State of Tennessee v. Theodore Lebron Johnson ( 2015 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs October 13, 2015 at Knoxville
    STATE OF TENNESSEE v. THEODORE LEBRON JOHNSON
    Appeal from the Criminal Court for Davidson County
    No. 2013-A-428    Monte Watkins, Judge
    No. M2014-02046-CCA-R3-CD – Filed October 14, 2015
    The defendant, Theodore Lebron Johnson, appeals his Davidson County Criminal Court
    jury conviction of aggravated robbery, claiming that the evidence is insufficient to
    support the conviction and that the trial court erred by declining to instruct the jury
    regarding the loss or destruction of evidence. We discern no flaw in the conviction and
    affirm the trial court‟s judgment.
    Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
    JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT H.
    MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.
    Richard C. Strong, Nashville, Tennessee (on appeal); and Daphne Davis, Nashville,
    Tennessee (at trial), for the appellant, Theodore Lebron Johnson.
    Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
    Attorney General; Victor S. Johnson III, District Attorney General; and Deborah Housel
    and Nathan McGregor, Assistant District Attorneys General, for the appellee, State of
    Tennessee.
    OPINION
    The jury convicted the defendant of the April 27, 2011 aggravated robbery
    of Gregg P. Hanson, the victim. The trial court sentenced the defendant as a career
    offender to serve 30 years in the penitentiary and overruled the defendant‟s timely motion
    for new trial. The defendant then filed a timely notice of appeal.
    At trial, the victim testified that in 2011 he managed a Precision Tune Auto
    Care center on Gallatin Pike in Davidson County. A week prior to the robbery, the
    defendant came into the store just before closing and said he was waiting on his girlfriend
    to bring in her car for an oil change. On this occasion, the defendant wore a white
    hardhat and a reflective vest. The store was busy with customers at that time; at some
    point, the defendant left the store. On April 27, 2011, the defendant came into the store
    again and told the victim that he was waiting on his girlfriend to bring in her car for an oil
    change. The defendant sat in a chair in the store lobby. After the sole remaining
    customer left the store and as the victim was speaking on the telephone, the defendant
    grabbed the phone and placed a gun against the victim‟s abdomen. The victim testified
    that the defendant walked him to the cash register and said, “„Put the money – open the
    register and put the money on the counter.‟” The victim testified that he was scared and
    that he complied. The defendant “scooped . . . up” the money, $380, and then told the
    victim to open the safe. Again, the victim complied, and when the defendant saw the safe
    was empty, he left, leaving behind a black “beanie” cap. The victim locked the doors and
    called the police. The victim said that the defendant “very much” put him in fear.
    When the police came, the victim described the robber as a six-foot male,
    slender, “fit and clean cut,” “[l]ight dark,” with a bald head. The defendant wore dark
    clothing including a black “hoodie.” The victim pointed out the chair the defendant had
    used and the telephone as possible sites for obtaining fingerprints. The victim testified
    that in May 2011 he viewed various photographic arrays presented to him by the police.
    In one array, he recognized a customer of Precision Tune, John Newell, who drove a
    silver Pontiac automobile. From a photographic array presented to him a few days later,
    he identified the defendant as the man who robbed him.
    On cross-examination, the victim said that police officers dusted for
    fingerprints inside the store and that they took the beanie cap with them.
    Patricia Young testified that she lived on Curtwood Boulevard, that
    Curtwood intersects with Gallatin Road, and that the Precision Tune store sits in a corner
    of the intersection. She was on her front porch on April 27, 2011, when she saw “a black
    male, who wearing [sic], kind of, like a bubble jacket, and his hand, like, inside his
    jacket, . . . running down our street . . . from Gallatin Road.” She said that the man got
    into a silver Pontiac that then left hurriedly, headed away from Gallatin Road.
    On cross-examination, Ms. Young testified that a “bubble jacket” is not a
    “hoodie.” Ms. Young did not see the face of the man wearing the bubble jacket.
    Metropolitan Nashville Police Department (“Metro”) Officer Nate Ward
