Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Simic

Court of Criminal Appeals of Tennessee, Nashville

October 24, 2019

STATE OF TENNESSEE
v.
DUSAN SIMIC

          Session August 20, 2019

          Appeal from the Criminal Court for Davidson County No. 2017-D-2344, 2018-A-83 Monte Watkins, Judge.

         The Defendant, Dusan Simic, was indicted for various offenses committed in the course of a series of robberies in July and August of 2017. The trial court granted the Defendant's motion to suppress out-of-court identifications made by four victims on the basis that the photographic lineups were unduly suggestive. The trial court and subsequently this court granted interlocutory review. The State asserts that interlocutory review is proper and that the trial court erred in determining that the lineups were suggestive; the Defendant disagrees. We conclude that interlocutory appeal was improvidently granted. Accordingly, we dismiss the appeal and remand for further proceedings.

         Tenn. R. App. P. 9 Interlocutory Appeal; Appeal Dismissed; Case Remanded

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Kristen Kyle-Castelli and Sara Diehl, Assistant District Attorneys General, for the appellant, State of Tennessee.

          Bernard F. McEvoy, Nashville, Tennessee, for the appellee, Dusan Simic.

          John Everett Williams, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, PRESIDING JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The Defendant was identified through the use of photographic lineups by four separate victims in a series of robberies, and he was charged with the carjacking of Ms. Sandra Ortiz-Munoz committed on July 20, 2017; with the aggravated robbery of Ms. Ortiz-Munoz on the same date; with the aggravated robbery of Ms. Maria Zarco committed on July 30, 2017; with two counts of aggravated assault committed against Ms. Zarco's minor children on the same date; with the robbery of Ms. Lesvia Turcios-Hernandez committed on July 30, 2017; with the aggravated robbery of Ms. Loida Correa committed on August 1, 2017;[1] with two counts of aggravated assault committed against Ms. Correa's minor children on the same date;[2] and with various other offenses, including evading arrest in a motor vehicle, theft of a license plate from Mr. Paul Pickard, driving under the influence ("DUI"), driving with a suspended or revoked license, and possession of drug paraphernalia, all committed on August 2, 2017.

         The Defendant moved to suppress the out-of-court identifications made by the four victims of the robberies on the basis that the various lineups were impermissibly suggestive. In its brief summarizing the facts related to the identifications, the State recited that a vehicle had been stolen from Ms. Ortiz-Munoz, that Ms. Turcios-Hernandez had obtained a license plate number that established that the stolen car was used in robbing her, that the stolen vehicle was matched through surveillance footage to the vehicle used in the robbery against Ms. Correa, and that it was "the same vehicle the Defendant was seen driving days after that attack." The State also argued that, even if the court were to determine that the lineups were unduly suggestive, the witness identifications were nevertheless reliable. At the hearing, the parties agreed to address only whether the lineups were impermissibly suggestive, leaving the question of reliability, which might require testimony from the victims, for a later time.

         The trial court held a hearing and issued a written ruling which addressed both the suggestiveness of the lineups and the reliability of the identifications, ultimately concluding that the out-of-court identifications must be suppressed. The trial court recited the legal standard for reliability and made factual determinations relevant to reliability, finding that "[e]ach alleged victim had an opportunity to observe the defendant, observed the defendant in close proximity, gave a description of the defendant, gave a positive identification of the defendant, and identified the defendant within the same day to within two weeks of the encounter." The trial court found that no statements were made during the lineups and that the victims chose the Defendant "unequivocally."

         The trial court then found the lineups were unduly suggestive. Initially, the trial court found that the complexions, hairstyles, and hair color of the subjects of the photographs were "somewhat similar." However, the trial court found that these characteristics were "grossly dissimilar" from the witness descriptions, noting that "[t]he photographic lineups contain individuals of different ages, different complexions, different hairstyles and color than the descriptions given by the victims." The court found that the lineups were faulty because they contained photographs of subjects "older than the defendant, of a different race than defendant, and different from the descriptions given by the witnesses." The court also observed that "the lineup was comprised in such a way that the suspect would stand out among the other photos in the lineup." The court granted the motion to suppress.

         The State filed a motion for permission to appeal this order under Tennessee Rule of Appellate Procedure 9. The State noted in its motion that the parties had agreed to limit proof at the hearing to suggestiveness and to postpone any proof regarding reliability but did not request relief regarding this irregularity. The State asserted that interlocutory appeal was necessary to prevent irreparable injury because "[i]f the State is forced to proceed to trial without the photographic lineups and a jury acquits without being allowed to consider important evidence, the State is left without an avenue for recourse." During the extremely brief hearing on the motion, defense counsel stated that he did not believe the motion required proof. The trial court agreed that no proof would be necessary and made statements ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.