# FILED

Au gust 22, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON DECEMBER 19 96 SESSION STATE OF TENNESSEE, ) ) No. 02-C-01- 9511-CR-00351 Appellee, ) ) Shelby Count y v. ) ) W . Fred Axley, Judge RICHARD MADKINS, ) ) (Esp ecia lly Aggra vated Robb ery) Appellant. )

FOR TH E APPEL LANT: FOR THE APPELLEE: Richard Ma dkins, pro se John Knox Walkup TDOC #107546 Attorney Gen eral & Repor ter CCA-South C entral Corr ectional Cente r 500 Charlotte A venue P. O. Box 279 Nashvil le, TN 37243-0497 Clifton, TN 38425- 0279 (On Appeal) Sarah M. Branch Assistant Att orney Gener al L. Kathleen Mitchell 450 James Roberts on Parkway Assistant Publ ic Defender Nashvil le, TN 37243-0493 201 Poplar Avenue, Suite 201 Memphis, TN 38103- 1947 John W. Pierotti (At Trial) Distric t Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103- 1947 Lee V. Coffee Assistant D istrict A

ttorney Gener

al 201 Poplar Avenue, Suite 301 Memphis, TN 38103- 1947 Terrell L. Harris Assistant D istrict A

ttorney Gener

al 201 Poplar Avenue, Suite 301 Memphis, TN 38103- 1947

OPINION FILE D: _____________________________

_____ AFFIRMED
Joe B. Jo nes, Pre siding Jud ge1 The jury also convicted the defendant of attempting to commit mu rder in the first

degree during the perpetration of a felony. The trial court sent enced the defe ndant on this count and ordered the two sent ences to be ser ved consecut ively

. The recor

d conta ins on e sente ncing judg me n t form for the of fense of esp ecially aggravated robbery. It does not conta in a sen tencin g judgm ent form for the attempt to c ommit felony murder. During the interim between sentencing and the perfection of th e appeal in this cas e, the supre me court held a pe rson cannot be convicted of an at tempt to commit felony murder beca use a conviction for the off ense does not req uire the requisi te specific intent

to kill. State v. K imbrou gh , 924 S.W .2d 888, 892 (Tenn . 1996). The record is silent

regardingwhatoccurred regarding the convic tion for attempt to commit felony murder. Ordinarily, this would require a reversal because the judg ment would not be final. Thus, the recor d should contain an explanati on, in these cas es, of what course of action was taken. Since this offense does not exist, it is obvious the trial court set aside the conviction and dismissed the prosecutio n in vi ew of Kimbro ugh . Moreover, this Court would have to rever se this conv iction if it was consi dered on the meri ts.
2 Tenn. Code Ann.§ 40-35-108(c). 2 

### O P I N I O N

The appellant, Richard Madkins (defendan t), was convicted of especially aggrav ate d robb ery, a Class A felony, by a jury of his peers. 1 The trial co urt, finding the defendant to be a career offender, i mposed the maximum s entence wit hin Range II I, consis tingof a $50,000 fine and confinement for sixty (60) year

s in the Depar

tment of Correcti on. 2 The defendant presents s ix iss ues for revi ew. He contends the evidence contained in the record is insufficient , as a matter of law , to support a find ing by a rational trier of fact that he was guilty of especially aggrav ated robbery b eyond a reaso nable doubt. He fur ther
co nte nds the trial court committed er ror of prejudi cial dimensi ons by (a) givi ng an erroneous instruction on reasonable doubt, (b) over ruling his objection to the vagueness of a witness ’s testimony regardingher identification ofa participant in the crime, (c) permitting the state to eng age in impro per argument du ring summati on, and (d) deny ing his motion for severance. Final ly, he cont ends he was denied his constitutional right to the effective assistance of counsel. The judgment of the tr ial court i s affirmed. On September 27, 1993, t he victi m, the owner of a liquor store, went t o the ba nk and obtained $15,000 in cash for the follow ing bus ine ss day. A bank guard walked the victim to her car. She placed the sack containing the $1 5,000 in the trunk of h er car. The victim h ad a business appointment at 1:30 p. m. at a restaurant across from t he3

Mall of Memphis. She decid ed to shop at the mall prior to her appoin tment. The victim pa rked her car in the mall parki ng lot and enter ed the mall at appr

oximately

12:50 p.m . She exited the mall at approx imately 1:15 p.m. The victim looked for suspicious individuals in the parking l ot. When she did not see anyone, she walked to her car and entered the vehicle. As the victi m placed the key in the car’ s igniti on, she saw the face of Jose Holmes through the driver’s side fr ont window

