013 aggravated robbery, and the trial court imposed a sentence of twelve years at 85% release eligibility. See T.C.A. §§ 39-13-402, 40-35-501(k)(1). On appeal, Bumpas contends: (1) the trial court erred in denying his motion to exclude the photographic lineup and accompanying testimony; (2) the trial court erred in denying his motion to exclude the surveillance video and accompanying testimony; (3) the trial court abused its discretion in sustaining the State's objection to questions regarding Sergeant Williams' personnel record; (4) the trial court erred in denying his motion for a mistrial; (5) the evidence is insufficient to sustain his conviction; (6) the trial court imposed an excessive sentence; and (7) the trial court abused its discretion in denying his motion for new trial.[1] We affirm the judgment of the trial court.

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

          Celia Marie Stacey, Nashville, Tennessee, for the Defendant-Appellant, Deewaine Mikel Bumpas.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Amy Hunter and Addie Askew, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and John Everett Williams, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         Trial.

         Brittany Stokes testified that she was working at the Cash and Dash, a business offering cash advances as well as pay-day and title loans, when it was robbed at approximately 1:30 p.m. on July 3, 2013. Stokes said that at approximately 1:30 p.m. that day, she was helping a customer, Ronnie Barrett, with paperwork to renew his loan. As she assisted Barrett, a man whom she had never seen before entered and asked what he needed to do to obtain a pay-day loan. Stokes said this man did not "come all the way in the door, he just opened [it] and kind of leaned in and looked around, [and] he was asking questions [while] he was looking, like he was scanning the place." As this man peered in the door, Barrett gave Stokes several one-hundred-dollar bills to repay his old loan as well as a check for $240 to renew this loan, and Stokes gave Barrett two one-hundred-dollar bills. After Stokes told the unidentified man what was required for a payday loan, he left.

         Shortly thereafter, Jamie Calderon, the store manager, returned to the Cash and Dash. A few moments later, the robber entered the business. In addition to Stokes, Barrett, and Calderon, a state auditor named Robert Doyle was also present in the Cash and Dash during the offense. Stokes saw the robber "jump" up the stairs, which caused her to gasp, and she was able to see the robber's entire face for approximately thirty seconds. As the robber opened the door, he pulled a black bandana over his nose and mouth and raised his "small" gun. The robber pointed his gun at her and demanded that she give him money from the business. She stated that the robber was five feet, seven inches tall, weighed approximately 180 pounds, and had a light to medium complexion. She recalled that the robber was wearing a white hat, "black shorts" and a "long-sleeve . . . black shirt" made of "long[]john material" that had a "graffiti type thing on the front" with "thumb holes, " which she noticed because the robber had placed his thumbs through these holes.

         When the robber demanded money and pointed the gun at her head, Stokes opened the cash drawer in her desk, and the robber took "between $400 and $600, maybe more." Once he had emptied the drawer, the robber "demanded more money" and said he wanted the one-hundred-dollar bills he had seen. The robber told Stokes that if she "did what he said[, ]" she could "go home and see [her] kids that night." When he made this statement, the robber was only a few inches from her face, which allowed her to observe the portion of his face that was uncovered.

         When the robber took the money from Stokes's cash drawer, Doyle, the state auditor ran to the back of the store and got down on his knees and covered his head with his hands. The robber took Stokes to the back of the business and told her to go through the drawers for more money before demanding that Stokes and Doyle give him their wallets at gunpoint. Stokes said that because Doyle was wearing white pants, it was obvious that he did not have a wallet, and she asked the robber to leave him alone. Stokes also told the robber she did not have any money in her wallet, and when the robber insisted on more money, Stokes walked back to her desk and gave him two or three rolls of quarters, along with a bunch of loose quarters. As the robber walked out the door, he said, "Y'all have a good day." Stokes said the robber "walked down the steps, walked across the parking lot, jumped across the ditch, walked across Dickerson [Pike] and went right down Darbytown [Drive]." Once the robber left the store, Stokes called 9-1-1 and informed them of the crime.

