# FILED November 14, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON SEPTEMBE R SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9610- CR-00354 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT MICHAEL T. WARE, ) JUDGE ) Appe llant. ) (Felony Mu rder)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : A. C. WHARTON JOHN KNOX WALKUP Public Defender Attorney Generaland Reporter WA LKER GW INN GEORGIA BLYTHE FELNER Assistant Public Defender Assistant Attorney General 201 Poplar, Sui te -01 425 5th Avenu e North Memphis, TN 38103 Nashvill e, TN 37243 JOHN W. PIEROTTI Distri ct Attorney General AMY WEIRICH Assistant Distri ct Attorney General Criminal Just ice Complex, Sui te 301 201 Poplar Street Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code A nn. § 39-13-202(a)(2). -2- 

# OPINION

The Defen dant , Mi chaelT. Wa re, was convicted by a Shelby Co unty jury of one coun t of felony murde r. 1 He was s ente nced to li fe i mpri sonment . He appe als his convicti on raising one iss u e: Th at the e videnc e was legally insuffi cientto suppo rt the verdi ct of guilt. As s ubparts to this issue , he asse rts thatthe conv icti on was based on accompli ce test imony wi t hout suffi cient corroborat ion and that the testimony of t he accomplice wasessen tially “bough t” by t he pros ecution and vi olativ e of his due pr

ocess rights. We affirm the judgm ent of the tria l court.

On the evening of

June 17, 1994, t he victi m in this case, Barry Watts, was at his mother’ s house repair ing a broken tailli ght on her car around 5:00 or 6:00 p.m. He finished the job in approxim ately thirty minutes and then left in his car,
a Buick Regal. He telephoned his mother at approxi mately 10:00 p. m. and talked with her.

That same evening, Fl orene W il liams borrow ed her boyfriend , Henry Clark ’s car, a 197 6 or 197 7 four-do or, blue an d white B uick LeS abre. She drove the car to visit her fri end , Delori s Wilson, at t he Cedar Court Apart ments on Seven th Street i n Memphis, Tennessee. She ar ri ved there bet ween 6:30 and 7:00 p.m. M s. W illi ams w as socializing, drinking and getti ng high on crack cocaine. Dur ingtheeve nin g, M s. Wi ll iams checked on her car t

wo or three ti mes and saw the Defendant and “Sweet Pea” (Corey Hunter) hangi ng around. They-3-

were agitat ing to get

her car. When she was leav ing to go back home, she got in the vehicle and b egan to rem ove the “club” fro m the stee ring wheel. The Defendant and Hunter approached t he car with t he Defendant on the driver’s si de and Hunter on the passenger’ s side. They threatened Ms. Williams and hit her on the sid e of the neck and fa ce wit h a bottle or club. She relinqui shed the vehicle because she knew the Defendant had a gun. This was som ewhere between 8:0 0 and10: 00 p. m.

Ms. Will iams

ret urn ed to her

fr ien d’s apar tme nt and s tayed wit hin the complex that eveni ng. She did no t sleep. Ms. W illiams did n ot report th e theft to the poli ce although a pay telephone was nearby because she was afrai d of the Defen dant an d did not w ant to be s een ca lling the po lice.
Meanwhile, the Defendan t a nd Hu nter dr ove the stolen vehicle aroun d until it develop ed me chanica l problem s and sto pped ru nning. They pulled the car over o n Leath Stree t in front o f W illiam W alker’s hous e. Mr. W alker a nd his famil y were sitting out in their yard and drinki ng beer at approx imately 11: 30 when he saw two black males in the car. Mr. W alker knew t he victi m, Barry Watts, and saw him pull hi s car up to the st alled vehicle. The s treetlight was dim, bu t Mr. Walker saw the vic

tim get out

of his vehi cle and appea r to helpthe t wo men. He described both of the m as six feet tallwith sl ender builds and dark complexions. One man looked li ke he had long “nappy ” hair. It appeared t hat they first tried to jump start t he vehicle, then the two men got into the vict im’s vehi cle. One man sat in the front

passenger seat and t he other g ot into th e bac k sea t. The victim drove them awa y. Later, t he stall ed vehicle was identified as belong ing to Henry Clark, wh o was initia lly a suspe ct.-4- Johnny Broady test ified t hat on Jun e 17, he g ot off from work at

5:0 0 p. m. and was near

his home at approxi mately 5:30 p. m. He saw the vict im on Bethel St reet and th e victim stopp ed his car an d talke d to him . The v ictim g ave his pagernumber to Broady. Broady and his f riends, i ncluding a l ady he was entertai ning, went to his h ome on Pe arc e Street at approximatel y 6:30 to 7: 00 p.m. After about thirty minu tes, Broady pa ged the victim to b uy s ome crack cocaine. The victi m delivered t he crack to Broady’s house at appr oximately

7:30 or 8:00 p.m. Broady paged t he victi m one more time at about 10: 00 to 10:15 p.m. to buy more crack.

