IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1999 SESSION

STATE OF TENN ESSEE, ) )C.C.A. NO. W1998-00512-CCA-R3-CD Appellee, ) ) MADISON COUNTY VS. ) ) HON. JOHN FRANKLIN JERMURIEL CAMACHO GILLI SPIE, ) MURCHISON, JUDGE ) Appellant. ) (Felony Murder, Seco nd-Degree Murder, Especially

Aggravated Robbery)

FOR THE APPE LLANT: FOR THE APPELLEE:
GEORGE MORTON GOOGE PAUL G. SUMMERS District Public Defender Attorney General & Repor ter VANESSA D. KING PET ER M . CO UGH LAN Asst. District Publi c Defender Asst. Attorney General 227 West Baltimore St. Cordell Hull Bldg., 2nd Fl. Jackson, TN 38301 425 Fifth Ave., North Nashville, TN 37243-0493 C. MICHAEL ROBBINS 46 North Third St., Suite 719 JERRY WOODALL Memphis, TN 38103 District Attorney General (On Appeal) DON ALLEN DANIEL J. TA

YLOR Asst. District Attor ney General Asst. District Publi c Defender P.O. Box 2825 (At Trial) Jackson, TN 38302

OPINION FILED:

AFFIRMED AND REMA NDED JOHN H. PEAY, Judge 

# FILED
December 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk2 

### O P I N I O N

Th e defendant was convicted by a jury of second-degree murder, firstdegree felony murder, and especiall y aggravated

robbery. The defendant received an effect ive sentence of life impriso nment. The trial court overruled the defendant’s subsequent

motion for a new trial. The defendant now appeals and contends that his convictions

for both second-degree murder and first-degree fel ony m urder violate the principles

of double jeopardy and that the evidence is insufficient to support his conviction forespecially aggr

avated robbery. We find the defendant’s issues to be without mer it. Howe ver, we rema nd this cause to the trial court to merge the second-deg ree murder conviction with th e felony murder convicti on.

The evidence at trial e s tablished that on the morning of Friday, February 23, 1996, the victim , driving his burgundy Ca dillac, left ho me to go to work. On the way to work, the victi m picked up the de fendant, a co-worker, and gave him a ride to work. Joey Carr, the defendant’s stepbrothe r, testified that he was at home later that afternoon when the victim brought the defendant home. Mr. Carr testified that the defendant went in to his stepfather’s bedroom, retrieved something, and then lef t with the victim in th e victim’s Cadillac. Testimony presented at trial revealed that the defendant’s stepf ather, Joey Ingram, k ept two gun s stored in that bed room. Ap proxi mately one h our later, the defendant returne d to the house, alone, driving the victim’s Cadill ac. The defendant again went into his stepfather’ s bedroo m. The defendant and Mr. Carr then l eft the house in the victim’s Cadillac. According to Mr. Ca rr , later that evening, after Mr. Carr questioned the defendant several times w ith regard to the vi ctim, the defendant confessed to the victim’s murder. The defendant told Mr. Carr th at he had shot and killed the vi ctim and tha t the victim’s body was located in a ditch beside an old railroad near theirhouse. The defendant told Mr. Carr that he had covered the victim’s body

with limbs and leaves. After the defendant’s co nfession, the def endan t and Mr. Carr went,in the victim’s Cadillac, to the mall, a basketball g a me, and then to a local McDonald’s restaurant. The defendant’s presence at the basketball game was confirmed at trial by the defendant’s aunt. The evidence at trial established that tha t evening the defendant did not spend the night at his typical place of residen ce or at Mr. Carr’s residence.3 The victim was repor

ted missing on Saturday, February 24, 1996, after his family was unable to ascertain his whereabouts via the v ictim’s pager or cel lular phone. The eviden ce established that it w as very unusual for the victim not to inform a f amil y member about any plans he had to stay out. The evidence further establi shed that the victim never allowed any one to drive his Cadil lac unless thecar needed repair and then onlyhis grandfather was al lowed to drive it. The victim’s mother, Gw endolyn Jackson, testified that the victim never mentioned a girlfriend duri ng the time period near his death.
Timothy Gillispie, the defendant’s br other , testifie d that on Saturda y, February24, 1996, the defendant arrived at Mr. G i llispie’s residence at approximately 9:30 a.m. The defendant wasdriving the vi ctim’s Cadillac. Acc ording to Mr. Gill ispie, the victim was not with the defendant. The defendant parked the victim’s Cadilla c in front of Mr. Gillispie’s resi dence where it remained for the rest ofthat afternoon. The evidence established that Mr. Gillispie drove the defendant to Mr. Carr’s residence somet ime between 10:00 a.m. and 11:00 a.m. and all three young men spent the rest of the afternoon tog ether. Both Mr. Carr and Mr. Gi llispie testified that they did not see the victim at a ll that da y.