         The police arrived a few minutes after the offense, and approximately an hour to an hour-and-a-half later, Stokes was shown a photographic lineup. The officer informed Stokes that the perpetrator might or might not be included in the lineup and that if she "could point him out to let him know." The officer also told Stokes that the perpetrator's hair might vary from that depicted in a particular photograph. After two or three minutes, Stokes identified Bumpas in photograph number five of the lineup as the perpetrator. Stokes made the following statements regarding her identification of Bumpas in the lineup: "I believe it is him. [I am] 80% [sure]. It looks like his eyes. He is the one who robbed us." Stokes said that she was able to identify Bumpas as the perpetrator, despite the bandana covering his face, because she made eye contact with him several times and was able to observe him during the offense, which lasted several minutes. Stokes also identified Bumpas as the perpetrator at trial, stating that she was one hundred percent sure of her identification. When Stokes was asked to identify a white hat recovered by police near the crime scene, Stokes said it looked like the type of hat the perpetrator was wearing but that she could not be one hundred percent sure that this hat was the same one worn by the perpetrator.

         Ronnie Barrett testified that when the robber entered the store, he told him, "Old man you stay in your seat and you won't get hurt." The robber then grabbed the money from the cash drawer and continued to ask for one-hundred-dollar bills. Barrett said that immediately prior to this offense, a young man leaned through the door of the business and asked what he needed to do to obtain a cash advance loan. While this young man was in the store, Barrett had been repaying a loan with four one-hundred-dollar bills.

         Barrett said that approximately three minutes after the young man left, the robber entered the Cash and Dash. Barrett described the robber as a "black male gentleman" who was "wearing a mask and a white hat with a black t-shirt with like silver or white drawings on the t-shirt [that] looked like a dragon and blue jeans." He also said the robber was holding a silver, medium-size automatic pistol in his right hand.

         Barrett said that after Doyle ran to the back of the store, the robber pointed his gun at Stokes and took her to the back of the business, where he demanded wallets from Stokes and Doyle and asked for more money. After a few minutes, the robber and Stokes returned to the front of the business. The robber walked toward the door and told Barrett to have a nice day before exiting the business. When Barrett ran over to the window, he saw the robber running across Dickerson Pike.

         Barrett immediately exited the business and "jumped in [his] car" to follow him. The robber passed the Subway restaurant across the street before continuing down Darbytown Drive, where Barrett lost sight of him. Three men standing next to the Subway restaurant told Barrett that the man had run farther down Darbytown Drive, and when Barrett drove in that direction, he saw the robber talking to an African American male in a green minivan at the top of the hill.

         Barrett said that he "backed up into a driveway, because [he] didn't know if he was going to get in that green van and then come by [him] and start maybe shooting, if he recognized [him]." As Barrett talked to the 9-1-1 dispatcher, the van drove passed him very slowly and then turned right. When the van left, Barrett no longer saw the robber, so he drove to the top of the hill, where he observed the robber again. The robber was no longer wearing the bandana and was standing at the corner wiping sweat from his face. When the robber saw Barrett, he pointed his pistol at him. Barrett quickly drove away but saw the robber run between some houses into the woods toward Devonshire Drive.

         Barrett then drove to Devonshire Drive to see if the robber would reappear on that side of the houses, but he never saw him again. Barrett returned to the Cash and Dash and spoke with an officer, although he was never asked to give a formal statement and was never shown a photographic lineup. Barrett said that he did not feel comfortable trying to identify the robber at trial, but when he was asked to identify the white hat collected as evidence, Barrett stated that he was "90 percent certain" that the hat was the one worn by the person who robbed the Cash and Dash on July 3, 2013.

         Robert Doyle, an auditor for the State of Tennessee, testified that he went to the back of the store and "laid down in the floor and covered [his] eyes" when the robber entered the Cash and Dash with a gun. He described the weapon as a small silver handgun. When the robber came to the back of the business, he asked Doyle for money, and Doyle told him he "didn't have any." Doyle said that the robber wore a bandana on his face, but he was unable to observe the robber's eyes. After the offense, Doyle observed the robber running across Dickerson Pike. Doyle stayed at the Cash and Dash until the police arrived but did not speak with the officers and was never shown a photographic lineup. He declined to identify anyone as the robber at trial, stating, "I'm not sure I would even recognize him to be honest."

