IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

February 1, 2005 Session

STATE OF TENNESSEE v. KORIE BATES

Direct Appeal from the Criminal Court for Shelby County

Nos. 00-12357, 02-07906 James C. Beasley, Jr., Judge

No. W2004-00686-CCA-R3-CD - Filed May 20, 2005

The defendant appeals his convictionsfor attempted second-degree murder and aggravated robbery.

Specifically, he avers that, (1) the evidence was insufficient to support the verdicts; (2) the State’s

failure to disclose the statement of an unindicted co-conspirator constitutes a Brady violation and

entitles him to a new trial; (3) the sentence was issued in error, in light of Blakely v. Washington;

and (4) the cumulative effect of all errors merits a new trial. Following our review, we affirm the

convictions and the sentences imposed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN,J., and

JOE H. WALKER, SP. J., joined.

C. Anne Tipton, Memphis, Tennessee (on appeal), and Robert Wilson Jones, District Public

Defender, and Phyllis Aluko and Kindle Nance, Assistant Public Defenders (at trial), for the

appellant, Korie Bates.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Paul Goodman and Paul Hagerman, Assistant

District Attorneys General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

On October 17, 2000, the defendant, Korie Bates, was indicted on one count of criminal

attempt first degree murder (a Class A felony). On October 8, 2002, a second indictment was

returned, which charged the defendant with one count of especially aggravated robbery (a Class A

felony). A jury convicted the defendant of criminal attempt second degree murder (a Class B felony)

and aggravated robbery (a Class B felony), both lesser included offenses of those charged in the

indictments. Following a hearing, the defendant was sentenced, as a Range I, standard offender, to
 The record reflects that Young and Wright led in Wright’s car, while the defendant, Brown, and Washington

1

followed in Young’s truck.

 The record reflects that Kerr and the three men were acquainted with one another, as Kerr had recently moved 2

from Blytheville to Memphis.

 The transcript reveals that Allen recognized Washington “from around town” and from his attending school 3

with Allen’s brothers in Blytheville, Arkansas.

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nine and eleven years on the charges, respectively. The sentences were ordered to run consecutively

for a total effective sentence of twenty years. The defendant now appeals to this Court contending

that: (1) the evidence was insufficient to support the verdicts; (2) the State’s failure to disclose the

statement of an unindicted co-conspirator constitutes a Brady violation and entitles him to a new

trial; (3) the sentence was issued in error, in light of Blakely v. Washington; and (4) the cumulative

effect of all errors merits a new trial.

Taken in a light most favorable to the State, the record reflects that Earnest Young (“Young”)

recruited the defendant and three other comrades to travel from Blytheville, Arkansas, to Memphis,

Tennessee, to collect a drug-related debt owed by John Kerr (“Kerr”) to Young. Specifically, Young

instructed the defendant, Tyrone Brown (“Brown”), and Byron Washington (“Washington”) to

follow him and Johnny Wright (“Wright”) as they traveled to Memphis.1

After arriving in Memphis, Wright and Young pulled off of the road, and Brown guided

Washington to the street where Kerr’s apartment complex was located. Washington parked Young’s

truck at a nearby market, and the trio walked to Kerr’s apartment. Upon arriving, they found Kerr

outside drinking a beer and began a conversation with him. At some point, the subject turned to the 2

money owed by Kerr to Young and their intention of collecting the debt. Kerr then invited the men

inside to “talk about it.” After Kerr denied having the money, the defendant and Brown drew

weapons and began to search the apartment, without objection from Kerr.

One of the three men walked into the master bedroom of the apartment where Kerr’s

girlfriend, Andrea Allen (“Allen”), was sleeping. She awakened to find the man going through

drawers and repeatedly asking, “Where is it?” The individual then forced her to get out of bed while

he “snatched the mattress” and searched under it. Allen described the first person who entered the

bedroom as wearing a camouflaged fishing hat, a t-shirt with “animation on the front,” and jeans.

Several minutes later, a second man, later identified by Allen as Washington, entered the 3

bedroom. The second man picked up a box and asked Allen what it was, to which she replied that

it was “a tool box.” The second man left and re-entered the room, this time picking up a briefcase

and inquiring as to its contents. After Allen responded that the briefcase held Kerr’s military

discharge papers and some pictures, the man carried the briefcase out of the bedroom. Moments

later, Allen heard Kerr’s voice, and the first man left the bedroom. Shortly thereafter, Allen heard

a gunshot. A third man then came to the door of the bedroom and fired three shots at Allen, and all

three men left the apartment. 

