IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FOR PUBLICATION
STATE OF TENNESSEE, )
) Filed: January 2, 1996
Appellant, )
) DAVIDSON CRIMINAL
Vs. )
) HON. ANN LACY JOHNS, JUDGE
EDDIE ARCARO WILLIAMS, )
) No. 01-S-01-9503-CR-00033
Appellee. )
FILED
December 4,
2000
Cecil Crowson, Jr.
For Appellant: For Appellee: Appellate Court Clerk
Charles W. Burson Jeffrey A. DeVasher
Attorney General & Reporter Senior Assistant Public Defender
Michael E. Moore John Wiethe
Solicitor General Cynthia Burns
Assistant Public Defenders
Gordon W. Smith Nashville, Tennessee
Associate Solicitor General
Nashville, Tennessee
Roger Moore
Assistant District Attorney General
Nashville, Tennessee
OPINION
COURT OF CRIMINAL APPEALS REVERSED;
JUDGMENT OF TRIAL COURT REINSTATED ANDERSON, C.J.
We granted the State's appeal to consider whether the defendant's federal or
state constitutional right of confrontation was violated by the admission into
evidence of surveillance photographs taken at the scene of the robbery. The Court
of Criminal Appeals decided that the defendant's constitutional right of confrontation
was violated and that the evidence was insufficient as a matter of law to establish
guilt beyond a reasonable doubt. As a result, they reversed the trial court's
judgment of conviction.
We conclude that neither the state nor federal constitutional right to
confrontation encompasses physical evidence. Accordingly, the defendant's
constitutional right of confrontation was not violated by admission of the
photographs into evidence. We have also determined the evidence is sufficient to
establish guilt beyond a reasonable doubt. Accordingly, the Court of Criminal
Appeals' judgment is reversed and the judgment of the trial court is reinstated.
BACKGROUND
The defendant, Eddie Williams, was convicted in Davidson County of seven
counts of robbery, one count of aggravated robbery, and one count of attempted
robbery as a result of a string of robberies that occurred between May 23, and
July 4, 1993. The robbery locations included the same Circle K convenience store
on four separate occasions, two Super-X Drugs on two separate occasions, and two
Eckerd Drugs on two occasions.
The facts relevant to the one robbery conviction dismissed by the Court of
Criminal Appeals are as follows. On June 17, 1992, at around 3:20 a.m., Tom
Powell, a clerk at the Circle K convenience store on Belmont Avenue in Nashville,
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was sweeping the parking lot. As Powell returned to the check-out counter, he was
approached by a man who asked for cigarettes and then demanded that Powell give
him all the money. The robber told Powell that he had a gun, but Powell never
actually saw a gun. Powell gave the robber all the cash in the cash register,
approximately thirty dollars ($30). While removing the money from the cash
register, Powell activated a videotape surveillance camera which took photographs
of the robber during the course of the robbery.
About a month after the robbery, Powell viewed a pre-trial line-up which
included Williams, but Powell did not identify Williams, or anyone else in the line-up,
as the person who committed the robbery.
During the course of the trial of this case, Powell testified about the robbery,
but was again unable to identify Williams as the person who committed the crime.
The State, however, introduced fifteen still photographs taken by the videotape
surveillance camera during the robbery, and when shown the photographs, Powell
testified that they accurately depicted the scene inside the store at the time of the
robbery. The photographs were then passed to the jury.
Ken Alexandrow, the Nashville police officer dispatched to the robbery, also
testified at trial. Alexandrow said that when he arrived at the store, Powell was
upset, but related the details of the robbery and said that the videotape surveillance
camera had been activated during the robbery. Alexandrow also said that Powell
described the robber as a black male, six feet tall, weighing about 150 pounds, with
black hair and brown eyes.
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On this evidence, a Davidson County Criminal Court jury convicted Williams
of this robbery, as well as the eight other counts previously identified. The trial court
imposed the maximum sentence on each conviction,1 and ordered all sentences to
be served consecutively, resulting in an effective sentence of one hundred and sixty-
two (162) years.
Williams appealed. The Court of Criminal Appeals reversed and dismissed
the one robbery conviction resulting from count five of the indictment, but affirmed
the trial court judgment with respect to the remaining convictions and sentences,
leaving intact an aggregate sentence of one hundred and forty-seven (147) years.
Explaining their rationale for reversal, the Court of Criminal Appeals said that
"[t]he photographs, which are the only evidence against the appellant, do not
contain an image that can be identified as the appellant beyond a reasonable
doubt." Moreover, the Court of Criminal Appeals concluded that "[s]ince no
witnesses identified the appellant and no other proof was introduced to connect the
appellant with this robbery, . . . the jury's verdict of guilty was based upon their
identification of the appellant as the perpetrator from the surveillance photographs.
The jury thus became unsworn witnesses against appellant in direct violation of his
right under the Sixth Amendment 'to be confronted with the witnesses against him.'"
Thereafter, we granted the State's application for permission to appeal, and
for the reasons discussed below, now reverse the judgment of the Court of Criminal
Appeals and reinstate the judgment of the trial court.
1
The trial court imposed a fifteen-year sentence for each robbery conviction, a thirty-year
sentence for the aggravated robbery conviction, and a twelve-year sentence for the conviction of
attem pt to c om mit r obb ery.
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CONFRONTATION CLAUSE
The State argues that the Confrontation Clause of the state and federal
constitutions are not implicated by introduction of the surveillance photographs into
evidence in this case.
