I t ap pear s f r om t h e r e c or d a n d t h e t r a n s c r i pt of t h e t r i a l t h a t Ap pe l l a n t w a s a l s o i n di c t e d o n t h e a ddi t i onal 1

c h a rg e s o f f

e lo n y m u rd e r a n d fi rs t d e g re e m u rd e r. T h e se ind ic tm e n ts d o no t ap p e a r in the re c o rd b e fo re this C o u rt. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON A ssi gne d on Br ie fs May

8, 200 7



### STAT E O F T EN NE SSEE v. MILIC A WIL SON

Appeal f rom the Cr im inal Cou rt for Shelby Coun ty No. 01-06610, 01-06612 C arolyn Wade Blackett, Judge

No. W2006-00645-C CA-R 3-CD - F iled Septem ber 13, 2007

A p p e l l an t , M i l i c a

W i l s o n , w a s i n d i c t e d

f o r o n e c o u n to f

a t t e mp t e d

e s p e c i a l l y a g g r a v a t e d

r o b b e r y. 1 After a jury trial, Appella n t wa s fo und g uilty of fa cilitation of attempted espe cially ag g ravated robber y

. He was found not g uilty of felony murder and first deg ree murder. A s a re sult, Appellant was sente nced on Aug ust 13, 2003, to serve e ight y ear s as a Rang e I I , multipl e off ende r i n the Depa rtment of Corre ction. Appellant filed a n untimely

motion for new trial on September 25, 2003. Subsequently , Appellant filed two a mended motions for ne w trial. The tr ial court co n d u ct ed a hear ing on the motions on Fe bruar y 27, 2006, at t he conclusion of which the t rial court denied the mot ion fo r ne w tr ia l. Ap pe lla nt fi le d an un tim e ly

no tic e of a pp e a l. O n a

pp e a l, A pp e lla nt c on te nd s: (1) the evidence was insufficient to support the conviction; (2) the trial court e rre d in admitting the testimony of co- defe ndant Fr ank Dowdy as t here was no corr oboration of the t estimony ; and (3) the trial court e rre d in g iving a jury instruction on flig ht. Be cause Appellant filed an untimely motion for new tr ial , whi c h r e su lte d in the fi lin g of

an unti me ly

no tic e of

a pp e a l, w e mus t di smi ss Ap pe lla nt’ s a pp e a l.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; A ppe al D ism iss e d.

J ER R Y L. S MI TH , J ., delivere d the opinion of the cour t, in which J OS EP H M. T I PTON , P.J ., and N OR MA M C G EE O G LE , J ., joined.

Robert B . Gaia, O live Br anch, Mississippi, for the appe llant, Mili ca Wilson.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l & Re po rt e r; Pr e sto n Sh ipp , A ssist ant At torn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and John Campbell, As s i s t ant Dis trict Attorney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

Factual Back

ground

On J une 26, 2001, the Shelby County Gra nd J ury indicted Appell an t fo r one count of attempted espe cially

ag g ravated robbe ry . Acco rd i n g to the rec ord on appe al, Appellant wa s
arr aig ned on char g es of attempted espec ially ag g ravated robbe ry , murder dur ing the perpe tration of a fe lony and first deg ree murder. The re cord doe s not contain copies of the indictments for fe lony murder or first deg ree murder, though it appea rs from the t ransc ript of t he trial that Appe llant was tried on these c harg es. At trial on June 24-26, 2003, the following testimony was pre sented.

L and on Do ug la ss Wal tha ll, the vic tim , wa s an em plo y e e of Gl ob e L iqu or

Sto re in M e mph is. On December 8, 2000, the vi ctim was shot in the upper -outside of his left a rm while workingat the sto re . T he bu lle t w e nt t

hr ou g h th e vic tim ’s arm

and int o h is c he st w he re it pa sse d be tw e e n tw o r ibs , br uis e d his le ft

lun g , w e nt t

hr ou g h h is h e art , c utt ingthe ve ntr ic le and on e of the c or on ary

art e ri e s. The bullet then we nt throug h the victim’s liver and settled in the abdominal cavity

. The victim died

as a r esult of the g unshot wound.

