State v. Walker
| Decision Date | 01 October 2021 |
| Docket Number | W2019-00751-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. SHAUGHN WALKER |
| Court | Tennessee Court of Criminal Appeals |
Session August 5, 2020
Appeal from the Criminal Court for Shelby County No. 17-02244 J Robert Carter, Jr., Judge
A jury convicted the Defendant, Shaughn Walker, of robbery, and he was sentenced to serve ten years in the Community Corrections program. The Defendant appeals, asserting the trial court erred in denying his motion to suppress the victim's identification from a photographic lineup; that the trial court erred in refusing to allow the Defendant to sit at the table with counsel during trial; that the trial court erred in denying a continuance, additional funding, or other relief after eyewitness identification expert Dr. David Ross used the allocated funding prior to trial and refused to testify absent additional payment; and that he is entitled to cumulative error relief. After a thorough review of the record, we discern no error and affirm the trial court's judgment.
Tenn R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Phyllis Aluko, District Public Defender; and Glover Wright (at trial and on appeal) and Joshua Stanton (at trial), Assistant Public Defenders, for the appellant, Shaughn Walker.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Scott Smith and Alyssa Hennig, Assistant District Attorneys General, for the appellee, State of Tennessee.
John Everett Williams, P.J., delivered the opinion of the court, in which J. Ross Dyer, J., joined. Camille R. McMullen, J., filed a dissenting opinion.
The Defendant was charged with two counts of attempted especially aggravated kidnapping and one count of aggravated robbery after he entered a vehicle occupied by Ms. Nabel Martinez[1] and her minor daughter, forcing them to flee. The armed Defendant then drove away in the vehicle. The Defendant shortly thereafter created a disturbance at a nearby gas station and was arrested. He matched the victim's description of the suspect as having brown hair facial hair, wearing black shorts without any shirt, and having tattoos over his bare chest and arms. The victim identified the Defendant in a pretrial photographic lineup. The defense attempted to cast doubt on the victim's identification of the Defendant as the person who entered her vehicle.
The Defendant filed a motion to suppress the victim's identification, asserting that the photographic lineup in this case was unduly suggestive because the lineup contained photographs of only four men who were balding and two men with goatees and because the only man who both had a goatee and was balding was the Defendant.
At the hearing, the victim testified through an interpreter that she was robbed on the morning of September 17, 2016, at approximately 6:00 a.m., as she was going to work. The victim stated that it was light outside, although she could not remember if the sun was up. She testified that it had rained that morning, but she could not remember if it was raining at the time of the offense. The victim saw a man lingering fifteen to twenty feet away from her car, but she did not closely observe the man at the time. She started the engine while standing outside the vehicle and told her seven-year-old daughter to enter the vehicle. When the victim began to get in, the assailant ran to the vehicle and got into the passenger's seat, brandishing a gun which she described as a small, .40 caliber weapon. She was able to see his face. The man appeared angry and "wanted to grab" her. He spoke to her, but she did not understand him. She agreed that she was focused on the handgun. The man "pointed it," and she "went running," instructing her daughter to likewise run. She agreed she only observed the perpetrator briefly.
The victim called the police and told officers that the robber was "tall." She did not recall if she told them he was five feet, six inches tall, and she did not know her own height. She described the suspect as neither too heavy nor too thin, with brown hair, tattoos on his arm and "around here,"[2] and shirtless, wearing only black shorts. The victim did not understand what a goatee was, but she testified she told police he had facial hair "[l]ike this kind of round," and the trial court noted that she was pointing to her upper lip and chin.
Later the same day, the victim was shown a photographic lineup at the police station and gave a written statement. She was given a form regarding the lineup procedures, and she testified that she read and understood the instructions prior to viewing the lineup. She stated initially that she did not recall if the officer reviewed the instructions with her but later testified that he read them to her.
The victim testified that the officer did not tell her that he had a suspect in mind and did not tell her that anyone had been arrested in connection with the crime. She stated, "He only told me to look at the pictures and see if someone in the picture was the person that had robbed me." The victim did not expect to see the robber in the lineup. The victim identified the Defendant in the photographic lineup after a "short time," writing, "This is the person who pointed the gun at me in my car." She confirmed for the officer that she was sure the photograph she chose was that of the offender. She did not recall being told she had picked the correct photograph or that she had done a good job. She also did not recall the officer saying anything about making an arrest. The victim gave a subsequent written statement in which she again described the suspect, this time including the fact that he was balding.
Detective Jesus Perea of the Memphis Police Department testified that he is fluent in Spanish and that he created the photographic lineup and presented it to the victim. Detective Perea received a report that the suspect was a white man, approximately five feet, six inches tall, and weighing one hundred and forty pounds. He testified he was "working off" of the report in creating the lineup. The report further described the suspect as having brown hair, a goatee, unknown tattoos over his chest and arms, and wearing black shorts without a shirt. Detective Perea did not speak to the victim prior to creating the lineup. The Defendant had been arrested as a suspect at the time the lineup was created, and Detective Perea testified that he only had one booking photograph for the Defendant. Accordingly, he tried to choose the other photographs in the lineup based on the Defendant's extant photograph. He agreed that it was important to have photographs that fit the victim's description and also resembled the Defendant. Detective Perea testified that he believed about five of the photographs depicted men with goatees, that four to five of the subjects depicted had brown hair, and that four to five had both brown hair and a goatee.
Detective Perea gave the victim a form, written in Spanish, which noted that the suspect may or may not be in the lineup, that she should not feel obligated to pick a photograph from the lineup, and that she should only pick a suspect if she was one hundred percent certain of her identification. He testified he reviewed the instructions with the victim, and he identified the form which she signed at 10:12 a.m. Detective Perea testified that he told the victim that someone had been arrested in connection with the crime prior to showing her the lineup but that he did not say that prosecution hinged on her identification.
Detective Perea stated that the victim circled the Defendant's photograph in about thirty to forty-five seconds. When asked about her level of confidence, the victim "said she was confident that's the person that robbed her." He acknowledged that he knew which photograph depicted the Defendant and that he did not make a recording of the lineup procedures, but he did not indicate to the victim which photograph she should pick. He did not recall if he told the victim she had picked the "right suspect."
After the victim chose the photograph, Detective Perea took her statement. In her statement, "she was a lot more descriptive than the initial report," describing the suspect as balding. Detective Perea did not have a description of the suspect as balding from the victim prior to creating the lineup.
The defense argued that the photographs did not adequately match the victim's description, that the Defendant was the only person depicted who was balding, had brown hair, and had a goatee, and that the lineup was therefore suggestive and the identification otherwise unreliable. The trial court found that all six men in the lineup were "very similar" and "look[ed] alike," that "care was used to crop the photo" to avoid revealing whether any of the suspects had tattoos, and that the lineup was not unduly suggestive.
Prior to trial, the defense filed a motion to allow the Defendant to sit at the table with trial counsel, and the trial court denied the motion, citing space constraints. The defense also made numerous motions for either a continuance or further funding after the Defendant's expert witness on eyewitness identification, Dr. David Ross, informed trial counsel that he had used up all of the funding that was intended to cover preparation, travel, and trial testimony and that he would not testify absent additional payment. The trial court, finding that the expert was "shaking this system down for money," refused to allocate further funding. The State dismissed the kidnapping charges, and trial proceeded on the aggravated...
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