IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 14, 2014

STATE OF TENNESSEE v. JOSE LEMANUEL HALL, JR.

Direct Appeal from the Criminal Court for Davidson County

No. 2012-D-3088 J. Randall Wyatt, Jr., Judge

No. M2013-02090-CCA-R3-CD Filed - September 5, 2014

The defendant, Jose Lemanual Hall, Jr., was convicted of first degree murder and especially

aggravated robbery. He received an effective sentence of life imprisonment with the

possibility of parole. On appeal, he challenges the sufficiency of the convicting evidence.

Within that general challenge, he specifically contends that he was convicted solely on the

uncorroborated testimony of an accomplice and an uncorroborated confession he made to a

fellow inmate. Following review, we conclude that both were sufficiently corroborated and

properly considered in the sufficiency determination. We further conclude that the evidence

presented at trial was more than sufficient to support the conviction. As such, we affirm.

However, we remand for entry of corrected judgments of conviction reflecting the

appropriate merger of the two murder convictions.

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

and Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which JAMES CURWOOD

WITT, JR. and ROGER A. PAGE, JJ., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Jose Lemanuel Hall, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; and Katrin Miller,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural History

The convictions against the defendant arose from the robbery and murder of the
victim,Jeremy Green. The defendant and co-defendant VictorJohnson were indicted for one

count of felony murder, one count of premeditated murder, and one count of especially

aggravated robbery. Additionally, co-defendant Maurice Hegman wasindicted on the charge

of especially aggravated robbery in the same indictment.

On January 29, 2011, the victim, after working his shift at Wal-mart, returned to his

apartment via the bus. The victim enjoyed music and had even converted the closet in his

apartment to a small music studio. He wrote and sold “beats,” the musical tracks to which

rap lyrics were set. During the evening of January 29th, the victim spoke to several people

on the telephone. Bianca Parker had a lengthy conversation with the victim, which ended

around 10:00 p.m. when she received another call. Ms. Parker attempted to call the victim

back after she was finished, but he did not answer the telephone. She attempted to make

contact with the victim several more times during the evening and the following day;

however, she did not actually speak to the victim again.

Jalisha Gleaves, who was dating the victim at the time, had spoken with the victim

earlier in the evening, and they had plans for her to come to the victim’s apartment to watch

movies. She communicated to the victim that she was on her way when she left her home.

She proceeded towars the victim’s apartment, but she stopped at a Mapco gas station located

very near the victim’s apartment to purchase drinks. She attempted to call the victim while

there, but she received no answer.

Ms. Gleaves then drove to the apartment complex and parked her car. She knocked

on the victim’s door, and the door pushed open. Upon entering the apartment, Ms. Gleaves

witnessed the victim lying on the floor. She tried to roll the victim over, but when she

observed blood, she stopped her attempts to aid the victim and called 911. However, she did

not recall the actual address of the victim’s apartment to give to police. While still on the

phone with 911, she returned to the Mapco for assistance. No one there was aware of the

address, but, upon exiting the store, a police officer on patrol arrived. Ms. Gleaves

approached him, and the two returned to the apartment.

Upon re-entering the apartment, Ms. Gleaves noted that several of the victim’s

belongings, including an Xbox, a computer, audio equipment used in recording, and several

plastic totes were missing. Demarco Keeler, a childhood friend of the victim, also verified

that the Xbox 360, laptop computer, a microphone, and a music conversion box were missing

from the apartment. Keeler informed the police that the victim’s laptop user name was “Jay

Dot.”

Officer Gerry Hutcheson, the officer flagged down by Ms. Gleaves, entered the

apartment and saw the victim lying on the floor. At the time, the victim was not breathing

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and had no pulse. A crime scene investigator, Rhonda Evans, also responded to the scene

that evening. During her search of the apartment, she found an empty Xbox box, an empty

printer box, and an empty audio mixer box. However, none of the actual items were found

in the apartment, only the boxes. Additionally, Investigator Evans found a laptop cord but

found no laptop computer. She observed several pieces of black plastic near and under the

victim’s body. Outside in the dumpster area, she found a blue tote which contained items

specifically connected to the victim, such as his high school diploma. She also found a

damaged frying pan with a broken black plastic handle. Investigator Evans believed that the

black pieces of plastic found near the victim were the remnants of the handle of the frying

pan. The only usable prints found inside the apartment belonged to the victim and Demarco

Keeler.

Additionally, the victim's cell phone was not found in his apartment. However, Ms.

