### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE June 19, 200 2 Session STATE OF TENN ESSEE v. DEMETRIU S K. HOLMES Appeal from the Criminal Court for Knox County No. 68714 Richard. R. Baumgartner, Judge

No. E2001-00660-CCA-R3-CD July 23, 2002
The defendant, Demetrius Kendale Holmes, was con victed of felony murder a

nd espec ially aggravated

ro bb er y. T he tr ia l c ou rt im po se d c on se cu ti ve se nt en ce s o f l if e a nd 24 yea rs , r es pe ct iv el y. In this appeal of right, the defendant asserts that the e vidence is insuffic ient to sup port his convictions. The judgments of the trial court are af firmed. Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed
G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined.
Kenneth F. Irvine , Knoxville, Tennessee (on appeal), and Susan E. Shipley , Knoxville, Tennessee (at tria l), for th e appell ant, Deme

trius K. H olmes.
Paul G. Summers , Attorney General & Repo rter; Eliz abeth B. Marney, A ssistant Attorney Genera l; and G. Scott Green, Assistant District Attorney General, for the appellee, the State of Te nnessee. OPINION
On May 19, 1999, the victim, Clarence Arnold was shot and killed in apartment 240 of the Walter P. Taylor Homes housing project in Knoxville. The apartment was shared by Stacy Owens and Aretha Cross, the

latter of whom was w orking a s a prostit ute at tha t location . Accor

ding to Ms

. Cross, whose

services the victim utilized on an almost daily basis, she first enc ountere d the vict im on the morning of the sho oting ashe was pu rchasin g drug s from the

defenda nt. At that time , Ms. Cross had bee

n addicte d to crac

k cocain e for som e fiftee n ye ars and o fte n boug ht crack from the de fendant , whom she had k nown for severa l ye ars. Later, wh

ile Ms. Cro ss observ ed the victim purchas e drugs from another indi vi du al , t he de fe nd an t a rr iv ed un ex pe ct ed ly a nd be ca me an gr y. According to Ms . Cros s, th e defen dant t hreate ned th em saying, “Don’t think I’m play ing with y a’ll; I’m going to get a gun.”-2-

Eventua lly, the victim

joined Ms. Cross at apartment 240 and Ms. Owens left to buy more drugs for him. Later, after they had bee

n inside for some time, Ms. Cross opened the door of the apartment to see if Ms. Owens had returned . Wh en she opened the door, the defendant, who wa s standing in the doorway, a sked if they “need[ed] any cr

ack.” Ms. Cross responded in the negative, explaining that Ms. Owens had all of t heir money. According to Ms. Cross, the victim then said, “[N]o, if he go t som ethin g, let me g et it from him.” The

defenda nt pointed a gun a t the victim and demanded

money. At that point, Ms. Cross panicked, say ing, “Clarence, please give him the money.” As the vic tim

handed the defendant his money , Ms. Cross ran out of the apar tment, hid in a corner, and then heard a sing le gunshot. As the de fendan t left the apartme nt, he poin

ted his weapon at Ms. Cross and warned, “You the only one know . . . what I done, and I will kill you.”
Ms. Cross ra n into the ap artment to check on the victim and found him on the bed, body “twisted around,” and bleeding from his chest. She screamed for help and a woman whom she knew only as “Nug get” came to assist her. While “Nugget” c hecked the victim for

signs of life, Ms. Cross called911. During her conversation with the 911 operator, Ms. Cross claimed that she did not know who shot the victim.
Ms. Cross initially told officers that she did not know who killed the victim. Later, after explaining that she w as scar ed of the defenda nt, Ms. Cros s gave a s tatement to police naming the defendant as the perpetrator. She also identified the defenda nt from a photographic lineup. At trial, she conceded that she had g ive n differing accounts to police about the eve nts surrounding the shoot ing, but she co nsistently maintained that the

defenda nt was th e assail ant. Ms. Cr oss also admitted to having given false information to police on a previous occasion, which ha d resulte d in a guilty plea

to the crime of criminal impersonation. Finally, she ac knowledged that she was under the in fluen ce of cr ack coc aine o n the d ay of the s hoot ing.
Officer Joe Cox of the Knoxville Police Department testi fied that when he arrived at the scene shortly after 5:00 p.m., eme rgency medical personnel were att empting to revive the victim

. Officer Cox observed the victim’s body on the bedroom floor, a large amount of blood on the bed, and several drops of blood just outside the bedroom on the living room floor. Officer Cox found a spent round under the couch

in the living room. On cross-examination, Officer Cox conceded that no attempt was made to dust the apartment for fingerprints. I t was his opinion

that dusting for pr

ints would have been futile.
Detective Sam Brown, also of the Knoxville Police Department, was called to assist in the investigation of the shooting. When he arrived at the scene, he observe d Ms. Cross, who appeared nervous and somewhat intoxicated, standing outside of the apartme nt. He did

not speak

with Ms. Cross at that point but instead traveled to U.T. Hospital to attempt to speak with the victim. At the hospital, Detective Brown learned that the victim had d ied . He th en went to th e Safet y Buildin g, where Ms. Cross a

nd other p otential witnesses were wa itin g to be interviewed rega rding the shoot ing. According to Detec tiv e Brown, Ms. Cross first denied any knowledge, but later gave a tape record