. Holmes had a st ocking on hi s head. She saw the defendant p lacin g a stocki ng on his head. The victi m asked Holmes and the defendant whatthey wanted. One of them repl ied, “Money .” She told t hem she did n ot h ave any mon ey. The v ict im s tar ted h er c ar d uri ng t he co nfr ont ation and crash ed into another vehicle to bring attention to her predicame nt. Since the door was locked, Holmes, w ho had
a pistol, fire d through the wind ow. Th e projectil e struck the victim and activated t he car alarm. Holmes reac hed through thewindow and removed the keys from the ignition. He wentto the passeng er

side ofthe vehicl e, opened the gl ove compartment, and pushed the button to ope n th e trunk. He took the victim’s purse and removed the pa per sack containing t he $15,000 from the trunk . Holmes and thedefendant fled the scene. The victim was afraid s he would bl eed to death if she remained i nside her vehicle. She subsequently

exited the vehicle an d lai d on the sidewalk so someone would notice her. Several witness es saw H olmes and the defendant. One witness saw Hol mes with the victim’s purse and saw him remove the sack from the trunk bef ore fleeing. This witness
was not able to positively identify the defen dant, but the witness was able to positively identify the c lothing worn by the de fendant. Another witne ss saw t wo men run b y her. She identified Holmes as the man wearing white and a rmed with a pistol. She testified the defendant resembled the second man. She too positi vely i dentified the clot hing wor n by the defendant. A witness running errands a t a ne arby hotel was approached by two men on foot at approximatel y 2:00 p.m. Bot h men had been runnin g and were gasping for breath. As they approached the witness, both m en were looking from side to side to determin e if anyone was watching them. According to the wit ness, both men wore jogging outfits. The4

witness was able to identify th e clothing worn by Holmes and th e d efendant. He had a briefconve rsat ion wit h the two men. He then went inside the h otel. Later, t he defendant entered the hotel and asked where the restroom was located. The witness told him he did not know w here it was located. The defendant began lookingfor the restro om. Holmes subsequently ente red t he ho tel a nd to ld th e witn ess h e nee ded a ride . The wi tness told Holmes he would not

be leavingthe hotel. Hol mes then exit ed the hote l and be ga n walkingtowards Nonconnah Creek . When the defendant resurfaced, he wanted toknow where Holmes had gone. The witness told the defendant his frie nd had walked towards the creek. The defend ant began walking in the dire ction o f the creek. After hearing the sirens of police cars

responding to the robbery-sho oting call, the defendant removed a stocking cap from behind his bac k, dropped it, and began to run. When the police i nvestig ation establis hed Holmes and the defend ant were last seen approaching Nonconnah Cree k, the officers sea led the area so the two perpetrators could not escape. Two officers searche d the creek. Helicopters were utilized as were two police dogs. Holmes was apprehended ins ide the creek lying in b ushes. A larg e amount of moneywas ly ing besidehis head. The defenda nt was apprehended somet ime later. He
was wearingjoggingpants wit h a green shi rt as descr ibed by the w itnesses. H e identified himself as Corey Brown. He told the police he was only trying to steal car

s at the Mall of Memphis.

I.

The defendant contends the ev idence is in sufficient, as a matter of law, to support his convicti on. He arg ues the sta te failed to prove the eleme nts of the off ense and his identity a s a perpetrator of the crime. When an accused chal lenges the s ufficiency of theconvicting evidence, this Court must review the record to determine if theevidence addu ced attrial is sufficient "to suppo rt the finding by

the trier of fact of guilt beyond a reasonable dou bt." Tenn. R. App. P. 13 (e). This rule is app licable t o find ings of gu ilt base d upon direct ev idence, circumstantial evidence, or a c omb inat ion of direct and circumstanti al evidenc e. State v. Dy kes , 8035

S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determining the sufficiency of the convicti ng evidence, this Cour t does not reweigh or reeval uate the evide nce. Stat e v. Mat thews , 805 S.W.2d 776, 77 9 (Tenn. Crim

