# FILED
April 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY SESSION, 1997

STATE OF TENN ESSEE , ) ) No. 02C01-9606-CR-00188 Appellee ) ) SHELBY COU NTY vs. ) ) Hon. Bernie W einman, Judge JULIUS E. PARK

ER , )

) (First Degree Murder; Appellant ) Agg. Robbe ry)
For the Appellant : For the Appellee : Benjamin F. Head John Knox Walkup Attorney at Law Attorney General and Repor ter 147 Jefferson, Suite 408 Memphis, TN 38103 Deborah A. Tullis Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493
John W. Pierotti District Attorney General Reginald Henderson Asst. District Attor

ney General Criminal Justice Comple x 201 Poplar St., Suite 301 Memphis, TN 38103

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 Jerome D. Moss and Anthony J. Col bert were al so named as co-defendants i n the indict ment. The record indi cates that,prior t o the appell ant's tr

ial, Moss pled guil ty to second degre e murder

and wa s sent

enced to f ort

y-f iveyear

s in the De part ment of Corre cti on. No disposition is shown as to Co lbert. 2 OPINION
The appellant, Julius E. Parke r, appeals his jury convictions for the cri mes of aggravated robbery and felony murder. The Shelby County Criminal Court sentenced the appellant to life impr isonment for the felony murder conv iction and eight years incarc

eration for the aggrav

ated robbery convict ion, with the sentences to run concurrentl y. In this appeal as of ri ght, the appellant raises the following issues: I. Whether the evidence is suff icient to sustain the appellant's convictions and sentences. II. Whether the trial court properly admitted into evidence a tape of the 911 call

made by the r

obbery vi ctim. III. Whether the trial court properly denied the appellant's motion to suppress the appellant's sta tements to the police. IV. Whether the trial court properly admitted photographs of the victim into evidenc

e. V. Whether the trial court failed to instr uct the jury on the less er offense of facilitation of felony murder.
After a review of the rec ord, we affirm the judgment of the tr ial court.

I. Background
On October 4, 1994, a Shelby C ounty Grand Jury ret urned a multi-count indictment charging the appellant with one count of firs t degree murder, one count of murder in the perpetrati on of a felony, and one count of aggr avated robbery. 12 In his st atement to the pol ice, Moss contended that "t he gun was broke and if you cock the gun w ithout it being o n safety, it will shoo t without pu lling the trigger."

3 Deangelo Small testified that, on March 17, 1994 around 9: 45 p.m., he observe d four "guys" en ter the Five Star Market. Shortly thereafter, he heard a " pop" and saw the f our "guys" come running out of t he store. Ant hony Flake al so testi fied that , at 10: 00 p.m. that same eveni ng, he saw four guys r

un past his security

booth on Fourth Street headi ng toward the r ailroa d tracks. 3 At the appellant’s trial, the State’s principal w itness was the co-defendant, Jerome Moss. Moss testified that, on March 17, 1994, he, the appellant, Anthony Colbert, Amos Wilson, and Cecil Dotson, planned to "rob the dope man." However, their criminal venture proved unsuccessful as they were unable to find their intended victim. Moss stated that, as the group began the walk "towards the house . . . [th e appellant] said if we w ould go in the [Five S

tar Grocery] with hi m he'd rob the store." The appellant , Moss, and Colbert entered the store. The appellant and Colbert remained at th e front of the store, while Moss proceeded to the rear. Moss testified that, at this point, he was not armed with a weapon, howev

er, the appellant was in possession of "a chrome .380 with a black handle," and Colbert had a ".32 automa tic." The appellant and Colbert "laid the [owner of the store] out on the floor." At the sam e time, William Bowles, an employee, came toward M oss. Moss hit Bowle s on the head with a bottle of beer. The appellant took the pist ol to the back of the store and handed i t to Moss. Bowles attempted to rise, but Moss ordered hi m remain on the floor. Moss removed the safety from the pistol and one shot was fir ed fatally striking Bowles in the head. 2 The three men then ran out of the store.
Moss stated that he, Colbert and the appellant were joi ned by Wilson and Dotson, who had been waiting outside the store. All five then ran down F ourth Street. 3 Once the group reached an empty apartment, the appellant divi ded the money tak en during the robbe ry and dist ributed t he proce eds accor dingly:
the appellant, Moss and Colber t receiving forty