After lying on the floor for a few minutes, Allen got up and instructed the babysitters, who

were sleeping in the second bedroom with her children, to call the police. However, when they
 It appears that the defendant was convicted based on a theory of criminal responsibility.

4

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attempted to place the call, they discovered that the phone receivers had been removed from the

apartment. They then ran to a neighboring apartment to contact authorities. 

In the meantime, the defendant, Brown, and Washington returned to the truck and headed

back to Blytheville. Washington testified at trial that the defendant took the phone receivers from

Kerr’s apartment and threw them out of the truck after they left the complex. He further stated that

the defendant disposed of both weapons by throwing them into the Mississippi River as they crossed

over the bridge from Memphis into Arkansas. Washington testified that Wright and Young

eventually caught up to the truck on the interstate, and the five caravanned back to Blytheville and

met at Washington’s apartment. Although Wright left shortly after they arrived, the others remained

at the apartment to discuss what had occurred in Memphis. 

As a result of the events of that evening, John Kerr was fatally injured and Allen was treated

for gunshot wounds to the left elbow, left leg, and lower left back. She was later released. The

defendant was indicted for attempted first degree murder as to Allen and especially aggravated

robbery as to Kerr. Following a jury trial, the defendant was convicted of the lesser included

offenses of attempted second degree murder and aggravated robbery. He was sentenced to nine and 4

eleven years on the charges, respectively.

Analysis

I. Sufficiency

Initially, the defendant alleges that the corroborating evidence provided by

Washington, an indicted co-defendant, was insufficient to identify him as being connected with the

charged offense. In Tennessee, a conviction may not be based solely upon the uncorroborated

testimony of an accomplice. State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001); State v. Allen, 976

S.W.2d 661, 666 (Tenn. Crim. App. 1997). Furthermore, accomplices cannot corroborate each

other. State v. Boxley, 76 S.W.3d 381, 386 (Tenn. Crim. App. 2001). In order to qualify as

corroborative evidence:

[t]here must be some fact testified to, entirely independent of the accomplice’s

testimony, which, taken by itself, leads to the inference, not only that a crime has

been committed, but also that the defendant is implicated in it; and this independent

corroborative testimony must also include some fact establishing the defendant’s

identity.

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994) (citations omitted).

The corroborative evidence may be direct or circumstantial and is not required to be

sufficient, standing alone, to support a conviction. Id. The corroborative evidence is sufficient if

it fairly and legitimately tends to connect the defendant with the commission of the crime charged.
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State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). In addition, corroboration is sufficient even

though the evidence is slight and entitled, when standing alone, to but little consideration. State v.

Heflin, 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999). The corroboration need not extend to all

portions of the accomplice’s evidence. Bigbee, 885 S.W.2d at 803. The sufficiency of the

corroboration is a determination for the jury. Shaw, 37 S.W.3d at 903.

Second degree murder is defined, in pertinent part, as “[a] knowing killing of another.”

Tenn. Code Ann. § 39-13-210(a)(1) (2004). Moreover, the inchoate offense of attempt is codified

at Tennessee Code Annotated section 39-12-101 and states:

(a) A person commits criminal attempt who, acting with the kind of culpability

otherwise required for the offense:

(1) Intentionallyengages in action or causes a result that would constitute

an offense if the circumstances surrounding the conduct were as the person

believes them to be;

(2) Acts with intent to cause a result that is an element of the offense, and

believes the conduct will cause the result without further conduct on the

person’s part; or

(3) Acts with intent to complete a course of action or cause a result that

would constitute the offense, under the circumstances surrounding the

conduct as the person believes them to be, and the conduct constitutes a

substantial step toward the commission of the offense.

Tenn. Code Ann. § 39-12-101(a) (2004). Therefore, attempted second degree murder requires proof

of: (1) a knowing, (2) attempt, (3) to kill another. State v. Rush, 50 S.W.3d 424, 430 (Tenn. 2001)

(citations omitted).

Further, aggravated robbery is defined as a robbery “accomplished with a deadly weapon or

by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly

weapon” or “where the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-402 (2004).

In the present case, Washington testified that he went to Memphis in June of 1999, to collect

a debt from John Kerr on behalf of Earnest Young. Upon arriving in Memphis, Washington stated

that he, Brown, and the defendant parked at a nearby fish market and walked to Kerr’s apartment.