Resolution of this issue requires only an examination of the text of the
constitutional provisions in question. The Sixth Amendment to the U.S. Constitution,
which is applicable to the states through the Fourteenth Amendment,2 provides that
"[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him." (Emphasis added.) The corresponding provision of
the Tennessee Constitution provides "[t]hat in all criminal prosecutions, the accused
hath the right . . . to meet the witnesses face to face." Tenn. Const. art. I, § 9
(emphasis added).
Although the language is not identical, both the federal and state
constitutional confrontation provisions are restricted, by their own terms, to
"witnesses" and do not encompass physical evidence or objects, such as
photographs. See Johnson v. State, 715 S.W.2d 441, 443 (Ark. 1986); Starkes v.
United States, 427 A.2d 437 (D.C. 1981); Evans v. State, 499 So.2d 781, 783 (Miss.
1986); State v. T.L.W., 457 So.2d 566, 567 (Fla. Dist. Ct. App. 1984); United States
v. Restrepo, 994 F.2d 173, 183 (5th Cir. 1993); United States v. Herndon, 536 F.2d
1027, 1029 (5th Cir. 1976).
Indeed, we have previously held that the confrontation clause provides two
types of protection for criminal defendants: the right to physically face the witnesses
who testify against the defendant, and the right to cross-examine witnesses. State
2
Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 92 3 (1965).
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v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992); Pennsylvania v. Ritchie, 480
U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40, 53 (1987). Accordingly, we
conclude that introduction of the surveillance photographs into evidence did not
violate the defendant's federal or state constitutional right to confrontation.
SUFFICIENCY OF THE EVIDENCE
We next consider whether the evidence is sufficient, as a matter of law, to
support the jury's verdict on the robbery count in question. The State and the
defendant agree that the photographs were properly authenticated and admitted as
evidence relevant to the clerk's testimony that a robbery took place on the date and
at the location charged in the indictment.
We also agree that the photographs were properly authenticated and
admitted into evidence. Pursuant to Tenn. R. Evid. 901, "[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to the court to support a finding by the trier of fact that the
matter in question is what its proponent claims." One method of authentication
exemplified by the Rule is testimony of a witness with knowledge "that a matter is
what it is claimed to be." Tenn. R. Evid. 901(b)(1). In this case, the photographs
were properly authenticated by that method, as the robbery victim, with personal
knowledge of the robbery, testified that the surveillance camera was activated when
the robbery began and that the photographs fairly and accurately portray the scene
of the robbery. See United States v. Rembert, 863 F.2d 1023, 1026 (D.C. Cir. 1988)
(Discussing various methods of authentication in the context of interpreting the
identical provisions of Fed. R. Evid. 901); see generally "Admissibility of Visual
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Recording of Event or Matter Giving Rise to Litigation or Prosecution," 41 A.L.R. 4th
812 § 3 (1985 & 1995 Supp.).
The State argues that the identity of the person in the photographs was a
question of fact for the jury, which decision should not be overturned on appeal
unless no rational juror could have found the defendant guilty beyond a reasonable
doubt. The defendant, however, argues that the jury could not have considered the
photographs as proof of identity because the State offered no proof that the person
in the photographs was the defendant.
We disagree and conclude that the jury appropriately could have considered
the photographs as evidence of identity, despite the State's failure to present proof
that the person in the photographs is the defendant. Photographs, such as those
admitted in this case, have been described as recorded real evidence. Cohen,
Paine & Sheppeard, Tennessee Law of Evidence, § 401.9, p. 83 (2d Ed. 1990). If
properly authenticated, such recordings constitute real evidence from which a trier of
fact is able to draw a first-hand sense impression of the facts, as opposed to
evidence which serves merely to report to the trier of fact the secondhand sense
impression of others. Id. at p. 82; see also Strong, 2 McCormick On Evidence,
§212, p. 3 (4th Ed. 1992); Graham, Handbook of Federal Evidence, §401.2, p. 147-
48 (3rd Ed. 1991).
Having determined that the photographs were properly authenticated,
admitted, and probative of the issue of identity, the only remaining question is
whether the evidence is legally sufficient to support the jury's finding of guilt. A jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked and replaces it with one of guilt, so that on appeal a convicted defendant
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has the burden of demonstrating that the evidence is insufficient. Id. The State, on
appeal, is entitled to the strongest legitimate view of the evidence and all reasonable
inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). Where, as here, the sufficiency of the convicting evidence is
challenged, the relevant question for an appellate court is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have
found the defendant guilty beyond a reasonable doubt. Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v.
Harris, 839 S.W.2d 54, 75 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).
Applying the required standard to the facts in this case, we conclude that the
Court of Criminal Appeals erred in reversing the trial court's robbery conviction. The
clerk testified that a robbery occurred on the date and time alleged in the indictment,
and that the surveillance photographs were accurate portrayals of the robbery in
progress. The defendant generally matched the description of the robber given by
the clerk to the police officer dispatched to the scene of the robbery. On the
question of identity, the jurors had before them the photographs taken by the
surveillance camera during the course of the robbery, from which they were able to
draw a first-hand sense impression. Viewing the evidence in the light most
favorable to the State, we conclude that the evidence is sufficient for a rational trier
of fact to find the defendant guilty beyond a reasonable doubt.
CONCLUSION
Because the defendant suffered no violation of his constitutional right to
confront the witnesses against him, and because the evidence is sufficient as a
matter of law to support the conviction of robbery, the judgment of the Court of
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Criminal Appeals dismissing the conviction is reversed, and the judgment of the trial
court is reinstated. Costs of this appeal are taxed to the defendant, Eddie Williams,
for which execution may issue if necessary.
__________________________________
RILEY ANDERSON, CHIEF JUSTICE
CONCUR:
Drowota, Reid, Birch and White, JJ.
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