IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
MAY SESSION, 1999 FILED
July 15, 1999
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9803-CR-00113
Appellee )
) DAVIDSON COUNTY
vs. )
) Hon. Cheryl Blackburn, Judge
COREY LAMONT RADLEY, )
) (First Degree Murder)
Appellant )
For the Appellant: For the Appellee:
Richard McGee John Knox Walkup
Attorney for Appellant Attorney General and Reporter
601 Woodland Street
Nashville, TN 37206 Marvin E. Clements, Jr.
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Victor S. (Torry) Johnson III
District Attorney General
Roger Moore
Asst. District Attorney General
Washington Square, Suite 500
222-2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Corey Lamont Radley, was convicted by a jury in the Criminal
Court of Davidson County of first degree murder and was sentenced to life
imprisonment. On appeal, the appellant raises the single issue of the sufficiency of
the convicting evidence, specifically challenging the identification testimony of the
State’s sole witness to the murder. 1
BACKGROUND
Around 5:00 p.m. on October 22, 1996, twenty-year old Keith Leatherwood
arrived at the residence of his cousin, Chante Jenkins, on Grace Street in Nashville.
Ms. Jenkins and Leatherwood entered the residence while an individual named Joe
Brown remained in the vehicle. Leatherwood and Ms. Jenkins had a “close
relationship” and it was not uncommon for Leatherwood to routinely visit his cousin.
On this occasion, Leatherwood informed Ms. Jenkins that he had arranged to meet
“Hank,” also known as “Rabbit,” across the street from her residence near the park.
Several months previous, Leatherwood, while visiting with Ms. Jenkins, had pointed
out “Rabbit,” who was standing across the street.
After several minutes, Leatherwood left the residence while Ms. Jenkins
continued to watch him from her kitchen window. Although security bars were
attached to the window, she testified that her view was unobstructed. She watched
Leatherwood as he walked up the sidewalk and crossed over into the street near the
park where he was joined by two other individuals. Ms. Jenkins estimated the
distance between her vantage point and the men as a distance equivalent to the
1
The appe llant’s issue is fram ed as error by the trial co urt “. . . in Den ying D efen dan t’s
Motion for Judgment of Acquittal Pursuant to Tennessee Rules Criminal Procedures 29(c). As
The re Cle arly W as In suff icient Evide nce To J ustify T he V erdic t Of T he Ju ry In T his C ase .” Th is
issue thus encom passes appellate review pursuan t to Tenn. R. App. P. 13(e).
2
corner of the courtroom. That distance was later determined to be fifty feet.
Leatherwood and the two men stood together for a few seconds and then Ms.
Jenkins saw Leatherwood, whose back was toward her, turn and run. As he began
to run in the direction of Ms. Jenkins’ house, one of the men pulled out a dark
handgun and started shooting. Ms. Jenkins then saw Leatherwood fall to the
ground onto the sidewalk. More gunshots were heard. She estimated the total
number of gunshots at ten or more. Ms. Jenkins ran outside and then went to her
neighbor’s house to call 911. Subsequently, she went to her grandmother’s house
to inform her that Leatherwood had been shot. When she returned, the police and
paramedics had arrived on the scene.
At the police station just hours after the shooting, Ms. Jenkins told the officers
that the victim was meeting “Rabbit.” She told them that the person who shot her
cousin was wearing a black hooded sweatshirt with the hood pulled over his head
and black pants. Ms. Jenkins identified the appellant from a photographic lineup as
the person who shot the victim.2 Ms. Jenkins further advised the officers, “I’ve seen
him before, I’ve seen his face.” Moreover, at trial, Ms. Jenkins made an in-court
identification of the appellant, testifying that she had gotten a good look at the face
of the person who shot her cousin.
On cross-examination, Ms. Jenkins stated that she could not identify the
person accompanying the appellant. Although she testified earlier that it was light
and clear around 5 p.m., she admitted that after the shooting it became dark and
rainy. She explained that it was clear enough to see the appellant. Although she
could not remember any facial hair or describe his face, she was certain the
appellant was the shooter. She admitted that it was only a matter of seconds which
2
A Me tro de tectiv e tes tified a t trial tha t bas ed up on th e nick nam e “Ra bbit,” p rovid ed to him
by Ms. Jenkins, a photographic array was prepared.
3
she had to view the appellant and that she was very emotionally disturbed; however,
she remained confident in her identification of the appellant.
Damien Huggins, a Metro Police officer, responded to a call regarding a
shooting on Grace Street within two to three minutes. The officer stated that around
5 p.m. that it was still daytime and the rain was only drizzling. The rain became
harder toward the end of the investigation. The police preserved the scene and
marked the location of four .45 caliber shell casings found in the street. Police
testimony also revealed that, because of inclement weather which included rain and
strong wind gusts, the shell casings could have been moved before their arrival. No
weapon was ever recovered.