Parker, who had spoken with the victim earlier, was still trying to call the phone later that

evening and into the next day. During one of those calls, the phone was answered by an

unidentified male who stated that the victim had gone to a club the previous evening and

would return her call later. The same male answered a second call from Ms. Parker and

informed her that he was the victim’s cousin from Atlanta. She also received a text message

from the victim’s phone, following his death, which read “5H2.” Janae Grigsby, the victim’s

cousin, also began receiving telephone calls and coded text messages from the victim’s

phone at the same time. She reported this information to the police.

Police canvassed the area but could not find any witnesses who had seen or heard any

disturbance in the victim’s apartment. There was also no evidence of forced entry into the

apartment.

Following the autopsy of the victim, it was determined that he died from “asphyxia

by strangulation,” which occurs within a matter of minutes rather than seconds. The

examination also revealed hemorrhages in the victim’s eyes which were consistent with

asphyxiation. The victim’s body had several abrasions and bruises on the forehead, neck,

chest, and arms. Additionally, the victim’s scalp had two large bruises, which the medical

examiner opined could have been caused by a blow from the “bent up frying pan” found in

the dumpster.

Detective Chad High was the lead detective in the victim’s murder investigation. He

responded to the murder scene and discovered that “it was obvious things were missing.”

He entered the serial numbers from the empty boxes found in the apartment into a system

which allowed him to monitor if the items were ever pawned. The system would flag the

item with the pawn shop when the transaction was made, and police would be alerted.

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In the “early part of 2011,” Lachrisha Poynter drove the defendant and co-defendant

Hegman to a pawn shop. Ms. Poynter did not go inside the pawn shop with the two men.

Victoria Holt, an employee of a shop then named “Household Pawn,” identified a pawn

ticket where the defendant had come in and pawned an Xbox at the store on February 21,

2011. His driver’s license was recorded before the transaction was completed. Another

employee of a different pawn shop also reported that the defendant pawned a laptop

computer in that store on the same day. Videos were made of the transaction.

Based upon the investigation into the phone calls and texts officers learned were

coming from the victim’s phone following his death, police obtained the communication

records for his cell phone. The decision was based in part on the following: (1) co-defendant

Johnson’s ex-girlfriend received a photo message from the victim’s phone after his death

which depicted co-defendant Johnson, the defendant, and others making gang hand signals;

(2) the victim’s phone received a call from the defendant’s cell phone at 10:16 p.m. on the

night of the murder; and (3) the victim’s phone communicated with a cell phone tower in

LaVergne at 2:09 a.m. on January 30, 2011. After learning more through his investigation,

Detective High also obtained the communication recordsfor co-defendant Hegman’s and the

defendant’s cell phones. Mr. Hegman’s phone made contact with a cell phone tower very

near the victim’s apartment three times just after 11:30 p.m. on the night of the murder. At

1:30 a.m., Mr. Hegman’s phone communicated with a cell phone tower in LaVergne. The

defendant’s phone reflected no activity between 11:08 p.m. and 11:46 p.m. on the night of

the murder. These “pings” were consistent with the path Mr. Hegman said the group

traveled.

The investigation led police to speak with Mr. Hegman, who was eventually indicted

along with co-defendant Johnson and the defendant, although only for especially aggravated

robbery. The three were admitted members of the “5 Deuce Hoover Crips.” Mr. Hegman

noted that he had grown up with the victim in the “projects” and that he had even helped him

move into his current apartment where the murder occurred. The two often played Xbox

together, and Mr. Hegman related that the victim’s user name was “Jay.Green.” According

to Mr. Hegman, he and his two co-defendants, along with two men named Antonio and

Dominique, went to the victim’s apartment around 11:00 p.m. or 12 a.m. on January 29-30,

2011, to “do music.” According to Mr. Hegman, there was no discussion of a robbery

occurring before they went to the apartment. He acknowledged a call was made to inform

the victim that they were coming over.

When the group arrived, Antonio and Dominique elected to remain in the car, but the

other three proceeded to the door of the victim’s apartment. However, Mr. Hegman was not

present at the door when it was actually opened, as he had returned to the car to find a CD

for Antonio. When he did return to the doorway of the victim’s apartment, it was open, and

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he saw co-defendant Johnson and the victim fighting. At the time, the defendant was just

standing there. Co-defendant Johnson told Mr. Hegman to take a blue tote from the

apartment, and Mr. Hegman complied. As he picked up the tote, Mr. Hegman observed the

defendant “reaching” towards the victim. He opined that the fighting might have been

because the victim was wearing red, the color worn by a rival gang, although he did not know

for certain.

Mr. Hegman returned to the car with the tote and waited. He observed co-defendant

Johnson exit the apartment and walk to a nearby dumpster before returning to the car. Mr.

Hegman began to drive away without the defendant, but the defendant managed to exit the

apartment and return to the car before they left. Mr. Hegman stated there was no discussion

of the events that had occurred in the apartment while they were in the car. At that point, Mr.