-seven dollars each, and Wilson and Dotson receiving forty-one dollars each.4 During the robbery, the owner of the store placed two emergency 911 calls to the police repor ting the robbery. The Sta te introduced these tapes into evidence, however, the tapes were neither transcribed nor included in the record on appeal. Officers Terry Landrum and Cham N. Payne, Mem phis Police Department, responded to the robbery call at the Five Star Grocery. Upon his arrival, Officer Landrum located the owner of the store who reported the robbery and advised him that "somebody's been shot."

Both officers described the inter ior of the store at the time of their arrival. "On the floor in front of the counter, [there was] broken glas s. On the counter top, [there was] a brow n paper bag." "There was a c ash drawer laying

on the floor. There was change sc attered behind the cash regi ster." "There was also a five dollar food coupon and an empty food co upon booklet." "There was a big pool of beer in the hallway. There was a little aisle between the merchandise with. . . glass from a beer bottle." "[There were] blood drippings [on the floor .]" "And there was a male black subject in the back that had been shot in the head." Testimony of the medical examiner established that the vic tim’s death was the result of "a gun shot wound t o the head, with a bullet pas sing inside the brain, producing hemorrhage ins ide the skull and small cut s to the face."
Sergeant Richard Roles on, one of the officer's investigating the case, took the appellant's statement after his arrest. The appellant sig ned a waiver of rig hts before giving the state ment. See infraSection IV, Motion to Suppress. In this statement, the appellant stated that, "in a way [he] knew , and in a way [he] didn't" know about the robber y, however, he admit

ted that he was supposed to "snatch the money." The appellant's statement corroborated Moss's testimony regarding the facts leadi ng up to and following the crimes. This concluded the State's proof.5 The defense called the co-defendant, Anthony Colbert. Colbert testi

fied that only he and Moss enter ed the Five Star Grocer y. He maintained that the appellant remained outside the st ore. Moreover, he testified that there were no plans to rob the store. In ex planation of his prior statement which implicated the appellant, Colbert expl ained that he lied "[b]ecause he had told it on me, so I was going to take him wi

th me." However, Col bert's prior statement, i ntroduced during cross-examination for impeachment purposes, supp orted Moss's testimony.
Next, the appellant took the stand. He confirmed that he was in the store with Moss and Colber

t, however, he did not know about the robbery. Rather, he maintained that he entered the stor e in order to purchase cigars. In this regard, he testified that: . . . There was two of us had some money. Me and Colbert . And Moss come in, and for him not to hav e no money, he was searching around the stor e like he had some, you know . He went on to the back and picking up things, you know. . . . [S]omething's fixin' to go down, you know. I looked at him and I looked at Colbert beside me and Moss back there and I kind of figured, I said, "M an, something's fixin' to happen or something. . . . I heard a bottle burst. . . .Colbe rt looked at me re al hard, and I kn ew what that sign was. And I broke. As I ran I saw . . . Wayne Dotson and Amos. And I said, "Man, those fools robb ing this store."

The defense also called Cecil Dotson. Dotson testified that ther e was no plan to rob the store and that the appellant was not in the s tore when the shot was fired. Despite thi s testimony, Dotson confir med, on cross-examination, that he had previously tol d the police that the appellant w as inside the store and that he had received forty-one dollars from the proceeds. F inally, Pamela Wiggins testified that Moss and the appell ant did not get along. She a lso stated that the day after the crimes, she obs erved the appellant buyi ng clothes and shoes. Moreover, she heard the appellant tell "Cecil's brother that . . . 'I got bud's money, we robbed somebody,' or something of that eff ect.'"6 II. Sufficiency