Washington further testified that Brown and the defendant searched the apartment and that Brown

opened Kerr’s briefcase with a knife and spoon. He stated that when Brown shook the briefcase,

Kerr “lunged at” Brown and the defendant, and it appeared that both men fired shots at Kerr. As

Washington fled the apartment, he heard two to three more shots but was unable to determine their

source. 

Washington testified that, after returning to the truck, the three began to travel in the direction

of Blytheville and that the defendant threw from the truck window two phone receivers he had taken
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from the apartment. Washington also stated that the defendant disposed of the weapons, throwing

them into the Mississippi River as they traveled over the bridge from Memphis into Arkansas. 

At trial, Washington refreshed his recollection with a statement given to police shortly after

the incident. After reviewing the statement, he testified that, on the night of the subject incident, the

defendant wore “[a] black t-shirt, a pair of blue jeans and a camouflage fishing hat or hunting hat.”

He further described the hat as “a fishing hat but the visor comes all the way around the head, makes

a complete circle around with a drawstring. You can tie it up if you want to.”

Washington’s testimony was corroborated by Allen, who stated that the first person to come

into the bedroom “[had] on a fisherman’s hat and it was like a wide brim but it was camouflage[d]

and it was pulled down to right up in here. And a t-shirt of some sort with something, animation on

the front, and some jeans or something.” She further testified that when she told the babysitters to

call the police, they informed her that the phone receivers were missing. Latrice Golden, one of the

babysitters that night, corroborated the testimony that the phone receivers had been removed from

the apartment.

We conclude that the corroboration evidence was sufficient to fairlyand legitimately connect

the defendant to the conviction offenses. Both Washington and Allen testified as to the unique hat

worn by defendant that night. Further, although Allen was unable to positively identify the

defendant following the incident, she indicated at trial that the defendant’s physical characteristics

matched those of the first intruder. Moreover, Washington, Allen, and Golden testified to the fact

that the phone receivers were removed from the house. Finally, Washington indicated that these

receivers were taken from the apartment and disposed of by the defendant. Therefore, we conclude

that the evidence presented was sufficient to support the convictions.

II. Brady Violation

Next, the defendant alleges that the State violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194 (1963), when it failed to disclose the statement given to police by Wright, an unindicted coconspirator. In Brady, the Supreme Court held that “suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of good faith or bad faith of the prosecution.” Brady, 373 U.S.

at 87, 83 S. Ct. at 1196-97; see also Sample v. State, 82 S.W.3d 267, 270 (Tenn. 2002). The duty

to disclose extends to all “favorable information,” regardless of whether the evidence is admissible

at trial. Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001). In United States v. Bagley, 473 U.S. 667,

676, 105 S. Ct. 3375, 3380 (1985), the Supreme Court held that both exculpatory and impeachment

evidence fall under the Brady rule.

However, the State is not required to disclose information the defendant already possesses

or is able to obtain. State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). Nor is the

State required to disclose information that is not possessed by or under the control of the prosecution

or other governmental agency. Id.
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Before an accused is entitled to relief under this theory, he must establish several

prerequisites: (a) the prosecution must have suppressed the evidence; (b) the evidence suppressed

must have been favorable to the accused; and (c) the evidence must have been material. See Bagley,

473 U.S. at 674-75, 105 S. Ct. at 3379-80; Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; State v.

Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidence is considered material only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the results of the

proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed.

2d 490 (1995); Edgin, 902 S.W.2d at 389.

In order to prove aBradyviolation, a defendant must showthat “the favorable evidence could

reasonably be taken to put the whole case in such a different light as to undermine confidence in the

verdict.” Kyles, 514 U.S. at 435, 115 S. Ct. at 1566; see also Strickler v. Greene, 527 U.S. 263, 119

S. Ct. 1936, 1952, 144 L. Ed. 2d 286 (1999). The Court in Kyles urged that the cumulative effect

of the suppressed evidence be considered to determine materiality. Kyles, 514 U.S. at 436, 115 S.

Ct. at 1567.

Upon review of the statement in question, we conclude that its nondisclosure does not violate

Brady because it is neither favorable to the defendant nor material. Taking the issues in order, we

first note that our supreme court has held that “the Brady obligation comprehends evidence which

provides some significant aid to the defendant’s case, whether it furnishes corroboration of the

defendant’s story, calls into question a material, although not indispensable, element of the

prosecution’s version of the events, or challenges the credibility of a key prosecution witness.”