    testified that in 2011 he was assigned to the Crime Scene Unit. He was called to the
    Precision Tune store on Gallatin Road late in the afternoon on April 27, 2011. “[A] black
    stocking cap on the floor” was pointed out to Officer Ward as something the robber had
    left behind. The officer collected the cap, placed it in a sealed bag, and gave it to the
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    “property section.” He identified the bag containing the cap in court. He said the cap
    had been tested at the Tennessee Bureau of Investigation (“TBI”) crime laboratory.
    Officer Ward also dusted for fingerprints at the Precision Tune store. He
    dusted “at the point of entry” and a chair “that the victim pointed out where the suspect
    was sitting for a time.”
    On cross-examination, Officer Ward acknowledged that the prints he
    obtained from the entry door were not useable and that prints obtained from the underside
    of the armrest of the chair in which the robber sat were useable but did not match the
    defendant‟s fingerprints.
    Metro Investigator Lynette Mace testified that she was assigned to the
    department‟s “ID Unit” in April 2011. On May 3, 2011, she was called to go to the
    Precision Tune store on Gallatin Road to retrieve “a piece of telephone that had come
    apart from the business phone during a struggle with the defendant.” The piece was the
    battery cover off a wireless telephone. She testified that she lifted no prints from this
    object. She left the object at the store.
    Metro Detective Michael Windsor testified that he spoke with the victim of
    the Precision Tune robbery and with Patricia Young. Based upon descriptions provided
    by them, Detective Windsor organized photographic arrays. The detective said that the
    victim recognized John Newell in one of the first arrays shown to the victim, and the
    detective was able to discern a connection between Mr. Newell and the defendant. The
    detective included the defendant‟s picture in an array later shown to the victim, and the
    victim identified him as the robber. At some point, the police searched Mr. Newell‟s
    silver Pontiac and found a white hat and a reflective vest.
    The detective testified that, although deoxyribonucleic acid (“DNA”) was
    found on the black beanie cap, it was too degraded to compare to any known DNA, such
    as the defendant‟s. Testing for DNA comparison on the hardhat and the reflective vest
    yielded the same result, except that the TBI laboratory was “able to get an allele.” He
    said that, although 26 “alleles” were needed to form a complete DNA profile, the one
    allele found on the reflective vest was adequate to exclude the defendant as the
    contributor.
    On cross-examination, Detective Windsor testified that the TBI received
    the black beanie cap for testing on February 7, 2014. The TBI issued its report on March
    13, 2014.
    The State rested its case, and following a Momon hearing, see Momon v.
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    State, 
    18 S.W.3d 152
    , 161-62 (Tenn.1999), the defendant elected not to testify. The
    defendant moved the court to instruct the jury regarding the State‟s duty to preserve the
    DNA evidence. Defense counsel specifically proposed the use of pattern jury instruction
    42.23. Upon review, the trial court declined to give the instruction.
    In his first issue, the defendant challenges the sufficiency of the evidence
    convicting him of aggravated robbery.
    We review the defendant‟s claim of insufficient evidence mindful that our
    standard of review is whether, after considering the evidence in the light most favorable
    to the prosecution, any rational trier of fact could have found the essential elements of the
    crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979); State v. Winters, 
    137 S.W.3d 641
    , 654 (Tenn. Crim. App. 2003). This
    standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
    or a combination of direct and circumstantial evidence. State v. Dorantes, 
    331 S.W.3d 370
    , 379 (Tenn. 2011).
    When examining the sufficiency of the evidence, this court should neither
    re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. 
    Id. Questions concerning
    the credibility of the witnesses, the weight and value of the
    evidence, as well as all factual issues raised by the evidence are resolved by the trier of
    fact. State v. Cabbage, 
    571 S.W.2d 832
    , 835 (Tenn. 1978). Significantly, this court must
    afford the State the strongest legitimate view of the evidence contained in the record as
    well as all reasonable and legitimate inferences which may be drawn from the evidence.
    
