# FILED
December 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON APRIL SESSION, 1996 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9506- CR-00176 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT DARRYL J. BA ILEY, ) JUDGE ) Appe llant. ) (Direct Appeal- Murder Committed ) dur ing t he P erpe tratio n of a Rob bery)

FOR THE APPELLANT : FOR THE APPELLEE : MAR VIN E. B ALLIN JOHN KNOX WALKUP MARK E. MESLER Attorney Generaland Reporter 200 Jefferson Avenue, Suite1250 Memphis, TN 38103 SARAH M. BRA NCH Assistant Attorney General 425 Fifth Avenue Nashvill e, TN 37243 WILLIAM L . GIB BONS Distri ct Attorney General THOMAS D. HENDERSON Assistant Distri ct Attorney 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________ REVERSED AND REMANDED JERRY L . SMI TH, J UDGE-2- 

## OPINION
On Septem ber 23, 1 994, a Shelby Co unty jury convicted Ap pellant Darryl J. Bailey of

murder committed duri ng the perpetr ation of a robbery

and sentenced him to life i mprisonment. Appellant challenges his convi ction, r aising t he following i ssues: 1) whether t he evidence was suf ficien t to support

his convi ction; a nd 2 ) whether the trialcourt erred when it ruled that a statement of a co defendant coul d not be int roduced into evidence. After a rev iew of t he record, we r everse the j udgment of the t rial cour t and remand for a new trial

FACTS

Marcel Nugent testi fied that he spent the evening ofOctober 9, 1992, with Earnest Norman at the apart ment of a fri end. Nugent test ified t hat after he and Norman decided to l eave the apartm ent, Nug ent wen t out into the parkin g lot and got in Norm an’s car. W hen N orman came out of th e apartm ent a few minutes later, two me n out of a g roup of fi ve said som ething to Nor man and trie d to hit him. N uge nt then saw Norman run away from the men and the men began shooting at Norman. At t his ti me, a Cadillac pulled i nto the parki ng lot and t he driver got out. Afte r the grou p of me n went o ver to the Cadill ac, Nugent got out of the car i n order to escape, but hi s path was blockedand he got back i nto the
car. Nuge nt testified tha t some of the m en cam e back to the car, br oke out the window, and pul led him o ut of the car. Nugent ran away, but the men chased him until he fell down. The men shot him thr ee times and took his jack et, his-3-

watch, and eighty dollars. After t he men left, Nugent went back i nto the apartm ent to wa it for an am bulanc e.

Earnest Norman testif ied that when he left the a partm ent an d wen t to his car, two men from a group i n the parki ng lot approac he d him and ask ed for money. Norman testif ied that h e believed the men were try ing to rob hi m. After
one of the men str uck Norman on the back of t he h ead, Norma n ran away. Norm an hea rd severa l gunsho ts as he jumped a fence and ran to a gas station to call pol ice. Norman test ified t hat he heard more gunshots after he r eached the pay phone at the g as stati on.

Terrence Pollard testifi ed thaton October 9, 1992, he was at an apartment at 18 85 Winchester in Memphis. Several of his fri ends were also at th e apartm ent, includi ng Appellant, Andre Bland, Carl os Sanders, Charl es Sanders, Robert Daven port, and Steve D avis. Pollard te stified that t his group left the apartmentat the s ame tim e that Norman and Nugent were l eaving the ot her apartm ent. Davis then hit Norman and Norman ran away. At this point, Po llard
saw a Cadillac pull i nto the p arking lot and he sa w the d river ge t out an d beg in walking toward th e apartm ents. Davis then sai d something to t he driver , and the driver began walking back to the Cadillac. Bland and Appell ant then shot at the driver and the driver beg an limpin g as he ran in bac k of th e bui lding. Pollard testif ied thathe could see that both Appellant

and Bland had guns in their hands. Bland and Appellant t hen foll owed the driver around the bui lding and then P ollard heard more gunshots. When Appel la nt came back into sight, h e had a gun “cocke d in his ha nds” an d he ha d blood on one hand.-4- Pa rame dic Kathleen Carson testifi ed that she was cal led to thescene of the sho oting at a p proximatel y 12:00 a.m. on October 10, 1992. When Carson arrivedat the scene, sh e found O ntrain Sande rs lying on the grou nd und erneath
a pickup tr uck. Carson testifi ed that Ontrain Sa nders had “a ve ry large wo und to his right thigh” and h e was “g oing in to seve re sho ck.” O ntrain S ande rs died while he was being tran sported to the hos pital.