Hegman drove Antonio and Dominique to their home, and the remaining three then drove

to a friend’s home in LaVergne. Mr. Hegman left the blue tote he had taken at this address.

Mr. Hegman also acknowledged that he had Ms. Poyner take him and the defendant to some

pawn shops at a later date. He also acknowledged that, following his arrest, he did not

initially tell police the entire story. He also stated that he was not aware that the victim had

been killed until he was informed so by the detectives.

Detective Chad Gish was a digital forensics detective who worked in the Metro

Nashville Police Department. He analyzed the laptop recovered by police which had been

pawned by the defendant. He discovered that the laptop had an operating system which had

been installed on January 31, 2011, just two days after the victim’s murder. Further analysis

revealed that the previous operating system had utilized a user name of “Jay dot.”

Additionlly, a user name of “JeremyGreen” appeared under the old operating systems

installation folder.

Based upon the above information gathered, the defendant was arrested and charged

with felony murder, first degree premeditated murder, and especially aggravated robbery.

While the defendant was in jail, Detective High monitored the defendant’s letters and phone

calls that he received at the jail. Several of the communications were encoded in “gang”

terminology and script, which made interpreting the messages difficult. Apparently, when

the defendant was first incarcerated, he blamed co-defendant Johnson for speaking with the

police and getting them caught. However, as time progressed, he realized it was codefendant Hegman who had actually given the police a statement. One of the letters stated,

“they ain’t got shit on me or cuzz [Mr. Hegman] all they got is pictures of me cuzz and lady

in pawn shops pawning shit . . . . Baby tell cuzz that I’m putting everything on lil deuce [codefendant Johnson].” In a separate letter, the defendant wrote, “fuck lil deuce, if he wouldn’t

have use that phone none of this would have happened.” However, after receiving discovery,

the defendant became aware that it was Mr. Hegman talking and sent a letter of apology to

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co-defendant Johnson. In the letter, he noted that he had forwarded the information to other

gang members that Mr. Hegman was a snitch, an extreme violation of gang code. He later

wrote a letter to his girlfriend seemingly questioning why Mr. Hegman was still alive.

Following the severance of the defendants’ cases the defendant proceeded to trial. All

of the above information was testified to in the jury’s presence. Additionally, Ronald Jones

provided testimony. He was incarcerated with the defendant in March 2012. Mr. Jones

testified that the defendant gave the following version of events regarding the robbery and

murder of the victim:

[He] told me that him and his Big Homie named Reese and another dude had

went over there. They had been over there making raps, but this particular day

they went over there to rob him and when they runned over there and knocked

on the door, he, when dude opened up the door they rushed him and went in

the apartment and once they got him in the apartment they wrestled with him

and he said he put a choke hold on him and choked him out.

Mr. Jones also offered that the defendant had admitted taking “clothing and some

electronics” from the apartment. According to Mr. Jones, the defendant said that he learned

how to do the choke hold and to hide evidence in a forensics class he took at the University

of Tennessee.

The defendant also acknowledged his gang membership to Mr. Jones. In fact, the

defendant told Mr. Jones that he got his “status” after committing the murder of the victim.

Mr. Jones contacted the district attorney after the defendant told him this information. Mr.

Jones did acknowledge multiple prior convictions ranging from 1993 to 2011. He also

acknowledged that, as part of a plea agreement, he received a lesser release eligibility date

in exchange for his testimony.

Additionally, at trial, Mr. Hegman admitted on cross-examination that he had prior

convictions for facilitation of aggravated robbery and a conviction as a felon in possession

of a weapon. He acknowledged that he was not aware of what started the “tussling” between

co-defendant Johnson and the victim, and it was possible that the victim actually started the

fray. Mr. Hegman agreed that the defendant could have been reaching for the victim in order

to assist co-defendant Johnson. He stated he simply did not know the particulars of what

occurred. Moreover, Mr. Hegman made clear that part of the incentive to speak with the

police was that he would avoid being charged with murder. He readily acknowledged his

gang membership and admitted that he was the defendant’s “big homie,” a sort of mentor

who outranks you and determines any increase in rank to be awarded.

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The State also called Richard Littlehale as an expert in cell phone usage. He was

employed as the Special Agent in Charge of Technical Services with the Tennessee Bureau

of Investigation (“TBI”). He acknowledged that he did not know the exact mechanics of cell

phone tower operation and that he had not personally inspected any of the towers utilized in

the phone records for this case to see if they were functioning properly. In spite of the

defense objection, the trial court allowed Agent Littlehale to testify as an expert in the field

of cell phone analysis and criminal investigation. He proceeded to testify about the general

operation of cell phones and the way in which the phones pinged off various towers,

pinpointing a user’s general location. He offered no testimony whatsoever that was specific

to the facts of this case.