         Jamie Calderon, the manager of the Cash and Dash, testified that on July 3, 2013, she had just sat down at her desk when someone wearing "all black" ran in to business. When she realized what was happening, she walked to an area where the robber could not see her, dialed 9-1-1 on her cell phone, and hid the phone in a box of paperwork.

         After the robber left, Calderon picked up her cell phone and spoke to the 9-1-1 dispatcher. Calderon said that the robber wore "black shorts, a black . . . long[-]sleeve [shirt] and a white hat." She was unable to see the robber's face because he had a black "wrap" over it. After he left, she saw the robber running down Darbytown Drive and then saw him "drop something in the ditch, " which appeared to be either his "hat or the wrap." Calderon said that she was never asked to look at a photographic lineup because she never saw the perpetrator's face.

         Officer Robert Collins, who worked in the K9 unit of Metropolitan Nashville Police Department, testified that on July 3, 2013, he and his police dog responded to the aggravated robbery of the Cash and Dash on Dickerson Pike. Officer Collins went to Darbytown Drive, where a witness had last seen the robber running through some yards. He had been given a description of the robber, including his clothes and race, and he gave his dog the command to track, which led them through some backyards to a wooded area. There, they found "a white ball cap" that matched the description of the one the robber had worn. Officer Collins and his dog continued to track through the wooded area until they reached Westchester Drive, where they had to abandon their search because the area had become contaminated with citizens exiting their homes. Officer Collins identified a white hat collected as evidence and stated that this was the same hat he had found in the woods.

         Investigator Mark Rosenfeld of the Metropolitan Nashville Police Department testified that he photographed the crime scene and lifted some latent fingerprints from the cash drawer, although these prints did not result in a match to any individual. Investigator Rosenfeld later collected the white hat found by Officer Collins, taking special care not to contaminate it.

         Sergeant Philip Williams of the Metropolitan Nashville Police Department testified that on July 3, 2013, he was talking with a tenant in one of his rental properties on Westchester Drive, which was approximately a mile from the Cash and Dash and was next door to a home he rented to Mrs. Sonja Stewart, Deewaine Bumpas' mother. At the time, Sergeant Williams was off-duty, was not wearing his police uniform, and had not driven to the area in his patrol car. When Sergeant Williams exited the rental home, he observed a police helicopter circling the area and saw several individuals milling around outside trying to determine what happened. Shortly thereafter, Sergeant Williams observed three or four young men running down Westchester Drive from Dickerson Pike and overheard one of the men say, "D just robbed that place." Sergeant Williams was unable to describe the man who made this statement because he was unsure which of the men had spoken. Although he recognized the young men in this group from the neighborhood, he did not know their names or where they lived. He also said that he did not attempt to stop any of these men because he was trying to determine what had just happened and was unsure where they went. Sergeant Williams knew that Mrs. Stewart, his tenant, had a son who went by the name of "D, " so he telephoned her and determined that "D's" real name was Deewaine Bumpas. He acknowledged that this was the only person he knew who went by the name of "D" and that he never investigated anyone else as a possible suspect. Sergeant Williams then called dispatch and was told that the Cash and Dash on Dickerson Pike had just been robbed. He drove to the Cash and Dash and informed Sergeant Steele that Deewaine Bumpas was a possible suspect in this crime. Sergeant Williams stated that on the date of the aggravated robbery offense, he was in the process of evicting Bumpas' family from their home. He acknowledged that the person who said, "D just robbed that place, " was both a potential witness and a potential suspect to the crime. He conceded that he never stopped the man who made that statement and never asked him any follow-up questions; however, he asserted that he was simply a witness at the time and had no duty to investigate this statement.