Mari o Mo or e he a d, Ap pe lla nt’ s c ou sin , wa s sh oo tin g dic e wi th fr ie nd s on Au br a Str e e t, c los e to the Globe L iquor Store on the evening of Dec ember 8, 2000. Acc ording to Mr

. M o o re h ead, Appellant and a

man he kne w as “ Fr ank” c ame by , boug ht a bag of marijuana, a nd left. About fiftee n or twenty

minutes later, Mr. Moore head he ard a g unshot. When he looked to se e what was h ap p en i n g, h e s aw wh o h e t h o u g h t we re Ap p el l an tan d Fr an k ru n n i n g d o wn t h e s t re et as t h o u gh

someone we re “ trying to c hase the m.” Acc ording to Mr. Moorehe ad, the two men g ot into a black or blue c ar a

nd left the a

rea

.
On cr oss-examination at trial, Mr. Moorehe ad expressed doubt a s to whether the people he saw runningdown the stree t were actua lly Appellant and F rank. H oweve r, af ter he viewed the store surveillance tape, he stated he kne w who the pe ople wer e. F urther, Mr . Moorehe ad stated that he knew that “ Fr ank” ha d pleade d g uilty , so he fig ured that “Fr ank” must have been involved.

Fr ank Dowdy

testified that he wa s indicted for attempted espec ially ag g ravated robbe ry and fac ilitation t o commit murder as a result of the i ncident that occur red on Dec ember 8, 2000, at the Globe L iquor Store. Acc ording to Mr . Dowdy , befor e the duo attempted to rob the store, the y went to a ne arby apar tm ent and purc ha se d a “ sa c k o f w e e d. ” Th e n, Mr . D ow dy and Ap pe lla nt w e nt t o their ca r to “roll the wee d up.” The car belong ed to Mr

. Dowdy ’s brother Demar jo. Demar

jo was also in the ca

r. The me n smoked the marijuana . Then, Appe llant mentioned something a bout robbing the liquor store. Appa rently , Appellant stated that he had been “watching it for awhile” and-3-

that there “wa s a lot of money in there.” Acc ording to Mr. Dowdy , Appellant had “stashed” a “g as bo ttl e ” and ma sk s. Ap pe lla nt a lso ha d a

g un and g lov e s. Ap pe lla

nt i nf or me d M r. Do wd

y that hi s job was to squirt g asoline fr om the bottle into the area wher e the c ashier w as located and to g uard the door to ensur e that no one c ame into the store. A ppellant “c oach[ed]” him on his role in the robber y , “telling [hi m] what [ his] part was g oing to be.” Appellant and Mr. Dowdy set out to rob the store at around 6:50 p.m.
Ap pe lla nt a nd Mr . D ow dy

too k th e Coc a -C ola

bo ttl e fi lle d wi th ga so lin e that ha d a ho se attache d t o t h e nec k, a g un, g loves and masks with them to the bac k of the liquor store. T he men waited for about five or ten minutes to make sure that there was not a ny one inside the store . When they enter ed the store , Mr. Dowdy had the bottle in his rig ht hand. The vic t im was sitting down behind the counte r, which w as enc losed by a g lass partition. Mr. Dowdy stated that he “ stuffed the g as hose in the slot where they slide the liquor out” and sa id to the clerk, “ Ig ot some g as for y ou here .” The cler

k rea ched for a g un, and Appellant shot him. Accordingto Mr. Dowdy , there wer e two shots. After he hear d the shots, Mr. Dowdy dropped the g as bottle and ra n awa y . There was not time to go ba ck to the door be fore the shots were fired. M r. Do wd y d ro p p ed the g as bottle in the parkinglot and ran. He was not sur e whether Appellant or the cler k fired the shots. Mr. Dowdy and Appellant re turned to the c ar, the n drove awa y

. Once in the car , Appellant told Mr. Dowdy that he

“ b u c k e d ” o r

k i l l e d t h e v i c t i m

. M r

. D o w dy d i d n o t kn o w w h at h a p p e n e d t o t h e g u n a f

t e r t h e r o b b e r

y. After leav i n g t h e li quor store, Mr . Dowdy , Appellant and D emar jo went to Appellant’s g randmother ’s house, whic h was less than five mi nutes awa y

. Once there , Mr. Dowdy burned the mask and g loves that he wor e duringthe robbe ry . The m en s t ay ed at Appe llant’s g randmother ’s house for about thirty

minutes to an hour. Once there , they smoked more marijuana and dr ank bee r. Mr. Dowdy

was a rre sted approximately

three wee ks later a

nd admitted his involvement in the incident. Mr. Dowdy

also admitted that he ne ver a ctually saw Appe llant’s g un.