The State also called Detective Mark Anderson of the Metro Police Department as an

expert in gang activity. He testified regarding the history of the 5 Deuce Hoover Crips and

explained the “code” that the various gangs use. Detective Anderson explained the ranking

system within the gang and possible ways to advance. He explained that he had explained

this information to Detective High, the lead detective in the defendant’s case.

At trial, the following stipulations were entered by the State and the defendant: (1) the

only latent fingerprints found in the apartment belonged to the victim and Demarco Keeler;

(2) no latent fingerprints were found belonging to Jalisha Gleaves, the defendant, codefendant Johnson, or co-defendant Hegman; (3) the clothing of the victim was subjected to

DNA analysis, and no DNA profile could be found other than that of the victim; (4) the

accompanying letters were lawfully copied by a law enforcement agency that had a legitimate

reason to do so and that the defendant was aware that his correspondence was subject to

being monitored and/or copied by law enforcement; (5) the accompanying phone calls were

lawfully recorded by a law enforcement agency and that the agency had a legitimate reason

to do so and that the defendant was aware that his calls were being recorded and possibly

monitored by law enforcement; and (6) the parties all agree that the defendant never attended

college.

After hearing all the evidence presented, the jury convicted the defendant as charged

in the indictment. The trial court merged the murder counts and set the case for sentencing.

Following a hearing, the defendant was sentenced to life imprisonment for the murder and

to twenty years for the robbery conviction. The court ordered that the sentences be served

concurrently for an effective sentence of life imprisonment. Following the denial of his

motion for new trial, the defendant filed the instant timely appeal with this court.

Analysis

On appeal, the defendant asserts that the evidence is insufficient to support his

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convictions for murder and especially aggravated robbery. Within that general challenge, he

alleges specifically that his convictions are based solely on the uncorroborated testimony of

an accomplice, Mr. Hegman, coupled with the uncorroborated testimony relative to his

alleged confession to Mr. Jones. He further contends that the testimony of Mr. Hegman

cannot be used to corroborate the testimony of Mr. Jones and vice-versa. He asserts that

because the testimony of the two is not corroborated, it cannot be considered in the

sufficiency review, and that, without the evidence, there is simply no evidence to support his

convictions. We conclude that the defendant’s claims are wholly misplaced.

A. Corroboration

Again, other than a generally asserted sufficiency challenge, the defendant’s two

specific challenges center around his assertions that he was convicted on the uncorroborated

testimony of co-defendant Hegman and that there wasinsufficient corroboration of the alleged

confession made by the defendant to Mr. Jones. While the defendant is correct that

corroboration is required, his arguments are not meritorious in this case.

It is well-settled law in Tennessee that a criminal defendant cannot be convicted solely

on the uncorroborated testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803

(Tenn. 1994), superseded by statute on other grounds as stated in State v. Odom, 137 S.W.3d

572, 580-81 (Tenn. 2004). The determination as to whether a witness is an accomplice may

be a matter of law for the trial court’s determinatiomn or it may be a question of fact for the

jury’s determination. State v. Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992). When

the facts are clear and undisputed concerning a witness’s participation in the crime, whether

he is an accomplice is a question of law for the court to decide. When the facts are in dispute

or susceptible to different inferences, it becomes a question of fact for the jury. Conner v.

State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975).

“An accomplice is one who knowingly, voluntarily, and with common intent unites

with the principal offender in the commission of a crime.” State v. Allen, 976 S.W.2d 661,

666 (Tenn. Crim. App. 1997). To satisfy the definition of an accomplice, it is not enough that

the witness merely possessed guilty knowledge, is morally delinquent, or even participated

in a distinct but related offense. State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App.

1990). The general test is whether the accomplice could be indicted for the offense charged

against the defendant. Id.

The law in Tennessee regarding the corroboration required for accomplice testimony

has been described as follows:

The rule simply stated, is that there must be some fact testified to, entirely

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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. This corroborative

evidence may be direct or entirely circumstantial, and it need not be adequate,

in and of itself, to support a conviction; it is sufficient to meet the requirements

of the rule if it fairly and legitimately tends to connect the defendant with the

commission of the crime charged. It is not necessary that the corroboration

extend to every part of the accomplice’s evidence.

State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (quoting Bigbee, 885 S.W.2d at 803

(citations omitted)). Ultimately, it is a question for the jury to determine whether an

accomplice’s testimony has been sufficiently corroborated. Pennington v. State, 478 S.W.2d

892 (Tenn. Crim. App. 1971).

In this case, the trial court charged the jury as follows:

An accomplice is a person who joins another person in committing a

crime. The accomplice must do so knowingly, voluntarily and sharing the

intent of the other person in doing the crime.