of Evidence
The appellant contends that the evidence at trial was insuff icient to convict him of felony murder and aggr avated robbery. Specifically, he argues that the only evidence of his know ledge and participation i n the robbery of the Five Star Grocery was the testimony of Jerome Moss. He asserts that Moss' testimony is incredible because Moss r eceived a deal from the State, he a nd the appellant did not get along, and the appellant had implicated Moss in the crimes.
A conviction by the trier of fact removes the presumption of innoce nce and replaces it with on e of guilt, so that on appeal a c onvicted defendant has the burden of proving that the ev idence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). On appeal, the Stat e is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (199 3). It is the appellate cour t's duty to affirm the conviction if the ev idence viewed under the se standards was sufficient for any rational trier of fact to have found the essent ial elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , -- U.S. --, 115 S.Ct. 743 (1995); Tenn. R. App. P. 13(e). This rule is applicable to findings of gui lt predicated upon direct ev idence, circumstantial evidence, or a combination o f both direct and circumstantia l evidence. State v. Matthews , 805 S.W.2d 776, 77 9 (Tenn. Crim. App. 1990).
The appellant contends that, althoug h Moss' testimony impli cated the appellant in both the preparati on and execution of the robbery , at trial, the testimony of Colbert, Dots on, and the appellant provided evidence to the contrary. The record does not support this allegat ion. Indeed, the prior7

statement by the appellant intr oduced by the State at trial not only placed the appellant at the scene of the crime, but also confirmed his know ledge, preparation, and participati on in the robbery. Mor eover, matters concernin g the credibility of witnesses are determined by the trier of fact and not this court. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A guilty verdict, approved by the trial court, accredits the testimony of the State's witnesses and resolves all conflicts in favor of the theory of the State. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973).
Tenn. Code Ann. § 39-13-402(1991) defines aggravated robbery

as "the intentional or knowing

theft of property from the person of another by violence or putting the person in fear," Tenn. Code Ann. § 39-13-401(a) (1991) , and the robbery is "accomplished with a deadly weapon. . ." or "where the victim suffers serious bodily injur

y." The evidence presented at trial clearly d emonstrates that the appellant actively

participated in, if not initiated, the aggravated robbery of the Five Star Grocery, that the appellant was in possession of a .380 automatic weapon, that the appellant took the money from the store, and that the appellant divided the proceeds between all participants.

Felony murder is "[a] r

eckless killing of anoth er committed in the perpetration of, or attempt to perpet rate any . . . robbery . . . ." Tenn. Code Ann. § 39-13-202(a)(2) (1994 Supp .). In the present case, M oss admitted that he was holding the weapon when Bowles was killed. Nonetheless, "[w]hen one enters into a scheme with another t o commit one of the felonies enumerated in Tenn. Code Ann. § 39-13-202, in this case [robbery], and death ens ues, both defendants are responsible for the death, regardless of who act ually committed the murder and whether the ki lling was specific ally contemplated by the other." State v. B rown , 756 S.W.2d 700, 70 4 (Tenn. Crim. App. 1988). The evidence8

clearly establishes

that the appellant activel y participated in the r

obbery, and, as such, he became accountable for all consequences flowing from the robbery. See Brown , 756 S.W.2d at 703. Accordingly, w e conclude that his convi ctions for felony murder and aggravated robbery are amply supported by the evidence and that a rational trier o f fact could have found the essential el ements of both offenses beyond a reasonable doubt. This issue is without meri t.