D octor Jerry F rancis co tes tified tha t an au topsy o f Ontra in Sander s revealed that he ha d sustain ed mu ltiple gunsh ot w ound s to the ri ght thigh. DoctorFrancisco estimated that eith er four or five bu llets ha d hit O ntrain Sanders’ leg and that hedied as a resul t of a bul let tearing the fe moral arter y of his right thigh
.
Officer Rober

t Moore of

the Memphis Police Department testified that h e arrivedat the crim e scen e at app roximate ly 12:30 a .m. o n October10, 1992. Officer Moore testified that

there was a tr

ail of splatter

ed blood leadi ng from the
rearparking l ot in back of 1885 Winchester to an area by a Ford Pickup behi nd
a building at 3570 Cazassa . Officer Moo re testifie d that h e foun d a do llar bill,
some loose change, and a check on the ground ne ar the pickup. The money and the check were covere d with blo od and the chec k was mad e out to Ontra in Sand ers.
Sergea nt H. A. Ray of the Memphis Pol ice Department testifi ed that he int ervi ewed Appellant on October 11, 1992. After Sergeant Ray advised Appellant

of his ri ghts, Appell ant admittedthat he was present when the shoot ing tookplac e o n October 10, 1992. Appellant stated that while he was wai ting-5-

outside of the a partment, he heard Da vis and Dave nport say that they w ere planning to rob No rman a nd Nu gent wh en they came back outsi de. After Norman and Nugent came outside, Davis approached Norman and Norman ran. Davis then broke the car window and pull ed Nugent out of the car. A t this point, the Cadillac p ulled into the parking lo t and the d river got ou t. Appellan t s t ated that thedriver of the Cadilla c was shot b y Blan d as h e attem pted to get ba ck in his car. After the dri ver li mped ar ound the corner of the buil ding, Bland r an around the corner an d shot the driver five or six t imes. Appell ant statedthat he had tried to stop Bland f rom followi ng the driver. Appellant stated that during this incident, Bland, Davis , and Carlos Sander s were t he only ones with guns. Appellant

also stated that Bland called him after t he incident and said that

he had killed the victim and tha t he was going to ta lk to the po lice.
Sergeant Ray testi fied that he too k a second statement from Appellant

on October17, 1992. After he was advisedof his r ights, Appel lantstated that he
was with Blan d on October 10, 1992, when Bland shot Ontr ain Sanders as he attempted to g et bac k into h is Cad illac. Ap pellan t stated that wh en O ntrain Sanders limped off , Appellant and Bland ran around t he corner and s aw O ntrain Sanders tryi ng to hide under a truck. Appellant st ated that at

this poi nt, he shot Ontra in Sanders twice i n e ach leg with a bla ck nine mill imeter handgun. Imm ediate ly thereafter, Bland shot Ontrain Sanders on ce in the leg. Ap pellant stated tha t he was not trying to k ill Ontrain S anders when h e shot him
.

Darlene Williams and Diane Arnold testifi ed that they had seen Appellant standing in the parking lot of the apartment bui lding on October 9, 1992, and that he was holding a

silver automatic handgun. Williams also testifi ed that Blandhad-6-

tried to g et Appel lant t o “take the charge for hi m because [Appel lant]wa s a juvenile at th e time.”
Appellant

testified that

the fir st state ment he gave to Sergeant Ray was a true statem ent, except that Davenport was th e only one who had sai d that he was going to rob Norman and Nugent when they came outside. Appellant testifi ed that after he gave his fi rst statement, he recei ved a call from Pollard in w hich Pollard told him that he would be kill ed if he di d not “take t he [murder] char ge.” Appell ant testif ied that Bland al so threatened t o killhim if hedid not confess to the murde r. Appellant

testified that Pol lard and Bland t old him what to say i n his second statem ent. Appellant t estifi ed that he di d not own a gun or have a gun with him on October 9 and 10, 1992.