In this case the Court charges you that the witness Maurice Hegman was

an accomplice in the alleged crime. The testimony of an accomplice by itself

cannot convict the defendant. The accomplice’s testimony must be supported

by other evidence. This other evidence must independently lead to the

conclusion that a crime was committed and that the defendant was involved in

it. This other supporting evidence must connect the defendant to the crime.

The supporting evidence may be direct or circumstantial and it need not

be sufficient by itself to justify a conviction. The supporting evidence is

enough if it fairly and legitimately tends to connect the defendant with the

crime charged.

It is for you, the jury, to decide whether an accomplice’s testimony has

been sufficiently supported by the evidence.

We do agree with the defendant and the trial court that the record establishes that Mr.

Hegman was in fact an accomplice in the commission of the crimes. He was charged with the

other two defendants within the same indictment. The defendant contends that Mr. Hegman’s

testimony was not sufficiently corroborated because it is the only evidence which places the

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defendant at the scene of the crime. In support of his argument, he points to the lack of any

forensic evidence which places him at the scene. He also asserts that the testimony regarding

the pinging of the defendant’s phone is insufficient corroboration because there was no

investigation to see if the towers were actually operational or had became overloaded on the

evening on the murder. The defendant contends that the fact that he later pawned goods taken

from the victim’s apartment is sufficient only to establish that he was in possession of stolen

property at a later date; a fact which he asserts does not corroborate Mr. Hegman’s testimony.

Finally, the defendant argues that the State cannot rely upon Mr. Jones’’ testimony regarding

the defendant’s confession to him in order to corroboate Mr. Hegman’s testimony because of

Mr. Jones’ lack of credibility based upon his extensive criminal past and because the

confession is itself not corroborated.

With regard to the testimony of Mr. Jones, we do agree with the defendant that it in

effect did amount to a confession by the defendant. The statement that “he put a choke hold

on [the victim] and choked him out” does appear to be an acknowledgment of guilt, as is the

admission of taking the property. We likewise agree that “[i]t is a well-established principle

of law . . . that a conviction cannot be founded solely upon a defendant’s confession . . . .”

State v. Bough, 152 S.W.3d 453, 465 (Tenn. 2004). Rather, some corroborating evidence is

required to establish the corpus delicti of the crime. Id. The defendant contends that the

“record lacks any credible evidence corroborating what [Mr. Jones] states was ‘confessed’ to

him. That coupled with the fact that it is entirely incredible that someone who was basically

a perfect stranger . . . would confess an act of murder to another perfect stranger” does not

support a finding of corroboration.

Our supreme court again recently addressed the issue of corroboration of a confession

and the accompanying requirements. In State v. Courtney Bishop, 431 S.W.2d 22, ??, No.

W2010-01207-SC-R11-CD, 2010 Tenn. LEXIS 189, **82-86, 88 (Tenn. Mar. 6, 2014), after

a recitation of the historical significance and various rules, our supreme court affirmed

Tennessee’s adherence to a modified version of the “trustworthiness” standard. Id. at *82.

The court stated that

the modified trustworthiness standard strikes the proper balance. It combines

the traditional corpus delicti rule’s focus on avoiding prosecutions for

nonexistent crimes with the trustworthiness standard’s focus on avoiding

prosecutions based on false confessions to actual crimes. Under the modified

trustworthiness standard, a defendant’s extrajudicial confession is sufficient to

support a conviction only if the State introduces “independent proof of facts

and circumstances which strengthen or bolster the confession and tend to

generate a belief in its trustworthiness, plus independent proof of loss or injury.

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Id. (citations omitted). The court then summarized the standard “in a nutshell:”

When a defendant challenges the admission of his extrajudicial confession on

lack-of corroboration grounds, the trial court should begin by asking whether

the charged offense is one that involved a tangible injury. If the answer is yes,

then the State must provide substantial independent evidence tending to show

that the defendant’s statement is trustworty, plus independent prima facie

evidence that the injury actually occurred. If the answer is no, then the State

must provide substantial independent evidence tending to show that the

defendant’s statement is trustworthy, and the evidence must link the defendant

to the crime.

Id. at **83-84 (footnotes omitted).

In order to establish trustworthiness, the State must introduce independent evidence

which corroborates the essential facts contained in the defendant’s statement. Id. at **85-86.

The court noted, for example, that independent corroboration of one key part of an

extrajudicial confession or admission may serve to corroborate the entire statements. Id. at

*86 (citations omitted). However, independent evidence which corroborates only collateral

circumstances surrounding the confession will not suffice to establish trustworthiness. Id. at

*87 (citations omitted).