Offic er Joe Stark of the Me mphis P olice De partment re sponded to the call to investig ate the ho mic ide a t G lob e L iqu or s. Whe n h e arr ive d at th e sc e ne he fo un d a “c lip ” fr om a .2 2 c a lib e r s e miautomatic handgun in the parkinglot. The clip containe d fou r l i v e ro unds of ammunition. Additionally , Offic er Stark f ound a plasti c C oca- Cola jug with a gre en hose coming out of the nec k. Once inside the store, Of

fice r Stark observe d a small a mount of flammable liquid, which he thought to be g asoline, in the money tray by the cash reg ister. Offic er Stark a lso located a spent shell casing in the op e nin g wh e re the c a sh ie r p a sse s th e liq uo r b ott le to t

he c us tom e r. Th re e bo ttl e s a pp e are d to have be e n sh ot, and the re wa s a sp e nt bu lle t and tw o bu lle t fr a g me nts on the fl oo r. Of

fi c e r S tark

a lso located a bulle t fr agment between a ref rig erator and fr eezer

as we ll as another spe nt shell casing among some paper bag s. Offic er Stark secur ed the store’s video sur veillance tape. The tape showe d two people c oming into the store. O ne per son place d what appear ed to be a hose in the money tray and then the othe r per son place d a g un throug h another o pening in the cashie r ar ea a nd shot the victim.

Offic er Shar on Kelly

of the Memphis Police De partmen t wa s dispatched to a Motel 6 on Br ooks Road on J anuar

y 12, 2001, to pickup Appellant bec ause he was a suspect in the homicide of the victim. When she and seve ral other office rs, including Offic er Shane J ordan, knoc ked on the-4-

door to the room in which Appe llant was supposed to be stay ing, no one ans we re d the door. The office rs hea

rd noises coming from inside the room, so they waited in the pa

rking lot for the occ upant of the room to eme rg e. About an hour later, A ppellant came to the door and stood in the door fr ame. I t a pp e are d th a t App e lla

nt w a s abo ut to exit the ro om, so the of fi c e rs a pp ro a c he d him an d pla c e d h im under a rre st. I n the room, off

icer s found a box of .380 ca l i b er a mmuniti on. There wer e ele ven
car tridg es missing fr om a box of fifty

. Ap pe lla nt c a lle d s e ve ra l a lib i w it nes ses on his be ha lf . H e le n Pa

y ne , App e lla

nt’ s a un t, testified that on Dec ember 8, 2000, she worke d until ar ound 2:00 p.m. After work, she went to the home of he r mother, Appellant’s g randmother , Be rtha Mull, to celebr ate he r birthday . Ms. Pay ne
arri v edat t h e h o u s e a ro u n d 4 : 3 0 o r 5 : 0 0 p

. m

. an d re m ai n ed t h er e un t i l 4 : 0 0 o r 4 : 3 0 t h e n ex tm o rn i n g. Acc ording to Ms. Pay

ne, Appellant arr ived at the house around 5:30 or 6:00 p.m. and sta y ed ther e until after midnig ht.

D o r o t h y M u l l w a s a l s o a tt h e h o u s e o n D e c e mb e r 8 , 2 0 0 0 , t o c e l e b r a t e M s

. P ayn e ’ s b i rt h d ay. She arr ived ar ound 5:00 p.m., a nd Appellant was alre ady at the house when she arr ived. She claimed that App e lla

nt s tay e d “ pr a c tic a lly

a ll n ig ht, ” at lea st un til a ft e r 1 0:0 0 o r 1 1:0 0 p .m. On c ro sse xami na tio n, Ms. Mu ll e xpla ine d th a t App e lla nt w a s h e r n e ph e w a

nd a dmi tte d tha t she ne ve r t old the police that Appe llant was at he r mother’ s house at the time of the robber y

.
Tr a c y Matth e ws kn e w Ap pe lla nt thr ou g h his un c le

. Mr . M a tth e ws wa s a lso pr e se nt at Ms

. Mull’s house on the ni g ht of Decembe r 8, 2000 to cele brate Ms. Pay ne’s birthday

. Acc ording to Mr. Matthews, he a

rrived at 6:18 p.m. from work, and A ppellant was the re w hen he arr ived. He sta y ed until around 8:30 p.m., and Appellant wa s still there when he left. Mr. M at thews did not notify police that Appe llant was at the house that evening

.
Kenne th Wallace, Sr., testified that he saw Appe lla n t at ar ound 4:00 p.m. on Dece mber 8, 2 0 0 0 , b u tt h at h e d i d

n o tkn o w w h er e A p p el l an twe n taf t er t h ei r b ri ef

m ee t i n g.

Bobbie Br own, Ap p el l an t’s uncle, wa s also at the birthday party at Ms. Mull’s house. Acc ording to Mr. Br own, Appellant wa s alre ad y at the par

ty when he arr ived shortly

befor e 6:00 p.m. and was still there w hen he le ft around 7:45 p.m. Mr. Brown did not see Appellant leave for any long pe riod of time. Mr. B rown a lso stated that althoug h he knew that Appellant wa s arr ested and cha rg ed with murder , he never informed the police that Appellant was at the birthday party when the murder

occur red.