SUFFICI ENCY OF THE EVI DENCE
Appellant

con tends th at the e videnc e was insuffic ient to s uppo rt his convicti on for murder committed during the pe rpetrati on of a ro bbery. W e disagree. Wh en an appe llant ch all enges t he su fficienc y of the e videnc e, this Court is obliged to review th at challen ge acc ording to certain we ll-settl e d principles. A verdict

of guil ty by

the jury , approved by

the tri al judge, accredits the testimony

of the State’s witness es and re solv es all co nflicts in th e testim ony in favor of the Sta te. State v. Cazes , 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 5 4, 75 (Tenn. 19 92). Al tho ugh a n acc used is origin ally cloaked with a presu mption of i nnocence, a jur y verdic t removes thi s pres um ption and replaces i t with oneof guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with App e llant to-7-

demo nstrate the insufficie ncy of the convicting evidenc e. Id. On a ppeal, “t he [S]tate is entitle d to the strong est leg it imate vi ew o f the evid ence as we ll as all
reaso nable and legitimate inference s that may be drawn therefro m.” Id. (citi ng State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)). Where the suf ficien cy of the evidence is contested on appea l, the relevant question for the reviewing cou rt is wheth er any rationa l trier of fac t could have found the accused guilty of every element of the off

ense beyond a reasonabl e doubt. Harris , 839 S.W.2d at 75; Jackson v. Virgin ia , 443 U.S. 307, 31 9, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1 979). In condu cting our e valuation o f the conv icting evide nce, this C ourt i s precluded from reweigh ing or reco nsidering the evide nce. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v . Matt hews , 805 S.W.2d 776, 7 79 (Te nn. Cri m. App. 1990) . Moreover, t his Court may not substit ute its own inferences

“for those dr

awn by the trier of fact from circum stantial evidence.” Id. at 779. The weight and c redibilit y of the witnesses ’ testimony are m atters entrusted exclusively to the jury as th e trier of fact. State v. She ffie l d , 676 S.W.2d 542, 54 7 (Ten n. 1984 ); State v. Brewer , 932 S.W.2d 1, 19 (Tenn . Cr im. App. 1996 ).

At the ti me of this offense , fir st degree murder was d efined as “ [a] reckless kill ing o f anothe r comm itted in the pe rpetration of, or attem pt to p erpetrate any . . . robbery,” Tenn. Code Ann. § 39-13-202(a)(2) (1992) , and robbery was d efin ed a s “the intentional or knowing thef t of proper

ty from t he person of another by

violence or putti ng the perso n in fear.” Ten n. Cod e Ann. § 39-13-401 (a) (1992). When viewed in the li ght most favorabl e to the State, the evidence is sufficient for a reasona ble jury to convi ct App ella nt of murder committed during the perpetr ation of a robb ery. First, W illiams and Arnold b oth-8-

testif ied that the y saw A ppella nt with a silv er g un standing i n the apartment parking lot wit h his fri ends on October 9, 1992. Second, Appellan t told t he police in his first

statement t hat he knew that Davis and Davenport were pl anning to rob Norman and N ugent w hen the y came back ou tside. Although Appell ant changed h is acco unt sli ghtly when he testifi ed at tri al, he st ill admitted that he knew that Davenp ort was p lannin g to rob the two men. Poll ard testified that Appellant walked up to N orma n’s car after N ugen t got in it. P ollard a lso tes tified tha t shortly thereafter, both Appellant and Bland shot at

Ontrain Sanders when he attempted to get in hi s car and that they both chas ed Ontrain Sanders when he went in back of thebui ldi ng. Pol lar d te stifi ed t hat

when Appe ll ant

cameback into si ght, he had
a gun “ cocked in his hands” and had blood on one hand. Appell ant later confessed that he shot Ontrain Sanders f

our times
. Next, Poll ard testified that Appellant

pul ledNuge nt o ut of t he c ar a nd be gan figh ti ng with h im. Nugent was subs eque ntly shot and robbed of his mon ey, watch , and jack et. W e hold tha t a
reaso nable jury could concludefrom this evidence that Appellant pul led Nugent from the car, be at him, an d then ro bbed h im. A reas onab le jury could also have concluded that Appell ant was the one who sh ot a nd killed Ontrain Sanders. Further, the jury could ha ve infer red from the fact that Ont rain Sanders’blood covered check and small change wer e found next to the pickup t ruc k and that Appellant

