FILED

November 14, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9610-CR-00354

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. CHRIS CRAFT

MICHAEL T. WARE, ) JUDGE

)

Appellant. ) (Felony Murder)

ON APPEAL 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 General and Reporter

WALKER GWINN GEORGIA BLYTHE FELNER

Assistant Public Defender Assistant Attorney General

201 Poplar, Suite -01 425 5th Avenue North

Memphis, TN 38103 Nashville, TN 37243

JOHN W. PIEROTTI

District Attorney General

AMY WEIRICH

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Street

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

Tenn. Code A nn. § 39-13-202(a)(2).

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OPINION

The Defendant, Michael T. Ware, was convicted by a Shelby County jury

of one count of felony murder.1

 He was sentenced to life imprisonment. He

appeals his conviction raising one issue: That the evidence was legally

insufficient to support the verdict of guilt. As subparts to this issue, he asserts

that the conviction was based on accomplice testimony without sufficient

corroboration and that the testimony of the accomplice was essentially “bought”

by the prosecution and violative of his due process rights. We affirm the

judgment of the trial court.

On the evening of June 17, 1994, the victim in this case, Barry Watts, was

at his mother’s house repairing a broken taillight on her car around 5:00 or 6:00

p.m. He finished the job in approximately thirty minutes and then left in his car,

a Buick Regal. He telephoned his mother at approximately 10:00 p.m. and talked

with her. 

That same evening, Florene Williams borrowed her boyfriend, Henry

Clark’s car, a 1976 or 1977 four-door, blue and white Buick LeSabre. She drove

the car to visit her friend, Deloris Wilson, at the Cedar Court Apartments on

Seventh Street in Memphis, Tennessee. She arrived there between 6:30 and

7:00 p.m. Ms. Williams was socializing, drinking and getting high on crack

cocaine. During the evening, Ms. Williams checked on her car two or three times

and saw the Defendant and “Sweet Pea” (Corey Hunter) hanging around. They
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were agitating to get her car. When she was leaving to go back home, she got

in the vehicle and began to remove the “club” from the steering wheel. The

Defendant and Hunter approached the car with the Defendant on the driver’s side

and Hunter on the passenger’s side. They threatened Ms. Williams and hit her

on the side of the neck and face with a bottle or club. She relinquished the

vehicle because she knew the Defendant had a gun. This was somewhere

between 8:00 and 10:00 p.m.

Ms. Williams returned to her friend’s apartment and stayed within the

complex that evening. She did not sleep. Ms. Williams did not report the theft

to the police although a pay telephone was nearby because she was afraid of the

Defendant and did not want to be seen calling the police. 

Meanwhile, the Defendant and Hunter drove the stolen vehicle around until

it developed mechanical problems and stopped running. They pulled the car over

on Leath Street in front of William W alker’s house. Mr. W alker and his family

were sitting out in their yard and drinking beer at approximately 11:30 when he

saw two black males in the car. Mr. W alker knew the victim, Barry Watts, and

saw him pull his car up to the stalled vehicle. The streetlight was dim, but Mr.

Walker saw the victim get out of his vehicle and appear to help the two men. He

described both of them as six feet tall with slender builds and dark complexions.

One man looked like he had long “nappy” hair. It appeared that they first tried to

jump start the vehicle, then the two men got into the victim’s vehicle. One man

sat in the front passenger seat and the other got into the back seat. The victim

drove them away. Later, the stalled vehicle was identified as belonging to Henry

Clark, who was initially a suspect.
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Johnny Broady testified that on June 17, he got off from work at 5:00 p.m.

and was near his home at approximately 5:30 p.m. He saw the victim on Bethel

Street and the victim stopped his car and talked to him. The victim gave his

pager number to Broady. Broady and his friends, including a lady he was

entertaining, went to his home on Pearce Street at approximately 6:30 to 7:00

p.m. After about thirty minutes, Broady paged the victim to buy some crack

cocaine. The victim delivered the crack to Broady’s house at approximately 7:30

or 8:00 p.m. Broady paged the victim one more time at about 10:00 to 10:15 p.m.

to buy more crack.