    Id. As charged
    in this case, aggravated robbery is robbery “[a]ccomplished
    with a deadly weapon or by display of any article used or fashioned to lead the victim to
    reasonably believe it to be a deadly weapon.” T.C.A. § 39-13-402(a)(1). “Robbery is the
    intentional or knowing theft of property from the person of another by violence or putting
    the person in fear.” 
    Id. § 39-13-401(a).
    In the present case, the defendant argues that the State failed to establish
    beyond a reasonable doubt that he was the person who robbed the victim on April 27,
    2011. He points out that only the victim claimed to have identified the defendant, and
    Ms. Young‟s description of the robber‟s clothing “radically” differed from the victim‟s
    description. The defendant also stresses that a reflective vest and white hardhat were
    found in Mr. Newell‟s car and that the defendant‟s DNA was not found on these items.
    In our legal system, however, a trial by jury is the crucible in which
    conflicting claims of fact are boiled down to dregs of truth. As pointed out above, when
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    the State presents sufficient evidence that the accused is guilty beyond a reasonable
    doubt, an appellate court is obliged to affirm the conviction despite the emergence at trial
    of conflicting or counter-weighing evidence. Here, the State presented the victim who
    testified to the elements of aggravated robbery and who identified the defendant as the
    person who committed it. That testimony alone satisfies the burden of proof, and
    assuming that the trier of fact believed this testimony, the presentation of conflicting
    evidence has no bearing upon appellate review. Accordingly, we hold that the evidence
    in this case sufficiently supports the verdict.
    In his other issue, the defendant claims that the trial court erred by
    declining to give to the jury Tennessee Pattern Jury Instruction 42.23. He argues that,
    after collecting items of evidentiary value, the State waited three years before seeking
    DNA analysis and that the DNA itself was destroyed in the interim, resulting in a finding
    that the genetic material found on the items was too degraded for use.
    Tennessee Pattern Jury Instruction 42.23 provides as follows:
    The State has a duty to gather, preserve, and produce at trial
    evidence which may possess exculpatory value. Such
    evidence must be of such a nature that the defendant would be
    unable to obtain comparable evidence through reasonably
    available means. The State has no duty to gather or
    indefinitely preserve evidence considered by a qualified
    person to have no exculpatory value, so that an as yet
    unknown defendant may later examine the evidence.
    If, after considering all of the proof, you find that the State
    failed to gather or preserve evidence, the contents or qualities
    of which are an issue and the production of which would
    more probably than not be of benefit to the defendant, you
    may infer that the absent evidence would be favorable to the
    defendant.
    Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 42.23 (16th ed.).
    The pattern jury instruction regarding the State‟s duty to preserve evidence
    had its genesis in principles of due process as espoused in State v. Ferguson. In that case,
    our supreme court “explained that the loss or destruction of potentially exculpatory
    evidence may violate a defendant‟s right to a fair trial.” State v. Merriman, 
    410 S.W.3d 779
    , 784 (Tenn. 2013) (citing State v. Ferguson, 
    2 S.W.3d 912
    , 915-16 (1999)). The
    court rejected a “bad faith” analysis in favor of “a balancing approach in which bad faith
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    is but one of the factors to be considered in determining whether the lost or destroyed
    evidence will deprive a defendant of a fundamentally fair trial.” 
    Merriman, 410 S.W.3d at 785
    . The supreme court “observed that fundamental fairness, as an element of due
    process, requires a review of the entire record to evaluate the effect of the State‟s failure
    to preserve evidence.” 
    Id. at 784-85
    (citing 
    Ferguson, 2 S.W.3d at 914
    , 917).
    To facilitate this “balancing approach,” our supreme court ruled that the
    trial court must first “determine whether the State had a duty to preserve the evidence,”
    