had blood o n his hand w hen he ca me bac k fro m chasi ng O ntrain Sanders that Appell ant had searched and robbed Ontrai n Sanders after he shot him.
Appellant

basica lly conte nds th at this e videnc e is insu fficie nt be caus e it
con tainssome inconsistencies. Speci fically, Appell ant notes t hat: 1) hestate d in his c onfessi on that he shot Ontrain Sanders in both l egs while the autopsy-9-

revealed woun ds to th e right le g, 2) he claim ed in his confessi on that he used a black gun while t he witnesses testifi ed that he had a si lver gun, 3) Appellant and two witnesses stated that he had an autom atic ha ndgu n while Pollard sai d that Appellant

had a gun “cocked i n his hand,” and 4) Appellant

stated in his confession that Davi s pulled Nuge nt out o f the car whi le Pollar d testified that Appellant

had pu lled Nug ent out. H oweve r, the fact t hat Ap pell ant aim ed at a particul ar spot on the v ictim’ s body while the victi m was shot only in anoth er part of his body does not

indicate that Appell ant did not infl ict the wounds, the fact that the re was confusi on ov er t he c olo r or

ty pe of gun does

not ove rco me th e overwhelming evidence that A ppellant had a gun on the night of the shoot ing, and the fact that Poll ard and Appellant stated th at diff

erent people had pulled Nugent out of the car does not automaticall y mean thatPollard was lying. At any rate, t he credibi lity

of the witnes ses, the wei ght to be gi ven their testimony, and the reconcil iation of conflicts are matters entruste d exclusive ly to the trier of fac t. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). Thus, Appe llant’s claim that the evidence i s i nsuffici ent mere ly bec auseit

con tai ns s ome contrad ictions ha s no m erit.

ADMISSI BILI TY OF THE CO- DEFENDANT’ S STATEMENT
Appellant

contends tha t the trial court comm itted reversible erro r wh en it rul ed that a s tatem ent pre viously given b y Blan d cou ld not b e adm it ted int o evidence. The sta temen t that App ellant refers to contains t he followi ng colloquy between B land and a p olice investigator: Q: Andre are yo u re sponsi ble for sho oting Ontrai n Sanders on Saturday 10-10-92 at approximately 12:15 a. m. in the Southbrook Apartments?1 The Fifth Amendment provides,in rel evant part , that “[n]o person sha ll . . . be compell ed in any criminal case to be

a witn ess again st himself.” U. S. Const.amend V. -10- A: Yes. Q: What did you shoot Ontr ain Sanders wit h? A: A si lv er c hro me 9mm. Q: How many times did you shoot Ontrain Sanders? A: About four or five times in t he leg.

. . . . Q: Did anyone elsedo any shooti ng besides you? A: No, sir. Appe llant cla ims th at bec ause Bland could have asserted hi s Fifth Amendment privi lege aga inst sel f-incriminati on 1 and re fused to testify a t Appe llant’s tria l, Bland was unavailab le and his statement shou ld have b een a dmitte d und er Ru le 804 of the Tenn essee Rules o f Evidenc e. Rule 8 04(a) sta tes, in releva nt part, that“‘[u]nav ailability o f a witne ss’ inclu des s ituation s in wh ich the decla rant is exempted by ruli ng of the cou rt on the gr ounds of pri vilege f rom testif ying concerning the subject matter of t he declarant’s sta tement.” Tenn. R. Evid. 804(a)(1). This Court has stated that bef ore a witness

who refuses to testi fy pursuantto t he Fif th Amendment can be declared unav ailabl e under this

rule, “the witness must app ear in open court and invoke his or her privilege against self-i ncriminati on and the tri al court must rule that