III. Tape of the 911 Emer gency Call
Next, the appellant arg ues that the trial court er red in permitting the introduction of the audio tape of the 9 11 emergency call made by the robbery victim. Specifically , he contends that the tape was not properly authenticated and that "the statements by the di spatcher are inaccurate and p rejudicial."
The audio tape recording of the 911 emer gency call was introduced into evidence as a public rec ord. Tenn. R. Evid. 803(8) . The tape was introduced through the testimony of the s upervisor and custodian of the records. The custodian testified that he w as an employee of the Communications Bureau of the Memphis Police Department.He explained the procedur e by which records of incoming calls are ret ained. Thus, the introduction of the tape recording to support the fact that a 911 emergency call was recorded on the time and date specified, the address the call was placed from, and other r elevant “data” was admissible. Howeve r, the content of the tape recording, in or der to be admissible, must also satis fy an exception to the hears ay rule, because the citizens who place 911 emergency calls are not under a “duty to report.”

Under certain circumstan ces, such a statement may qu alify as an "excited utterance." See Tenn. R. Evid. 803(2). To qualify as an "excite d utterance," the4 The trial co urt prope rly found the tape rec ording to b e adm issible hea rsay purs uant to Tenn. R. Evid. 803(2), excited utter ance.
5 Although t he record refl ects the tape was played for the j ury, t he court repor ter appare ntly did not trans cribe the s tatem ents be ing played fo r inclusion in th e record

. 9 statement must be "relating to a startling event or

condition . . . while

the declarant was under the s tress of excitement caused by the event or condition." Tenn. R. Evid. 803(2). Y et, even if the statement satisfies this hearsay exception, as in the pres ent case, the statement must stil l be authenticated prior to its admission. 4 For the purpose of authenticati on, the voices on a 911 tape recording must be identified "by opinion based upon hearing the voice at any time under circumstances connecting it with the al leged speaker." Tenn. R. Ev id. 901(b)(5). At trial,the appellant objected to the admis sibility of the tape because the alleged caller on the tape was never identified as being the robbery victim in this case. In this case, the custodian o f the record was unable to identify the voice on the tape as being the speaker, i .e., the robbery vic tim. Accordingly, the statements on the tape of the 911 call were not properly authenticated, and, therefore, w ere improperly admitted. Cf

. State v. Smith , 868 S.W.2d 561, 577 (T enn. 1993) (statements on tape of em ergency 911 call properly admitted as "ex cited utterance" after voic e identification of the caller by 911 operator

who received the call).
As previously indi cated, neither the tape nor a tr anscription of the tape recording was included in the record. 5 Thus, we are precluded from r eviewing the appellant’s allegati ons of the prejudicial impact of the tape. It is incumbent upon the complaining party to prepare a full and adequate acco unt of the record for our review. State v. Ballard , 855 S.W.2d 557, 56 0-61 (Tenn. 1993); Tenn. R. App. P.24. Absent the necessary relevant material in the record an appellate court cannot consider the meri ts of an issue. See Tenn. R. App. P. 24(b). Moreover, even in the absence of the tape recording of the emergency 911 call, we conclude that any er ror in its admittance is

harmless. Tenn. R. Crim. P

.6 At the time of his initial st atem ent, th e app ellant was not u nde r arre st. Ho weve r, on A pril 16, a fter h is two co-d efen dan ts im plicat ed him in the c rim es, th e app ellant was arres ted a nd in cus tody. 10 52(a). The evidence over whelmingly suppor

ts the jury's finding

that the appellant participated in the robbery of the Five Star Grocery. This issue is without merit.

IV. Motion to Sup press
The appellant contends that the trial court erred in fa iling to suppress his statements given to the pol ice. Specifically, the appellant contends that, because his rights w

ere not "explained" and because h e was "coerced, brow beatened [sic], threatened of not ev er getting out of jail, the death penalty and with promises that he w ould be able to go home," his st atements were not voluntary.
At the suppression hearing , Sergeant Roleson testified that the appellant gave two statements to the police, one on April 15, 1 994 at 9:40 a.m., and the second on Apr

il 18, 1994 at

1:27 p.m. 6 Both statements were taken at the police station. He added that, on Apri l 15, the appellant was adv ised of his rights in the presence of his mother and wai ved those rights pri or to making any statement. In this statement, the appellant de nied any participation i n the crimes. Roleson further testified that, on April 18, 1994, the a ppellant contacted him from the jail and informed him that he wished to make another statement. Again, th e appellant was advised of his rights and signed another waiver. In this second statement, the appellant admitted know ledge of the robbery, his presence in the store, and his role in "sna tch[ing] the money."
The appellant, however, testified that his statements were not voluntary and were the result of coer cion and threats by the int erviewing officers

