### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Marc h 3, 200 9

STA TE OF TEN NES SEE v. TY REE RO BINS ON

Appeal from t he Criminal Court for Shelb y County No. 01-013118 Chris B. Craf t, Judge

No. W2008-01001-C CA-R 3-CD - Filed Jun e 16, 2009

A Shelby County jury convicted the defe ndant, Ty ree Robinson, of first deg ree preme ditated murder
, felony murder, and espe cially ag g ravated robbe ry . On his first direc t appea l, this court held that the trial court c ommitt ed reversible error when it failed to inst ruct the jury , in response to its question, that a c c omp lic e s c ou ld n ot c or ro bo rate e a c h o the r a

nd the n r e mand e d f

or a ne w tri a l. Af

te r r e tr ia l, the def endant wa s ag ain convicte d of the above thr ee of fense s and sentenc ed to life imprisonment

a nd tw e nty y e a rs , to be se rv e d c on se c uti ve ly . O n a pp e a l, the def

e nd a nt a rgue s und e r a

n u mbr e lla challeng e to the suff

iciency of the evidenc e that: ( 1) the trial c ourt err ed in fa iling to instruct the jury that two of the witnesse s, I ly as Morris a nd Mieko Saulsberry , wer e ac complices a s a matter of law,

a nd (2 ) e ve n a ssumin g tho se wi tne sse s w e re no t a c c omp lic e s, the ir te sti mony

wa s in su ff

ic ie nt t o

c or ro bo rate the te sti mony of the de fe nd a nt’ s a c c omp lic e s. Up on re vie w, we a ff

ir m th e jud g me nts of the trial c ourt but remand f or entry of ame nded judg ments to refle ct the cor rec t offense date.

Te nn. R . A pp. P . 3 App e al a s o f R igh t; Judg me nt s o f t he Cr im ina l C our t A ff ir me d and Rem anded for Entry of Corr ect ed Judgments

A LA N E. G LE NN , J., delivere d the opinion of the court, in which J OHN E V ERETT W I L L I AMS and C AM I LLE R. M C M ULLEN , JJ., joined.

La rry Co pe la nd a nd Sa ma nth a Ne uma nn (at tr ia l) ; Jo se ph S . Oz me nt ( on app e a l) , M e mph is, Tenne ssee, f

or the a ppellant, Tyre e Robinson.

Rob e rt E. Coo pe r, Jr
., At tor

n e y G e n e r a l an d

R e p o r t e r ; D a vidH. Fin dle y, As sis ta nt A tto rn e y G e ne ra l; William L. Gibbons, District Attorney Ge n er al ; and John Campbell and Amy We irich, Assistant District Attorneys Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

F AC TSC o rtn e y P e rr y ’s b ro th e r, C o re y P e rr y , w a s m e n tio n e d d u rin g tr ia l b u t d id n o t te stify

. H e re in a fte r, “ P e rr y ” w ill 1

re fe r to C o rtn e y P e rr y

.
-2- This case arises out of the April 2001 murder of the victim, O’ Neil Cornish, f or which the defe ndant was indicte d and convict ed of first deg ree preme ditated murder , felony murder, a

nd
espec ially ag g ravated robber y

. On direc t a

ppeal, this c ourt reve rsed the judg ments of the trial c ourt

a nd re mand e d f

or a ne w tri a l, c on c lud ingthat th e tr ia l c ourt e rr e d in fa ili ngto i ns tr

uc t th e jur

y , in
response to its quest i o n , t h at ac complices c annot cor roborate ea ch other . State v. Robinson, 239 S.W .3d 211 (Tenn. Crim. App. 2006) . The sec ond trial was conducted from J anuar y 28 to Febr

uary 1, 2008.

State’ s P roof

Serg eant Er ic Fr eema

n with the Memphis Poli ce D epar tment testified that he wa s working

as a c rime sce ne off

icer on April 10, 2001 and re sponded to a “ D O A unknown” call nea r Shepher ds Tree Street and K ilarney Avenue . The sce ne wa s a dea d-end stre et that ha d b ee n cl ear ed for de ve lop me nt, bu t w a s be ing us e d a s a du mpi ng g ro un d. At the sc e ne , h e fo un d a

y oungbla c k ma le wi th a g un sh ot w ound

lyingin t he s tr eet and

a larg e a mou

nt o f b loo d a

ro un d th e bo dy . H e a lso found seve ral .380 shell ca sings, a bullet f rag ment, loose tobacc o, a cig ar tip, blood-stained tissue
paper , a sale s rec eipt, a troweling or cutting wheel, and a W aff le House identification card with the name Jennifer. Ser g eant F ree man noted that the victim had twe nty -five dollar s in his sock.

Percy Alexander, re tired battalion chie f with the Memphis Fire Depa rtment, testified that he was driving around se arc hing f or his lost dog on the morningof April 10, 2001, in t h e ar ea of Shepherds Tr ee Stre et and Kilar n ey Avenue . As he looked into a c ove, Alexander saw the motionless vict im ly

in g o n th e g r o u n d
, g o t o u t o f h is c a r , a n d a p p r o a c h e d th e v ic ti m. H e saw a stream of blood and noticed that the vic tim had a wound to hi s head a nd was de cea sed. Alexander
returne d to his car, c alled 911, and w aited for the police to ar

rive.

