State v. Howard
| Decision Date | 02 December 2013 |
| Docket Number | No. W2012-02109-CCA-R3-CD,W2012-02109-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. DANNY HOWARD |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Shelby County
The Defendant-Appellant, Danny Howard, appeals his conviction for aggravated robbery. On appeal, Howard argues that the trial court abused its discretion (1) by permitting a juror to remain on the jury after learning that the juror worked with one of the State's witnesses, and (2) by denying Howard's motion for a mistrial based on an alleged Jencks violation. Upon review, we affirm the judgment of the trial court.
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T. WOODALL, and JOHN EVERETT WILLIAMS, JJ., joined.
Neil Umstead, for the Defendant-Appellant, Danny Howard.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Katherine B. Ratton and David M. Zak, Jr., Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINIONOn October 10, 2009, Brenda Hall, the victim in this case, was robbed after she left a local store in Bartlett, Tennessee. The perpetrators put a gun to the victim's rib cage and demanded her purse. The victim complied and later called the police. After some investigation, Howard was developed as a suspect and charged with the instant offense. The following proof was adduced at trial.
Matthew McArthur, an officer with the Bartlett Police Department, testified that at approximately 7:45 p.m. on October 10, 2009, he responded to a call regarding the robbery of an individual at the Dollar General store in Bartlett. Upon arriving at the scene, the victim of the robbery, Brenda Hall, gave him a description of her two assailants and showed him the direction they ran following the robbery. She stated that one of her assailants, who she later identified as Howard, was a young African-American man with a light complexion and braided hair, who was approximately six feet tall and was wearing a white hooded sweatshirt with a design on the front. She stated that Howard robbed her at gunpoint while the other assailant stood several feet away. She stated that the other assailant was an African-American man wearing darker clothing. Officer McArthur said he was able to view the surveillance footage from inside the store prior to Detective Jones's arrival. He stated that the store clerks informed him that the two men responsible for robbing the victim had been inside the store at the same time as the victim. Officer McArthur watched the surveillance videotape again once Detective Jones arrived at the scene. He remembered watching this videotape with the store clerks but could not remember whether the victim also viewed the surveillance footage that night.
Latoya McLaurin, the Dollar General store's manager, testified that she arrived at work around 8:30 p.m. on October 10, 2009, and reviewed the store's video surveillance footage with Officer McArthur, Detective Jones, and one of the store's employees. She did not remember seeing the victim with the police when she arrived at work. She said that the victim and the victim's neighbor returned to the store the next day and viewed the surveillance footage. The surveillance videotape was played for the jury at trial, and McLaurin identified a man in a white hooded sweatshirt and another man in a dark hooded sweatshirt walking out the store's door.
David Jones, a Detective with the Bartlett Police Department, testified that when he arrived at the scene, he talked to Officer McArthur and the victim about what happened and learned that there was surveillance footage of possible suspects leaving the Dollar General store. He watched the surveillance footage that night. The victim informed Detective Jones that she believed her assailant probably lived in the area. Detective Jones later developed Howard as a suspect after the victim informed him that she had spoken to her neighbor, Tony Moton, who identified Howard from the surveillance footage.
Detective Jones said he created a photographic lineup consisting of six individuals, and the victim identified Howard's photograph, photograph number four, as the assailant that approached her in the parking lot. He later presented this photographic lineup to Moton, who identified Howard as one of the men in the store's surveillance footage. Before presenting the photographic lineup, Detective Jones informed the victim and Moton that the assailant might or might not be in the photographic lineup and that the photographs in the lineup mightbe old or new pictures. He noted on the photographic lineup that Moton, who had coached Howard in football, stated that he was "one hundred percent sure" of his identification of Howard from the photographic lineup. Detective Jones stated that Howard, at the time of his arrest, was wearing the same white hooded sweatshirt and hairstyle that was depicted in the Dollar General store's surveillance videotape.
On cross-examination, Detective Jones stated that he arrived at the scene at 10:00 p.m. and watched the surveillance videotape with the victim. After refreshing his memory with his arrest report, Detective Jones stated that the surveillance video showed the victim and her assailants inside the store at the same time prior to the robbery. He acknowledged that he took no photographs to show the lighting conditions in the parking lot at the time of the robbery. Detective Jones stated that he created a supplement, called an investigative narrative, that was different from the narrative that defense counsel had just given to him.
Detective Jones admitted that the victim was "physically distraught" at the time that he interviewed her. When he presented the photographic lineup, Detective Jones informed the victim and later Moton that the perpetrator might or might not be in the group and that the lineup might contain old or new pictures. He stated that the victim identified Howard as her assailant in a "[m]atter of seconds." He wrote on the photographic lineup that the victim stated, "I'm one hundred percent sure it's number four that pulled a gun on me and took my purse in front of Dollar General store." He acknowledged that the date of October 13, 2009, on the photographic lineup was wrong because the victim and Moton viewed the photographic lineup on October 20, 2009. Detective Jones stated that he created the photographic lineup after the victim talked to Moton and then called him with Howard's name. He stated that the victim's property taken in the robbery was never recovered.
During Detective Jones's cross-examination, defense counsel discovered that Jones was referring to a second report he had written that he described as an "investigative narrative." Defense counsel asked Detective Jones if he had provided a copy of this second report to the district attorney's office, and he stated, "They normally get copies of everything."
When cross-examination continued, defense counsel asked Detective Jones if there were any other documents that he had not provided to the district attorney's office, and Detective Jones stated that he had provided this second report to the district attorney's office. He acknowledged that he never sought a search warrant for Howard's home, despite the fact that he had not found any of the proceeds from the robbery or the weapon used during the offense. He stated that Howard refused to disclose the name of the other assailant.
On redirect examination, Detective Jones explained that he did not get a search warrant in this case because he did not have probable cause to obtain a warrant, given that Howard lived with his mother and that there was another unidentified assailant involved in the robbery. He said he used six photo cards rather than a printed page containing six photographs because it was more difficult to get photographs of juveniles. Detective Jones stated that he had been involved in other cases where witnesses were unsure about their identification and that he always noted this fact on the identification form. He said he was sure that he showed the photographic lineup to the victim and Moton on the same day because he noted it in his narrative.
Brenda Hall, the victim, testified that she had bought some spray paint for her daughter for a church project at the Dollar General store around 7:30 p.m. on October 10, 2009. As she exited the store, she noticed two young men in the parking lot. As she got into her car, she "felt a tug and somebody had-was grabbing my purse and spun me back around." When she refused to let go of her purse, she felt something stick in her ribs and heard Howard say, "Lady if you don't let go I will shoot you." When she saw the barrel of Howard's gun and observed the second assailant, she released her purse. She stated that all of her credit cards and cash were stolen in the robbery.
The victim stated that Howard was a young African-American man with a light complexion, who was skinny and tall, approximately six feet or more, and who was wearing a white zippered sweatshirt with a design on the front. She stated that her other assailant was shorter, had a dark complexion, and was wearing a dark hooded sweatshirt. She stated that she got a "[v]ery good look" at Howard during the robbery. She recalled viewing the store's surveillance footage the same night as the offense. She identified Howard on the surveillance footage for the jury.
After the robbery, the victim spoke to her neighbor, Tony Moton, because she thought he might be able to identify the name of her assailant because Moton's son was close to the same age as her assailant and knew many of the teenagers in the area. The day after the robbery, Moton went with her to view the surveillance footage at the store and identified Howard, and...
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