The victim arrivedon Pearce Street with the Defendant and Hunter i n the carwith him
. Broad y want ed the victim to com e in the hous e, but th e victim told Broady to ride with them. Broady was reluctant because he would l eave hi s guests, but agreed to go with the victim. They headed towards Chels ea Street, turned onto Fift h Street, and then stopped at Greenl aw Avenue t o drop off t he Defendant and Hunter. The men had been talki ng about buying mari juana. They pulled into the par king lo t at Joh nson ’s Mark et. Th e victim turned off his headligh ts before rol ling to a stop. Broady opened his do or to get out and looked back in. He saw the Defenda nt pull a gun, either a .45 caliber or 9 millimete r, on the victim a nd told him to “drop it” , in othe r word s, to give the De fenda nt his money and valuab les. Bro ady tes tified tha t Hun ter nud ged h im an d held a gun to his head an d likewise told him to “drop it.” Broady said h e didn’t have anything. The Defendant fi red the pistol at the vict im. Broady

jumped out of t he carand ran behind t he market. He grabbed a pipe to protect himself and peeked around the corn er to see if anyone was ch asing him
.-5- He saw the brake l ights go of f and the fr

ont car door open. The victim fe ll out of the car a nd the D efenda nt slid into the driver’s sea t. The ca r sped o ff, heading east on G reenlaw Avenu e. Br oady ran over to the victim alon g with Darryl Pryor, whohad seen the incident from his a partment. Bro ady did not stay, b ut told Pryo r where he could be found. Broady testified at trial that in a statementto the pol ice, he stated that he never real ly looked directly at the D efendantbecau se it was d ark in the ve hicle, but tha t he saw the Defe ndant’ s face from the fl ash of the gun when i t fir ed. He did not know the Defendant by name at t he time of t he offense, but testified that he was positive that t he Defendant was th e individ ual who shot the vi ctim. He had seen t he Defendant from a distance ar

ound his neighborhood. While on the stand, Broady described the De fendan t’s hair as ha ving a jheri c url.
Darryl Pryor testified that h e w as sitt ing outsi de his apart ment around 11:00 p.m. when he noticed a car approach and pullinto themarket. He noti ced the vehicle’s light go off before it cam e to a stop. He h eard a “pop ” and g ot behind a tree. A lt hough it is unclear whethe r before or after he hear

d the gunsh ot, he saw a black male r un from the vehicle. Afterwards, someone was pushed out of the car. The v ehicle pulle d off and dr ove down Fi fth Stre et. He went to the vi ctim, who was l ying face down a nd b reathing l abo riously as if he
were suffocating. He s poke with Bro ady, who did not stay at the scene f or long. Pryor call ed 911.

Police officer

s arrived at 12:02 a.m and secured t he scene. The Defendant was dead when the paramedics arrived. Police recovered seven rocks of cr ack cocaine in the vic tim’s navel. The medica l examiner determined that the victim-6-

died a s a res ult of a g unsh ot wou nd to th e arm which entere d his rig ht lu ng , severed two major arteries and lodged in hi s left lung, causi ng severe bleedi ng. The g un was fired within tw elve inche s from th e victim.
Corey Hunter, who was with the Defendant during t he commission of t he crime, testified at trial. He stated t hat the Defen dant lived in the Ce dar Court Apartm ents and h e me t him there. They wanted to go to a teenager clubcalled 380 Beale . They had n o trans portatio n and beca use it w ould take thirt y minutes to walk there, they wanted a car . He testifi ed that Florene Williams let t hem use the car in exchange for a r ock of crack co caine. They took the carand it broke down on the way to Beal e Street. A heavysetman w ith dark s kin sto pped to help and checked unde r the ho od. W hen th ey dete rmine d the ve hicle co uld not be revived, they asked for a ri de. The vict im agreed to take the m part o f the way to Greenlaw Aven ue. Th e victim drove to Bro ady’s house and picked hi m up. The victim pulled i n an alley t o drop them off when the Defen dan t pulleda gun and t o ld him to “Drop i t off. ” The vict im said “Uh” becaus e he was start led and the Defendant shot him. The vi ctim fel l out of the car onto the street. The back door was open and H unter wa nted to ge t out, but the Defen dant refu sed. They left the caron Marb le Stree t, then w alked to Bea le Stre et. Th e vehic le foun d on M arble Streetwa s later i dentifi ed as the vi ctim’s. Hunter was afr aid to l eave th e Defendant because the Defendant had a gun. He fin ally l eft the Defendant after they were on Bea le Street fo r a few m inutes.