         Sergeant Chris Steele of the Metropolitan Nashville Police Department testified that on July 3, 2013, Sergeant Williams approached him at the Cash and Dash and said someone had just told him that "D robbed that store." Sergeant Williams explained that he had a tenant whose son was called "D" and that "D's" real name was Deewaine Bumpas. Sergeant Steele gave Bumpas' name to Detective James Fuqua and Detective Garrett Kidd and asked them to place Bumpas' picture in a lineup that could be shown to the witnesses of the crime.

         Detective Garrett Kidd of the Metropolitan Nashville Police Department testified that he took statements from Brittany Stokes and Ronnie Barrett, although he spoke with all of the witnesses to the crime. When he received Deewaine Bumpas' name as a possible suspect, Detective Kidd contacted Detective Fuqua, who created a photographic lineup that included Bumpas' picture. Detective Kidd stated that no one, including Sergeant Williams, knew the identity of the person who had identified the suspect. Detective Kidd and Detective Fuqua later showed the photographic lineup to Stokes, and Stokes identified Deewaine Bumpas as the robber. Detective Kidd stated that the lineup was not shown to Calderon or Barrett because they indicated they would be unable to recognize the perpetrator.

         Detective Kidd later checked to see if there were any businesses or residents with cameras that might have recorded details related to the offense. He determined that the Subway restaurant at the intersection of Dickerson Pike and Darbytown Drive had surveillance cameras that faced both of these roads. Subway's surveillance video was played to the jury. In it, a green minivan matching the description of the vehicle provided by Barrett pulled into Subway's parking lot, which was across the street from the Cash and Dash. Shortly thereafter, an African American male, who was wearing a long-sleeved black top, black shorts, and a white hat walked up Darbytown Drive towards Dickerson Pike and went across the street in the direction of the Cash and Dash. Approximately a second later, the green minivan left the Subway parking lot and turned left on Darbytown Drive, travelling away from Dickerson Pike. Two minutes later, the African American subject ran, at a full sprint, away from the Cash and Dash and toward the area where the green van went down Darbytown Drive. During this sprint, the subject dropped his hat and turned around to pick it up before continuing to run down Darbytown Drive in the direction of the green van until he was out of the camera's view.

         Detective Kidd agreed that because of the poor quality of the video, the subject could not be identified. He acknowledged that because of the camera's location, the video did not show the subject entering or exiting the Cash and Dash.

         Detective James Davis of the Metropolitan Nashville Police Department identified the white hat found by Officer Collins and testified that he delivered this hat to the Tennessee Bureau of Investigation (TBI) for DNA analysis. He also obtained a DNA sample from Deewaine Bumpas after Bumpas signed a consent form, and he delivered this sample to the TBI so that it could be compared with any DNA found on the cap. Detective Davis stated that he interviewed Bumpas at the police station on July 3, 2013, approximately two hours after the aggravated robbery, and that Bumpas maintained his innocence and was cooperative. Following the interview, Bumpas was not arrested and was allowed to leave. On July 5, 2013, two days later, Bumpas turned himself in to police. Detective Davis noted that while some of the witnesses described the perpetrator as five feet, eleven inches tall and 200 pounds, Bumpas, at the time of his arrest was six feet tall and weighed 215 pounds. Detective Davis added that although officers attempted to locate the green van in the surveillance video, it was never found.

         Special Agent Charly Castelbuono, a forensic scientist for the TBI Crime Laboratory, was accepted as an expert in the field of DNA and serology. She conducted a DNA comparison between Bumpas' known DNA sample and the DNA obtained from the white hat recovered near the crime scene. Agent Castelbuono developed a complete DNA profile from Bumpas' sample and determined that DNA sample from the white hat, which was "consistent with a mixture of at least two individuals, " showed that the "major contributor matche[d] Deewaine M. Bumpas." She explained that there were two contributors to the DNA on the hat, a major contributor, which was Bumpas, and a minor contributor, whom she was unable to identify because the DNA was too limited to place in the national database. She stated that "[t]he probability of randomly selecting an unrelated individual having the same DNA profile from the African American, Caucasian or Southwestern Hispanic populations, exceeds the current world population."