On Sunday, February 25, 1996, Officer J oe Hou se discovered the defendant in possession of the victim’s Cadillac. The defendant told Officer House that he had dropped the victim off at the victim’s girlfriend’s house. The defendant further told Officer House that the victim had asked the defendant to take his Cadil lac because he did not want it to be park ed in front ofthe girlfriend’s house and because the victim did not want the car to be

broken into. The defendant claimed that the victim w as supposed to call when he

was ready for the defendant to return his Cadillac. The defendant was
never specific about the time he left the victim, the apartment the victim went

into, or the
woman the victim went to v isit. The police subsequently turned the Cadillac over to the victim’s mother. Officer House t estified that th e Cadil lac show ed no appa rent si gns of a crime.

On the evening of Sun day, Febr uary 25, 1996, Mr. Car r’s stepmother questioned him regarding the v ictim’s whereabouts. After Mr. Carr told her about t he4

defendant’s confession, the police were notif ied. Mr. Carr subsequentlytold the police of the location of the victim’ s body according to the de fenda nt. Based upon this information, the police began a search of a nearby railroad bed. The victim’s body w as found at approxim ate ly 12:30 a.m. on Monday, February 26, 1996, covered with brush and leaves. According to Dr. O’Brien Clare y Smith, the victim di ed as a result of multiple injuries. These injuri e s included four gunshot w ounds, five incised woun ds, including three incise d wounds inflicted after the v ictim was dead, and five blunt traumas to the victim’s head. Dr. Smith was unable to conclude

the exact order of the wo unds but was able to conclude that the injuri es were inflicted in a v ery short period of time. Dr. Smith testified that the victim had been dead fo r at least forty-eig ht hours a nd up to se venty-two hours before his body was discovered.

After interviewing Mr. Carr, the police took posses sion o f a 12 gauge shotgun and a “.38 Special” rev olver located in Mr . Carr’s place of residence. These guns belonged to Joey Ing ram, Mr. Carr’s father and the defendant’s stepfather, and
were kept in Mr. Ingram’s bedroom. Sub sequent test ing by the TBI Crime Laboratory revealed that this .38 revolv er was the gun that fired at least tw o of the bullets used in the victim’s murder.

In a later interview

with the police, the defen dant claimed that at approximately 10:00 a.m. on Saturday, February 24, 1996, he and the victim went to the mall and purchased a compact disc. The defend ant stated that the victim then drove to his girlfriend’s house and l eft the Cadillac in the defendant’s care. The defendant said h e d id not know the identity of the victim’s gir

lfriend and was very

vague about her address. The defendant “guessed” t hat th e victim did not want his car seen at the girlfriend’s residence. The defendant denied that he w as at a ba s ketball game on the evening of Friday, F

ebruary 23, 1996.

The defendant first contends that his convic tions ofsecond-degree murder and first-degree

felony murder

violate the principl es of double jeopardy. Specific ally, the defen dant argues t hat in the case at bar the offenses of felonymurder and seconddegree murder are one and the same for the purposes of double jeopardy in that they are5

both supported by the same evi dence, only one act of homicide i s at issue, and the legislati ve purpose inv

olved in th e offenses is the same . The defendant states further that, although merger has been found an acceptable remedy in other similar cases, i n the
case at bar, merger is inappr opriate. The defendant contends that since second-degree murder is a lesser grade offense of homicide than first-degree fel ony murder, it is not a lesser included offense. In addition , the jury considered first a count of premedi tated
mu rder an d found the defendant not guilty but found the defendant guilty of seconddegree murder instead. Howev er, the jury reconsi dered the offense of first-degree murder when it went on to find the defendant guilty of first-deg ree felony mu rder. See T.C.A. §39-13-202(a)(2). The defendant cl aims this recon siderati on twice put him in jeopardy of conviction of murder in the first-degree. The defendant claims that the second-degree murder conv iction and thefirst-degree felony murder convicti on cannot be merged “without tri pling the jeopardy to w hich defendant has been subjec ted.”

Initiall y, we agree with the defendant that his convictions for both seconddegree murder and first-degree felony murder for only one act of homicide subjectedhim to double jeopardy. See State v. Zirkle , 910 S.W.2d 874, 889 (Tenn. Crim. App. 1995). In order to satisfy double j eopardy concerns, the tri al court should have merg ed the lesser offense of second-degree murder into the greater offense of felony murder. See State v. Addison , 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997); State v. Banes , 874 S.W.2d 73, 81 (Tenn. Crim. App. 1993); see also Zirkle , 910 S.W.2d at 889. However, contraryto the defendant’s assertions, the order in which the jury

considered the charges in the case at bar is of littl e consequence in the contex t of merger. It is logi cal to conclude that a jurycould find a defendant not guilty of premeditated first-degree murder but instead, find him guilty of a “knowing” murder, and then also find that the defendant committed the same murder in the p erp etration of a robbery. See T.C.A. §§ 39-13- 210(a)(1); -202(a)(2). This Cour t has recently affirmed the c onviction of another defendant under

these exact circumstances. See State v. Elisa Cochran , No. 03C01- 9708-CR-00353, McMinn County (Tenn. C rim. App. f iled Nov ember 3, 1998, at Knoxville)(defendant

indicted for premeditated first-degree murder

in first count but found guilty of second-degree murder; in s econd count defendant found guilt y of first-degree6

felony murder). As such, the defendant’s contention that merger is inappropri ate in the
case at bar

is without merit. In light of the fo regoing, the proper remedy in the c ase at bar is to remand the cause to the trial court so th at it may enter an order mer ging the defendant’s second-degree murder co nviction into the gr eater offense of first-degree felony murder.