Hunterwas later arre sted a nd gave a statement to poli ce. After

that, he signed an affid avit thathis pri or statements implicat ing the Defendant were false. He testified that th e affidavit wa s mad e at the be hest of the Defendant’ s gang-7-

members, who had a ssaulted him in jail. Hunter did not repo rt the assa ult. The affidav it st ated that t he police pr omised to let

Hunter go if

he implicated the Defen dant. Hunter testifi ed that the affi davit was falsea nd that hi s statement made to the police and his te stimon y in court wa s the truth.
Sergeant J ame s Fitzp atrick te stified a t trial that h e took Core y Hun ter’s statementat the policedepa rtment. Fi tzpatri ck denied tel ling Hunter that he would be relea sed if he identified the sh ooter.

The Defendant was convi cted of fi rst-degree felony murder com mitted in t he per petratio n of a ro bbery and s enten ced to life imp risonm ent. In h is only issue in this appe al, he contends that the evidence was insuff icient to support t he verdictof guil t. When an accused chall enges the suff iciency of the convi cting evidence, the standard is whether, after reviewing the evi dence in the light most favora ble to the pros ecution, a ny rationa l trier of fac t could have found the essentialelements of t he crime beyond a reaso nable d oubt. Jack son v. V irginia , 443 U.S. 307, 31 9 (1979 ). Questions concerning the credibil ity of t he witnesses, the weight and val ue to be given the eviden ce, as well as all factual issues rai sed by the evidence, are resolved by the trier of fact, not this co urt. State v. Pappas , 754 S.W.2d 62 0, 6 23 (Tenn. Crim. App. 1987). Nor may th is court reweigh or reevalua te the evide nce. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 197 8).

A jury ver

dict approv

ed by the trial j udge accredits the Stat e ’s witne sses and resolves all conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appea l, the Stat e is entitled to the strong est legitim ate-8-

viewof the evi dence and all inference s therefro m. Cabbage , 571 S.W.2d at 835. Because a verdic t of guilt removes the presumpti on of innocence and r eplaces it with a presump tion of guilt, the accused has the burd en in this court o f illustrati ng why the evi dence is insuf ficien t to support the verdict returned by

the trier of fact. State v. Tug gle , 639 S.W .2 d 913, 9 14 (Te nn. 198 2); Grace , 493 S.W.2d at 476.

A crime may be establ ished by ci rcumstantialevidence a lone. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987) . However, bef ore an accused may be con victed of a criminal offensebased only upon ci rcumstantialevidence, the facts and circumstances “ must be so strong and cogent as to exclude e very otherreaso nable hypoth esis sa ve the g uilt of the defenda nt.” State v. Crawfo rd , 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). I n other words, a “web ofguilt mus t be woven around the def endant from whic h he cannot escape a nd fro m which facts and ci rcumstances the jury could draw no other r easonable inference save the guilt of the de fendant beyo nd a reaso nable doub t.” Id. at 484, 61 3.

After a careful review of

the record, we find that the evi dence proves that the Defendantkill ed the victi m during an attempt to rob hi m. However, the Defendant argues that the convict ion was ba sed on accomplice testimony that was not suffi cientl y corroborated. He asserts t hat Hunter wasthe only witness who witn essed the crime and po sitively identified the Defe ndant.