I n rebuttal for

the State, L ieutenant Ro bert Shemwe ll of the Memphis Poli ce D epar tment te sti fi e d th a t in

Janu ary of 20 01 , h e int e rv ie we d App e lla nt a s a su sp e c t in the mur de r of the vic tim

. At that time, Appellant stated that he had g one to his g randmother ’s hous e and that he lea rned a bout the shooting f

rom someone at the house. Appe llant did not inform L ieutenant Shemwe ll that he was at a birthday party when the robber y occur red and did not g ive L ieutenant Shemwell the names of any alibi witnesses that would testify that Appellant wa s not at the scene of the c rime.-5-

At the conc lusion of the proof, the jur y found Appellant not g uilty of first deg ree murder a nd

mur d er i n t h e p erpetration of a felony . The jury

also found Appe llant not guilty of attempted espec ially ag g ravated robbe ry . The jury found Appe llant guilty

of the lesser- i n cluded of fense of fac ilitation of attempted espec ially ag g ravated robbe ry . On Aug ust 1 3 , 2 0 03, the trial cour t sentenc ed Appe llant as a Rang e I I , multipl e off ender to serve e ight y ear s i n the Depa rtment of Correc tion.
On September

25, 2003, Appellant filed a motion for new t rial i n which he challeng ed the sufficie ncy of the evidenc e. On Fe bruar y 11, 2005, throug h newly -appointed co u n s el , Appellant filed a se cond motion for new trial. On August 25, 2005, Appellant filed an am en d ed m o tion for

n ew t rial in which he argued that the tria l court er red in instructing the jury on flig ht; allowing counsel for

the State to make improper ref ere nces to Appe llant’s failure to testify ; allowing c ounsel for the State to c omment on the rang e of punishment for the cr ime during voir dire; deny ing the motion in l imine to ex clude the e vidence found i n Appellant’s hotel r oom; ruling the e vidence was sufficie nt to sustain the conviction; allowing counsel for the State to improperly

lead a witness; and in failing to decla

re a mistrial when one of

the jurors a dmitted that he knew the c o-def endant. The trial court c onducted a hear ing on the m otion for new t rial on Fe bruar y 27, 2006. At the conc lusion of the he aring , the trial cour t den i ed t h e motion. Appellant filed a notice of a

ppeal on Ma

rch 23, 2006.

An aly sis

I nitially , we must addre ss the proce dural history of the c ase he rein. Appe llant was sentenc ed on Aug ust 13, 2003. Appellant’s motion for new trial was filed on September 25, 2003, f orty -three day s after the sentenc ing hear ing. A motion for new tr ial “shall be ma de . . . within thirty day s of the date the order

of sentenc e is enter ed.” T enn. R. Crim. P. 33(b).

Te nn e sse e Rul e of

Ap pe llate Pr oc e dure 3( e ) p ro vid e s in pe rt ine nt p art : An appe al as of r ight to the Supreme Court, Court of Appea ls, or Court of Criminal Appea ls sha ll be taken by timely filing a notice of a

ppeal . . . . Provided, how ever , that in all case s tried by

a jury , no issue prese nted for r eview sha ll be predic ated upon

err or in the admission or exclusion of e vidence , jury instructions g rante d or re fused, misconduct of jurors, pa rties or c ounsel, or other ac t i o n committed or occ urring duri ngthe tr ia l of

the c a se , o r oth e r g ro un d up on wh ic h a ne w tri a l is so ug ht, un le ss the s a me w a s s p e c if

ic a ll y s tate d in a mo ti o nf o r a n e w tr ia l; o th e r

w is e s u c h is s ues will be treated as wa ived.
“Unlike the untimely

filing of the notice of

appea l, this C ourt does not have the authority to waive the untimely

filing of a motion for new

trial.” State v. Patterson , 9 66 S.W. 2d 43 5, 44 0 ( Te nn . Cr im. App. 1997); Tenn. R. App. P. 4(a ); This provision is mandatory , and the time for f iling may not be extended. S

ee Te nn . R. Cr im. P. 4 5( b) ; Sta te v . M ar tin , 9 4 0 S. W. 2 d 5 6 7 , 5 6 9 ( T e n n

. 1 9 9 7). A motion for new trial which is untim ely filed is a nullity

. See State v . Dodson , 780 S.W .2d 778, 780T he t ech ni cal recor d i n t hi s cas e cont ai ns an af f i davi t o f t r i al coun s el appended t o t he mo t i on f or n ew t r i al t hat 2

r ef er enc es s om e t y pe of

p ost

- convi ct i on rel i ef

gra nt ed t o A pp el l ant

. H owever , t her e i s no j udgment gr ant i ng a del ay ed

a p p e a l no r a n y o the r d o c u m e n t ev inc ing a ti m e ly m o tio n fo r n e w trial.

