### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs A

ugust 7, 2001
STATE OF TENNESSEE v. GABRIEL ANTONIO CLARK
Direct Appeal from the Circuit Court for Madison County No. 99-528 Roy B. Morgan, Jr., Judge

No. W2000-02595-CCA-R3-CD - Filed September 7, 2001

The Appellant, Gabri el Antonio Cl ark, was convicted by a Madison County jury for one count of felony murder and one count of aggravated robbery . Clark was sentenced to

life imprisonment for the murder convictio

n and, followin

g a sentencing hearing, received a twelve-y ear sentence for aggravated

robbery. The sentences were ordere d to be served consecutively. On appeal, Clark raises the following issues for our review: (1) Whether the evidence present ed attrial is sufficien

t to support his convictions; and (2) whether the trialcourt erred by failing to exclude or redact a portion of Clark’s statement to police whichhe contends was h ighly prej udicial and in viola tion of Tenn. R. Evid. 403. After review, we find no reversible error and affirm the judgment of the tria l court. Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is Affirme

d.

D AVID G. H AYES , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined.
Daniel J. Taylor, Jackson, Tennessee, for the Appellant, Gabriel Antonio Clark.

Paul G. Summers, Attorney General a nd Reporter; Michael Moore, Solicitor General; Laura McMullen Ford, Assistant Attorney General; James G. (Jerry) Woodal l, District Attorne

y General; and Al Earls, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION
Factual Backgrou

nd

AntonioWomack was employed at Butts Foods, a meat and poultry distributor, in Jackson for approximately two and one-half year s. In November of 1998, Wom ack, w ho was a forklift operato r in the warehouse, was fired for habitu

ally arrivi ng late to work. T

wo days aft

er his termination, during the early mor n ing hours of November 11, 1998, Womack drove to Kiawauna Wynn’s house

to socialize, play

cards and smoke ma

rijuana with

Wynn and the A

ppellant. While-2-

at W ynn’ s residence, Woma ck overheard th

e Appellant and Wy

nn discuss plans to c

ommit a rob bery. At the same time, Womack mentioned to the two that he needed to retrieve a sweater that he had left at Butts Foods two days earlier.

Sometime

later that morning, the Appellant lef t Wynn’s residence, but c ame back twenty min utes later with

“either a nine [mil

limeter] or a .380"

pistol. Wynn wa

s carrying a .357 pistol. At approximately 4:00 a.m., all three men got into Wynn’s Nissan and drove to Butts Foods. When they arrived, the three men parked across the street at Floyd’s Tavern. Womack knocked on the front glass door while Wynn and the Appellant waited in the car. The victim, Billy Ledbetter, worked as night manager for Butts Foods and unlocked the door for Womack. After Womack ret rie ved his sweater, the victim walked Womack back to the front door and told him to “have a good night.”
According to Womack, the Appellant and Wynn came throu gh the do or as the victim was letting him out of the building. Womack stayed outside and shortly thereaf ter heard numerous gunshots. After hearing

the shots, Womack fled a shor t distance on foot.

Wynn and the Appellant later drove by an

d picked him

up. Althou gh Womack’s testimony was equivocal as to whether he knew that Butts Foods was going to be robbed that night, he maintained that he a ccompan ied the Appellant and Wynn only

to retrieve his sweater

and only left with them “because [he] could have been next.”

The three men returned to Wynn’s house where t he mone y was counte

d. Approximately $7,187 in cash and $17,122 in checks were taken from the business. Womack testified that Wynn and the Appellant

split the cash before the Appellant burned the checks and key s. While dividing the money, the Appellant told Wynn, “Look like y ou got that m-----r f----r brains on your pants leg.” Although Womack initially denied telling Wynn and the Appellant

where the money was located, he later admitted at trial that he did, in fact, tell them that the money could be fou nd in a d esk. Womack testified that he did not share in the proceeds of the robbery

because the App

ellant told him “he [didn’t] think [he] deserved any money cause [he] didn’t do [any]thing.” Tw o days later, when W omack returned to Butts

Foods to obtain his p

aycheck, police arreste

d him and took him in

t o custody. Womack initially denied any involvement in the crime.

On June 14, 1999, the Appellant was taken into custody on an unrelated charge. Whe n office rs indicated that they wanted to talk to the Appellant about the Butts Foods robbe ry an d murder, he stated that he w ould only speak with Sergeant Leslee H allenback. At

approximately 1:00 p.m., after being Mirandized and having signed a waiver of rights form, the Appel lant , although agreeing to talk, refused to allow Sergeant Hallenback to record or write any of the conversation down or allow any other

officers in the room. In his statement to Sergeant Hallenback, the Appellant related that he, Womack, and Wynn had all discussed the ro bbery two to three weeks prior to the incident. However, the Appellant stated that he was not aware of Wynn and Womack’s p lans to commit a robbery at the time he got into the vehicle. The Appellant also stated, “the last time he saw the guns, Womack had them, and that the two guns he [Appellant] was arrested with were not any of the murder weapons.” The Appellant further stated, “What if I was the shooter? I’m looking at 51 years.” This interview lasted approximately one hour befor e the Appellant told Sergeant1 At tr ial , t he p art ies st ipulat ed t hat the TBI C ri me Laboratory t

ests es tablis hed that t he “shell casingsand bu llets recovered from the scene of Butts Foods . . . determined that t he casings

were from a .380,

and one bul

let was fro m a .38/.357 . . . [T]hat a .38 0 and a .3 8/.357 a re differen t caliber we apons a nd cou ld not be fir ed from the same gun.”
-3- Hallenback

that he needed “some time to think” before continui ng the interview. Sergeant Hallenback

ceased further questioning and immediately re duced the Appellant’s statement to writing outside the presence of the Appellant.