Bruce Levy, medical examiner for Davidson County, testified that the autopsy
revealed that the victim sustained multiple gunshot wounds to the chest, abdomen,
back, arms, and legs, resulting in internal bleeding and injury to vital organs. The
medical examiner stated that some of the gunshot wounds were superficial;
however, since the victim died from a loss of blood, each wound contributed to his
death. The victim exhibited no traces of any intoxicants in his system. The
examiner concluded that between eight and twelve bullets struck the victim.
As the sole defense witness, Robert Burford, a private investigator prepared
a diagram for the trial indicating certain distances in accordance with the officers’
measurements taken from the scene and from the testimony of Ms. Jenkins.
Burford measured the distances from the various shell casings to the kitchen
window where Ms. Jenkins was standing. He testified that the distance from the first
shell casing to the window was 118 feet; the second, 109 feet; the third, 103 feet;
and the fourth, 67 feet. Burford explained, that from Jenkins earlier testimony, that
he had measured the distance to the corner of the courtroom at only 50 feet.
4
Also, Burford made photographs inside the house from the kitchen window.
Positioning a person to the left of shell casing number two, he concluded that only
the right arm and shoulder of the assailant were visible from the window and not the
face of the individual firing the gun. He stated that it was impossible to see the
shooter from the vantage point of the kitchen window relative to the other shell
casings. He further provided that the street sloped in a west-to-east direction. On
cross-examination, he testified that all of his photographs were taken from a
stationary vantage point at the window without any movement.
ANALYSIS
The appellant contends that the State failed to prove him guilty of murder
beyond a reasonable doubt. In a criminal case it is incumbent upon the prosecution
to prove beyond a reasonable doubt not only the commission of the crime charged
but also its perpetration by the accused. State v. Dyle, 899 S.W.2d 607, 612 (Tenn.
1995); see generally, State v. Demarco Bowdery, No. 02C01-9705-CR-00173
(Tenn. Crim. App. at Jackson, Jan. 29, 1998), perm. to appeal denied, (Tenn. Oct.
12, 1998). In this case, the appellant argues that the testimony of the State’s only
witness linking the appellant to the commission of the crime, Chante Jenkins, was
not credible and that her identification of him was totally unreliable.
It is undisputed that the Due Process Clause of the Fourteenth Amendment
protects a defendant in a criminal case against conviction “except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2789
(1979); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970). The relevant
question upon a sufficiency review of a criminal conviction, be it in the trial court or
an appellate court, is whether, “after viewing the evidence in the light most favorable
5
to the prosecution,3 any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 99
S.Ct. at 2789. See also Tenn. R. App. P. 13(e); Tenn. R. Crim. P. 29(a). 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
has the burden of demonstrating that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence,
this court does not reweigh or reevaluate the evidence. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). With these principles of appellate review in hand,
we proceed with an examination of the appellant’s sufficiency challenge.
The appellant argues that under the dictates of Jackson v. Virginia, 443 U.S.
at 307, 99 S.Ct. at 2781, “no rational trier of fact could have reached the conclusion
that the prosecution established beyond a reasonable doubt the identity” of the
appellant. He contends the following grounds overwhelmingly establish that the
testimony of Ms. Jenkins, the State’s eyewitness, was unreliable:
(1) virtual impossibility to view the shooter from her kitchen window
from the location of the first shell casing; 4
(2) failure of witness to recall the appellant’s facial hair;
(3) the exact words of the witness when identifying the appellant at the
photographic lineup, i.e., “I’ve seen him before. I’ve seen his face;”
(4) the short span of time she viewed the shooter;
(5) witness’ failure to adequately determine the distance from her
vantage point to the shooter;
(6) the emotional state of the witness;
(7) the bias of the witness;
(8) the unfamiliarity of the witness with the appellant;
3
This sta ndard p reserve s the fac tfinder’s role as the w eigher of the eviden ce. See State
v. Elder, 982 S.W .2d 871, 877 (Tenn. Crim . App. 1998).
4
W hile we rec ognize the physical fac ts rule allows this court in o ur sufficie ncy review to
disrega rd the testim ony of witne sses u nable to b e recon ciled with the physical evid ence, see State
v. Hornsby, 858 S.W .2d 892, 8 94-895 (Tenn . 1993), this case d oes no t presen t us with this iss ue.
In order for us to disregard the challenged testimony, the physical facts must be “well-established
and universally recognized physical laws.” Nelms v. Tennessee Farmers Mut. Ins. Co., 613
S.W.2d 481, 483 (Tenn. App. 1978). However, in the present case, we are prevented from
applying the physical facts rule because its application would be dependent upon assumptions or
calculation s in the de termin ation of dista nce. See Waller v. Morgan, 133 S.W.2d 614, 616 (Tenn.
App. 1939). Both the State and defense witnesses testified as to the uncertainty related to the
location of the various shell casings due to the windstorm. In addition, the positioning of the
shooter and the location of vehicle were also based up on extrapolations. Furthermore, we are
called upon to contend with the viewpoint of a static camera as opposed to movement in relation
to the hum an bod y. Thus, w e are un able to ap ply the physica l facts rule.
