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State v. Allen3/15/1999
The appellants, Walter Lee "Steve" Allen and Gary L. Haney, appeal the verdict of a Hamblen County jury finding them guilty of robbery, a Class C felony. At the sentencing hearing, the trial court sentenced each appellant as range II multiple offenders to the maximum applicable sentence of ten years. The appellants raise three issues for our review in their appeal as of right: (1) challenges to the identification process; (2) the sufficiency of the convicting evidence; and (3) the trial court's imposition of an "excessive" sentence and the imposition of consecutive sentences.
After a review of the record and the applicable law, we affirm the judgment of conviction for each appellant. Additionally, we affirm the trial court's imposition of ten year sentences for each appellant; however, as the State concedes, we hold the trial court erred in ordering that the robbery conviction for each appellant be served consecutive to a conviction in Jefferson County where no sentence had yet been imposed. Accordingly, we remand this cause for judgments of conviction consistent with these findings.
BACKGROUND
On July 13, 1997, Patricia Keith was employed as a clerk at the Kwik Shop Market which is located adjacent to the Waffle House in Morristown. Shortly after 7 a.m. that morning, Ms. Keith heard the gas pumps start and went to the front of the store to await the entrance of the customer. Two black males entered the store. One man [Allen] wore a hooded "sweat jacket" inside out; and the other man [Haney] wore a white tee shirt with red writing and a baseball cap. The two men went to the back of the store and began selecting various items. Ms. Keith became suspicious of the men because one of the men was wearing a hood in the middle of the summer. Thereafter, the customer at the gas pumps entered the store, paid for his gasoline, and left. While the cash register was still open, the two men approached the clerk and one of them said, "this is a holdup." When Ms. Keith turned around, a gun was lying on top of their merchandise. The shorter of the two men picked up the gun and cocked it. In fear, Ms. Keith took the bills from the drawer and placed them in a bag. Then, the two men fled the store in the direction of the Waffle House. Ms. Keith sounded the store alarm and called the police. The two men took $93 from the Kwik Shop Market. When the officer arrived, she related what had happened; however, she did not feel that she would be able to identify the men other than their height and clothing. She told the officer that they both tried to hide their faces and that she could not see them very well.
The following week, Detective Riner of the Morristown Police Department requested that Ms. Keith come to the police station for a photographic lineup. She testified that Riner read her the form on the back of the lineup and then she identified the two men who robbed the store from two separate photographic arrays. She identified the man from the first lineup quickly [Haney]; however, in identifying the man from the second lineup [Allen], she hesitated "a little bit" but she was certain it was him. Then she wrote the events of the crime on the bottom of the form.
Upon cross-examination, she acknowledged that, in her initial description to the officer, she said that one of the men was five foot seven inches, one hundred and seventy pounds and the other was five foot four inches, one hundred and fifty-five pounds. She related that the top portion of the photographic identification form was not filled out when she filled out the lower portion on either of the identification forms. Although at trial she testified that the appellant Haney held the gun and cocked it, she ha
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