The court continued by noting that one way to effectively bolster the defendant’s

admission or confession is to present independent evidence that “parallel[s] the defendant’s

confession” or corroborates the defendant’s account of what happened immediately before

or after the crime. Id. at * 88 (citations omitted). Another way for the State to bolster the

confession is by presenting evidence showing that the statement reveals “specific personal

knowledge about the crime.” Id. at *89 (citations omitted).

Our supreme court noted that, once the State has presented independent evidence

establishing the prima facie trustworthiness of the confession, the existence of contradictory

evidence does not necessarily render the confession untrustworthy. Rather, the contradictory

evidence instead raises a credibility issue to be determined by the factfinder. Id. at *90

(citations omitted). Further, additional extrajudicial confessions by the defendant are not

sufficient by themselves to establish trustworthiness. Id. (citations omitted). However, a

statement made under oath in open court requires no independent corroboration and may serve

as corroboration of the extrajudicial statement. Id. at *91 (citations omitted).

The defendant’s arguments with regard to Mr. Hegman’s accomplice testimony and

Mr. Jones’s testimony regarding the defendant’s confession specifically ignore that our

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supreme court has recognized that accomplice testimony and a defendant’s confession may

corroborate one another. Witham v. State, 191 Tenn. 115, 121 (Tenn. 1950) (“The

confessions were admissible in evidence to corroborate the testimony of the accomplice

which, in turn and to the same extent, corroborates the confessions.”). Although there are

some discrepancies between the two men’s testimony, that does not preclude a finding of

corroboration. On the key issues, the two testimonies are consistent with each other. It is for

the jury to weigh the credibility of the witnesses in making their determination if the

corroboration is sufficient. That occurred in this case.

We are simply unable to conclude that the accomplice testimony by Mr. Hegman or the

testimony by Mr. Jones regarding the defendant’s confession was not corroborated. Both

men’s testimony placed the defendant inside the victim’s apartment during the time of the

murder and referenced an altercation taking place between the two, as well as Victor Johnson.

Both reference a robbery of the victim of goods which the defendant was later found in

possession of. Even were we to assume that the separate testimonies could not serve to

corroborate the other, other copious evidence in the record leads to the conclusion that the

standard was met in this case.

Mr. Hegman’s testimony was further corroborated by the cell phone records placing

the group in the area at the time of the murder and robbery. Moreover, the defendant’s

possession of the stolen electronics and subsequent pawning of them corroborate his

involvement, as does the testimony of Ms. Poynter and the pawn shop employees. Mr.

Hegman also testified that after he left the apartment, Mr. Johnson went to the dumpster area.

Investigators found several of the victim’s personal items in the dumpster.

The same corroboration also serves to corroborate the statements made by the

defendant to Mr. Jones. In the statement, the defendant indicated that electronics had been

taken and that he later pawned them locally. The cell phone records again corroborate that

a call was made to the victim prior to the group’s arrival and that the group was in the area

at the time, verifying the statements made by the defendant. Moreover, the autopsy report and

subsequent finding that the cause of death was “asphyxia by strangulation” is corroborated

by the defendant’s statement that he “choked [the victim] out.” In essence, the defendant has

knowledge of the details of the murder, i.e., the cause of death. Plus, the defendant’s own

letters written and calls made to his wife or other gang members contained statements which

would serve to corroborate portions of the testimony. Clearly, the statement that they would

never have gotten caught had Mr. Johnson not taken the cell phone indicates guilt and a

knowledge of the crime. Other statements made in the letters do as well.

Based upon this, we can give no credence to the defendant’s argument. His

convictions did not rest solely on the uncorroborated testimony of accomplice Hegman or the

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testimony by Mr. Jones. While the defendant asserts their lack of credibility, that argument

ignores that the witnesses were placed before the jury and offered their testimony. They were

subject to vigorous cross-examination. The jury was responsible for making any necessary

credibility determinations. No relief is warranted.

B. Sufficiency of the Evidence

As noted, the defendant’s main argument focuses upon the corroboration requirements

of the accomplice testimony and the confession. He asks us to review the sufficiency of the

evidence ignoring the testimony of Mr. Hegman and Mr. Jones. However, as previously

noted, both were sufficiently corroborated and warrant inclusion in our consideration of the

evidence. The defendant makes no other argument with regard to sufficiency which is

separate from the corroboration requirements. Nonetheless, we will perform a general

sufficiency review of the convictions.

When the sufficiency of the evidence is challenged, the relevant question is whether,

after reviewing the evidence in the light most favorable to the State, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. State v.