         Agent Castelbuono acknowledged that a major contributor is simply someone who provides "anything more than 51 percent" of the DNA on an item. She admitted that Bumpas could have gotten his DNA on the hat by merely trying it on and that Bumpas' DNA could have been on the hat for days, weeks, or years.

         Simone West, Bumpas' twelve-year-old sister, testified that she was ten years old at the time of the aggravated robbery. West said that on July 3, 2013, Bumpas was at their house when she awoke at 9:00 a.m. She said that Bumpas stayed there all morning and that they ate breakfast and watched a movie together. Later that day, their "auntie" and a friend picked them up, and she and Bumpas went to their aunt's home around 1:00 p.m. so West could get her hair fixed. West said that she and Bumpas stayed at her aunt's house until approximately 2:00 p.m. that day. She also confirmed that Bumpas was with her the entire time they were at her aunt's home.

         Dr. Jeffrey Neuschatz, who was accepted as an expert in the field of eyewitness identification, testified that he was "a cognitive psychologist" who conducted "research on eyewitness memory and eyewitness identification and jury decision making." Dr. Neuschatz stated that several factors affected the reliability of eyewitness identification, including viewing time, viewing conditions, high stress situations, weapon focus, cross-race identification, and the effects of head-coverings and disguises on memory. He said that a witness could be very confident about an identification, even though the identification was wrong. He also stated that a "double-blind photo lineup, " wherein the person conducting the line-up does not know the identity of the suspect and the person viewing the line-up is aware that the person conducting the lineup does not know the identity of the suspect, is the recommended procedure to increase the reliability of identifications. He asserted that a double-blind photographic lineup was not used in this case. Dr. Neuschatz emphasized the problems with eyewitness identifications, stating:

[E]yewitness identification is a difficult task. The usual things that you have to help you remember things are unfortunately not present in these tasks and the fact that there are a lot of issues there like we have talked about, stress, cross-race, head-covering, low exposure time that make it even more difficult to remember people accurately. That is not to say that people don't make accurate identifications, because they do, it is just to say that under these situations it is a very difficult task to do.

         Dr. Neuschatz acknowledged that he could not testify about whether Bumpas committed the charged offense or whether Stokes correctly identified Bumpas as the perpetrator.

         Detective Davis, who was recalled as a rebuttal witness for the State, testified that he spoke with Bumpas on July 3, 2013. Although Bumpas was not under arrest at the time of this conversation, Detective Davis advised him of his Miranda rights, which Bumpas waived before speaking with him. During the ensuing interview, Bumpas claimed that at the time of the aggravated robbery of the Cash and Dash, he had been "at his auntie's house over on Big Westchester [Drive]." Detective Davis stated that there "is a street . . . within the Madison precinct called Westchester [Drive, ] and it is divided into two sections, with one side being "Big Westchester" and the other side being "Little Westchester[, ] and it is separated by . . . a field." After talking with Bumpas, Detective Davis determined that Bumpas lived on Little Westchester and Bumpas' aunt lived on a street off of Big Westchester.

         The State played a recording of Detective Davis' interview with Bumpas for the jury, periodically stopping the recording to ask Detective Davis questions about how Bumpas' statements to him during the interview varied from the testimony at trial given by Simone West, Bumpas' sister. During this interview, Bumpas told Detective Davis that he had been at his aunt's house on Big Westchester since 8:00 a.m. on July 3, 2013, but Detective Davis noted that West claimed Bumpas had been with her at home from 9:00 a.m. until they both went to her aunt's house on Big Westchester at 1:00 p.m. In addition, although Bumpas told Detective Davis that he walked across the field to his aunt's house, West testified that someone drove them from their home to their aunt's home on Big Westchester. Bumpas also told Detective Davis that he was only with his two aunts and his aunts' children at Big Westchester on July 3, 2013, and that the only time he left was to come back to Little Westchester to check on his sisters; however, West testified that she was also with Bumpas at Big Westchester that day. Finally, Bumpas claimed that when he awoke on July 3, 2013, his sisters were asleep, and he left to go do his daily routine, but West testified that when she awoke at her home at 9:00 a.m., Bumpas was with her.

         ANALYSIS

         I. Photographic Lineup and ...


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