    Merriman, 410 S.W.3d at 785
    , and observed that the State‟s duty to preserve was
    “limited to constitutionally material evidence,” 
    id. The court
    held that to be
    “constitutionally material,” the evidence “must potentially possess exculpatory value and
    be of such a nature that the defendant would be unable to obtain comparable evidence by
    other reasonably available means.” 
    Id. (citing Ferguson,
    2 S.W.3d at 915, 918). “If the
    trial court determines that the State had a duty to preserve the evidence, the court must
    determine if the State failed in its duty.” 
    Merriman, 410 S.W.3d at 785
    (citing 
    Ferguson, 2 S.W.3d at 917
    ). If the trial court concludes that the State lost or destroyed evidence
    that it had a duty to preserve, the trial court must then consider three factors to determine
    the appropriate remedy for the State‟s failure
    “(1) [t]he degree of negligence involved;
    (2) [t]he significance of the destroyed evidence, considered in
    light of the probative value and reliability of secondary or
    substitute evidence that remains available; and
    (3) [t]he sufficiency of the other evidence used at trial to
    support the conviction.”
    
    Merriman, 410 S.W.3d at 785
    (quoting 
    Ferguson, 2 S.W.3d at 917
    ). “If the trial court
    concludes that a trial would be fundamentally unfair without the missing evidence, the
    trial court may then impose an appropriate remedy to protect the defendant‟s right to a
    fair trial, including, but not limited to, dismissing the charges or providing a jury
    instruction.” 
    Merriman, 410 S.W.3d at 785
    -86.
    In the present case, the defendant asserts that he should have had the benefit
    of pattern jury instruction 42.23. The gravamen of the defendant‟s Ferguson claim is that
    “if the State had tested the evidence sooner, it could have definitely been shown that his
    DNA was not present on the items.” We hold that the trial court did not err by declining
    to give the instruction.
    The evidence showed that the scant amount of genetic material on the vest
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    or hardhat was sufficient to exclude the defendant as a contributor. Thus, the expert
    testimony showed that only the beanie cap contained genetic material too degraded to
    analyze. Several factors undercut the defendant‟s claim to a due process remedy for the
    State‟s not testing the cap sooner. First, the relationship of the cap to the perpetrator of
    the robbery is dubious; although the cap was “left behind” after the perpetrator left the
    store, no one testified that the perpetrator wore the cap. Second, the DNA testing
    performed by the TBI did not result in a finding that the defendant‟s DNA was found on
    the cap; due to the degraded nature of the material, the result was, in effect, neutral.
    Third, even an affirmative determination that the defendant‟s genetic material was not on
    the cap barely advances the defendant‟s case; such a determination would only deny the
    State an additional inference of fact which, as pointed out above, it was denied anyway.
    Finally, the defendant did not cite authority that imposes a duty on the State to have ever
    performed the DNA analysis. The cap itself was neither lost nor destroyed, and we point
    out that, upon the defendant‟s request, the State was obliged to allow him “to inspect and
    copy or photograph . . . tangible objects . . ., if the item is within the state‟s possession,
    custody, or control and . . . the item was obtained from or belongs to the defendant.”
    Tenn. R. Crim. P. 16 (a)(1)(F)(iii). In addition to inspecting the object, the defendant
    could have applied to the trial court for leave to conduct an independent analysis. See 
    id. 16(d)(1) (“At
    any time, for good cause shown, the court may deny, restrict, or defer
    discovery or inspection, or grant other appropriate relief.”).
    At bottom, even if we assumed for the sake of argument that the State had a
    duty to preserve any genetic material that existed on its collected items of evidence, the
    significance of the destroyed evidence is slight, paling in comparison to the “other
    evidence used at trial to support the conviction.” See 
    Merriman, 410 S.W.3d at 785
    (quoting 
    Ferguson, 2 S.W.3d at 917
    ). Thus, the trial court did not err by denying a due
    process remedy in the form of a jury instruction.
    For the foregoing reasons, the judgment of the trial court is affirmed.
    ________________________________
    JAMES CURWOOD WITT, JR., JUDGE
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Document Info

Docket Number: M2014-02046-CCA-R3-CD

Judges: Judge James Curwood Witt, Jr.

Filed Date: 10/14/2015

Precedential Status: Precedential

Modified Date: 10/14/2015