6
(9) the witness mischaracterization of the weather conditions;
(10) the expectation of the witness after the victim told her he was
meeting “Rabbit;” and
(11) unconscious transference.5
At trial, Chante Jenkins testified that she got a good look at the face of the
person who shot her cousin. Although she testified that she observed the shooter
from her kitchen window from a distance of approximately fifty feet her identification
testimony remained firm. Ms. Jenkins testified that during this encounter, she was in
a position to observe the appellant and the second person, “when [Leatherwood]
was walking up towards them. I was watching where he was going;” then as she
saw the two men approaching Leatherwood, they had their ”fronts” to her. . . .
“They stood there together.” . . . then she related that she could see the appellant’s
“lips moving” but could not hear anything and, several seconds later, she “saw Keith
turn and run.”
With reference to the appellant’s arguments involving unconscious
transference, the appellant’s unfamiliarity of the witness, her statement, “I’ve seen
him before. I’ve seen his face” and her expectation of meeting “Rabbit,” the
following relevant portions of Ms. Jenkins’ testimony were introduced:
Q. Okay. Now I guess my question, and I need to back up, is as your
cousin was walking out meeting the two individuals, at what point did
you recognize one of the individuals as being Rabbit?
5
Although the appellant supplements his brief with an article regarding the concept of
uncon scious transfer ence, a rgum ents of c ounse l are not co nsidere d as evid ence. See State v.
Robe rts, 755 S.W .2d 833, 8 36 (Te nn. Crim . App. 198 8). The a ppellant’s b rief deno tes that
“unconscious transference occurs when an eyewitness to a crime misidentifies a familiar but
innocen t person from a police line-u p,” citing to an article by Da vid F. Ro ss et al., Unconscious
Trans ferenc e and M istaken Identity: When a W itness Misidentified a Familiar but Innocent
Person., J. of Applied Psychol. 79, No. 6: 918 (1994). This article also contains the following
statem ent:
In summary, the literature provides mixed and somewhat weak support for
unconscious transference. It tends to occur only if bystanders are seen as
familiar; but not so familiar that witnesses recall specific contextual cues that
disambiguate them from the assailant. Moreover, in the few studies that do
report an unconscious transference effect, it is not clear how or why it occurs.
Id. at 919.
7
A. I didn’t.
Q. When you saw the two individuals whom you have described or
told us about walking up to meet your cousin, at what point, if at all, did
you realize, or did you realize you had seen that person before?
A. When I saw the person, I didn’t realize it was who he said he was
going to meet until when I came downtown and gave my statement,
and they asked me to pick out the picture, and I picked it out, and still,
at that point, I didn’t know who it was. Even when they told me his
name, I didn’t know who it was until the newspaper printing (sic) it the
next day.
On cross-examination, Ms. Jenkins testified:
A. I picked the person that I saw that day.
Q. Well, you picked out the picture of a face that you had previously
been told was the face of a man named Rabbit; is that correct?
A. I picked out the picture of the person I saw that evening.
The proof also established that, after Ms. Jenkins had identified the appellant
from the police photo line-up, she remarked, “I’ve seen him before. I’ve seen his
face.” Although, perhaps more than one inference could have been drawn from this
proof, clearly a rational juror could properly infer that the witness’ identification of the
appellant was based upon her observation of the shooter on the afternoon of
October 22 and not from a prior occasion. It was only after she had identified the
appellant from the police line-up that she also recalled “I’ve seen him before. I’ve
seen his face.” In a criminal case, if more than one reasonable inference can be
drawn from the evidence, then on appellate review, we are required to apply that
inference most favorable to the State. Tenn. R. App. P. 13(e).
The credible testimony of one identification witness is sufficient to support a
conviction if the witness viewed the accused under such circumstances as would
permit a positive identification to be made. See State v. Strickland, 885 S.W.2d 85,
87-88 (Tenn. Crim. App. 1993). Inconsistency, inaccuracy and omissions in the
description of a defendant by a witness who is otherwise able to positively identify
the defendant are questions for the jury to consider in determining the weight to be
8
given the testimony. See generally State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Further, although inconsistencies or inaccuracies may make the
witness a less credible witness, the jury’s verdict will not be disturbed unless the
inaccuracies or inconsistencies are so improbable or unsatisfactory as to create a
reasonable doubt of the appellant’s guilt. The verdict of the jury in this case is
supported by the evidence. The positive identification testimony of the witness,
Chante Jenkins, sufficiently supports the appellant’s conviction; her testimony is not
so improbable or unsatisfactory as to create a reasonable doubt of the appellant’s
guilt.
For the foregoing reasons, the judgment of conviction is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
__________________________________________
JERRY L. SMITH, Judge
__________________________________________
NORMA MCGEE OGLE, Judge
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