The victim arrived on Pearce Street with the Defendant and Hunter in the

car with him. Broady wanted the victim to come in the house, but the victim told

Broady to ride with them. Broady was reluctant because he would leave his

guests, but agreed to go with the victim. They headed towards Chelsea Street,

turned onto Fifth Street, and then stopped at Greenlaw Avenue to drop off the

Defendant and Hunter. The men had been talking about buying marijuana. They

pulled into the parking lot at Johnson’s Market. The victim turned off his

headlights before rolling to a stop. Broady opened his door to get out and looked

back in. He saw the Defendant pull a gun, either a .45 caliber or 9 millimeter, on

the victim and told him to “drop it”, in other words, to give the Defendant his

money and valuables. Broady testified that Hunter nudged him and held a gun

to his head and likewise told him to “drop it.” Broady said he didn’t have

anything. The Defendant fired the pistol at the victim. Broady jumped out of the

car and ran behind the market. He grabbed a pipe to protect himself and peeked

around the corner to see if anyone was chasing him . 
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He saw the brake lights go off and the front car door open. The victim fell

out of the car and the Defendant slid into the driver’s seat. The car sped off,

heading east on Greenlaw Avenue. Broady ran over to the victim along with

Darryl Pryor, who had seen the incident from his apartment. Broady did not stay,

but told Pryor where he could be found. Broady testified at trial that in a

statement to the police, he stated that he never really looked directly at the

Defendant because it was dark in the vehicle, but that he saw the Defendant’s

face from the flash of the gun when it fired. He did not know the Defendant by

name at the time of the offense, but testified that he was positive that the

Defendant was the individual who shot the victim. He had seen the Defendant

from a distance around his neighborhood. While on the stand, Broady described

the Defendant’s hair as having a jheri curl. 

Darryl Pryor testified that he was sitting outside his apartment around

11:00 p.m. when he noticed a car approach and pull into the market. He noticed

the vehicle’s light go off before it cam e to a stop. He heard a “pop” and got

behind a tree. Although it is unclear whether before or after he heard the

gunshot, he saw a black male run from the vehicle. Afterwards, someone was

pushed out of the car. The vehicle pulled off and drove down Fifth Street. He

went to the victim, who was lying face down and breathing laboriously as if he

were suffocating. He spoke with Broady, who did not stay at the scene for long.

Pryor called 911.

Police officers arrived at 12:02 a.m and secured the scene. The Defendant

was dead when the paramedics arrived. Police recovered seven rocks of crack

cocaine in the victim’s navel. The medical examiner determined that the victim
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died as a result of a gunshot wound to the arm which entered his right lung,

severed two major arteries and lodged in his left lung, causing severe bleeding.

The gun was fired within twelve inches from the victim. 

Corey Hunter, who was with the Defendant during the commission of the

crime, testified at trial. He stated that the Defendant lived in the Cedar Court

Apartments and he met him there. They wanted to go to a teenager club called

380 Beale. They had no transportation and because it would take thirty minutes

to walk there, they wanted a car. He testified that Florene Williams let them use

the car in exchange for a rock of crack cocaine. They took the car and it broke

down on the way to Beale Street. A heavyset man with dark skin stopped to help

and checked under the hood. When they determined the vehicle could not be

revived, they asked for a ride. The victim agreed to take them part of the way to

Greenlaw Avenue. The victim drove to Broady’s house and picked him up. The

victim pulled in an alley to drop them off when the Defendant pulled a gun and

told him to “Drop it off.” The victim said “Uh” because he was startled and the

Defendant shot him. The victim fell out of the car onto the street. The back door

was open and Hunter wanted to get out, but the Defendant refused. They left the

car on Marble Street, then walked to Beale Street. The vehicle found on Marble

Street was later identified as the victim’s. Hunter was afraid to leave the

Defendant because the Defendant had a gun. He finally left the Defendant after

they were on Beale Street for a few minutes. 

Hunter was later arrested and gave a statement to police. After that, he

signed an affidavit that his prior statements implicating the Defendant were false.

He testified that the affidavit was made at the behest of the Defendant’s gang
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members, who had assaulted him in jail. Hunter did not report the assault. The

affidavit stated that the police promised to let Hunter go if he implicated the

Defendant. Hunter testified that the affidavit was false and that his statement

made to the police and his testimony in court was the truth. 

Sergeant James Fitzpatrick testified at trial that he took Corey Hunter’s

statement at the police department. Fitzpatrick denied telling Hunter that he

would be released if he identified the shooter.

The Defendant was convicted of first-degree felony murder committed in

the perpetration of a robbery and sentenced to life imprisonm ent. In his only

issue in this appeal, he contends that the evidence was insufficient to support the

verdict of guilt. When an accused challenges the sufficiency of the convicting

evidence, the standard is whether, after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). Questions concerning the credibility of the witnesses,

the weight and value to be given the evidence, as well as all factual issues raised

by the evidence, are resolved by the trier of fact, not this court. State v. Pappas,

754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate
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view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.

A crime may be established by circumstantial evidence alone. State v.

Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). However, before an accused

may be convicted of a criminal offense based only upon circumstantial evidence,

the facts and circumstances “must be so strong and cogent as to exclude every

other reasonable hypothesis save the guilt of the defendant.” State v. Crawford,

225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other words, a “web of guilt

must be woven around the defendant from which he cannot escape and from

which facts and circumstances the jury could draw no other reasonable inference

save the guilt of the defendant beyond a reasonable doubt.” Id. at 484, 613. 

After a careful review of the record, we find that the evidence proves that

the Defendant killed the victim during an attempt to rob him. However, the

Defendant argues that the conviction was based on accomplice testimony that

was not sufficiently corroborated. He asserts that Hunter was the only witness

who witnessed the crime and positively identified the Defendant.

It is well established in Tennessee that a defendant may not be convicted

solely upon the uncorroborated testimony of an accomplice. See, e.g., State v.
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Bigbee, 885 S.W.2d 797, 803 (Tenn.1994). Such corroborating evidence "may

be direct or entirely circumstantial, and need not be adequate, in and of itself to

support a conviction," as long as it "legitimately tends to connect the defendant

with the commission of the crime charged." Bigbee, 885 S.W.2d at 803 (quoting)

State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992). However, "it is

not necessary that the corroboration extend to every part of the accomplice's

evidence." Id. Also, the corroboration may be sufficient although "the evidence

is slight and entitled, when standing alone, to little consideration." Id. Whether

a witness' testimony has been sufficiently corroborated is a m atter entrusted to

the jury as the trier of fact. Id.

Furthermore, the threshold question of whether the witness was an

accomplice must be answered. An accomplice is one “who knowingly,

voluntarily, and with common intent unites with the principal offender in the

commission of a crime.” State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App.

1995). The test is whether the alleged accomplice can be indicted for the crime,

however, a defense of duress or coercion may be asserted. Id. Establishing

whether the witness is an accomplice is a question for the jury. Id.

We believe that the evidence suggests that Hunter may have been an

accomplice to the crime. In particular, Broady testified that when the Defendant

pulled the gun on the victim, Hunter also pulled a gun and demanded that Broady

“Drop it off.” Having determined that Hunter was an accomplice, we address

whether there was sufficient corroboration of his testimony. Although Hunter was

the only witness at the time the crime was committed who knew who the

Defendant was, other witnesses sufficiently placed the Defendant at the crime
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scene. Florene Williams said the Defendant took her boyfriend’s vehicle with

Hunter. That same vehicle was seen by William Walker when it broke down.

Two black males, one with long hair, left the vehicle and got into the victim, Barry

Watts’, car. Walker knew the victim and saw the two get in his car. Johnny

Broady saw the victim driving his vehicle with two passengers. He did not know

the Defendant’s name nor did he see him very well, but later identified the

Defendant as the man he saw in the car. Darryl 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. The vehicle that was abandoned on Marble Street belonged to

the victim.

Although there is circumstantial evidence linking the Defendant to the

crime, we believe that it provides substantial corroboration of Hunter’s testimony.

This other evidence legitimately links the Defendant to the crime and clearly

leads one to no other conclusion than that the Defendant committed the crime.

Obviously, the jury accredited the testimony of the State’s witnesses in rendering

its verdict. We will not disturb the jury’s finding in this appeal.

The Defendant also argues that Hunter’s testimony should have been

excluded because it was tainted. He argues that the State offered Hunter’s

freedom in exchange for testimony implicating the Defendant. He proffers

evidence that the State issued a nolle prosequi regarding Hunter after he testified

at the Defendant’s trial. We first note that because the defendant has failed to

cite authority to support his argument, this issue is waived. Tenn. Ct. Crim. App.

R. 10(b); State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988).
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However, even if we were to address this issue, we would conclude that

it lacks merit. While there is evidence that Hunter signed an affidavit stating that

the police promised that he would not be prosecuted if he identified the

Defendant, he explained that he was coerced into writing the statement by the

Defendant’s gang members. Hunter denied that he was given anything in return

for his testimony. Sergeant Fitzpatrick testified that he never made any offers of

leniency in exchange for implicating the Defendant. As this Court has noted:

It is generally recognized that a humble, contrite, and conscientious

repentant who 'throws himself upon the mercy of the court' usually fares

much better than does the adamant accused who is adjudged guilty

after a lengthy trial. W hile one indicted for crime in the position of

cooperating with the government should not be threatened or assured

the court will grant favored treatment in return for his assistance, there

is no proscription against his hoping that his valuable help will result in

leniency.

Graves v. State, 489 S.W.2d 74, 87 (Tenn. Crim. App. 1972). Accordingly, we

conclude that this issue is without merit.

The judgment of the trial court is affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

JOE G. RILEY, JUDGE