S e k uT e a m e r , t h e b e s tf

r i e n d o f t h e v i c t i m , t e s t i f

i e d t h a t h e a n d

t h e v i c t i m w e r e a tW i n g C i t y,

a nig htc lub , in

the earl y mor nin g ho ur s o f A

pr il 1 0, 20 01 , w he n th e vic timre c e ive d a ph on e c a ll. Th e vo ic e on

the ph on e a

pp e a re d to be th a t of

a ma le . T he tw o le ft

the nig htc lub a

pp ro xima te ly fi ft e e n mi nu te s a ft e r t

he vic timre c e ive d th e ph on e c a ll. Th e vic tim dr op pe d Te a me r o ff a t th e ho me they share d, saying he was g oing to the L oft Apar tments “to have inter course with Takisha B rown

a nd he wa s g oin g to j oin

in w ith [the de fe nd a nt]. ” Th e vic timthe n d ro ve a wa y in h is B la zer

wi th relatively new, f lashy rims.

I ly a s Mo rr is, a lso kn ow n a s “ B ig E, ” te sti fi e d tha t in Ap ri l 20 01 he liv e d w iththe de fe nd a nt, Cor tne y Pe rr y , Takis ha B ro wn , Te rr a nc e Sc ott , an d Willie Ros se r at the L of t Apa rtme nts . O n Apr il 1 10 , 2 00 1, Mo rr is w a s tr

y ingto s le e p d ow ns ta ir s in the apar tm ent w he n h e he a rd the de fe nd a nt, Br own, and Per

ry talking upsta irs, but he could not re call the nature of t heir conversation. He then hear d the three leave the apa rtment.-3-

Morris said that he subse quently was a wake ned by Mieko Saulsberry
, one of the de fenda nt’s friends, w ho wanted Morris to g o with him to m eet the de fenda nt at Club on the Gree n, another
apar tment complex. The two drove Morr is’ v an to C lub on the Gre en, but the def endant wa s not the re so the y wa ite d. As the y we re g e tti ng re a dy to le a ve , a g re e n tru c k w ithc us tom ri ms p ull e d in flas h i n g i t s lights. Morris saw that the def

endant wa s driving the truck a nd that Br own and Per

ry

we re wi th h im. Mo rr is ha d ne ve r se e n the tr uc k be fo re and

kn e w i t di d n ot b e lon g to t he de fe nd a nt. Everyone g ot out of the truck, a nd the def

endant r emoved a ll of

his clothes except his underwe ar. Mo rr is l oo ke d in sid e the tr uc k a nd saw “ [a] lo t” of

blo od on the dr ive r’ s se a t. H e a lso saw a VC R on the passeng er’ s side, which he took a nd put in his van.

Morris testified that they

all left in his van and we nt back to the L oft Apar tments to look for a floor ja ck to re m o v e t h e ri ms from the g ree n truck, but they wer e unable to find one. The defe ndant then dire cted Morr is to wher e the victim’s body was located to make sure the victim was dead. When they

g ot to the body , the def

endant told Perry

to shoot the victim ag ain. Perry g rabbe d

a g un of f t he fl oo rb oa

rd of Mo rr is’ va

n, g ot ou t, a nd sh ot the vic timtw o to fo ur tim e s. Mo rr is s a id the g un did not belong to hi m and desc ribed it as a sma ll sil ver .380. The re w as also anothe r g un on the floorboa

rd – a la rg er .380 w ith the safety missi n g, wh i ch M o rris knewbelong ed to the defe ndant. Afte r Perry shot the victim, the g roup returne d to the L oft Apar tments to look aga in for a floor ja ck.

Morris re called that he drove the g roup to a gas station, and they purcha sed a g allon of g as in a J ung le J uice c ontainer. The y drove ba ck to the v i ct i m ’s t ru ck at Club on the Gree n, and Saulsberry

and Perr y threw the g as on the t ruck and burned it. Saulsberr y rec eived se cond deg ree burns in the proc ess. After burning t he truck, ever y one got back into the van and returned to the L oft Ap a rtme nts . Mor

ri s sai d tha t app ro xima te ly a we e k lat e r, the po lic e qu e sti on e d h im, the de fe nd a nt, and Perr y about Saulsberr

y ’s burns. Morr is told t he police that he did not know a ny thing a bout the burns. Morris said he met the def endant a nd Perry afte rwa rds to dispose of the g uns and drove them to the defe ndant’s mother’ s house wher e the de fenda nt retrieve d t h e g uns. Morris then drove the def e n d a n t a n d Pe r r y to Co r o L a k e w h e r e th e y th r e w th e g u n s in to th e w a te r

. M o r r is w a s late r

a rr e ste d a nd tol d th e po lic e e ve ry

thi ngthat ha d h a

pp e ne d a nd he lpe d th e m lo c a te the g un s. Mo rr is said he pled guilty

to acc essory

afte r the fa ct due to his involvement.

On cr oss-examination, Morris ac kn o wl ed ged t h at wh en h e w as arre s t ed
, h e w as i n fo rm edt hat he could be char g ed with murder . He a dmitted that in his s t at em en t t o police appr ox imately two

we e ks a ft e r t

he mur de r, he sa id i t w a s th e de fe nd a nt, no t Sa uls be rr y , w ho awa

ke ne d hi m and tol d him to g o to Clu

b o n th e Gr e e n. He te sti fi e d th a t he c ou ld n ot r e me mbe r w ho it w a s th a t actu a lly woke him that night. Morris acknow ledg ed that he overhe ard the defe ndant, Br own, an d Perry talking a bout robbing the victim, but said he did not think the defendant was serious. He a dmitted that by picking the def

