### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs D ecember

4, 2001
STATE OF TENNESSEE v. JAVON WEBS TER Appeal from the Criminal Court for Shelby County Nos. 99-03924, 25 Chris Craft, Judge

No. W2000-01912-CCA-R3-CD - Filed February 7, 2002

The Defend ant, Javon We bster, wa s convict

ed of fe lony mu rd er and attempted especially aggravated
ro bb er y. The trial court sentenced the Defend ant to life in the Department of Correction for the felony murder conviction. The trial court merged the Defendant’s attempted especially aggravated robbery conviction with the felony murder conviction. On appeal, the Defendant contends that (1) th e evidence is insufficient to support the convictions, (2) the trial court erred b y admittin g photographs of

the deceased, (3) the trial

court erred by

denying the Defendant’s request for a spec ial jury instruction on duress, and (4) the trial court erred by denying the Defend ant’s moti on to suppr ess his statement

to police. The State also raises an issue on appeal, arguing that the trial c ourt erred by merging the Defendant’s conv ic tion for attempted especially aggravated robbe

ry into his felony murder conviction. We affirm

the felony

murder conviction and reinstate and remand for se ntencing the especially a

ggravated robber

y conviction.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part; Reversed in Part; Remanded

D AVID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AVID G. H AYES , J., joined. Brett B. Stein, Memphis, Tennessee, for the appellant, Javon Webster.

Paul G. Sum mers , Attorne y Gener al and Re porter; K im R. Helpe

r, Assista nt Attorne

y Gener al; William L. Gibbons, District Attorney General; and Jerry Kitchen, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION-2-

About seven o’clock in the evening on December 2, 1997, Cecil Goldman, the victim, was shotand killed as he left

his job at the Ace Check Cas hing bus iness on Getwell Str eet in Me mphis. Prior to his death, the victim locked the building and armed the security system, thereby

preventing his assail ants fro m robbing the busine ss.
At the time of the shooting, Karen L ewis was traveling on Getwell and observe d two men wearing hoods and a white man wearing blue jeans outside of A ce Check Cashing. As she passed, Ms. Lew is heard

gunshot s and sa

w the white man f

all to the ground. By

the time Ms. Lewis was able to turn around and return to the scene, the two men in hoods we re gone. Shirley Smith was a

t a We nd y’ s restaurant on Getwell near Ace Chec k Cashing when the shooting occ urred. She heard three men arguing at Ace Check Cashing when she arr ived at Wendy’s. As she enter

ed the restaurant, she heard three shots and saw two young black men, one wearing blue and c arry

ing a g un, run int

o the nea rby woods.

On Decemb er 5, af

ter rec eivin g a tip from an anonymous “Crimestopper ’s” call, Sergeant Sammy Ballard of t

he Memp his Police Department Homicide Squad went to the Defendant’s residence to question him concerning both an unrelated burg lary and the murder o f the vic tim in this
case. When Sergeant Ballard first arr ived, th e Defendant was working on his ca r and identified himself as C arl . Eventually, the Def endant revealed his true identity and agreed to accompany Sergeant Ballar d to the pol

ice stati on for que stio ning. Upon arrival at the police station, the Defendant was advised of his constitutional rights and signe d a waiver of righ ts form at 4:43 p.m. The initial questioning involved the Defe ndant’s p ossible involvement in the burglary ; however, when the Defendant mentioned his friend “Pookey ,” also kno wn as Dar ius Bowles, and who a

lso
was mentioned in the anonymous Crimestopper’s ca ll, the interview focused on the murder at Ace Check Cashi ng. The Defend ant de nied a ny invol vemen t in t he sho otin g. Investigators then located Darius Bowles who implicated the Defendant in the sho ot in g. In light of this new information, Lieutenants Charles L oganand A.J. Christian advised the Defendant of his constitutional rights for a second time and conducted anothe r interview. The Defendant ga ve the officers another statement in which he admitted involvement in the atte mpted robbery, but de nied shooting the victim. The Defendant’s second statement implicated a man named “Cous” and a man named“L.A.,” who the Def endant said supplied the two guns for the robbery . The Defendant stated that the plan was for the Defendant to approac h the victim

before he locke d the stor

e in orde r to gai n accessto and rob the check cashing business. The Defendant, however, froze whe n approaching the victim and “Cous” and “L.A.”attempted to force the victim back into the building. When the victim
s truggled, “Cous” shot him. The interview was completed at 1:55 a.m. on December 6. Th e Defendant was formally

charged on December

9.