ed state ment implic ating the defendant in the robbery

and murde

r of the victim. Ms.-3-

Cross also told

Detective Brown that

the defendant had threatened to kill her if she told any one that he was the shooter.
Medical testimony

establish ed that the victim

died from a single gunshot wound to the chest. Dr. Sandra E

lkins, who

perfor med an au topsy of the victim, testified that the bullet fractured the ribs and sternumbefore lacerating both the lef t and right lungs and the anterior front portion of the he art. Accord ing to Dr . Elkins, de ath would have oc curred

within minu

tes.
At tri al, Dalandra P orter, a friend of the defendant, testified tha t the defendant was at her residence in the Green Hills apartment complex at the time of the shooting. Ms. Porter claimed that the defendant

arrived between 3:00 and 3:30 p.m. and left at approximately 5:30 p.m. Sandy Porter, Dalandra Porter’s mother, provided essentially the same account of the defendant’s whereabouts at the time of

the shooti ng. Nei

ther had provided a stateme

nt to police

before trial.
The defendant contends that theevidenc e is insuff icient to support hi s convict

ions for f irst degre e murder

and espe cially

aggr avated r obbery . On appe al, of course, the state is entitled to the stronge st legitimate view of the evidence and all re as onable i nferences which might be drawn theref rom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). The cre dibility of the wit

nesses, the weight to be g iven thei r testimony, and the rec onciliation of conflicts in the proof are matters entruste d to the j ury as the trier of fact. By

rge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). 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 esse

ntial ele ments of th

e crime b ey ond a rea sonable doubt. Tenn. R. App. P. 13(e); State v. W illiams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of the witnesse s, the weight and value of the evidence , as well as all factualissues raised by the e vidence are resolved by the trie

r of fact. Liak

as v. State , 199 Tenn. 2 9 8, 286 S.W.2d 856, 859 (1956). Becau se a verdict of guil

t remove s the pre sumption of innocenc e and ra

ises a presumption of guilt , the convicte d crimina

l defend ant bear s the burd en of showing that

the evide

nce waslegall

y insufficient to sustain the verdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Felony murder isthe “killing of a nother c ommitte d in the perp etration of or atte

mpt to perpetra teany first deg ree mur der, ar son, rape , robber

y, burglar y, t heft, kid napping , agg

ravate d child abuse, aggravated child neg lect or aircraft piracy [.]” Tenn. Code Ann. § 39-13-202(a)(2) (1997 & Supp

. 1999). Es p ecially ag gravated robbery is a robbery, de

fined as “the intentional or knowing theft of pro perty from the pe rson o f anot her by vio lence o r putt ing in fear,” acco mplished with a deadly weapon and where the victim suffers ser ious bodily injury . Tenn. Code Ann. §§ 39-13-401, -403 (1997).
The evidence adduced at trial established that the defendant had demanded money from the victim at gunp oint befo

re shooti ng him

once in the chest. Th

e defendant asse

rts that because Ms

. Cross gave d iffering accounts of the shooting, made her living as a prostitute, and was under the influence of crack cocaine, no rationa l trier of fact wou ld have believed he

r testimon

y. He argu es, therefore, that the e

vidence is insufficient to support his convictions. As indicated, this court may-4-

not resolve questi ons of witness credibi lity on appea l. That fu nction is so lely

within the province of the trier of fact. See, e.g. , State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995). In our view, the evidence is sufficient to suppor t the defendant’s convictions for felony murder and es pe ci al ly a ggr av at ed ro bb er y. In a related issue, the defendant asserts that the trial court erred by

admitting into evidence the photogr

aphic lineup from

which Ms. Cross iden

tified the defenda nt. He claims that admission of the lineup was err

or beca use (1) photogra

phic line ups should b e used on

ly when the witness is not familiar with the suspect and (2) Ms. Cross had already testified t hat she told police that the perpetrator

wore a ma sk. This iss ue is waiv ed, howe ver, bec ause

the defendant has failed to cite any authority for his po siti on
. See Tenn. R. A pp. P. 27(a

)(7); Te nn. Ct. Crim. App. R.10( b); see also Statev. Chance , 778 S.W.2d 4 57, 462 (T enn. Crim. App. 1989 ); State v. Killebrew , 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988). Further, the resear c h performed by

this court has not been of any assistance to t he def

ense. The identification of a defendant as the pe rson who has committed the crime for which he is on trial is a question of fact to be determined by the jur

y. See Stubbs v. State , 216 Tenn. 567, 572, 393 S.W.2d 150, 153 (1965); State v. Crawford , 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982). The only limitation is that “‘convi ctions based on eye witness identification at trial following a pretrial identification by photograph will be set as ide on th at ground if the phot ogr aphic identification procedure was so impermissibly suggestive as to give rise to a ve r y substantial likelihood of irreparable misidentification.’” Shye v. State , 506 S.W.2d 169, 173 (Tenn. Crim. App. 1973) (quot ing Simmons v. United States , 390 U.S. 3 77, 384 (1 968)); see also Cross v. State , 540 S.W.2d 289, 290 (Tenn. Crim. App. 1976). No such allegations have bee n made by the defendant in this case. Accordingly , the judgments of the trial court are affir med.

___________________________________ GARY R. WADE, PRESIDING JUDGE