Dorantes, 331 S.W.3d 370, 379 (2011); see also Jackson v. Virginia, 443 U.S. 307, 319

(1979). “[O]n appeal, the State must be afforded the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn therefrom.” Dorantes, 331 S.W.3d at 379

(internal quotation omitted). It is the trier of fact who resolves all questions of witness

credibility, the weight and value of the evidence, as well as all factual issues raised by the

evidence. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Reviewing courts

should neither re-weigh the evidence nor substitute their own inferences for those drawn by

the jury. State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003).

The trial court’s approval of the jury’s verdict accredits the State’s witnesses and

resolves all conflicts in the evidence in the State's favor. State v. Moats, 906 S.W.2d 431,

433-34 (Tenn. 1995). “Because a guilty verdict removes the presumption of innocence and

replaces it with a presumption of guilt, on appeal a defendant bears the burden of showing

why the evidence is insufficient to support the conviction.” State v. Thacker, 164 S.W.3d 208,

221 (Tenn. 2005). These rules apply whether the verdict is predicated upon direct evidence,

circumstantial evidence, or a combination of both. Dorantes, 331 S.W.3d at 379. In weighing

the sufficiency of the evidence, circumstantial and direct evidence are treated the same, and

the State is not required to exclude every reasonable hypothesis other than that of guilt. Id.

at 381.

The defendant was convicted in the alternative of first degree premeditated murder and

first degree felony murder. As required by law, after conviction, the trial court merged the

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multiple murder convictions involving a single victim. See State v. Kiser, 284 S.W.3d 227.

234 (Tenn. 2009). However, it is unclear from the judgments how the counts were merged.

A notation on judgment of conviction for Count 2, first degree premeditated murder, states:

“Counts 1 and 2 merge into one count of 1st degree murder.” From that it is unclear what the

trial court’s intent was as to the merger, i.e., which conviction was merged into the other. As

such, we remand for entry of corrected judgments reflecting the appropriate information.

Regardless, as pointed out by the State, despite merger neither conviction was

extinguished. See State v. Adam Clyde Braseel, No. M2009-00839-CCA-R3-CD, 2010 Tenn.

Crim. App. LEXIS 784, *23 (Tenn. Crim. App. Sept. 17, 2010). The convictions simply

merged into a single judgment of conviction. In this situation, review of all convictions is

appropriate.

1. Premeditated Murder

First degree murder is the premeditated and intentional killing of another person.

T.C.A. § 39-13-202(a)(1) (2010). A premeditated killing is one “done after the exercise of

reflection and judgment.” T.C.A. § 39-13-202(d). The element of premeditation is a question

of fact for the jury. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Although the jury

may not engage in speculation, it may infer premeditation from the manner and circumstances

surrounding the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). In State v.

Nichols, 24 S.W.3d 297, 302 (Tenn. 2000), our supreme court delineated the following

circumstances from which a jury may infer premeditation:

Declarations by the defendant of an intent to kill, evidence of procurement of

a weapon, the use of a deadly weapon upon an unarmed victim, the particular

cruelty of the killing, infliction of multiple wounds, preparation before the

killing for concealment of the crime, destruction or secretion of evidence of the

murder, and calmness immediately after the killing.

Additional factors from which a jury may infer premeditation include lack a provocation by

the victim and the defendant’s failure to render aid to the victim. State v. Lewis, 36 S.W.3d

88, 96 (Tenn. Crim. App. 2000). The jury may also infer premeditation from the

establishment of a motive for the killing and the use of multiple weapons in succession. State

v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004).

Viewing the evidence in the light most favorable to the State, we conclude that the

evidence is sufficient to support the conviction. According to Mr. Jones, the defendant told

him that the group traveled to the victim’s apartment in order to rob him. During the course

of that robbery, the victim was killed. According to the defendant’s statements to Mr. Jones,

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the group rushed the front door, wrestled with the victim, and the defendant “choked him

out.” The group, at least the defendant and Mr. Johnson, barreled their way through the door

and immediately began attacking the unarmed victim, who had been expecting them to work

on music. The group then left in stages, taking time to take many of the defendant’s personal

items to the trash can. The defendant later pawned multiple items which had been taken from

the victim’s apartment.

Although not conclusive, the jury was entitled to infer that, because of the preplanned

robbery and the manner in which the group entered the apartment, the acts which took place

were premeditated. The medical examine was clear that it took minutes, not seconds, for

death to result under these circumstances. This action was taken after the victim had already

been beaten with a frying pan by Mr. Johnson. Testimony was also given that a possible

motive for the attack and murder was because the defendant and Mr. Johnson were offended

because the victim was wearing rival gang colors, although no testimony was ever introduced

that the victim was actually in a gang. Testimony was elicited at trial that one way to increase

rank within the gang was to commit certain crimes. Again, the jury was free to infer from

these circumstances, as well as the defendant’s later statement to Mr. Jones that he earned his

“status” after these events, that the course of events was planned.