It is wellestabli shed in Tennessee that a defe ndant may not be convi cted solely upon the uncorrob orated testimon y of an ac comp lice. See , e.g. , State v.-9-

Bigbee , 885 S.W.2d 797, 803 (Tenn.1994). Such corroborat ing evidence"may be direct or

entirely circumstant ial, andneed not be adeq uate, in and o f itself to suppo rt a convictio n," as long as it "legitima tely tends to connect thedefendant with thecommi ssi on of thecri me charge d." Bigbee , 885 S.W.2d at 803 (quot ing) State v. Gaylor , 862 S.W .2d 54 6, 552 (Ten n. Crim . App. 1 992). H owev er, "it is not necessary tha t the corroboration extend to every part of t he ac com plice's evidenc e." Id. Also, thecorroborat ion may be sufficient al though "the evidence is slight and entit led, when s tanding alone, to little co nsidera tion." Id. Whether a witne ss' test imon y has b een s ufficien tly corrobo rated is a m atter entru sted to the jury as th e trier of fact. Id.
Furthermore, the threshol d question of whether the wi tness was an accomplice must b e answ ered. An accom plice is one “who knowingly, voluntarily, and with common intent unites w ith the principaloffender i n the commission of a crime .” State v. Green , 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995). The test is whether the al leged accomplice can be indicted for thecrime, however, a de fe nse of du ress or co ercion m ay be as serted. Id. Establis hing whethe r the witnes s is an ac comp lice is a que stion for the jury. Id.

We believe t hat the evi dence suggests that Hunter may have been an accomplice to the cri me. In parti cular, Br oady testified that

when the Defendant pulled the gun on the vict im, Hunter al so pulled a gun and demanded that Broady “Drop i t o ff.” Having determined that Hunter was an accomplice, we address whetherthere was su fficient corroboration of his tes timony. Although Hunter was the only wit ness at the t ime the cri me was committed who knew who the Defendan t was, ot her wit ness es s uff ici ent ly pla ced theDef enda nt at t he c ri me-10-

scene. Florene William s said the Defen dant t o ok her b oyfriend’s ve hicle with Hunter. That sam e vehicle was s een by W ill iam Walker when it broke down. Two black males, o ne with lo ng hair, l eft the vehicle and got into the victim, Barry W atts’, car. W alker kne w the victim and sa w the two get in his car. Johnny Broady saw the victim driving h is vehicle with two passenger s. He did not know the Defendant’s name nor did he see him ver y well, but later

ident ifi ed the Defendant as the man he saw in t he car. Darry l Pryor saw a man get pushed out of the car after he was shot. When he saw the man up close, he recognized him as Barry W atts. Th e vehic le that w as ab ando ned o n Mar ble Street bel onged to thevi cti m.
Although there is circumstant i al evidence linki ng the Defendant to the crime, we believe t hat it pr ovides substanti al corrobor ation of Hunter’s testim ony. This other e videnc e legitim ately li nks the Defe ndan t to the c rime a nd cle arly leads one to no other concl usion than t hat the Defendant committed the crime. Obviously, the jury accr edited the testi mony of the State’s witn esses in rendering its verdic t. W e will no t disturb the jury’s finding in this ap peal.

The De fendant als o argues that Hunter’s testimony shoul d have bee n excluded beca use it w as tain ted. H e argu es tha t the Sta te offere d Hun ter’s freedom in exchange for testimony imp licating the Defen dant. He pro ffers evidence that the State issued a nolle pros equi regardi ng Hunter after he testi fied at the Defe ndant’s tria l. We first note th at beca use the defend ant has failed to cite authorit

y to support

his argument, this i ssue is waived. Tenn. Ct. Cri m. App. R. 10(b ); State v. Killebr ew , 760 S.W .2d 228, 231 (Tenn. Crim . App. 1988 ).-11- Howeve r, even if we wer e to add r ess this i ssue, we would concl ude that it lacks merit . While there i s evidence t hat Hunter signed an af fidavi t stati ng that the police prom ised th at he w ould not be prosecuted if he i dentifi ed the Defen dant, he exp la ined that he was coerced into writi ng the statement by the Defe ndan t’s gang members. Hunterdenied that he was given an ything in return forhis test imony. Sergeant Fitzpatrick test ified t hat he never made any offers of leniency i n exchange for i mplicati ng the Defendant. As this Court has noted: It is general ly recogni zed t hat a humble, contr ite, and conscienti ous repentant

who 'throws hi mself upon themercy of the court' usuall y fares much bett er than d oes the adam ant accu sed wh o is adjud ged gu ilty after a leng thy trial. W hile on e indic ted for c rime in the po sit ion of cooperatingwith the government should not be threatened or

assured the court w ill grant fa vored treatm ent in return for his assistance, the re is no prosc ription a gains t his ho ping th at his va luable help w ill result in leniency.
Graves v. Stat e , 489 S.W.2d 74, 87 (Tenn. Crim. App. 1972). According ly, we conclud e that this iss ue is witho ut merit.
The judgment of the t rial cour t is af firmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE

___________________________________ JOE G. RILE Y, J UDGE