endant up a fterw ards, he was, in e ffect, ac ting a s the g etawa y driver. O n redire ct , M o rr i s said that he wa s the only one in the household who ha d a vehic le, and he drove wher e the de fenda

nt told him

.-4-

Mieko Saulsberry

testified that he, C ortney Perry , I ly as Morris, a

nd others lived with the defe ndant at the L oft Apar tments in April 2001. At the time, the defe n d ant had a n enter tainment

c omp a ny c a lle d “ I n T ow n E nte rt a inm e nt, ” a nd Sa uls be rr y wo rk e d s e c ur ity

a nd pla y e d in str ume nts for him. Duringthe ea

rly morning hours of Apr il 10, 2001, Saulsberry was a sleep in the de fenda nt’s room when the defe ndant woke him and told him t o g et in Morris’ va n. Morris, Perry , and B rown

wer e alr eady

in the van, and they drove to a g as station a nd purcha sed g as in a milk or J ung le J uice jug . Sa uls be rr y state d that he a sk e d the de fe nd a nt wh a t w a s h a

pp e nin g , a

nd the de fe nd a nt t old

him the less he kne w the better . They then drove to the location of the vic tim’s body

. Saulsberry

said that when they arr ived at the victim’s body , the def endant told Perry

to ge t out o f t h e v an . Perry

g ot out and shot the victim twice. They then drove to Club on t he Gr een Ap a rtme nts a nd pr oc e e de d to the ba c k o f t he c omp le x whe re a

tr uc k w ith“ hig h p ro fi le

. . . c hr ome rims” was pa

rked. The defe ndant, Perry
, and Br own “wip[ed] down the truck,” tried to remove the ri ms a nd ra dio , an d poure d g a so lin e on the tr uc k. B e c a

us e the y ha d s pil le d g a so lin e on the mse lve s, the def endant a sked Saulsberry to lig ht the fire, which he did. The truc k exploded, and Saulsberry

was seve rely

burned. Saulsber

ry ’s g irlfriend e ventually t o o k h i m to the hospital where he wa s qu e sti on e d b y

the po lic e a nd

tol d th e m a

fa br ic a te d s tor

y . How e ve r, he la te r tol d th e po lic e the tr uth and pled guilty

to the offe nse of bur

ning pe rsonal prope rty

.

Takisha B rown testified that she wa s dating Cortney Perry ’s brother , Corey , at the time of the murder . At that time, Cortney
, Corey
, Mieko Saulsberry
, and the defe ndant lived toge ther at the L oft Apar tments, and I ly as Morris stay ed there occ asionally . Br own said that she sometimes stay ed there with Corey

but actuall y l i v ed wi t h h er mother . On the eve ning of April 9 or 10, B rown

re tur ne d to the L of

t Apa rtme nts a ft e r s e e inga

mov ie wi th a fr ie nd a nd re c a lle d that the de fe nd a nt, Cortney
, Corey
, Morris, and possibly Saulsberry wer e there when she arr ived. The de fenda nt and Cor tne y we re dis c us sin g “ [w]hat w a s g e tti ngre a dy to h a pp e n, ” and

the de fe nd a nt a sk e d B ro wn if she would tell the victim that she would hav e s ex wi t h h im in an effor t to ge t him to drive over quickly so the defe ndant could rob him. B rown a g ree d beca use she ha d been using drug s all day and was not “thinking .”

Br o wn s ai d

t h at t h e d ef

en d an t c a l l e d t h e v i ct i m an d t h at s h e t o l d

t h e v i ct i m s h e w o u l d

go along with him and the defe ndant. When the victim arrive d
, Br own, Cortney Perry , and the defe ndant went outside a

nd g ot into the victim’s ve hicle. The victim was driving , Perry was in the
pa sse ng e r’ s se a t, B ro wn

wa s se a te d b e hin d Pe rr

y , a nd the de fe nd a nt wa s se a te d b e hin d th e vic tim

. They went to a g as station to ge t a cig ar to fill with marij u an a, then drove to an unde veloped a rea to smoke the marijuana

. Whil e they smoked, the victim started talking about his .380 handg un and pulled it out of the g lovebox t o show the def endant.

Br own re called that the defe ndant aske d to see the vic tim’s gun a nd, afte r deny

ing that he owned a g un, pulled out his gun and shot the victim. The defe ndant g ot out and opened the driver’ s door, ca using the victim to fall out on the g round. The de fenda nt then g ot in the driver’ s seat and drove to the Club on the Gre en Apar tments where Saulsberry

and Morr is were waiting . Br own g ot-5-

into Morris’ van, while the men donned g loves and sea rche d the victim’s truck. B rown saw the defe ndant take of

f his clothes that we re c overe d in blood, and ever y one g ot into Morris’ van.

Br own t estified that the defendant directed Morris to drive back t o the vi ctim’s body . The de fe nd a nt t

ri e d to shoo t th e vic tim , b ut h is gun jamme d s o h e tol d Pe rr

y to s ho ot t

he vic timwi th another g un. They

drove ba ck to the L oft Apar tments, and she we nt inside and told Corey what had happene d. The de fenda

nt, Perry , Saulsberry , and Morr is left ag ai n , b ut returne d later w ith Saulsberry

scre aming that he had be en burne d. Br own admitted that she pled guilty to fa ci l i t at i on of an
ag g ravated robbe ry

for he r involvement.