.11

Specifically, the appella nt contends that the officers did not e xplain his rights

to him, that the officers accused him of ly ing, that the officers threatened that the appellant would never see his children again, that the officers threaten ed to kill his two co-defendants, and that the officers threatened to "send him to a penitentiary." To explai n his attested untruthfulness in his statements, the appellant stated "they lied to me so I lied to them."
At the suppression hearing, the trial court found that "f rom the totality of all the proof that the defendant did freely and voluntarily gi ve these statements and [was] advised of [his] rights and understood [his] rights and that [he] gave these statements without any coercion, and [that] they would be admissible in proof in the case."

The appellant is correct in his assertion that, to be admi ssible, a defendant's statement must have been made v oluntarily. Jackson v. Denno , 378 U.S. 368, 376, 84 S.Ct. 1774, 1780 ( 1964); see also Oregon v. Elstad , 470 U.S. 298, 304-305, 105 S.Ct. 1285, 1290-91 ( 1985). A trial court's determination, with regard to the voluntar

iness of statements made by the defendant dur ing custodial interrogati on and the compliance by the pol ice with the Miranda mandate, is presumptively correct on appeal, unless the reviewing cour t finds that the evidence touching those matters preponderate s against the trial court's findings. State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994); State v. Nakdimen , 735 S.W.2d 799, 802 (Tenn. Crim. App. 1987) (cit ations omitted). Nothing in the record pr eponderates against the tri al court's determination tha t the appellant's statements were voluntary and not the result of coercion, th reats, or lack of knowledge of his constitutional rights . This issue is without merit.12 V. Photographs of Victim
The appellant argues that it was reversible error for the trial court to admit into evide nce a color photograph o f the victi m as he appeare d at the cri me scene. He asserts th at "[t]h e fact th at the vict im was dece ased was sh own by a [previously intr

oduced photograph]," depicting the victim at the morgue

. Continuing, he maintains that "[the photograph] was not necessa ry because identif ication a nd death was establ ished by th e medica l examine r." Accord ingly, the appellant concludes that the p hotograph is "unnecessary and inflammatory," and, therefore, "should not have been admitted because its prejudic ial value outweighed its probati

ve value and its rel evance."

"The admissibility of photogr aphs lies within the di scretion of the trial court." State v. Banks , 564 S.W .2d 947, 949 (T enn. 1978). T he court's "rulin g, in this respect, wi ll not be overturned on appeal except upon a clear show ing of an abuse of discretion." Id . (citations omitted); see also Stephenson , 878 S.W.2d at 542; State v. Bordis , 905 S.W.2d 214, 226 (Tenn. Crim. App.), perm. to appeal denied . (Tenn. 1995). However, before a photograph may be admitt ed into evidence, it must be r elevant to an issue that the jury must decide and the probative value of the photograph must outweigh any prejudicial effect tha t it may have upon the trier o f fact. State v. Braden , 867 S.W.2d 750, 758 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1993) (citation omitt ed); see also Tenn.R.Evid. 401 and 403.
The contested photograph establis hes the location of the victi m's body when discovered at the crime scene. Photographs of a v ictim's body taken at the scene of the incident are admiss ible. State v. Van Tran , 864 S.W.2d 465, 477 (Tenn. 1993), cert. denied , -- U.S.--, 114 S.Ct.1577 (1994). Moreover,a7 Tenn. Code Ann. §39-11-402 (1991) provi des: A person is criminally responsible for an offense com mitted by another if: (2) Acting with intent to pr omo te or ass ist the com miss ion of the o ffense , or to benefit i n the proceeds or results of the offense, the person sol icit s, direct s, aids, or attempts to aid another person to commit the of fense. Tenn. Code Ann. § 39-11-4 03 (1991), pr ovides: (a) A person i s criminall y responsi ble for t he facil itati on of a felony if, knowi ng that another in tends to commit a specif ic felo ny, but without the int ent requir