Pursuant to the Crimestopper’s tip, investigators also discovered a .380 Loreson pistol in a trash can at a bus stop on P oplar Str

eet in Memphis a

nd anothe r .380 ca liber pist ol at the h ome of-3-

Montea Wilson, who is also known as “L.A.” Special Age ntDon Carman of the Tennessee Bureau of Investigation examined the recovered pistols and determined that a bullet found at the sce ne of the murde

r matche d bullets te st fired f rom the L oreson pi stol.

AssistantMedical Examiner Dr. ThomasDeering testifie d at trial

that the victim

died from
a gunshot wound to the abdomen. Dr. Deering stated that the victim was a lso shot in the left leg and right a rm. Jasper Temple testifiedat trial that he, the Defendant, Montea Wilson, Darius Bowles, and Vincent Broadi e were all involved in the atte

mpted rob

bery and murde

r of the victim. Mr. Temple stated that Mr. Wilson, a/k/a “L.A.,” planned the robber y and that the De

fendant and Darius Bowles
were each ar

med with a

pistol. Mr. Temple

and Mr. Broadie were to be the look-outs for the crime. According to the plan, the Defendant was to approach the victim and demand money a

nd Mr. Bowles
was to take the money. Mr. Wilson ga ve the order to approach the victim and the Defendant ran up to the victim, brandished the pistol and demanded money . The victim began screaming a nd throwing papers. The Def

endant t hen shot the victim. Mr. Temple testified that after shots were fired, everyone scattered. Mr. Temple denied threatening the Defen dant in or

der to co nvince him to pa rt ic ip at e i n t he ro bb er y.
The Defendant testified at trial that on the night of the murder he and Darius Bowles we nt to the home o f a mutua

l friend f or dinner . Also pre sent wer e Mr. Br oadie, Mr . Wil son, an d Mr. Temple. The Def

endant ha d met nei ther Mr. Wilson nor Mr. Temple before. The Defenda nt claimedthat Mr. Broadie suggested r obbing a nearby

Texaco. The Defendant further claimed that when the conversation turned to crime he and Mr. Bowles a tt empted to

leave, but Mr. Tem

ple threatened

them with a pistol. As the group approached the Texaco, Mr. B roadie and Mr. Templ e changed the pl an and decided to rob Ace Check Cashing. The De fendant stated that, although he
was armed, he was still frightened of Mr. Br oadie and Mr. Temple. The Def endant w as order

ed to rob the victim. During the robbery , the victim began to scream and throw things. The Defenda nt stated tha t he beg an to wre stle with th e victim and hea rd Mr. Te mple telling h

im to kill the

victim
or Mr. Temple would kill the Defendant. The Defendant suddenly realized he was firing the gun. After the shooting, the Defendant ran. Mr. Br oadie and Mr. Temple again threa tened the Defendant
an d M r. Bo wl es af

te r t he ro bb er y.
Darius Bowles testified as a rebuttal witness for the Stat e. Mr. Bow les testified that he participated in the attempted robbery because he needed money and that no one threatened him or the Defendant

in order to convince them to participate. Mr. Bowles fur ther stated that he had spoken withthe Defe

ndant sinc e the cr

ime and the D efenda

nt informe d him that he

was going to tell the jury that he was forced to participate in the crime a nd encouraged Mr. Bowle s to say the same.

SUFFICIENCY-4-

First, the Defendant contends that the evidence is insufficient for a rational trier of fact to find him guilty bey

ond a reasonable doubt. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f] indi ngs of guilt in c rimi nal actions whether by the trial court or jury

shall be set aside if the evidence is insuffi cient to su pport the finding s by

the trier of fact of guilt b eyond a r

easonab le doubt.” Evidenc e is suffi cient if, after r eviewing the evide nce in the light most favora

ble to the prosecution, any r

ational trier of fact could have found the essential elements of

the crime bey ond
a reasonable doubt. See Jackson v. V irginia , 443 U.S. 307, 3 19 (1979) ; Statev. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, beca use conviction by a trier of fact destroy s the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient. See McBee v. State , 372 S.W.2d 173, 176 (Tenn. 1963); see also Stat e v. Buggs , 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence as well as all reasonable and legitimate infe rences th at may be dra wn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-evaluate the

evidence” in the record

below. Evans , 838 S.W.2d a t 191; see also Buggs , 995 S.W.2d at 105. Likewise, should the reviewing court find particul ar conflicts in the trial te st im on y, the cour

t mu st res olve them in favor of the jury verdict or trial court judgment. See Tuggl e , 639 S.W.2d at 914. All questions involving the credibility of witnesses , the weig ht a nd value to be given the evidence, and all fact ual issue s are re solved by

the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

The Defend ant was c onvicte d of first degre e felony

murder a

nd attemp ted espe cially aggravated

rob b ery. F

elony murder is a killing committed during the perpetration or attempted perpetrationof a robbery

. See Tenn. Code Ann. § 39-13-2 02(a)(2). Robbery is an intentional or knowing theft of property from the person of another by violence or putting the person in fear. See id. § 39-13-4 01. A robb ery becomesan especially

aggr avated r obbery when it is accompl

ished with
a deadly we apon and the victim suffers serious bodily injury

. See id. § 39-13-4 03. One a ttempts to commit an offe nse when one actswiththe intent

“to complete a course of action or cause a result that would constitute the offense, under the circumstance s surro unding the conduct as the person believes themto be, and the conduc t con stitutes a substantial step toward the commission of the offense.” Id. § 39-12-101(a)(3).

In the present case, the Defendant a nd his codef

enda nts testified that the Defendant approached

the victim, pointed agun at the victim ’s head a

nd demand

ed money . When the v

ictim resisted, the Defendant shot him three times, killing him. The Def endant’ s only

defense was that he
was forced to participate in the robbery by two of his codefe

ndants who threatened to kill him if he didnot coope

rate. Th e codef endants d enied the Defend ant’s all egatio ns and stated that the Defenda ntparticipated in the crime freely . It is clear that the jury credited their testimony. Furthermore, in his statement to police the Defendant did not mention the alleged c o ercion, but st at ed th at he pa rt ic ip at ed in th e c ri me be ca us e h e n ee de d m on ey.-5-

Ac co rd in gl y, we find that t he Defe ndant’s c onduct in a

pproach ing the v ictim and pointing
a gun at the victim’s head constituted a substantial step toward the com mission of a

n especi ally aggravated

robbery. F

urthermore, the murder of the victim occurre d during the attempte d especi ally aggravated

robbery . Accor

dingly , we find

suffic ient evidence to support th e Defendant’s convictions of felon y mu rder an d attempted especi ally aggr avated r obbery . This issue

is without me

rit.
VICTIM P

HOTOGRAP

HS

The Defend ant next ch all en ges the admission o f photog

raphs of the victim ’s wounds , alleging that the photos were inflammatory and prejudici al. Initial ly, we not e that a tria l cour t's decision regarding the admissibility of photograp h s will not be reversed on appeal absent a clea r showing of an abuse of discretion. See State v. Stephenson , 878 S.W.2d 530, 542 ( Tenn . 1994). Moreover, “photog

raphs of the corp se are a

dmissible in murder

prosecu tions if the

y a re rele vant to the issues on trial, notwithstanding their gruesome and horrify ing character.” State v. Banks , 564 S.W.2d 947, 950- 51 (Tenn . 1978). H owever , “if the y a re not re le vant to prove some part of the prosecution's case, they

may not be admitted s olely

to inflame

the jury and prej udice the

m again st the defendant.” Id. at 951 ( citing Milam v. Com monwealt h , 275 S.W.2d 921 (Ky. 1955)).

In this case, the photographs were used to illustrate the testimony of Dr. Deering concerning the number and location of the g unshot wou

nds. The D efenda

nt sugg ests that h

e essent ially stipulated to the numb er of g unshot wou

nds s uffer ed by the victim. The record is devoid of any express stipulation. The trial cou rt found t hat the photos were

releva nt to establish the number of shots fired by the D efendant, and that the photos were not inflammatory . Additionally, we hav e reviewed the photographs, and

while they are

unpleasant, they a

re isolated shots of the three gunshot wounds and are not p artic ularly g ruesome or horrify

ing. Thus, we find that the trial judge did not abuse hisdiscreti on. This iss ue is without merit.

DURESS INSTR

UCTION

The Def endant a lso argue s that the t

rial cou rt erre d by

refusin g to instr

uct the ju ry withthe special duress instruction requested by the Defendant. The Defendant requested

that the trial court instruct the jury that “the f

acts relied on by

the defendant constituting duress may be considered by you ladies and gentlemen of the jury as to the defendant’s sta te of mind which would reduce the charg e of murd

er in the first degree to murder in the second de gree.” The trial court found such a diminished capaci

ty in struction

to be inapplicable because there wa s no evidence that the Defendant
was men tally unsound or incompetent. The tria l court did, however, properly instruct the jur y regar ding the law of du

ress.
There is an a ffirm ative duty upo n a tri al jud ge in acriminal case to g ive the ju ry a comple te charge on the law applicable to the facts of the case. See State v. Harris , 839 S.W.2d 54, 73 (Tenn. 1992). A defendant has a right to have eve ry issue of fa

ct raisedby t

he evide nce and materia l to his defense submitted to the jury under proper instructions. See Statev. Phipps , 883 S.W.2d 138, 149--6-

50 (Tenn. Crim. App. 1994). However, requested instructions need not be given when existing instructions are cor

rect sta tements of law and adequately cover the subject matter contained in the special instruction. See State v. Bohanan , 745 S.W.2d 892, 897 (Tenn. Crim. App. 1987).

In the present case, the Defendant’s only defense was that of

duress. The Defendant claimed that he participated in the robbery and murder o f the vic tim becau se his codefendants placed a gun to his head and threatened to kill him. D uress is a “de fense to prosecution where the person or a third person is threatened with harm which is pr

esent, imminent, i mpending and of suc

h a natur e to induce a well-grounded apprehension of de ath or serious bodily injury if the act is not done.” Tenn. Code Ann. § 39-11-504 (a). The threatened harm must be continuous throughout the time the ac t is committed, and the defense is unavailable to a person who intentiona

lly, knowing ly, or reck

lessly becomes involved i n the sit uatio n that subjects that person to compulsion. See id. § 39-11-504 (a)(b).

The Defendant is suggesting throug h his requestedinstruction that because he was subjected to a threat of violenceor death by his code fendants he was not capable of acting with the r

equisite
mens rea to commit first degree murder. Ac cordingly , the defendant believes he was entitledto a diminished capacity

instruction via his duress defense. The Defendant re lies on this court’s decision in Phipps to support his argument. In Phipp s, this Court held that evidence of a defendant’s mental state or mental condition was relevant and admissible in certain cases to re butthe mens rea element of an offense. Phipps , 883 S.W.2d at 149. The Defendant’s relian ce on Phipps i n this case, however, is misplaced. Phipps , unlike the present case, involved a defendant

who suffered from post-tra umatic stress sy

ndrome a s a resul

t of his military service in Ope ration Desert Storm. Id. We held that the trial court erred in refusing to instruct the jury that they could consider the defendant’s mental condition in determining the sufficiency of the evidence of intent as required for the various degrees of homicide. Id. at 151.

In the present case, the Defendant’s me ntal state or condition was not in issue. No evidence
was presented to suggest that the Defe ndant wa s not a comp etent an d mentally stable ind

ividual. Therefore, the trial

court did not err in refusi ng a jur y instru ction regardi ng redu cing a ch arge of first degree murder to

second degree

based upon a diminished capacity theory of dure ss because such an instruction was not supported by the facts. Indeed, suc

h an instruction would not have been a correct statement of law. The legislature has provided by statute a defense to criminal prosecution for a defendant who acte d under d

uress. SeeTenn. Code Ann. § 39-11-5 04. A def endant w ho commits
a crime under the threat of death or se ri ou s b od il y in

ju ry i s e nt it le d t o r ai se th at is su e b efor e a ju ry. Id. If a jury

finds that the defendant acted under such a threat the defendant should be ac quitted of all charges. Id. In the

present case, th e jury clearly rejected the Def

endant’ s claim that he a cted under duress and convicted

him of fe lony murde r and attempted

espe cial ly

agg rava ted r obbe ry . We find no error in the trial court’s refusal to give the requested jury

instruction. This issue is without merit.
MOTION TO SUP PRESS-7-

Finally the Defendant contends that the trial court er red in re fusing t o suppres s his statement to police because he was held for three da ys without a judicial determination of proba ble cause. The Defendant

relies on State v. Huddleston , in which our supreme court held t hat whe n a person confesses after having been detained for 48 hours without a judicial determination of probable cause, the confession should be excluded unless the prosecution can show that the con fession was sufficie ntly an act of free will in order to purge the taint of the unlaw ful detention. See 924 S.W.2d 666, 674 (Tenn. 1996). However, the Huddleston court also stated that “if the statement was given prior to the ti me the de

tention ri pened int o a constitutional vi olation, it is not the p

roduct of th e illegality and should not be suppre ssed.” Id. at 675.

A trial court’s findings of fact during a suppression hearing will be upheld by this Court unless the evidence preponderates ag ainst it. See State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). “The application of the law to the fa cts found by t he trial c ourt, however, is a question of law which this Court reviews de novo.” State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).

At the hear ing on the

motion to sup

press , t he trial court found that the Defendant’s confession was taken eleven hours after hewas initially taken in for questioning . The trial court then determinedt hat the Huddleston presumption of exclusion was inapplicable because the statement
was given prior to the time the detention “ripened into a constitutional violation.” After a thoro ugh review of the record, we conclude that the trial c ourt properly de nied the Defen dant’s mo tion to suppress his statement to police.

Accord ingly , this issue

is without me

rit.
MERGER O F OFF

ENSES

The State ra ises one i ssu e on appeal, arguing that the tr ial court erred in merging the Defendant’s conviction for attempted especia lly a ggra vated ro bbery into his conviction for felony murder. The State

asks this Court to re

instate the conviction and remand this case for sentencing on the attempted especially

aggravated robbe

ry conviction.

Tennessee case law makes it clear that separa te co nvi ctions and punishments for felony murdera nd the und

erly ing fel ony

are per missible wh

en the two

offense s are ch arged

as se parat e counts. See State v. Godsey , 60 S.W.3d 759, 7 76 (Tenn . 2001); State v. Blackburn , 694 S.W.2d 934, 937 (Tenn. 1985); State v. Z irkle , 910 S.W.2d 874, 890 (Tenn. Crim. App. 1995); Welch v. State , 836 S.W.2d 586, 588-89 (Tenn. Crim. App. 1992). Indeed, our supreme court has stated that “the Legislature

intended that m ultiple puni shments be imposed on conviction of a defendant for felony murder and for the underly ing felony .” Blackburn , 69 4 S .W .2d at 9 37. In uph olding convictions for bo th fel ony murder a nd especially a

ggravated robber

y, this Court has stated that “[e]very first degree felony

murder do es not in volve an especially aggravated robbe

ry, nor does e

very especia lly aggravated robbe

ry involve a murde

r. Neither crime is essentially incidental to the other.” Statev. John Robert Tory , No. 03C01 -930 6-CR- 00202 , 1994 WL 398808, at *5 (Tenn. Crim. App., Knoxville, Aug. 3, 1994).-8-

Therefore, the facts in the record are clearly sufficie nt to support the conviction for attempted especially a

ggravated robber

y based upon the use

of the deadly w eapon and the victim’s suffering serious bodily injury . The felony murde r conviction is warranted by the ad d itional fact that the victim died.

Ac co rd in gl y, we conc lude that the tr ial co urt erred in merging the two c onvictions. The conviction for attempted

especially a

ggravated robber

y is reinstated and that c ase is remanded to the trial court for sen tenci ng.

LESSER-INCL UDED OF FENSES OF FELONY M

URDER

F in al ly, the State suggests in its brief that the trial court failed to instruct the jury on any lesser- included offenses of felony murder. See State v. El

y , 48 S.W.3d 710

(Tenn. 2 001). The

State also asserts that any e

rror in this regard is harmless, because the jury was instructed on thelesserincluded offenses to first degree pre meditated murder. The Defendant does not asser t any err or on the part of the trial court in charging felony murder

. The record does not c ontain a v erbatim transcript of the jury

charge. The copy

of the jury cha

rge contained in the technical record indicates th at the jury was c

harged rega

rding first degree fe

lony murder, first-de gree premeditated murder, seconddegree murder, voluntary mans laugh ter, reckless homicide, and criminally negligent homicide. Based o n the rec ord befo re us, we cannot c onclu de that t

he trial j udge e

rred in h is instructions concerning lesser-included offe nses.
CONCLUSION

For the fore going

reasons , we conc lude that th e evidence i s sufficient to support the convicti ons, the trial court did not err in allowing the introduction of photographs of the victim, the tiral court pr

operly instructed the jury

on the law

of dures s as appli cable to the case, and the trial court properly de

nied the Defendant’s motion to suppress. However, the trial court erred in merging the Defendant’s attempted especially aggravated robbe

ry con vi ction with his felony murder conviction. Accordingly , the Defend ant’s co nviction f or felon y mu rder is A FFI RMED and h

is conviction for attempted especially aggravated robbe

ry is REI NSTATED and R EMA NDED for sente ncing.

___________________________________ DAVID H. WELLES, JUDGE