The defendant next contends that the evidence is insufficient to support his conviction for especially agg ravated robbery. Spec ifically, the defendant argue s that there is no evidence connecting the victim’s Cadil lac with the victim’s murder. Ac cording to the def endant, the o nly evidence that a r obbery occurred is that the defendant was found in possession of the victim’s Cadillac after the v ictim’s death . Fu rthermore, the defend ant contends that if the evidence i s insufficient to support a conv iction for especiallyaggravated robbery, then there is no underlying felony to justify the defendant’s felony murder convi ction.

A defendant challenging t he su fficiency of the proof has the burden of illustratingto this Court why the evidence is insufficient to support the verdict returned by the trier of fact in his or her case. This Court wil l not disturb a verdic t of guilt for

lack of sufficientevidence unles s the f acts contained in the record and any inferences which maybe drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty bey ond a reasonable doubt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

When an accused challenges the sufficiency of the co nvicting evi dence, we must review the evi dence in the light m ost f avorable to the prosecuti on in determining whether “any rational trier of fact could have found the essential eleme nts o f the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We do not reweigh or re-evaluate the ev idence a nd are requ ired to afford the State the strongest legitimateview

of t he proof contained in the record as well as all reasonab le and legitimateinferences which may be drawn therefrom. State v. Cabba ge , 57 1 S.W.2d 832, 835 (Tenn. 1978).7 Questions concerning the credibi lity of witnesses, the weight and valu e to be given to the eviden ce, as well as factual issues raised by the evidence are resolv ed bythe trier of fact, not this Cour t. Cabbage , 571 S.W.2d at 835. A guilty verdict rendered bythe jury an d approve d by the tri al judge a ccredits the testi mony of t he wi tn esses for the State, and a presumption of guilt replaces the presumption of innocen ce. Sta te v

. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).

We note that guilt may be predicated upon direct evidence, cir cumstantial evidence, or a combination of direct and circumstantial evidence. See State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995). In addition, the j ury decides the wei ght to be given to circum stan tial evidence and “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consi stent with guilt and inconsistent with innocence are questions primarilyfor the jury.” Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958); State v. Coury , 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt v. State , 460 S.W.2d 385, 39 1 (Tenn. Crim. App. 1970).

In order to convict a

defendant of especially aggr avated robbery, the

State must prove that the defendant intentional ly or knowingl y took the property of an othe r person by

violence or putting the victim in fear, that the defendant acted with the intent to deprive th e owner of the prope rty, that t he robbe ry w as accomplished with a deadly weapon, and that the victi m suffered serious bodily inj ury. T.C.A. §§§ 39-13-401( a); -403(a); 39-14-103.

Taking the evidence in the light most favorabl e to the S tate, th e victim dr ove the defend ant home and the d efenda nt retrie ved a revo l ver from his stepfather’s bedroom. The evidence established that the defendant did not own a vehi cle at that time. The victim and the defend ant travel ed to a nearby wooded area.The defendant then shot the victim four

times, struck the

victim five times i n the head with some sort of blu nt object, stabbed the victim in the chest, and inflicted four other incised wounds upon the victim. The defendant then took thevictim’s Cadilla c, drove home, returned the revolv er to its original storage space, and drov e the victim’s Cadil lac to various activ ities around town. The defendant continued to use the victim’s Cadi llac until police took the car and8

returned it to the victim’s mother. In light of the foregoing, there ap pears to be ample evidence from which a jury co uld believe the defendan t wan ted the victim’s Cadillac, killed the victim, and then appropriated the Cadillac for his own use, thus meetin g the statutory elements of especially aggravated robbery and supporting a convi ction for firstdegree felony

murder. See T.C.A. §§ 39-13-401(a); -403(a);-202(a)(2); see also State
v. Buggs , 995 S.W.2d 102, 108 (Tenn. 1999) (holding that a jury may reasonabl y infer from a defendant’s actions immediately after a killing that t he d efendant had the intent to commit the felony prior to,or concurrent with, the killing). This i ssue is without merit.

According ly , we affirm the defendant’s convic tions for first-degree felony murder, second-degree murder, and especially aggravatedrobbery. However, to protect against double je opardy, we remand this cause to the trial court for an order of merger of the lesser offense of second-degree murde r i nto the greater offense of first-degree felony murder.

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_ JOHN H. PEAY, Judge

CONCUR:

______________________________ NORMA M. OGLE, Jud ge

______________________________ ALAN E. GLENN, Ju dge