2. Felony Murder

A person commits first degree felony murder when he recklessly kills another in the

perpetration or attempt to perpetrate several enumerated felonies, one of which is robbery.

T.C.A. § 39-13-202(a)(2). “Robbery is the intentional or knowing theft of property from the

person of another by violence or putting the victim in fear.” T.C.A. § 39-13-401(a). A person

is criminally responsible for an offense committed by the conduct of another if, acting with

intent to promote or assist the commission of the offense, or to benefit in the proceeds or

results of the offense, the person solicits, directs, aids, or attempts to aid another person to

commit the offense. T.C.A. § 39-11-402(2).

After review of the record in the light most favorable to the State, we must conclude

that the evidence is sufficient to allow a rational trier of fact to conclude that the defendant,

while engaged in a robbery, did strangle the victim to death. By the defendant’s own

statement, testified to by Mr. Jones, he “choked” the victim out, a fact which was established

by the medical examiner’s report as well. Mr. Hegman testified that while he was present in

the apartment, he saw the defendant “reaching” for the victim. While the record indicates that

it was Mr. Johnson who hit the defendant with the frying pan, the cause of death was asphyxia

by strangulation, and choking someone would be consistent with that cause of death, as well

as the bruising on the victim’s neck and the hemorrhages in his eyes. Regardless, under a

theory of criminal responsibility, each would be responsible for the actions of the other.

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The evidence in the record established that the men went to the victim’s apartment and

proceeded to rob and kill the victim. The defendant told Mr. Jones that the group had gone

there to rob the victim, although Mr. Hegman testified that he was not aware of that plan.

However, he did witness both the defendant and Mr. Johnson in an altercation with the victim

and later learned that the victim had died. Mr. Hegman himself admitted that he removed a

plastic tub of the victim’s belongings from the apartment at Mr. Johnson’s direction. He also

testified that he was with the defendant later when the defendant pawned some of the victim’s

electronics which had been taken from the apartment. Other testimony established that the

electronics were in fact the victim’s and that the defendant was the one who took them to the

pawn shop.

Taken together as a whole, the evidence is more than sufficient to establish that the

defendant was guilty of felony murder during the perpetration of a robbery. He is entitled to

no relief.

3. Especially Aggravated Robbery

As an initial issue with regard to the conviction for especially aggravated robbery, the

State contends that the defendant has waived review. The State points out that, within his

appellate brief, the defendant mentions this conviction “passingly and only within the

statement of the case.” The State also points out that the defendant failed to include any

citation to relevant statutes for murder or robbery, but argues that the focus of the brief is

clearly on the murder conviction. In support of its waiver argument, the State points our

attention to a line of cases in which this court has repeatedly declined to review the

sufficiency of the evidence for convictions which were not clearly contested in the appellate

brief. See e.g. State v. Keither A. Whited, No. M2010-001340CCA-R3-CD , 2010 Tenn.

Crim. App. LEXIS 981, *16-17 n.6 (Tenn. Crim. App. Nov. 19, 2010).

While we do agree with the State that the defendant is very ambiguous in his brief with

regard to the actual convictions he is challenging, there is, nonetheless, some reference made

to both the robbery and murder convictions. As such, in the interest of finality and

completeness, we elect to review all convictions for the sufficiency of the evidence.

A person is guilty of especially aggravated robbery when he accomplishes a robbery

with a deadly weapon and when the victim suffers serious bodily injury. T.C.A. § 39-13-403.

A person is guilty of robbery when he commits an intentional or knowing theft of property

from the person of another by violence or putting the person in fear. T.C.A. § 39-13-4010.

A deadly weapon is any weapon or instrument which, from the manner in which it is used or

attempted to be used, is likely to produce death or cause great bodily injury. T.C.A. § 39-11-

106(5). A person is criminally responsible for an offense committed by the conduct of

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another if, acting with intent to promote or assist the commission of the offense, or to benefit

in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid

another person to commit the offense. T.C.A. § 39-11-402(2).

Again, review of the record establishes that the men went to the apartment in order to

rob the victim and did in fact do so. In the process, the victim was killed. The evidence

establishes that the men burst through the door and began an assault upon the victim.

Eventually he was beat on the head multiple times with a frying pan, a deadly weapon, before

being choked to death by the defendant. Multiple pieces of evidence establish that items

belonging to the victim were taken from the apartment and later pawned for cash by the

defendant. This, in the light most favorable to the State, is sufficient to establish the crime

of especially aggravated robbery.

CONCLUSION

Based upon the foregoing, the judgments of conviction are affirmed. However, the

case is remanded to the trial court for entry of corrected judgments reflecting which murder

conviction the court intended to merge.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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