Johnson v. State, 38 S.W.3d 52, 56-57 (Tenn. 2001) (quoting Commonwealth v. Ellison, 379 N.E.2d

560, 571 (Mass. 1978)) (emphasis added). At the motion for new trial, the trial court found that:

[T]here’s nothing in [the statement] that’s inconsistent with anything that I have seen

or heard in the trial. 

And, so, this Court would find that it does not contain anything exculpatory as to [the

defendant], and that there’s not anything, in this court’s opinion, that would have –

had Mr. Wright been brought in to testify based on this statement, that would have

exculpated [the defendant’s] role in this case. In fact, if I’m not mistaken, I believe

I read in here where it was the – that [Wright] even indicated that [Washington] was

not supposed to have gone inside, that [the defendant] and the other guy was the ones

that were supposed to have gone inside and roughed up [Kerr]. 

We agree with the findings of the trial court. Contrary to the defendant’s argument that the statement

provides a “significantly different version of the facts” than that given by Washington at trial, it

appears that the two agree on all pertinent points. The statement confirms that Young recruited

Wright to drive him to Memphis, accompanied by Washington, Brown, and the defendant. The

statement further corroborates Washington’s testimony that, once in Memphis, Wright waited in his

vehicle with Young and had no knowledge of what transpired in Kerr’s apartment. Finally, the
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statement indicates that, after seeing Washington, Brown, and the defendant traveling in the truck

approximately thirty minutes later, Wright and Young followed them back to Blytheville. 

We initially note that Wright’s statement provides no information to support the assertion

that the defendant did not enter Kerr’s apartment on the night in question. Rather, it corroborates

the State’s proof that, after separating from Brown, Washington, and the defendant, Wright and

Young did not see the others again until they left Kerr’s apartment on their way back to Blytheville.

Moreover, the statement indicates that the defendant’s presence and his role in the incident were

intended and planned by Young. Specifically, the statement reveals that Young intended for

Washington to remain in the truck while Brown and the defendant “[got] what [Kerr] had left and

beat him up.” Washington corroborated this statement at trial when he acknowledged that he was

supposed to drive to Kerr’s apartment and stay in the truck while Brown and the defendant went

inside. 

Finally, the statement would not be a significant aid to impeach Washington. As previously

mentioned, the statement corroborates the pertinent points of Washington’s trial testimony; therefore,

any discrepancies would be minor and would aid the defendant only marginally, if at all. We see no

possiblewayin which this statement could render significant aid to the defendant, either to exculpate

his role in the offense or to impeach Washington.

We further conclude that the materiality requirement has not been fulfilled. Evidence is

material when “there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.” State v. Edgin, 902 S.W.2d 387, 390 (Tenn.

1995). Although the State’s cases reference the term “probability,” the true determination to be

made is whether “the defendant has shown that ‘the favorable evidence could reasonably be taken

to put the whole case in such a different light as to undermine the confidence of the verdict.’”

Johnson, 38 S.W.3d at 58 (quoting Irick v. State, 973 S.W.2d 643, 657 (Tenn. Crim. App. 1998)

(internal citations omitted)). 

As we have previously noted, the statement given by Wright merely confirmed and

corroborated the State’s proof of the pertinent facts. Therefore, if disclosed, it would not have

presented any previously unknown or novel fact that would have changed the complexion of the

case. As such, we conclude that its disclosure certainly would not have altered the case in such a

way as to undermine the verdict as it stands. Therefore, the requisite element of materiality has not

been proven.

III. Sentencing

The defendant also challenges the sentences imposed in light of the Supreme Court’s recent

holding in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). However, in a recent

opinion, our supreme court held that Blakely does not apply to our sentencing act. See State v.

Edwin Gomez and Jonathan S. Londono, No. M2002-01209-SC-R11-CD, 2005 Tenn. LEXIS 350

(Tenn., at Knoxville, April 15, 2005). Therefore, this argument is without merit.
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The defendant also challenges the imposition of consecutive sentences. Generally, it is

within the discretion of the trial court to impose consecutive sentences if it finds by a preponderance

of the evidence that at least one of the following statutory criteria applies: 

(1) [t]he defendant is a professional criminal who has knowingly devoted such

defendant’s life to criminal acts as a major source of livelihood; 

(2) [t]he defendant is an offender whose record of criminal activity is extensive;

(3)

[t]he defendant is a dangerous mentally abnormal person so declared by a

competent psychiatrist who concludes as a result of an investigation prior to

sentencing that the defendant’s criminal conduct has been characterized by

a pattern of repetitive or compulsive behavior with heedless indifference to

consequences; 