Cortney Perry testified that at the time of the murder, he was living with the def endant at the L oft Apar tments along with h i s b ro t h er , I ly as Morris, Mieko Saulsber ry , and Te rra

nce Scott. On April 9, 2001, Perry was asleep when the def endant woke him say ing that they neede d rent money

a nd that he ha d a

pla n to ro b an d kill the vic tim

. Ac c or din g to P e rr y , th e de fe nd a nt w a s g oin g to c a ll the victim and offe r to g et him a hotel room so he c ould have se x with Takisha B rown, a nd then the defe ndant “wa s g oing to do him in.” The defe ndant re ceive d a phone c all from the victim and then told Perry that he was “just kidding” about doing any thing to the victim. The defe ndant told Perry that he a nd the vic tim we re g oin g to s mok e mari jua na a nd have se x with

B ro wn . Pe rr

y de c ide d to
g o along to see if B rown wa s g oing to c heat on his brother , Corey

.
Perry testified that he, the de fenda nt, the victim, and Br own drove around looking for a n open g as station so they

could purc hase a

cig ar to use to smoke ma rijuana. The defe ndant di rec ted the victim to drive to a cove near S hepher ds Tree and Kilarney
, and the defe ndant and the victim st arte d
ta lki nga bo ut gun s. Th e vic timre a c he d und e r t he ra dio a nd

re tr ie ve d h is gun to sh owthe de fe nd a nt, and the de fenda

nt asked to see it. T h e v i ct im obliged, a nd the def

endant be g an unloading and loading the bullets. P er ry n oted that he ha d started to fa ll asleep whe n he hea rd a gunshot and instinctively

jumped out of the car

. He hear d a second shot a s he ducked down near the re ar of the vehicle. A t that point, the defenda nt got out of the vehicle, pulled the victim o u t , an d go t i n the driver’ s seat. B rown moved into the pa s s en ger ’s seat, a nd Perry started to wa lk off but ende d up
g etting ba ck in the vehic le.

Perry rec alled that the de fenda nt drove them to Club on the Gre en Apa rtments wher e they met Morris and Saulsber

ry . The de fenda

nt told hi m an d Br own to g et into Morris’ van, a nd the defe ndant proce eded to take off his c lothes. Morris g ot out of his va n, took some thing out of

t he victim’s truck, go t back in the va n, and they

started to drive toward the L oft Apar tments. On the

wa y , th e de fe nd a nt d ir e c te d M or ri s b a c k to the vic tim ’s loc a tio n a nd
, wh ile wa vin g his “ bigc hr ome g un,” told Perry that Perry was g oing to shoot the victim to make sure he was de ad. Af ter telling the defe ndant he was not g oing to do it, Perry g ot out of the va n and shot the victim with the victim’s
g un th a t th e d e f

e n d a n t h a n d e d h im

. T h e n , th e y dr o v e to a g a s s tati o n to p u r c h a s e f u e l to b u r nthe victim’s truck, re turned to the truc k, and set it on fire . Saulsberry was burne d in the proce ss.

Perry testified that he a

nd the defe ndant wer e questioned by the police a

fewday s after

the murder, but they

wer e not ar

rested. Sometime afte r t alking to the police, Perr y , the def endant, a nd-6-

Morris went to the de fenda nt’s mother’s house w here the def endant g rabbe d a b ag containing the
g uns from the ba ck of the house. P err y stated that the de fenda

nt “implied” that he wa

nted to throw the g uns into Coro L ake, so the y went to the lake and thre w them in. Perry t es t i fied that he was

arr ested a pproxi mately

a we ek later

and told the police e very thing. He admitted that he wa s

curr ently servinga life sentenc e as a result of his involveme nt in the murder . Perry rec alled that the defe ndant’s g un was a

L orcin a nd that the def

endant a nd Br own had been in a re lationship but t hat was be fore he knew

the def endant.

Dr. O.C. Smith, S helby

County Medica l Ex aminer at the time of the i ncident, testified that he per formed the autopsy on the victim. Dr. Smith not ed that the victim sustained two conta ct g unshot wounds to the head, whic h damag ed the br ain, and three g unshot w ounds to the body . I t was Dr. Smit h’s opinion that the gunshot wounds to the body occur red post-morte m. Wi th reg ard to the
g unshot wounds to the head, Dr . Smit h stated that both wounds “we nt from up to down, went f rom ri g ht t o le ft

a nd we nt f ro m ba c k to fr on t sl ig htl y .” He re c ov e re d p ro je c til e s f ro m bo th h e a d w ound s.

Of fi c e r Ve nn e s Owe ns wi th the Me mph is Po lic e De pa rtme nt t e sti fi e d th a t sh e a ssi ste d w ith the ho mic ide inv e sti g a tio n in thi s c a se . O ff

ic e r O we ns re c a lle d th a t I ly a s Mor ri s led the of

fi c e rs to Cor o L a ke wh e re tw o p ist ols we re re c ov ered. M or ri s a lso le d th e of

fi c e rs to t he L of t Apa rtme nts wher e a pla stic jug that had bee n used to transport g asoline wa s discarde d.

Of fi c e r R e g ina ld Mo rg a n wi th the Me mph is Pol ic e De pa rtme nt te sti fi e d that he wa s th e c a se office r in the investig ation of the victim’s murder . As part of his inve stigation, Of

fice r Morg an we nt to Club on the Gr e e n Apa rtme nts wh e re the vic tim ’s burn e d ve hic le wa s found , an d he a lso we nt t o the morg ue to re trieve the bulle t s that were rec overe d from the victim’s body during autopsy . He transporte d those bullets as well as the guns rec overe d from C oro L ake to the Tennessee B urea u of I nvestig ation (TB I ) Crime L ab in Nashville for compar ison.