-6- (T e nn . Cr im. Ap p. 19 89 ). Th is Court ha s pr e vio us ly he ld that purs ua nt to Rul e 3( e ) “ the fa ilure to file a motion for a new tria l, the late filing of a motion for a new tria l, and the fa ilure to include a n iss ue in a mot ion fo r a ne w trial re su lts in w a ive r o f a ll i ssu e s w hic h, if fo un d to be me ri tor iou s, would result in the g ranting of a ne w trial.” State v. Kee l , 882 S.W .2d 410, 416 (Tenn. Crim. App. 1994) (f ootnote omitted).

It i s a p p ar e n tf r o m t h e r e c o r d

o na p p e a l t h a t A p p e l l an t ’ s m o t i o n f o r n e w t r i a l w a s u n t i m e l y. 2 Th e un tim e ly

mot ion fo r n e w tri a l w a s f

oll ow e d by

an unti me ly

a me nd e d mo tio n f

or ne w tri a l a lmo st a y ear and a ha lf later. This second moti on for new t rial was amende d ag ain i n Aug ust of 2005, and the trial cour

t did not consider and rule on Appellant’s moti on for ne w trial until Febr uary of 2006, almost three y ear s after

Appellant wa s sentence d. The trial c ourt considere d and rule d on the motion for ne w trial despite the f act that it was untimely . Be cause a trial c ourt does not have jurisdiction to hear and dete rmine the mer its of an untimely motion for new tri al , t h e trial court’s “e rrone ous consideration [ an d ] ruling on a motion for new trial not timely

filed . . . does not validate the motion.” Sta te v . M

ar tin , 9 4 0 S

. W

. 2 d

5 6 7 , 5 6 9 (T en n

. 1 9 9 7 ) ( ci t i n g Dodson , 780 S.W .2d at 780 ).

Be cause the untimely

filing of a motion for new

trial does not toll the time f or filing a notice of a pp e a l, a la te fi le d mo tio n f

or n ew tr ia l w ill g e ne ra lly re su lt i n a

n unti me ly

no tic e of a pp e a l. Patterson , 9 66 S.W. 2d

a t 44 0; Sta te v . D av is , 748 S.W .2d 206, 207 (Tenn. Crim. App. 1987). I n the

case here in, the trial co u rt denied the untimely motion for new tria l on Febr uary 27, 2006, and Appellant filed a

n untimely

notice of a

ppeal on Ma

rch 23, 2006.
Although at least one of A ppellant’s issues, the suff iciency of t h e ev idence , need not be raised in a

motion for new tria l in order to sec ure a ppellate r eview, see State v . Boxley , 76 S.W .3d 381 (Tenn. C ri m

. App. 2001), ther e is no automatic a ppeal of this iss ue to this Court. Either the timely filing of a notice of appea l must occur , or a waiver of the timely filing of a notice of

appea l must be obtained fr om this C ourt in order to perfe ct an a

ppeal. Te nn. R. App. P. 4(a).

I t is c le ar , a s n o te d

in th e St a te ’ s b r ie f

, th a t t h e mo ti o nf

o r n e w tr ia l h e r e in

is u n ti me ly

. We have a lso determined that the filing of the notice of a ppeal he rein is also untimely . I t is equally clea r that, despite receipt of the State’s brief pointing out that Appellant f iled an untimely

motion for new trial, Appellant at this late date has not soug ht a waiver of the timely filing require ment of the notice of appe al i n the “interest of j ustice” pursuant to Tenne ssee Rul e of Appellate Procedure 4(a) . Given the fa i l u re o f Ap pellant to reme dy the untimeliness of the motion for newtrial and/or notice of appea l, we concl u d e t h at n o appea l is properly befor e this Court. Moreover , afte r a r eview of the

re c or d, we c on c lud e that a wa ive r of the tim e ly fi lin g of the no tic e of

a pp e a l is no t in

the int e re sts of justice due, in pa

rt, to the o v er whelmi ng evidenc e of A ppellant’s g uilt presented at trial

. Consequently , Appellant’s a ppeal is dismissed.-7- Conclusion

For the fore g oing r easons, Appe llant’s appea l is dism issed.

____________________________________ J ERRY L . SMI TH, JUDGE