(4) [t]he defendant is a dangerous offender whose behavior indicates little or no

regard for human life, and no hesitation about committing a crime in which

the risk to human life is high; 

(5) [t]he defendant is convicted of two (2) or more statutory offenses involving

sexual abuse of a minor with consideration of the aggravating circumstances

arising from the relationship between the defendant and victim or victims, the

time span of defendant’s undetected sexual activity, the nature and scope of

the sexual acts and the extent of the residual, physical and mental damage to

the victim or victims; 

(6) [t]he defendant is sentenced for an offense committed while on probation; or 

(7) [t]he defendant is sentenced for criminal contempt. 

Tenn. Code Ann. § 40-35-115(b). 

If the court concludes the defendant is a dangerous offender under Tennessee Code

Annotated section 40-35-115(b)(4), it must make two further determinations in addition to applying

general sentencing principles. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). First, it must find

an extended sentence is necessary to protect the public from further criminal conduct by the

defendant, and, second, it must find consecutive sentencing to be reasonably related to the severity

of the offenses. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). However, such specific

factual findings are unnecessary for the other categories of Tennessee Code Annotated section 40-35-

115(b). State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

In the present case, the defendant contends that imposing a consecutive sentence based upon

subsection (b)(4) violates the holding of Blakely. We first note that both our supreme court and this

Court have previously addressed the applicability of Blakely and Apprendi to consecutive

sentencing. In so doing, our courts have held, in harmony with other jurisdictions, that these cases
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do not affect the trial court’s ability to order consecutive sentencing. See State v. Robinson, 146

S.W.3d 469, 499 n. 14 (Tenn. 2004) (citations omitted) (noting that “several courts” have rejected

the contention that Blakely and Apprendi apply to the decision to impose consecutive sentencing);

State v. Howard Walter Thomas, No. E2003-02090-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS

300, at *98-99 (Tenn. Crim. App., at Knoxville, Mar. 30, 2005) (rejecting Blakely contention as

applied to consecutive sentencing based on subsection (b)(4)). Therefore, we repeat the holdings of

the previous decisions and reject this contention. 

Next, we address whether the trial court properlyfound that the defendant was an appropriate

candidate for consecutive sentences under subsection (b)(4). In determining the propriety of

consecutive sentences, the trial court opined: 

The Court has reviewed the statute with regard to those particular factors, and the

Court again in reviewing not only the statute but the case law. Cases tell us that:

“The defendant may not to [sic] be required to serve multiple

sentences consecutively on the ground he is a dangerous offender

unless the record establishes that the defendant’s behavior indicated

little or no regard for human life and that he did not hesitate about

committing a crime in which the risk to human life was high.

“The circumstances surrounding the commission of the offense were

aggravated. The confinement for an extended period of time is

necessary to protect society and that the aggregate length of the

sentence in consecutive sentencing is ordered, reasonably relates to

the offenses for which the defendant stands convicted.”

In this case, again, as I would state, I have one man who is dead, one woman who

was mortally wounded, all to recover drugs and drug money. That’s the whole

purpose of this. They felt that Mr. Kerr had stolen their drugs and stolen their

money, and they sent them over here a little bit of self-help repossession I guess is

what you’d call it, and in the course of that, they took a man’s life and mortally

wounded his wife. 

This Court find that those actions meet the criteria set out in the case law and meet

the criteria set out in the statute for consecutive sentencing. I do find that [the

defendant] is a dangerous offender whose behavior indicates little or no regard for

human life and that had no hesitation about committing this crime in which the risk

to human life was high, and I’ll order that the sentences be served consecutively. 

Upon reviewing the trial court’s findings at the sentencing hearing, we conclude that the court

properly found that the defendant met the requirements of (b)(4) and was an appropriate candidate

for consecutive sentencing. The record reflects that the trial court recited the requisite factors,
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expounded on the details of the offense, and found that the defendant met the necessary criteria to

be sentenced consecutively.

IV. Cumulative Error

Finally, the defendant contends that the cumulative effect of all errors merits a new trial.

Initially, we note that the defendant has waived this argument for failure to raise it in his motion for

new trial. Tenn. R. App. P. 3(e). Further, as we have found no individual error as to the convictions,

this argument is without merit. 

Conclusion

The defendant’s convictions and sentences are affirmed. 

____________________________________

 JOHN EVERETT WILLIAMS, JUDGE