the testi mony of the w itness is in fact privileged.” State v. James Roy McCoy , No. 01-C-019103-CR-00090, 1991 WL 24 2932, at *2 (Tenn. Crim. App., Nashvill e, Nov. 21, 1991) (citations omitted).2 The record indi cates that,in fact,Davenport’s counsel did n ot callBland as a witness because Daven port told he r that Bland had state d that he w ould not tes tify in Davenp ort’s trial. -11- In this cas e, App ellant’s trial cou nsel d i d not sub poena or even ta lk to Bla nd before trial to determine whether Bland would agree t o testif y. Instead, Appe llant’s counsel sought t o have Bland’s counsel test ify t hat if Bl and was called as a witne ss, he wo uld advise Bland to assert his privilege ag ainst selfincrimin ation. Appellant’s counsel al so so ught to have Davenport’ s counsel testify t hat she had c alled Bland as a witness i n Davenport’s trialand he had refused to testify. 2 The trialcourt cor rec tly r uled that this evi dence was insuffi cientand if Appel lant wanted Bl and to be declared unavai lable, Bl and had to be pre sent in co urt to asse rt his privilege a gainst se lf-incrimina tion.
Appe llant’s counsel then proposed t hat he be allowed to call Bl and on the telephone and a sk him wheth er he w ould a ssert his p rivilege aga inst selfincrimin ation if he was called to testify. The trial court correc tly explained at least three times that

Bland’ s u navailabi lity could not be est

ablished ove r the telephone. Appe llant’s counsel then pr oposed that Bla nd be allowed to ass ert his privi lege during a confere nce ca ll. The court e xplaine d onc e aga in that th is wou ld be insufficie nt to estab lish unava ilability.

At this poi nt, Appell ant’s counselasked the court to issue an i nstanter subpoena to have Bland tr ansported fr

om prison to the court house and the tr ial court complied with this r equest. After the subpoena was issu ed, Appe llant’s counsel contacted Bl and by telephoneand asked him wheth er he would te stify. Bland apparently

indicated that he would n ot testif y under any circumstances. Appe llant’s counsel then ask ed the court whether Bland’ s statement woul d be-12-

admitted after Bland asserted his privil ege against self-i ncrimination in co urt. Th e trialcourt then ruled, witho ut explan ation, that it wo uld not ad mit th e st ate me nt underRule 804 even if Bland as serted his pri vilege i n court. Appel lant’s counsel then statedthat he di d not see any reason to have Bland brought to court if the trialcourt would notadmit the statement when Bland ref used to test ify. The trial court then stated, “I don’t see any reaso n to bri ng him down here.” Appe llant’s counsel then withdr

ew the subpoena and Bland was not transported to th e courtho use.

The tria l court cl early e rred w hen it ru led tha t it would not ad mit Bla nd’s statementeven if Bland appe ared in court an d asse rted his privileg e again st selfincrimin ation. The trialcourt had al ready rul ed thatif cal led as a wit ness, Bland could validly invoke hi s Fifth Amendment ri ghts and refus e to testify. T hus, if Bland had in fact

asserted hi s privi lege against self-i ncriminati on in court , he would clearly

have been unavail able under Rule 804(a)(1). Bland’s statement thathe shot Ontrai n Sanders and that i n fact, hewas the only one who fired any shots, was obviou sly a sta teme nt aga inst his in terest b ecau se it sub jected him to criminal liabi lity . Therefore, Bland’s statement would have be en admissible. See Tenn. R. Evid. 804(b)(3). Although the general rule i s that a witness must appearin court an d asse rt his or her p rivilege in ord er to be declared unavailabl e, Appellant

cannot be faul ted for wi thdrawing t he subpoena to have Bland appear in cou rt so tha t he co uld assert his privilege againstself-i ncriminati on when the trialcourt had essen tiall y stated that it would be po intless to do so. It appe ars thatultimate ly, t he reason why Appell ant fail ed to comply wi th t he ge neral rule was because of the t rial cour t’s err oneous ruli ng.-13- We cannot say thatthe tri al court’s error i n this case was harmless. The only evidence i n this case about who a ctually s hot O ntrain Sanders when he was hiding unde r the Fo rd pick up ca me fro m Ap pell ant’s te stimony and hi s pre-tr ial statem ents to the pol ice. Indeed, it appears that Bland was the only ot her person who c ould have testified about what real ly happened. I f Bland’s statement had been admitted, it would h ave corroborated Appellant’s clai m that Bland was the
one who sh ot Ontra in Sand ers and that A pp ellant h ad only confes sed to the cri me because he hadbeen threatened. Under thes e circ umstances, we hol d that t he trialcourt’s error more probably than not af fected the judgment of
conv iction
. See Tenn. R. App. P. 36( b). We therefore r everse Appe llant’ s convic tion an d rem and th is case for a ne w trial.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE