FILED

April 23, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CR-00394

)

Appellee, )

) SHELBY COUNTY

V. ) 

)

) HON. W. FRED AXLEY, JUDGE 

BERNARD T. ANDERSON, )

)

Appellant. ) (FIRST DEGREE MURDER) 

FOR THE APPELLANT: FOR THE APPELLEE:

LEE WILSON JOHN KNOX WALKUP 

200 Jefferson Avenue, Ste. 800 Attorney General & Reporter

Memphis, TN 38103

DOUGLAS D. HIMES

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North

Nashville, TN 37243

JOHN W. PIEROTTI 

District Attorney General 

EDGAR PETERSON, IV

Assistant District Attorney General

Criminal Justice Center, Suite 301

201 Poplar Avenue 

Memphis, TN 38103

OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Bernard T. Anderson, appeals as of right from his conviction

for first degree murder in the Shelby County Criminal Court. Following the

sentencing phase of the trial, the jury sentenced the Defendant to life imprisonment

without the possibility of parole. Defendant asserts the following issues on appeal:

I. Whether the trial court erred by denying Defendant’s motion to

suppress and allowing Defendant’s statements to the police to be

admitted into evidence;

II. Whether the trial court properly admitted Defendant’s prior

conviction for theft;

III. Whether the trial court properly admitted certain photographs

which Defendant alleges were more prejudicial than probative;

IV. Whether the evidence was sufficient to convict Defendant of first

degree murder; 

V. Whether the evidence was sufficient to impose life imprisonment

without the possibility of parole based upon the aggravating

circumstance that the murder was committed during the commission of

a robbery; and

VI. Whether the trial court erred in admitting evidence of “other

crimes” through Defendant’s statements to the police.

Based upon the erroneous admission of Defendant’s statement of January 11, 1995,

to the police, we reverse the Defendant’s conviction and rem and for a new trial.

A pretrial hearing was held on September 14, 1995, to determine whether

three (3) statements, taken on October 10, 1994, January 9, 1995, and January 11,

1995, should be suppressed pursuant to Defendant’s pretrial motion. Otis Stewart,

the chief investigating officer in the Homicide Division, was assigned to the murder

of Gregory Harris. Information given to the police pointed to the Defendant as

having a prior altercation with the victim. On October 10, 1994, Defendant appeared
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at the police station to provide a witness statement. Defendant was accompanied

by an attorney, Forrest Durand, who had not as yet been retained to represent

Defendant. Defendant was not given his Miranda rights prior to giving his statement

as Stewart explained that he was not a suspect at that time. Defendant gave a nine

(9) page statement in which he denied any involvement or knowledge regarding the

murder of the victim. Defendant instead related that the last time he had spoken

with the victim was on September 24, 1994, three (3) days prior to his murder on

September 27, 1994. Durand was present during the entire time in which Defendant

gave his statement, and Defendant and Durand left after the Defendant completed

his statement.

Stewart received further information that Defendant was involved in the

murder of the victim and asked him to come in for questioning in January 1995. On

January 9, 1995, Defendant and Durand again appeared at the police station for an

interview. Defendant was advised of his constitutional rights and then initialed a

written waiver of his rights at 3:30 p.m. After conferring with Durand, Defendant

gave an oral statement. At 5:20 p.m ., the Defendant was again advised of his rights

and then signed a written waiver of his rights. Stewart recalled that Durand was “in

and out” during the course of the interview.

In this five (5) page statement given to police on January 9, 1995, Defendant

admitted that he was involved in the murder of the victim. On September 27, 1994,

Defendant beeped the victim, knowing that Robma Williamson intended to kill the

victim. Defendant was living with Williamson and Williamson’s family at the time.

Defendant arranged for the victim to give them a ride. After being picked up by the

victim outside of Williamson’s home, the three (3) drove to a rural area of Shelby
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County where Williamson shot the victim twice. At the conclusion of his statement,

Defendant was taken into police custody.

On January 11, 1995, Stewart got Defendant out of his jail cell at 1:30 p.m. in

order to clarify some things regarding his prior statement. Stewart recalled that

Defendant was allowed to telephone his father, Darrell Anderson, at 1:35 p.m.

Defendant was again advised of his rights and signed a written waiver. Stewart

stated that Defendant did not ask for his attorney, nor did Stewart attempt to contact

Durand. In this final and third statement to the police, Defendant stated that he

actually shot the victim based upon the victim’s disrespect toward him. 

Defendant also testified at the hearing. He recalled that on October 10, 1994,

Durand accompanied him to the police station and the police advised him of his

rights. On January 9, 1995, Durand again accompanied Defendant to the police

station. During the course of the interview with the police, Durand left for a period

of twenty-five (25) minutes. Although the police did call Durand as requested by

Defendant during Durand’s absence, he claimed the police continued to question

him. Both Defendant and Durand were given the opportunity to read the statement

prior to Defendant signing it. Defendant stated this statement was given freely and

voluntarily. 

On January 11, 1995, Stewart retrieved Defendant from his jail cell in order

to “clear up” his previous statement. Defendant testified that he requested the

presence of his attorney on three (3) occasions, but that Stewart refused each

request. Defendant also did not recall being advised of his rights, although he did

sign a “telephone waiver” (form which documents Defendant’s request for a
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telephone call), prior to his statement even though he did not call his father until the

statement had been completed. Defendant stated that he gave this third statement

because he “was scared of what my charge partner might do to [him] or what the

officers probably would want to do to [him].” Defendant did read the statement

before he signed it.

Forrest Durand testified that on October 10, 1994, he was only assisting

Defendant at Defendant’s brother’s request. Defendant was only interviewed as a

witness that day, but Durand was certain that he was not present when the

statement was typed up. On January 9, 1995, Durand represented Defendant,

although he had not as yet been paid a retainer fee. After being present during a

portion of the interview, Durand left with the impression that the police were through

and were drawing up charges. Durand returned to his office, but at approximately

4:15 p.m. he received notice that Defendant was giving a statement. Durand

recalled that he was “stunned and shocked” when he received the message.

Durand returned immediately to the police station, although he believed that some

statements were given before his return. Durand was present at the conclusion of

the statement, following which he and Defendant signed the statement. Durand was

not notified or even aware of the third statement given by the Defendant on January

11, 1995.

In its ruling on the motion to suppress, the trial court found that on January 9,

1995, Defendant came to the police station with his attorney at approximately 3:00

p.m. Specifically, the trial court made the following findings:

After discussion with the police and [Defendant], [Defendant’s attorney]

left the police department. Anderson was advised of his rights at 3:30

that afternoon and initialed an acknowledgment form which described

those rights. Anderson requested a second conference with Mr.

Durand before answering any questions or making a statement.
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Mr. Durand was called and returned to the police department. At 5:10

p.m. Anderson was again advised of his rights and signed the advice

of rights and waiver of rights forms used by the Memphis Police

Department. At 5:23 p.m. Anderson was told that he was under arrest,

that he might be charged with first degree murder, and, after he

acknowledged understanding the rights which were again explained to

him, Anderson began to give his second statement. Anderson admitted

calling Gregory Harris with full knowledge that he was to be murdered

and accused Robma Williamson of shooting the victim. The statement

ended with the following:

Q: Is your attorney, Forest Durrand, present during this statement?

A: Yes sir.

Q: Is this statement given freely and truthfully, without any threats or

promises?

A: Yes sir.

Q: I will ask you to read over this five page statement, and if you find it

to be true and correct given by you, I will ask you to initial the bottom

right hand corner of the first four pages and sign your name, date and

time on the lines provided below. Do you understand?

A: Yes sir.

(Emphasis added).

The trial court further noted that the Defendant initialed each page of the statement

and signed it at 6:16 p.m. on January 9, 1995. Defendant’s attorney also signed the

statement as a witness.

At trial, the State began its evidence with the testimony of Robert Harris.

Harris, the victim’s father, testified that in September 1994, the victim was living at

home with his parents and working for Federal Express. On September 27, 1994,

the victim left his home to go to work and Harris never saw the victim alive again.

Police officers came to their home early in the morning hours of September 28,

1994, to notify the family of the victim’s death. Harris went to the morgue and

identified his son. Harris recovered his son’s personal property from the police,

including lighters, a sm all knife, a comb, a compact, a tube of chap-stick, a beeper,

two (2) rings, and one (1) penny. 
-7-

Patricia Harris, the victim’s mother, testified that her son and the Defendant

had known each other since elementary school. On September 24, 1994, prior to

leaving for work, Mrs. Harris gave the victim approximately $10.00 when he asked

her if she had any m oney. Because she had a headache, she laid down in her

bedroom. When she arose, her son and Erby Pritchard were there. Around 5:45

p.m., the victim came into her bedroom and asked what they were going to eat for

dinner. After replying that she did not feel well because of her headache, she told

him she would not be cooking. This was the last time she saw the victim alive. 

On September 28, 1994, at approximately 2:00 a.m., a police officer arrived

at her home and they advised her of the victim’s death. The Defendant telephoned

her home and asked what he could do for their family due to the victim’s death. Mrs.

Harris estimated that the Defendant called two (2) or three (3) times that day. She

explained on cross-examination that the Defendant had been barred from their home

and she could not say that the victim and the Defendant were friends at the time of

the victim’s death.

Dr. Thomas Francisco is the medical examiner for Shelby County, and he

performed the autopsy of the victim on September 29, 1994. His examination

revealed that there were two (2) gunshot wounds to the head that were “neargunshot wounds,” meaning that the powder was deposited on the skin itself. As the

range of fire was found to be “loose contact,” he stated that the muzzle was not tight

against the head but was close enough that the soot and powder and stipling were

deposited on the skin adjacent to the area. Dr. Francisco described that with loose

contact gunshots, the muzzle of the gun was probably touching the body upon firing.

Dr. Francisco described the damage to the victim’s brain as the skull being fractured,
-8-

with a tearing of the brain stem itself, resulting in almost instantaneous death. Both

wounds were fatal, allowing less than a minute for the victim to die as a result of the

gunshots. 

Erby Pritchard testified that he was friends with the victim. On September 27,

1994, the victim came to Pritchard’s home, driving his turquoise Mazda Protégé, and

they rode around the neighborhood for a while. After going to the victim’s home, the

two (2) left again in the victim’s Protégé and drove over to the Fellow Homes area

in search of marijuana. Pritchard purchased a “dime sack” of marijuana for $10.00

and they rolled up a joint and then shared it. The victim stopped by Captain D’s and

purchased a fish sandwich, then told Pritchard that he had to go take care of some

business and would drop him off. Prior to leaving his home, the victim had received

a page from “Bernard.” When Pritchard asked if he could go along with the victim,

the victim indicated that he had some business with “Nard” that he was going to take

care of by himself. Later that evening, Pritchard stated that he called the victim ’s

home and paged him to find out if he had returned and never received a response.

Roberta Wilkins lives at 1774 West Raines and was seventy-five (75) years

old at the time of the trial. She lived by herself in her home which is near the

intersection of Raines and Sewanee. On September 27, 1994, she called her son

and asked for him to come and take her to the grocery store. An hour later, she

heard a “rumbling” noise outside. Mrs. Wilkins got up and looked out her front door,

towards the corner of Raines and Sewanee. She estimated the time to be

approximately 7:30 or 8:00 p.m. She could see the top of a little car and saw one

(1) person moving around the car who looked to be a black male. Mrs. Wilkins saw

the figure walk across the road, come back to the car and get in and then drive up
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Sewanee Road. When her son arrived, they drove to Kroger and she told him what

had happened. On their way home, they stopped at the intersection of Raines and

Sewanee. Her son got out of the car because he had observed what first appeared

to be a “paper or box” on the side of the road. The police drove through the area

and her son asked them to stop because he thought he had found a body. Mrs.

Wilkins did not look in the area of where the body was found.

Willie Wilkins, Mrs. Wilkins’ son, testified that on September 27, 1994, he took

his mother to the grocery store. On their way home, they stopped at the intersection

of Raines and Sewanee because he saw “something like some eyes shining.” When

Mr. Wilkins got a little closer, he observed a pack of dogs and then saw a body lying

there. Wilkins sat in his car until a police officer drove by and then advised him that

there was a body lying in the grass. 

Bobby Jones, an officer with the Memphis Police Department, was on duty

on September 27, 1994. He was called to the intersection of Raines and Sewanee

at approxim ately 11:30 p.m. When he arrived, he saw a body lying on the north side

of the road. Jones could not at first identify if the body was that of a male or female

as there was a jacket around the head and the victim’s shirt was partially pulled up

to the rib cage. There were no signs of life and the body was actually stiff. Jones

secured the scene while waiting for officers to arrive and assist him. He recalled that

the victim had two (2) rings on his left hand.

C.B. Hatchel, assigned to the criminal crime scene bureau of the Mem phis

Police Department, recounted his investigation of the scene on September 27 and

28, 1994 at the intersection at Raines and Sewanee. He observed the victim’s body
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in a grassy area to the northwest. He took photographs and drew sketches of the

body. A comb, some chap-stick, one (1) penny and a beeper were found scattered

about in the grass near the victim’s shoulder. A powdered compact was found in the

victim’s right rear pocket. From the photographs he took, Hatchel identified a picture

of the victim in which his pants pockets are turned inside out. The photographs also

demonstrated that the victim’s coat was pulled up over his head.

Sergeant Otis Stewart of the Memphis Police Department works in the

Homicide Bureau and was working there on September 28, 1994, when he was

assigned to this case. After talking with Erby Pritchard, Stewart began to investigate

the Defendant as a possible witness. The police contacted the Defendant and asked

him to come in as a possible witness. The Defendant came to the police station on

October 10, 1994, accompanied by an attorney, Forrest Durand. Defendant’s

October 10, 1949 statem ent was read to the jury. 

While continuing their investigation, the departm ent received more information

linking the Defendant and Robma W illiamson to the victim’s death. The Defendant

was again requested to come to the police station on January 9, 1995, and he again

showed up with his attorney Forrest Durand. Because Defendant was now a

potential suspect, he was advised of his rights prior to his interview. Defendant read

and executed the waiver of rights form in his attorney’s presence. Sergeant Stewart

described that Attorney Durand was “there partially through most of the oral

interview.” He read this second statement to the jury. Sergeant Stewart recalled

that Forrest Durand came back into the interview room just as Defendant was

reading over his statement and preparing to sign it. Durand witnessed the signing

of the statement, then the Defendant was arrested.
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On January 11, 1995, the Defendant was again advised of his Miranda rights

and brought in for questioning. Prior to the questioning, Defendant signed a

“telephone waiver” and called his father, Darrell Anderson, at 1:35 p.m. At 1:40

p.m., the Defendant signed an “Advice of Rights” form which acknowledged that he

had been advised and had waived his rights. Sergeant Stewart noted that

Defendant’s lawyer was not present and that Defendant did not request his

attorney’s presence at any time during the questioning. As described above, the

contents of such statement was read into evidence for the jury. 

This was the close of the State’s case-in-chief.

The Defendant testified on his own behalf. Defendant described his

relationship with the victim as “best friends,” seeing each other nearly every day of

the week. Defendant denied killing the victim, stating that Robma Williamson

actually killed him. Defendant also denied any knowledge of luring the victim to the

car so that Robma Williamson could commit murder. He indicated that any

statements which indicated he did have knowledge of Williamson’s intent had been

added into his statements without his knowledge. He had been in jail for

approximately sixty-four (64) hours when the police came in to retrieve him for

questioning on January 11, 1995. Sergeant Stewart took him from his cell without

telling him anything and accompanied him to a conference room where another man

was waiting. Once inside the conference room, Stewart advised him that he was

there “to clear up a few matters in the statements that [he] gave in [his] previous

statements on the 9th of January.” Defendant again stated that he was not advised

of his rights prior to giving a statement on January 11, 1995. It was only after giving

his statement that Defendant recalled being given the “Advice of Rights” form which
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he signed. Prior to giving his statement, Defendant asked for his attorney on three

(3) separate occasions, but was denied that right each time. 

Defendant stated that he paged the victim to ask him for a ride to a friend’s

house. The victim agreed and, after going to Defendant’s friend’s home, Robma

Williamson left with them. Defendant recalled that when the victim stopped at the

intersection of Raines and Sewanee, Williamson suddenly shot the victim in the

head. Defendant stated he had no idea of Williamson’s intentions to kill the victim

and that Williamson later threatened to kill Defendant if he told anyone. 

On cross-examination, Defendant admitted to many inconsistencies within his

statements. He did admit to a prior conviction of theft on January 26, 1993 to which

he pled guilty.

I. SUPPRESSION OF STATEMENTS

The party prevailing in the trial court is entitled to the strongest legitimate view

of the evidence adduced at the suppression hearing as well as all reasonable and

legitimate inferences that may be drawn from that evidence. State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996). So long as the greater weight of the evidence supports

the trial court’s findings, those findings shall be upheld. Id. at 23. In other words, a

trial court’s findings of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise. Id. In evaluating the correctness of a trial

court’s ruling on a pretrial motion to suppress, the appellate court may consider the

proof adduced both at the suppression hearing and at trial. State v. Henning, 975

S.W.2d 290, 299 (Tenn. 1998).
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Following the suppression hearing, counsel for the Defendant conceded that

Defendant admitted that as to the second statem ent, it was a freely given statement.

The trial court then denied the remainder of Defendant’s motion to suppress by

written order on November 8, 1995. The trial court found that the statement of

October 10, 1994, was taken when Defendant was not a suspect nor was he in

custody. The trial court also held as to the January 11, 1995 statem ent, that “[t]here

is ample evidence that the Defendant knowingly, intelligently, and voluntarily chose

not to exercise his rights on the occasion of his third statement. The police were not

obligated to contact his attorney under these circumstances.” 

However, the State has since conceded in both its brief and at oral arguments

before this court that under the authority of Edwards v. Arizona, 451 U.S. 477, 484-

85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Minnick v. Mississippi, 498 U.S. 146,

111 S.Ct. 486, 112 L.Ed.2d 489 (1990), the Defendant was deprived of his rights

while giving his third statement of January 11, 1995, pursuant to the Fifth and

Fourteenth Amendments of the United States Constitution.

A. STATEMENT OF OCTOBER 10, 1994

The Defendant does not make an argument in his brief regarding the trial

court’s refusal to suppress the first statement of October 10, 1994. In Miranda v.

Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), the United

States Supreme Court held that the Fifth and Fourteenth Amendments’ prohibition

against compelled self-incrimination requires police officers, before initiating

questioning, to advise the putative defendant of his right to rem ain silent and his right

to counsel. Specifically, Miranda requires police to inform the person being
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questioned that (a) he has the right to remain silent; (b) any statement made may be

used as evidence against him; (c) he has the right to the presence of an attorney;

and (d) if he cannot afford an attorney, one will be appointed for him prior to

questioning, if he so desires. 384 U.S. at 444, 86 S.Ct. at 1612. 

However, an officer’s obligation to administer Miranda warnings only attaches

“where there has been such a restriction on a person’s freedom as to render him ‘in

custody.’” Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528, 128

L.Ed.2d 293 (1994) (citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711,

714, 50 L.Ed.2d 714 (1977)). “Custodial interrogation” refers to “questioning initiated

by law enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444,

86 S.Ct. at 1612. In the case sub judice, Defendant came to the police station of his

own free will after being requested by the police to answer some questions regarding

his personal relationship with the victim . Immediately after giving a statement,

Defendant left the police station. Even if Defendant did contest this statement’s

admission into evidence, the law in Tennessee is such that no Miranda warning is

required during the initial investigation by police where the witness is neither a prime

suspect nor in custody. State v. Underwood, 669 S.W.2d 700, 703-04 (Tenn. Crim.

App. 1984).

B. STATEMENT OF JANUARY 9, 1995

Defendant argues his second statement of January 9, 1995, to the police was

erroneously admitted into evidence by the trial court and should have been

suppressed. Defendant contends that counsel was not present during the entire
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course of questioning and, therefore, any statement taken was in clear violation of

Miranda v. Arizona, 384 U.S. at 436, 86 S.Ct. at 1602, and Edwards v. Arizona, 451

U.S. at 477, 101 S.Ct. at 1880. It is significant that following the hearing on the

motion to suppress, counsel for Defendant did not argue that the second statement

should be suppressed as Defendant had “already said that was a freely given

statement on the record.” Therefore, the trial court did not make a specific

conclusion on this second statement, although it did make factual findings. In

addition to arguing the issue has been waived by the Defendant, the State argues

that such statement was given freely and voluntarily by the Defendant, in full

understanding of his rights. 

The voluntariness test under the Tennessee Constitution is more protective

of individual rights than the test under the United States Constitution. State v.

Stephenson, 878 S.W .2d 530, 544 (Tenn. 1994). To effectively waive his rights,

defendant must have personal awareness of both the nature of the right and the

consequences of abandoning his rights. See Stephenson, 878 S.W.2d at 544-45.

Additionally, his statements cannot be the result of intimidation, coercion or

deception. Id. 

First, we note that the Defendant has waived this issue by submitting to the

trial court that such statement was voluntary following the hearing on the motion to

suppress. See Tenn. R. App. P. 36(a). Defendant himself stated that his statement

was freely and voluntarily given and was made in the presence of his attorney.

Testimony from his attorney demonstrated that he was present when the statement

was taken and signed the statement as a witness. In any event, pursuant to the

evidence presented documenting that Defendant was both presented with and
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waived his Miranda rights, we cannot conclude that the second statement given by

the Defendant should have been suppressed. The greater weight of the evidence

supports the trial court’s findings that Defendant was read and then signed an

acknowledgment of rights form prior to giving his statement. Furthermore,

Defendant’s attorney was called when Defendant requested prior to the taking of that

same statement. Both the evidence at the hearing on the motion to suppress and

at trial demonstrate that the preponderance of the evidence does not fall in the

Defendant’s favor for suppression. This issue is without merit.

C. STATEMENT OF JANUARY 11, 1995

Finally, Defendant contends that his third statement made to the police on

January 11, 1995, was taken and admitted into evidence in violation of Edwards v.

Arizona, 451 U.S. at 477, 101 S.Ct. at 1880, and Minnick v. Mississippi, 498 U.S. at

146, 111 S.Ct. at 486. In Minnick v. Mississippi, our Suprem e Court held that a fair

reading of Edwards v. Arizona and subsequent cases demonstrate that “we have

interpreted the rule to bar police-initiated interrogation unless the accused has

counsel with him at the time of questioning.” Minnick, 498 U.S. at 153, 111 S.Ct. at

491. When counsel is requested, interrogation must cease, and officials may not

reinitiate interrogation without counsel present, whether or not the accused has

consulted with his attorney. Id. The State conceded both in its brief and at oral

argument before this court that Minnick controls this case and that Defendant was

deprived of his rights under the Fifth and Fourteenth Amendments of the United

States Constitution regarding the third statement on January 11, 1995. While there

is some contradiction in the testimony of various witnesses as to whether Defendant

requested counsel on January 11, 1995, any inconsistencies are irrelevant.
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Defendant invoked his right to counsel on January 9, 1995, and the police were,

therefore, prohibited from reinitiating their interrogation of him without counsel

present on January 11, 1995. Minnick, 498 U.S. at 153. 

Although reversal of this conviction is required on the suppression issue, we

will also address the other issues raised by the Defendant. The State, conceding the

trial court’s error in denying the Defendant’s motion to suppress his third statement

to the police, filed a motion to reverse the trial court’s judgment and remand this

case for a new trial prior to filing its brief with this court. Our court, however, denied

the motion finding that “this and other issues raised by the [Defendant] in his brief

should receive thorough consideration on appeal, as they may resurface upon

remand.” 

II. ADMISSION OF PRIOR THEFT CONVICTION

Defendant argues that the trial court erred in allowing the State to question

him regarding his prior theft conviction. While the State agrees that the theft

conviction was not relevant to the murder of the victim, it contends it was certainly

relevant to the issue of the Defendant’s credibility. 

Tennessee Rule of Evidence 609(a)(3) allows the State to impeach an

accused if prior notice has been given and if the probative value of the conviction

outweighs its unfair prejudicial effect on substantive issues. Subdivision (a)(2) of

Rule 609 further states that the crime must either be a felony or must have involved

“dishonesty or false statement.” It has long been established that theft crimes

involve dishonesty. See State v. Butler, 626 S.W.2d 6, 11 (Tenn. 1981).
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Furtherm ore, the offense of theft is “highly probative” of credibility. State v. Baker,

956 S.W.2d 8, 15 (Tenn. Crim. App. 1997) (citations omitted). The State followed

procedural rules, giving notice to the Defendant of its intent to impeach him with the

theft conviction. Any prejudicial effect was outweighed by the probative value of this

theft conviction upon the issue of Defendant’s credibility. This issue is without merit.

III. ADMISSION OF PHOTOGRAPHS

Defendant contends that the trial court erred in admitting certain photographs

of the victim. Specifically, Defendant objects to the admission of Exhibits 19, 20, 21,

22 and 23. In determining the admissibility of photographs, the court must first

determine that the evidence is relevant to the issues at trial and then decide whether

the probative value of the evidence is substantially outweighed by the danger of

unfair prejudice. State v. Banks, 564 S.W .2d 947, 949-51 (Tenn. 1978); Tenn. R.

Evid. 402, 403. The admissibility of photographs falls within the sound discretion of

the trial court, and this court will not interfere with the trial court’s exercise of

discretion absent a clear abuse of that discretion. State v. Braden, 867 S.W.2d 750,

758 (Tenn. Crim. App. 1993); Banks, 564 S.W.2d at 949.

We first observe that the State correctly points out within its brief that counsel

for the Defendant specifically agreed with the admission of Exhibits 19 and 20.

Therefore, this issue is waived as to the admission of these photographs. See

Tenn. R. App. P. 36(a); Teague v. State, 772 S.W.2d 915, 926 (Tenn. Crim. App.

1988); perm. to appeal denied, id. (Tenn. 1989); State v. Killebrew, 760 S.W.2d 228,

235 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1988). However, as to

Exhibits 21, 22 and 23, the Defendant did object. 
-19-

Exhibit 21 depicts the crime scene, showing that the victim’s pants pocket is

turned inside out as if he had been robbed. This certainly was probative as to the

State’s proof to demonstrate that the Defendant killed and robbed the victim. Exhibit

22 is a closeup of the crime scene itself, only showing a portion of the victim’s body.

However, the closeup photograph does depict the pants pocket of the victim being

turned inside out and that the victim’s shirt and jacket had been pulled over his head

as according to testimony of the officers on the scene. Finally, Exhibit 23 is simply

a photograph from a different angle of the upper portion of the victim’s body. It

shows the victim’s exposed midriff, with his shirt and jacket pulled over his head. 

Exhibits 21 and 22 are probative to the State’s case-in-chief. Both depict the

crime scene and various personal items of the victim which were identified by his

family. Also, the scene depicts the pants pocket being turned inside out to support

the State’s theory of robbery and the shirt and jacket pulled over his head which was

testified to by the Defendant in his second statement. The trial court was correct in

ruling that the probative value of these photographs outweighs any potential for

unfair prejudice. The relevancy of Exhibit 23 is questionable, in light of the fact that

other photographs depict the same scene from a different angle. However, we note

that none of these photographs depict a gruesome scene as the wounds to the

victim are covered by his shirt and jacket, and only blood is visible. Therefore, there

was no prejudice in the adm ission of Exhibit 23. This issue is without merit.

IV. SUFFICIENCY OF THE EVIDENCE
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Defendant argues that the evidence was insufficient to support a guilty verdict

for first degree murder. At the time of this offense, first degree murder was an

“intentional, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-

13-202 (Repealed 1995). A deliberate act is “one performed with a cool purpose.”

Tenn. Code Ann. § 39-13-201(b)(1) (Repealed 1995). A premeditated act is “one

done after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-

201(b)(2) (Repealed 1995).

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).

On appeal, the State is entitled to the strongest legitimate view of the evidence and

all inferences therefrom. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978).

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); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973).

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.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict
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approved by the trial judge accredits the State’s witnesses and resolves all conflicts

in favor of the State. Grace, 493 S.W.2d at 476.

The victim was shot twice in the head, with medical evidence demonstrating

that either shot was fatal. In his statements to the police of January 9 and January

11, 1995, the Defendant admitted luring the victim to pick him up and then driving

him to a remote area so that the victim could be killed. In his statem ent of January

11, 1995, the Defendant admitted to shooting and killing the victim, both with

premeditation and deliberation. The Defendant stated that he “was under a lot of

stress and [he felt] that all [he had] done for him, [the victim] should have owed

[Defendant] something.” When asked if he paged the victim on September 27, 1994,

at approximately 5:15 p.m., with the knowledge that the victim would be lured to the

Boxtown area and had the intention of killing him, the Defendant responded

affirmatively. In the light most favorable to the State, this evidence was sufficient

where by a rational trier of fact could have concluded beyond a reasonable doubt

that Defendant intentionally killed the victim with both premeditation and deliberation.

We note that all evidence admitted at the trial, even if admitted erroneously,

can be considered when addressing a defendant’s challenge to the sufficiency of the

evidence to sustain the conviction. See Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct.

285, 102 L.Ed.2d 265 (1988); State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn.

1981).

V. SUFFICIENCY OF EVIDENCE TO SUPPORT AGGRAVATING CIRCUMSTANCE
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Defendant argues that the evidence was insufficient to support the

aggravating circumstance of murder during the perpetration of a robbery. In order

to impose a sentence of life without parole, the jury has to find that the State proved

beyond a reasonable doubt one of the aggravating factors found in Tennessee Code

Annotated section 39-13-204(i). In the Defendant’s second statement of January 9,

1995, he admitted that the victim was robbed. The victim’s mother testified that she

had given the victim $10.00 earlier that day. The photographs depicted the victim’s

personal items strewn around his body and his pants pocket turned inside out.

Based upon this evidence and Defendant’s own admission, the jury reasonably

determined that the murder was committed while the Defendant had a substantial

role in com mitting a robbery. This issue is without merit.

VI. ADMISSION OF EVIDENCE OF OTHER CRIMES

Defendant contends that the State was erroneously allowed to introduce proof

of other crimes by virtue of his statements to the police. Rule 404(b) of the

Tennessee Rules of Evidence states that “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity with the character trait. It may, however, be admissible for other

purposes.” The “other crimes” to which Defendant is referring were included in his

statements to the police in which Defendant indicated there was a warrant for his

arrest for cashing one of the victim’s checks and that he had been involved in a

robbery. Specifically, the statement referring to cashing the victim’s check was as

follows:

Question: Why would Mr. Durand come with you today?
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Answer: My brother’s request. He had found out that I had

supposedly cashed one of Gregory’s checks, and they a [sic] warrant

for my arrest for the check.

Question: Have you cashed a check belonging to Gregory Harris?

Answer: No, sir.

Question: Is there any other reason that you brought an attorney with

you today?

Answer: My brother recommended me to the attorney. My brother

contacted the attorney about the check. Then I told him about the talk

in the street that I had killed Gregory.

The other two statements to which Defendant refers include his admission that he

paged the victim to ask for a ride to someone’s home to pick up money from a

robbery. 

For each objection the Defendant raised, the trial court complied with the

requirem ents of Rule 404(b). The court held a hearing outside the presence of the

jury in which it determined the material issues and then determined that such

evidence need not be excluded according to the provisions of Rule 404(b)(1),(2) and

(3). Rule 404(b) allows such evidence of “other crimes” to be admitted when it is

relevant to a litigated issue, such as identity, intent, or rebuttal of accident or

mistake, and its probative value is not outweighed by the danger of unfair prejudice.

See State v. Parton, 694 S.W .2d 299, 303 (Tenn. 1985); State v. Hooten, 735

S.W.2d 823, 824 (Tenn. Crim. App. 1987).

Although any statement the Defendant made regarding a warrant for his arrest

for cashing one of the victim’s checks was not relevant according to Rule 404(b),

neither was it unfairly prejudicial. There was never any corroborating evidence of
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this warrant, and the Defendant himself immediately denied cashing the victim ’s

check. Pursuant to Rule 103(a) of the Tennessee Rules of Evidence, the admission

or exclusion of evidence is not a basis for error unless the ruling affects a substantial

right of the accused. We find that even if the trial court did err in refusing to redact

the portion of the Defendant’s statement referring to this warrant, no substantial right

of the Defendant was affected thereby. In light of the convincing evidence of

Defendant’s guilt, any error in the admission of this evidence was harmless. See

State v. Shelley, 628 S.W.2d 436, 438 (Tenn. Crim. App. 1981); Tenn. R. App. P.

36(b).

The remaining portions of Defendant’s statement to which Defendant objects

as admitted in error were, in fact, admissible as relevant to the issue of intent. The

Defendant stated that, “I had him [victim] come to take me to pick up some money

from a robbery.” When asked if he beeped the victim knowing that he would lure him

to a remote area with the intention of killing him, the Defendant admitted that this

was his intent. Clearly, this evidence went directly to the State’s theory that the

Defendant, with premeditation and deliberation, paged the victim to pick him up and

then directed him to drive to a remote area where he shot and killed the victim. This

issue is without merit.

CONCLUSION

Defendant’s third statement on January 11, 1995, was admitted in error at

trial. The statement of January 11, 1995 is suppressed and is inadmissible at
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Defendant’s new trial. Defendant’s conviction is reversed, and this case is

remanded to the trial court for a new trial. 

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WADE, Presiding Judge

___________________________________

JOHN EVERETT WILLIAMS, Judge