Cervinia B raswe ll, forensic sc ientist and firea rms examiner with the TBI , testified that the
g uns sent to the TBI

for testing in this case we re a .380 L orcin pistol with the s afe ty missing and a smaller g un – a .380 Davis. Both g uns wer e cake d with mud and rust but w ere opera ble af ter be ing clea ned. The TBI

also rec eived five bullets r ecove red from the victim’s body during autopsy , one of which w as unable to be examined due to damag e ca used when it entere d the body . Two of the bullets had the same c lass characteristics of the L orcin gun as we ll as simil ar individual char ac teristics, but not enoug h to say with 100% ce rtainty

that the bullets were fired f rom that particula r L orcin g un. The other two bullets ha d the same class char acte ristics of the Davis gun a s well as similar individual char acte ristics, ag ain, but not enoug h to sa y with 100% cer

tainty that the bullets were fired f

rom that particula

r Davis gun.

Defense P roof

L o l i t a K e n t s t a t e d

t h a ti n A p r i l 2 0 0 1 s h e w a s t h e m a n a g e r o f a g a s s t a t i o n n e a r

A i r w a ys Boule vard a

nd Holmes Road and was working the overnight shift on April 9, 2001. She rec alled that
a man pur chase d g as and put it in a jug of some ty pe ar ound 2:00 a.m. She descr ibed the man who-7-

boug ht the g as as heavy set, weig hing approxim ately 207 pounds, and having

drea dlocks in his hair. She did not recog nize the man who boug ht the g as as a ny one in the cour

troom. She s ai d that the

man drove a lime g ree n truck with tinted windows and r ims. Kent expl ained that she paid attention to the truck be cause she had se en it befor e at the g as station, but the man who paid f or the g as wa s not the usual driver

of that truck.

Shalando Madkins stated that the de fenda nt and Takisha Brow n “foole d around w ith each other” for a

bout a m onth in 2000 or 2001. She rec alled that the defendant a nd Br own ar g ued ofte n and said that one time “proba bly [i n] t he summer of

2000,” B rown attacked the d ef en d an t wi th a knife.

Mark Wil liams, long -time friend of the defe ndant, testified that the def endant is left- handed. Wil liams st at ed t h at h e also knew Mieko Saulsbe rry and did not consider him to have a g ood reputation for truthfulness in the community

.

After the conc lusion of the proof, the jur y found the de fenda

nt guilty of fe l o n y

murder,
preme ditated murder , and espec ially ag g ravated robber y . The fe lony

murder c onviction was merg ed into the pr em ed i t at ed murder c onviction, and the jury sentenc ed him to life imprisonment. The defe nda n t w a s s e n te n c e d to tw e n ty

y e a r s f o r th e e s p e c ia ll y

a g g r a v a te d

r o b b e r y c o n v ic ti o n , to be

serve d consec utively

to the life sentenc e. The defe ndant appe aled.

AN AL YSI S

Th e de fe nd a nt a

rg ue s that the e vid e nc e wa s in su ff ic ie nt t o s up po rt

his c on vic tio ns be c a

us e (1) the c ourt err ed in not decla ring I ly as Morris a

nd M i ek o S au l s b erry

acc omplices as a matter of law, and ( 2) eve n if Morris and Saulsber ry wer e not ac complices a s a matter of law, their testimony

was in s u f f ic ie n t to c o r

r o b o r a te th e te s ti mo n y o f th e d e f e n d a n t’ s a c c o mp li c e s , T a k is h a B r o wn and C o rt n e y P e r

r y.

The de fenda

nt filed a pre trial motion a s k i n g t h e court to find that C ortney Perry , Takisha Br own, and I ly as Morris wer e ac complices a s a matter of law. Dur ing disc ussion concer ning the jury

c ha rg e , th e tr ia l c ourt

de te rm ine d th a t Co rt

ne y Pe rr y and Takis ha B ro wn we re a c c omp lic e s a s a matter of la

w, but with reg ard to I ly as Morris a nd Mieko Saulsberry , the cour t noted:

[N] either one of them testified that they did a ny thing prior to the robber

y and killing having taken plac e. Eve n though Mr . Morris admi t t ed o n cross that he hear d they

wer e talking about a r obbery
, he did nothing until af ter the r obbery

and I think one of them wa s convicted of acc essory

afte r the fa ct. B ut I didn’t hear any thing in the
pr oo f f ro m th e ir state me nts or a ny a dmi ssi on s o r a ny thi ngwh e re the y

we re in o n it prior to the killing.

Def ense c ounsel then restated hi s position that he believe d Morris was a n acc omplice as a

matter of law and asked the court to char g e the jury as such, which the court de nied. The c ourt cha rg ed the-8-

jur y that, a s a c c omp lic e s a s a

ma tte r o f l a w, Cor

tne y Pe rr y ’s and Takis ha B ro wn ’s te sti mony

ha d to be suff iciently corr oborate d in order to c onvict t h e defenda nt, but that it was to make the deter mination of whether

I ly as Morris or Mie ko Saulsberry wer e ac complices.

An ac complice is def

ined as o n e who “knowing ly , voluntarily , and with common intent participates with the principal offe nder in the commission of the crime alleg ed in t h e charg ing instrument.” State v. G ri ff i s , 9 6 4 S.W .2d 577, 588 (Tenn. Crim. App. 1997) . The test for deter mining whe ther a

witness i s an ac complice is whe ther the w itness could be indicted f or the same off ense a s the defe ndant. See S tate v. Gre en, 915 S.W .2d 827, 831 (Tenn. Crim. App. 1995) ; State v. L awson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). When the evide nce is c lear and

un dis pu te d th a t a

wi tne ss p a rt ic ipate d in

the c ri me , th e n th e tr ia l court mus t de c lare the wi tne ss t o be an a ccomplice as a matter of law and instruct the jur y t hat the witness’s testimony must be

c or ro bo rate d. L a ws on , 7 94 S.W. 2d a t 36 9. On

the oth e r h a nd , whe n th e e vid e nc e is unc le a r, it become s a question of fac t f or the jury to determine w hether the witness is an ac complice, a nd, if so, whether there is corrobor ating evidenc e to support the witness’s testim ony . I d.; see Gr een, 915 S.W .2d at 831-32.

First addressing whether Morris s hould have been considered an accomplice as a matter of law, we note that Morris testified on direct ex amination at t rial t hat as he was trying to fall asleep, he over hear d the def

endant, B rown, a

nd Perry discussing something but he c ould not remember what the y we re ta lki nga

bo ut. L ate r, he wa s a

wa ke ne d b y Sa uls be rr y wh o w a nte d h im t o d

ri ve him to Club on the Gree n Apar

tments to meet the defe ndant. Morris ac knowledg ed that af ter the de fenda

nt

arr ived at Club on the Green, Morris took a VCR out of t he vehicle t he def endant wa s driving – the victim’s gr een B lazer. He conce ded that he dr ove the de fenda nt, Brow n, Perry , and Saulsberr y around to look for

a jack, purcha se g asoline, shoot the victim a g ain, and burn the B lazer. Da y s later, he drove the def

endant to dispose of the wea pons.

On cr oss-examination, Morris admitted that when he w as ar rested he was told that he may be c ha rg e d w ithmur de r i n c on ne c tio n w iththe c omp la int

. He a lso a dmi tte d that in his state me nt t o the police he s ai d t h at h e had over hear d the def

endant, B rown, a

nd Perry making plans to rob the victim, but he te stified he did not think that the de fenda nt was g oing to g o throug h with it. W hen

a sk e d if he wa s the g e tawa

y dr ive r, Mo rr is sa id “ [i]t’ s ov e r wi th” by that ti me . O n r e dir e c t, M or ri s testified that he dr ove whe re the defe ndant t old him and that he was the onl y one in t he g roup who had a ve hicle.

I n s um, the e vid e nc e is f

a r f ro m be ingc le a r a

nd un dis pu te d a s to Mo rr is’ ro le in t he c ri me s. There was no e vidence that Morris knew a murder ha d been c ommitt ed whe n he set out f ro m the Clu b o n th e Gr e e n Apa

rtme nts with t

he de fe nd a nt a

nd his c oh or

ts. Al tho ug h th e re is s ome ind ic a tio n M or

ri s ma y have ov e rh e a rd the de fe nd a nt’ s pla n to ro b the vic tim , h e te sti fi e d th a t he did not think the defenda

nt was ser ious, and there was no e vidence that Morris was in any way involved

w i t h c o m i n g u p w i t h t h e p l a n

. A s w e h a v e s e to u t , a n a c c o mp l i c e i s o n e w h o “ kn o w i n g l y, voluntarily , and with common intent participates with the principal offe nder in the c ommissi on of the cr ime alleg ed in the cha rg ing instrument.” Griff

is, 964 S.W .2d at 588. Moreove r, Morris wa s-9-

char g ed with and pled guilty to bei n g an acc essory

afte r the fa ct. I t has long been he ld that an

acc essory afte r th e fa ct i s n o t an ac complice to the c harg ed off enses whose testimony

must be

c or ro bo rate d. Sta te v. Th oma s, 15 8 S. W.3 d 3 61 , 4 02 (T e nn . 2 00 5). We a lso no te that Mo rr is’ testimony was essentially the same as in the defe ndant’s first trial, a nd this court conclude d on direc t appea l from the defen d an t ’s first trial that whe ther Morr is was an a ccomplice was a question
proper ly left for the j ury ’s determination. See R obinson, 239 S.W .3d at 226. L ikewise, we conclude that the trial court proper ly deter mined that whether Morris was an acc omplice was a question of fa ct for the jur y and that he w as not an a ccomplice as a matter of law

.

Wit h reg ard to Saulsber

ry , we note that it does not appear that the de fendant argued for Saulsberry ’s status as an a ccomplice as a matter of law until the moti on for ne w trial as his pre trial motion and argument during the jury char g e discussion related only to Morris. I n any

event, it is not clea r and undisputed that Saulsber ry was a n acc omplice; there fore , the cour t did not e rr in leaving that deter mination to the jury . At trial, Saulsberry testified that he wa s aslee p when the de fenda nt woke him and said “we ’re g oing to r ide” a nd to ge t in Morris’ van. Saulsber ry witnessed the
purc ha sin g of

the g a s, the de fe nd a nt te lli ng Pe rr y to g e t out of

the va n a nd Pe rr y sh oo tin g the vic tim
, and assisted in burning the va n. Howeve r, Saulsberr

y said that the def

endant did not tell him what happene d in the victim’s truck and told him the less he kne w t he better. Ther e wa s no evidenc e that Saulsberry

had any knowledg e of the impending robber y or murder, a

nd his involvement was ver y minimal and after -the-f

act. As suc h, we c onclude that the tr ial court prope rly left the de termination to the jury

of whe ther Saulsber

ry was a n acc omplice.

Ha vin g d e te rm ine d that the tr ia l c ou rt did no t e rr in de c lin ing to c ha rg e the jury th a t Mo rris

an d S au l sberry wer e ac complices a s a matter of law, we turn now to the sec ond part of the de fe nd a nt’ s ar gu me nt tha t the te sti mon ie s o f M or ri s a nd Sa uls be rry w e re ins uf fi c ie nt t o c or

ro bo rate the testimony of the def

endant’ s acc omplices.

When r eviewing a

challenge to the sufficie ncy of the convicting evidenc e, we note that the

re le va nt q ue sti on of

the re vie wi ng c ou rt

is “ wh e the r, a ft e r v ie wi ng the evi den ce in the lig ht m os t favor able to the pr osecution, any rational trier of fac t c ould have f ound the essential e lements of the crime be yond a re asonable doubt.” Jac kson v. Virginia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979); see also Tenn. R. App. P. 13(e) (“Findings of gui lt in criminal ac tions whether by the tr ial court or jury shall be set aside if the evide nce is insuffic ient to support the findings by the trier of fac t of guilt beyond a re asonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 ( Tenn. 1992); State v. Ander son, 835 S.W

. 2 d 6 0 0
, 6 04 (Tenn. Crim. App. 1992) . All questions involvi ng the

cre dibilit y of witnesses, the w eight and v al u e t o be given the e vidence , and all fa ctual issues ar e resolved by the trier of

fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Te nn. Crim. App. 1987). “A guilty verdic t by the jury, approve d by the trial judge, acc redits the testimony of the witnesses for the State and resolves all conflicts in f avor of the theory of the State.” State v

. Gr ac e, 4 93 S.W.2d 474, 476 (Tenn. 1973) . Our supre me court stated the ra tionale for this rule:

This w e ll

- s e tt le d r u le r e s ts o n a s o u n d f o u n d a ti o n

. T h e tria l ju d g e a nd the jury see the witnesses fac e to f ace , hear their testimony and observe their deme anor on the stand. Thus the trial judge and jury are the primary instrumenta lity of justi ce-10-

to determine the weight and cre dibilit y to be given to the testimony of witnesses. In the trial for

um alone is there h u m an atmosphere and the totality of the e vidence

c a nn ot b e re pr od uc e d w ith a wr itt e n r e c or d in thi s Co urt.

Bolin v. S tate, 219 Te nn. 4, 11, 405 S.W.2d 768, 771 (1966) ( citing Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963)) . A ju ry conviction re moves the pre sumption of innocence with which a defe ndant is initi ally cloake d and re place s it with one of guilt

, s o t h at o n appea l, a convicte d defe ndant has the burden of demonstra ting that the evidence is insufficient. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982)

. A pre meditated and intentional killing of another is f irst de gree murder. T enn. Code Ann. § 3 9- 13 -2 02 (a ) ( 20 06 ). Pr e me dit a tio n me a ns that th e int e nt to kill mus t hav e be e n forme d p ri or to the ac t itself; a preme ditated ac t is one done af ter the e xerc ise of re flec t i o n and judgm ent. Id. § 39-13-202( d). The pr esenc e of pr emeditation i s a question of fa ct for the jury to determine ba sed upon a conside ration of a ll the evidence . See State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000).

Premeditation may be infe rre d from cir cu ms ta n ti a l e v id e n c e s u r

r o u n d in g th e c rim e , in c luding the manner

and cir cumstance s of the killing. See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998) ; State v. Addison, 973 S.W.2d 260, 265 (Tenn. Crim. App. 1997). Facts from which the jury ma y infer pr emeditation include the use of a de adly wea pon on an unarmed victim ; the defe ndant’s shooting of the victim a fter he had turned to r etre at or esca pe; the lack of provoca tion on the part of the vic tim ; th e de fe nd a nt’ s dec laratio ns of his int e nt to kill ; the de fe nd a nt’ s fa ilu re to r e nd e r a id t o the victim; the establishment of a motive for the killing; t he particular c ruelty of the k i l l i n g ; the de fe nd a nt’ s p ro c ur e me nt o f a we apo n, pr e pa

ratio ns to c on c e a l th e c ri me be fo re the c ri me is

c omm itt e d, and des tr ucti on or se c re tio n o f e vid e nc e of the kil lin g; a nd a

de fe nd a nt’ s c a lmn e ss immediately afte r the killing. State v. Thac ker, 164 S.W.3d 208, 222 (Tenn. 2005); State v. Le ach, 148 S.W.3d 42, 54 (Tenn. 2004) ; State v. Lewis, 36 S.W.3d 88, 96 (Te nn. Crim. App. 2000) (citations omitted). The c ircumstantial evidenc e of preme ditation must, howeve r, be “ so strong and cog ent as to exclude eve ry other r easona ble hypothesis save the guilt of the defe ndant, and that beyond a r easona

ble doubt.” State v. Crawf ord, 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971).

First degree felony murde r is “[a ] killing of another co m mitted in the perpetration of or attempt to perpe trate a ny . . . robbery[.]” Tenn. Code Ann. § 39- 13-202(a )(2). Robbery is “the intentional or knowing theft of property f rom the person of another

by violence or

putting the person in fea r.” Id

. 3 9-13-401( a). Espe cially aggr avate d robbery is robbery tha t is accomplished with a deadly we apon and w here the victim suffer s serious bodily injury. Id. § 39-13-403( a).

I n the light most favor able to the State, the evidenc e shows t h at the victim owned a g ree n Bla zer with expensive flashy rims. The def

endant soug ht to rob the victim, and the def endant ha d Br own promise to have sex wit h the victim so the victim would meet t he def endant a nd the defe ndant could rob him. The victim picke d up the defe ndant, Perry , and B rown in his Bla zer and
proce eded, at the defe ndant’s dire ction, to a n isolated cove to smoke marijuana. T he victim and the de fe nd a nt e ng a g e d in

a dis c us sio n a

bo ut gun s, duri ngwh ic h th e de fe nd a nt o bta ine d p e rm iss ion to hold the victim’s handg un. The defenda nt then pul led out his own gun and shot the victim twice.-11-

T h e d e f e n d a n tl e f tt h e v i c t i m ’ s b o dy a n d dr o v e t h e v i c t i m ’ s B l a z e r t o m e e tM o r

r i s a n d S a u l s b e r r y. The de fenda

nt, Brow n, and Perry g ot into Morris’ van, and the defe ndant direc ted Morris to return
to the vic tim ’s bo dy wh e re he ha d Pe rr y sh oo t the vic tim a g a in. Th e de fe nd a nt a lso dir e c te d M or ri s to drive to the def

endant’ s apar

tment to look for a jac k to r emove the rims f rom the victim’s Bla zer and to purc hase g as that wa s used in bur ning the Bla zer. The g uns were later disposed of in a nea rby lake. This evide nce w as suffic ient to support the defe ndant’s convictions of premeditated murde r, felony murder, a

nd espec ially

ag g ravated robbe ry

.

The de fenda

nt specifica lly

argues that Morris’ a

nd Saulsberry ’s testimony was insuffic ient to corrobor ate the inc riminating te stimony of his acc omplices, Br own and Per ry

.

A cr iminal defenda

nt in Tennessee cannot be convicte d s o l el y on the uncor

roborated testimony of an acc omplice. State v. B igbe e, 885 S.W.2d 797, 803 (Tenn. 1994). F urthermor e,

acc omplices ca

nnot corrobor ate e ach othe r. State v. B ox ley
, 76 S.W .3d 381, 386 (Tenn. Crim. App. 20 01 ). Th is p ri nc ipl e ha s b e e n d e sc ri be d a s f oll ow s:

“[T] here must be some fac t t es t i fied to, entire ly independe nt of the ac complice’ s tes ti mo n y , w h ic h
, ta

k e n b y it s e lf

, le a d s to th e in f

e r e n c e , n o t o n ly th a t acrime ha s been committed, but also that the defe ndant is implicate d in it; and this independe nt

corr oborative te stimony

must also include some fac t establishing the de fenda nt’s identit y

. T h is corrobor ative evide nce ma y be dire ct or e ntirely

circ umstantial, and it n e e d n ot b e a de qu a te , in a nd of its e lf , to su pp or t a c on vic tio n; i t i s su ffi cient to meet the r equire ments of the rule if it fairly and leg itimately

tends to connec t the defe ndant with t h e co m m ission of the crime c harg ed. I t is not necessar y that the

corr oboration extend to every part of the acc omplice’s evide nce. T he cor roboration need not be conclusive, but it is sufficient if this evidenc e, of itself, tends to connec t the def endant with the c ommissi on of the off ense, a lthough the evidenc e is slight and entitled, when standingalone, to but little consideration.”

Bigbee, 885 S.W .2d at 803 (quoting State v. Gay lor, 862 S.W .2d 546, 552 (Tenn. Crim. App. 1992) ). Whether suffic ient corr oboration exis ts is for the jury to de termine. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)

.

As evidenc e of c orrobor ation, Seku Tea mer’s te stimony shows t hat during the e arly morning hours on the day of his de ath, the victim wa s planning to me et the defe ndant to ha ve sex w ith Brown. Presented in more detail above, Mor ris’ testimony about meeting the def endant a t Club on t he Gr een Apartments, seeing blood in the driver’ s seat of the victim’s Blazer, trying to r emove the rims from the Blaze r, the de fenda nt’s ordering Perry to shoot the vi ctim again, and the burning of t he Blaze r

corr oborate the testimony of Brown and Perry. Moreove r, on cr oss-exa mination, Morris indicated that he over

hear d the def

endant’ s plan to rob the victim, which the jury could have used as f urther

corr oboration. Saulsberry’s testimony c oncerning meeting the def endant, the de fenda nt’s order ing Per r y o u t o f th e v a n a n d Pe rr y ’ s s h o o ti n g th e v ic ti m’ s b o d y , a n d th e b u r n in g o f th e Bl a z e r

o f fer s

even mor e cor

robora tion. Of note, on direc t appea l from the def endant’ s first t rial, this court conclude d that Morris’ testim ony, which again was essentially the same as in the se cond trial, wa s-12-

sufficie nt corr oboration of Brown’s and Perry’s testimony. Robinson, 239 S.W .3d at 230. The jury in this trial was presented with the additi onal corrobora ting evidenc e from Saulsberry w ho did not testify in the first trial. Even though no non-ac complice was able to te stify to the a ctual eve nts of the murder , there was sufficie nt e vidence that “fa irly and legitimately” connec ted and implicated the defe ndant in the cr imes.

CO NC LU SION

Ba sed on t he aforeme ntioned authorities and r easoning , we a ffirm the judg ments of the trial

court b u t r e ma

n d f o r e n tr y o f c o r r e c te d ju d g me n ts to r e f

le c t th e c o r

r e c t o f f e n s e d a te o f A pril 10, 2001.

___________________________________ ALAN E. G LENN, JUD GE