. App.), per . app . denied (Tenn. 1990). N or may this Court substi tute its inferences for those drawn by the tri er of f act from circumstantial ev idence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert
. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed. 2d 49 (1956). To the contrary, this Court is required to afford the St ate of Tenne ssee the strongest legitimateview

of the evidence contained in the record as well as all reasonabl e and le gitimate inferences w hich may be dr awn from the ev idence. State v. C abbage , 57 1 S.W .2d 832, 835 (Tenn . 1978). Quest ions co ncerning th e credibili ty of the w itnesses, the weight and value to b e given the evidenc e, as well as all factual i ssues raise d by the evidence ar e resolve d by the trier of fact, not this C ourt. Cabbage , 571 S.W.2d at 835. In Stat e v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), ou r Supreme Cour t said: "A guilty

verdict by the jur

y, approved by the trial judg e, accredits the testimony

of the witnes ses for

the State an d resolves all conflicts in fav

or of the theory

of the State." Since a verdic

t of guilt removes the pre sumption ofinnocence and replaces i t with
a pres umption of guilt, the accused, as the appellant, ha s the burden in this Court o f illustrat ing why t he evidence i s insufficient to support the verdicts re turned by thetrier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This Cou rt will not disturb a verdict of guilt due to

the sufficiency

of the evide nce unless the facts contained i n the record are insufficient, as a matter of law, for a r

ational tri er of fact to find that the accused is guilt y beyond a

reasonable doubt. Tuggle , 639 S.W.2d at 914. In order t o convict a defendant of especially aggravated robbery, the state must demonstrate that the defendant (a) i ntentionally or knowi ngly too k the property of another without consent, (b) with the intent to depr ive the ow ner of the property , (c) by putting the victim in fear, (d) by employ ing a deadly weapon, (e) and the victi m suffered serious bodily inju ry. Tenn. Code Ann. §§ 39 -13-401 and -403, and 39 -14-1 03. It is s ufficient for the state to prove t he defendant acted w ith the intent to assist i n the commission of the offense. Tenn. Code Ann. § 39- 11-402.6 The victim test ifie d two men robbed her and o ne of them shot her. Sheidentified Jose Holmes as the person who shot her . Witnesses saw Holmes and a man in green flee the scene of the shooti ng. Minute s later, the defendant, weari ng green, ap peare d with Holmes at a nearby hotel. When the defendant heard sirens, he beg an to run. Once he
was apprehended, he immedi ately ex plained he w ent to the Mall of Memphis to steal cars. The evidence contained in the record is suffici ent to su ppo rt a f indi ng by a rational trier of fact that the defendant was guilty of especially

aggrav ated robbery

beyond a reasonable doubt. Tenn. R. App. P. 13( d); Jackson v. Virginia , 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789, 61 L.E d.2d 560 (1979). This issue is

without mer it.

II.

Several issues rai sed by the defendant have b een waived . Most of t he is sues have been waived because they were not i ncluded in a w ritten motion for a new trial. Some of the issues have been waived for yet other reasons. When the accused in a c riminal pro secution is tried and conv icted of a crime, the accused must pre serve the i ssues he or s he believeswill result in a new trial in a wr itten motion for a new tr ial. Tenn. R. Cri m. P. 33(b). The motion must be filed with the clerk of the trial cour

t within thirty (30) days

of the date the sentenci ng order i s entered by the trial court. Tenn. R. Crim. P. 33(b). In this case, a timely motion for a new tria l was filed al beit it was not complete. However, before trial c o unsel could amend t he motion, the defendant so ught and was granted theright

to proceed pro se . The defendan t did not amend the m otion or timely file another motion to preserve the issues he thoughtwould re sult in a new trial, and, if not granted, the i ssues he desir ed to raise i n this Court

. The fact the defendant is a l ayman does not excuse his compl iance wi th the rules of procedure. He was required to complywith the rules to the same extent as if he were
a lawyer. See Cole v. S tate , 798 S.W.2d 261, 263-64 (Tenn. Crim. App.), per . app . denied (Tenn. 1990).7 The failure to inc lude an issue i n the motion for a new trial when there has been a jurytrial generally

results in the waiver of the issue. Tenn. R. App. P. 3(e). Th is rule states in part: [I]n all cases t ried by a jury, no issue present ed for review shall be predicated upon error in t he admission or exclusi on of evidence, jury i nstructions granted or r efused, miscondu c t of jurors, parties or counsel, or ot her action co mmitted or occurring during the trial of the case , or other g round upon which a new trial is sought, unless the sa me was specifically stated in a motion for

a new tri al; otherw ise, such is sues wil l be treated as waived.