At approximately 6:00

p.m. that same night, Sergeant Hallenback spoke with the Appellant
a second time. Aga

in, the Appellant st

ated that the disc

uss io ns about robbing Butts Foods began while Womack was still employed there. The Appellant also statedthat Womack had explained how they could get inside the building to commit the robbery if he left a sweater and then went back to retrieve it. The Appellant claimed he was not present when the actual robbery oc curred, but stated that Womack did have a nine millimeter pistol with him that day.
Roger Harwell, a truc

k driv er f or Butts Foods, also testified at trial. Harwell testified that during the ea

rly morni ng hours of November 11 th , he recalled seeing three people, all wearing toboggans,

in a small dark-colored car parked beside a trailer near

Butts Foods. He observed the car l eave and come back several times while he was at Butts Foods. He also informed Le dbetter that the car was outside thebuilding. Harwell last saw the car parked at Floyd’s Tavern when he left for his route at 4:00 a.m.
Leon Breathette was

incarcerated with the Appellant in the Madison County Jail. At trial, he testified that the Appellant told him that he [the Appellant] and two others had bee n involved in
a “warehouse

robbery” that “had went bad.” Breathe tte explained that the Appellant told him, “the guy was sup posed to have been gone [but] came back unexpectedly, surprised them, and he [the Appellant] shot him.”

Dr. O.C. Smith, a forensic pathologist, performed an autopsy on the victim. At trial, Dr. Smithtestified that the

cause of dea th was multiple gun shot wounds. He tes

tified that the vic

tim received a total of five gunshot wounds, including one superficial graze and four that penetrated the victim’s body. The victim received a gunshot wound to

the right forehead, a gunshot wound to the right cheek, and two gunshot wounds to the abdomen. Dr. Smith opined that none of the wounds would have been immediately fatal. The pathologist’s testimony indicated that the gunshot wounds to the head and the w

ounds tothe abdomen were produced by two different weapons. The gunshot wounds to the head were cons istent with those

being produced

by a .38/.357

caliber weapon

while the wounds to the abdomen were consistent with those being produced by a .380 ca liber weapon. 1

I. Sufficiency of the Evidence

The Appellant assert

s that the evidenc

e presented at trial i s insufficient to su pport his convictions for felony murder and aggravated robbery. He a rgues that the proof, viewed as a whole,-4-

fails to support his convictions and further argues that Womack “was not a credible witness based upon the various contr

adictory st

atements that h e gave regarding his involvement or lack of involvement in this crime.”

A jury conviction removes the presumption of innocence with which a defendant is cloaked andreplaces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. Statev. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining the

sufficiency

of the evidence

, this court does not

reweig h or ree valuate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of th

is court to revisit questions of witness credibility on appeal, that function being within the province of the trier of fact. See gener ally State v. Adkins , 786 S.W.2d 642, 646 (T enn. 1990); State v. Burlison , 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must es

tablish that the evidence pr

esented at trial w

as so deficient that no

reasonable trie

r of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). Moreover, the State is entitled to the strongest legitimate view of theeviden ce and all reasonable inferences which may be drawn therefrom. Statev. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113 S. Ct. 1368 (1993).

Jackson v. Virginia

addresses two important aspects of a sufficiency review: (1) the manner of review of the convicting evidence; and (2) the standard of review for leg al sufficiency. The scope of our examination of th

e evidence is not e

quivalent to that of

the jury. In a challenge to the suff ic iency of the evidence, this court does not retry the defendant. We emphasize that our examination in a sufficiency review isnot to revisit inconsistent, contradicting, implausible or noncredible proof, as these issue s a re resolved sole ly by th e jury. Rath

er, we look to the r

ecord to determine whether there w as substantiv

e probat ive evidence to support the verdict. The second inq uir y, the question of legal sufficiency, then follows: whether the record contains evidence from which the jury could have found the essential elements of the crime bey ond a reasonabl e doubt. Every reasonable hypothesis of innocence need not be dispelled; it is only nec essary tha t there exists proof which supports the elements of the crime. Again, we emphasize our inquiry is not upon the weight of the evidence or its inconsistencies but, r ather, if there is proof of the crime beyond a reasonable doub

t. In the present

case, the Appellant was convicted of f elo ny mu rder and aggr avat ed ro bbe ry. The Appellant was prosecuted for felony murder basedupon the allegations in the indictment that the victim was killed “during the perpetration of aggravated robbery in violation of Tenn. Code Ann. § 39- 13- 202