ed for criminal r

esponsibil ity

under § 39-11-402[ (2)], the person knowingl y furni shes sub stan tial as sista nce in the c om mis sion of the felon y. 13 photograph u sed to supple ment and clar ify oral te

stimony des

cribing t he crime scene is likewise admissible. State v. Duncan , 698 S.W.2d 63, 69 (Tenn.), cert. denied , 475 U.S. 1031, 106 S.Ct. 1240 (1985). The phot ograph at issue is neither gruesome nor bloody . Nothing in the recor d demonstrates that the trial court abused its discretion in admitting this photograph. Accordingly, we find this issue to be without merit.

VI. Jury Instructions

In his fin al issue, the appe llant argu es that th e trial cou rt should have ch ar ge d t he ju ry on th e l es se r o

ffe ns e of fa

ci li ta ti on of fe lo ny mu rd er . We disagree.
The appellant relies upon State v. Lewis , 919 S.W.2d 62 (Tenn.Crim. App. 1995), as authority. In Lewis , 919 S.W.2d at 67, a pa nel of this court held that "virtual ly eve ry tim e one is charged with a felony by way of criminal responsibilityfor the conduct of another, facilitation of the felony would be a lesser included offense." 7 (Emphasis in original ). "[O]ne can be guilty of felony murder based on that person's c riminal responsibilit y for the conduct of another person." Id . Thus, if a person can be guilty of felony murder because that person is responsible for the conduct of another, then that person could be guilty of facilitation of felony murder becaus e the two statutes deal w ith criminal responsibility. Id

.14 However, the holding

in Lewis "is not a blanket rule to be applied in every felony murder case where the defendant is not the party w ho commits the murder during the felony." State v. Utley , 928 S.W.2d 448, 452 (Tenn. Crim. App. 1995), perm. to appeal denied , (Tenn. 1996). Rather, a trial court should instruct the jury as to facilitation of felony murder onlywhere the facts could cause reasonable minds to concl ude that the defendant lacked the intent t o promote or assist in, or benefit from, the underlying felony 's commission. Id

. (citation omitted) (emphasi s added).
In the case before us, the State’s p roof established that it wa s the appellant who initiated the robbery, who furnish ed the murder weapon, who benefited in the proceeds, and wh o was present when the murder occurred. The appellant’s proof at trial den ied any participation or planning in the robbery . In fact, the appellant testified that hi s sole purpose for entering the store was to purchase cigars. Thus, the appellant denied that he “know ingly furnish[ed] substantial assistance in the commission of the felony” of first degree murder. We conclude that these facts clearly distinguish this case from the facts in Lewis , 919 S.W.2d at 62.
While it is generally error in a homicide case for the tri al court not to instruct the jury on a ll lesser included offenses, see Johnson v. State , 531 S.W.2d 558, 559 (Tenn.1975), where the record c learly shows that the defendant was guilty of the greater offense and is devoid of any evidence permitting an inference of gui lt of the lesser offense, it is not error to fail to charge on a lesser offense. State v. B oyd , 797 S.W.2d 589, 593 (Tenn. 1990) (citing State v. King , 718 S.W.2d 241, 245 (Tenn.1986)). We conclude that the trial court was cor

rect in not instructing

the jury on the lesser

included offense of facilitation of felony murder. Thi s issue is without mer it.15 VII. Conclusion
After a review of the record and the applicable law, we find no reversible error in the judgment of the tr ial court. According ly, the judgments of conv iction and sentences imposed are affirmed.

____________________________________ DAVID G. HAYES, Jud ge
CONCUR:

_________________________________ PAUL G. SUMMERS, Ju dge

_________________________________ THOMAS T. W OODALL, Judge