This rul e doe s not encompass issues which, if decide d favorably to the accused, would result in the dismis sal of the prosecution

. State v. Keel , 882 S.W.2d 410, 415-16 (Tenn. Crim. App.), per . app . denied (Tenn. 1994)( varian ce between indictment and evidence ); State v. Davis , 748 S.W.2d 206, 207 (Tenn. Crim. App . 1987), per . app . denied (Ten n. 1988)(sufficien cyof indictment and evidence) ; State v. Moore , 713 S.W.2d 670, 673-74 (Tenn. Crim

. App. 1985)(suff iciencyof the evidence) ; State v. Du rham , 614 S.W.2d 815, 816 n.1 (Tenn. Crim. App . 1981). The defendant con tend s the assistant district attorney general engaged in prosecutoria l misconduct dur ing summation. This issue was not included in the motion for
a new tri al and, therefore, was waived. Tenn. R . App. P. 3(e) . Also, no obj ection was entered contemporaneously with the making of these statements. Tenn. R. App. P. 36(a). The defendant further contends th e t rial court

committed error

of prejudicial dimensions by denying his motion for a severance of defend ants. He argues the evidence of Holmes’s g uilt was

much stronger

than the evi dence of his guilt; and it was possi ble for him to be found guilt

y based upon hi s associati on with H olmes. This i ssue w as not included in th e motion for a new trial and, therefore, was waived. Tenn. R. App. P. 3(e). Moreover, the record does not contain the h earing on thi s motion. See State v. Banes , 874 S.W.2d 73, 82 (Tenn. Cr im. App. 1993), per . app . denied (Tenn. 1994); Stat e v. Eldridge , 749 S.W.2d 756, 757 (Tenn. Crim

. App.), per . app . denied (Tenn. 1988); State v. M orton , 639 S.W .2d 666, 668 (Tenn . Crim. App.), per . app . denied (Tenn. 1982). Moreover, this Court must presume the dec ision wa s correct. State v. Locust , 914 S.W .2d 554, 5578

(Tenn. Crim. App . 1995); Sta te v. Ri chardson , 875 S.W.2d 671, 674 (Tenn. Crim. App

. 1993), per . app . denied (Tenn. 1994). This Court has r

eviewe d these issues

to the extent

the re cord will pe rmit review. If these issues w

ere considered on the merits, they would be found to be w ithout merit. Fina lly, the defendant contends he was denied h is constitut ional rig ht to the eff ecti ve assistance of counsel. This issue was not included in t he motion for a new trial. Al so, no evidence was offered duri ng the motion for a new tr ial regar ding this issue. Nevertheless, this Court is of the opinion the de fendant’s right to litigate the issu e of i neff ecti ve assistance of coun sel in a post- convicti on suit should be preserved. It has been said on numerous occasions raising this issue post-trial is a practice “f raught with peril.”

III.

The defendant contends the tr ial court g ave an erroneousinstruction on reasonable doubt. The instruction given by the tria l court, see T.P.I. -- C rim. 2.03, has b een held to be constitutiona l, by the s upreme court and t his court. See State v. Nichols , 877 S.W.2d 722, 734 (Tenn. 1994); Pettyjohn v . State , 885 S.W .2d 364 (Tenn. Crim. App . 1994). This issue is

without mer it.

IV.

The defendant con tends the trial court co mmitte d error of prej udicial dimens ions when it failed to st rike Kelly Smith’s testi monythat the defendant resembled the man she
saw in the parki ng lot of

the Mall of Memphis. On direct e xamination, t he followingcolloquy took place: Q: Do you see anybody in the courtr

oom today, Mi ss Smith, that resembles --

looks like the person that you saw on the driver’s side of the car?9 A: I might could tell if theother defendant stood up. Vagu ely, yes. I see something somewhat familiar, yes.
Defense counsel objected on the ground the witness’s vague i dentification was insufficient fora courtroom iden tification. Thetrial cour t permitted the w itness to stat e the defendant resembled the man sh e saw on the driver’s side of the car. The vagueness of the witness’s recogniti on of the defendant goes to the weig ht of the identification, not its admiss ibility

. State v. Michael Hall , Shelby Cou nty No. 02-C-01- 930 4-CR-0 0062 (Tenn. Crim. App., Jackson, August 24, 1994) ; State v. Hu llum , 664 S.W.2d 314, 318 (Tenn. Cr im. App. 1983), per . app . denied (Ten n. 19 84)( wi tness’ s testimony

that gun “appe ared” to be the gun involved in the robbery was sufficient to admit gun into evidence; the weight of this testimony is a jury q uestion). Moreover , this testi mony w as but one of numerous facts establishingthe defendant’s ident ity. The i dent ity of a n accused as a perpetrat or of a crime m a y be establi shed by direct and circ umstantial evidence that

establishes the defendant’s identi ty beyond a reasonable doubt. This issue is

without mer it.

_ ______________________ _____________

_ JOE B. JON ES, PRESIDIN G JUDGE
CONCUR:

____________________________________ JOSEPH M. TIPTON , JUDGE

____________________________________ JERRY L. SMITH, JUDG E