. . . ” Ad dit ion all y, aggravated robbery is “the intentional or knowing theft of property from the person of another by violence or putting the person in fear . . . accomplished wi

th a deadly weapon or by

display of a

ny article used or fashione

d 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(a)(1)(2).2 On this occ asion, appr oximately s even months aft er the Butt

s Foods robbery a

nd murder, the Appellant was a passeng er in a veh icle in whic h weap ons and cocaine w ere foun d.
-5- The proof at trial established that the Appellan t admitte d to Sergeant Hallenback that he discussed committing the Butts Foods robbe ry with Womac

k and Wynn pri

or to the robbery. The proof additionally

established that the Appellant was pre sent during the r

obbery and

murder of Billy Ledbetter. Furthermore, the proof demonstrated that the Appellant was ar med with a .380 or

nine millimeterweapon, the .380 caliber weapon being a caliber consistent with the wounds sustained by the victim. The Appellant participated i n counting the stolen money and sharing in th

e proceeds. Fin all y, he admitted to an in mate that he was in

volved in a wareh

ouserobbery

that “had went bad.” Clearly from these facts, a jury could have concluded, based upon this conduct

or by the conduct of others for which he was criminally responsible or by both, that he was guilty of felony murder and aggravated robbery. Tenn. Code A nn. § 39-11-401.

We acknowledge that Woma ck’s testi mony at trial w as conflict ing and on oc casion contradicted

his previous statements to police. H owever, such inconsistencies and questions of credibility

were placed before the jury. Questions of cre dibility of the witnesses are for the jury. See State v. Sheffield

, 676 S.W.2d 542, 547 (T enn.1984); State v. Cabbag e , 571 S.W.2d at 835. After reviewing the f

acts in the light most favorable to the State, we find the evidence presented at tri al s uff ici ent to s upp ort his con vic tio ns f or f irs t de gree mur der a nd a ggra vat ed ro bbe ry.

II. Admission of Appell ant’s Stateme

nt The Appellant next argues that the trial court erred by a

dmitting into

evidence a portion of his statement given to Ser gea nt Hallenback. At the Appellant’s request, Sergeant Hallenback interviewed

the Appellant twice on June 14, 1999. Although the Appellant refused to let her record
or write anything down during the interview itself, Serge ant Hallenback immediately reduced the Appellant’s statements

to writing following each interview. On May 22, 2000, the trial court heard the Appellant’s motion in limine which sought redaction of the following portion of his state ment:
[The Appellant] told

me that the last time

he saw the guns, Womack hadthem, and that the t

wo guns he was a

rrested with

were not any of the murder weap

ons.
After hearing arg

uments, the trial court

denied the Appellant’s motion, ruling the challenged portion was admissible because it was substantive evidence.

The recordsuggests that th e Appellant’s ar

rest at the time tha

t he gave the sta

teme nt t o Sergeant Hallenback

was for a charge unrelated to the current of

fenses. 2 Thus, in this context, the Appellant related to Sergeant Hallenback that “the two guns he was arrested with [on this occasion]
were not any

of the murder weapons [used in theButts Foods murder].” Accordingly, the Appellant argues that evidence of this subsequent arrest, implying additional unlawful acti vity, was hig

hly-6-

prejudicial and irrelevant. We agree that this evidence wa s irre levant and improperly admitted be cause th e Appellant’s possession of these weapons had no connection to the murder or robbery of the victim in this case. Tenn. R. Evid. 401. Nonetheless, we note that prior to the introduction of this portion of the A

ppellant’s statem

ent, trial counsel stipulated to the same facts which he now contends were irrelevant. At trial, the following stipulation was admitted into evidence:

It is stipulated that the weapons recovered at the time of [the Appellant’s] arrest

were from

the trunk of Joe Bond’s car which Joe Bondwas drivin g a t t he time. These weapons were tested and dete rmined to not be the murder weapon by a Tennessee Bure au o f Investigation agent in a report dated November the 10 th , 1999.

Trial counsel prefac

ed this stip

u lation by stating, “since the Court has overruled me and this evidence is coming in any

way, I ’ve agreed [to t

he stipulation], witho

ut waiving my

client’s right to

appeal this issue . . . I’m n

ot wai ving my client’s objection.” As the trial court correctly charged during jury instructions,

“A stipulation is an agreement. The State and the Defendant ha

ve stipulated that c

ertain matters of fact are true. They are bound by this agreement, and in y our consideration of the evidence, you are to treat those facts as proved.” Trial counsel ca nnot stipul ate to a fact and then later argue the facts stipulated to were error. For this reason, we find that any error in its introduction
was negated by trial counsel’s stipulation,thereby nullifying any harmful effects of

the error. Tenn. R. App. P. 36(a). Moreover, while we conclude that the introduction of the portion of the statement objectedto was error, we additionally find its admission did not affect the results of the trial and was clearly harmless. Tenn. R. Crim. P. 52(a).

CONCLUSION

After review, we find t

he evi dence presented at trial sufficient to support the Appellant’s convictions for first degree murder and aggravated robbery

. Finding no reversible error, we affirm the judgment of th

e Madison County

Circuit Court.

___________________________________

DAVID G. HAYES, JUDGE