IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 4, 2001

STATE OF TENNESSEE v. JAVON WEBSTER

 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 Defendant, Javon Webster, was convicted of felony murder and attempted especially aggravated

robbery. The trial court sentenced the Defendant 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)

the evidence is insufficient to support the convictions, (2) the trial court erred by admitting

photographs of the deceased, (3) the trial court erred by denying the Defendant’s request for a special

jury instruction on duress, and (4) the trial court erred by denying the Defendant’s motion to suppress

his statement to police. The State also raises an issue on appeal, arguing that the trial court erred by

merging the Defendant’s conviction for attempted especially aggravated robbery into his felony

murder conviction. We affirm the felony murder conviction and reinstate and remand for sentencing

the especially aggravated robbery conviction.

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

Reversed in Part; Remanded

DAVID H. WELLES,J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID

G. HAYES, J., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Javon Webster.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Jerry Kitchen, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION
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About seven o’clock in the evening on December 2, 1997, Cecil Goldman, the victim, was

shot and killed as he left his job at the Ace Check Cashing business on Getwell Street in Memphis.

Prior to his death, the victim locked the building and armed the security system, thereby preventing

his assailants from robbing the business.

At the time of the shooting, Karen Lewis was traveling on Getwell and observed two men

wearing hoods and a white man wearing blue jeans outside of Ace Check Cashing. As she passed,

Ms. Lewis heard gunshots and saw the white man fall to the ground. By the time Ms. Lewis was

able to turn around and return to the scene, the two men in hoods were gone.

Shirley Smith was at a Wendy’s restaurant on Getwell near Ace Check Cashing when the

shooting occurred. She heard three men arguing at Ace Check Cashing when she arrived at

Wendy’s. As she entered the restaurant, she heard three shots and saw two young black men, one

wearing blue and carrying a gun, run into the nearby woods.

On December 5, after receiving a tip from an anonymous “Crimestopper’s” call, Sergeant

Sammy Ballard of the Memphis Police Department Homicide Squad went to the Defendant’s

residence to question him concerning both an unrelated burglary and the murder of the victim in this

case. When Sergeant Ballard first arrived, the Defendant was working on his car and identified

himself as Carl. Eventually, the Defendant revealed his true identity and agreed to accompany

Sergeant Ballard to the police station for questioning. Upon arrival at the police station, the

Defendant was advised of his constitutional rights and signed a waiver of rights form at 4:43 p.m.

The initial questioning involved the Defendant’s possible involvement in the burglary; however,

when the Defendant mentioned his friend “Pookey,” also known as Darius Bowles, and who also

was mentioned in the anonymous Crimestopper’s call, the interview focused on the murder at Ace

Check Cashing. The Defendant denied any involvement in the shooting.

Investigators then located Darius Bowles who implicated the Defendant in the shooting. In

light of this new information, Lieutenants Charles Logan and A.J. Christian advised the Defendant

of his constitutional rights for a second time and conducted another interview. The Defendant gave

the officers another statement in which he admitted involvement in the attempted robbery, but denied

shooting the victim. The Defendant’s second statement implicated a man named “Cous” and a man

named “L.A.,” who the Defendant said supplied the two guns for the robbery. The Defendant stated

that the plan was for the Defendant to approach the victim before he locked the store in order to gain

access to and rob the check cashing business. The Defendant, however, froze when approaching the

victim and “Cous” and “L.A.” attempted to force the victim back into the building. When the victim

struggled, “Cous” shot him. The interview was completed at 1:55 a.m. on December 6. The

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 Poplar Street in Memphis and another .380 caliber pistol at the home of
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Montea Wilson, who is also known as “L.A.” Special Agent Don Carman of the Tennessee Bureau

of Investigation examined the recovered pistols and determined that a bullet found at the scene of

the murder matched bullets test fired from the Loreson pistol.

Assistant Medical Examiner Dr. Thomas Deering testified at trial that the victim died from

a gunshot wound to the abdomen. Dr. Deering stated that the victim was also shot in the left leg and

right arm.

Jasper Temple testified at trial that he, the Defendant, Montea Wilson, Darius Bowles, and

Vincent Broadie were all involved in the attempted robbery and murder of the victim. Mr. Temple

stated that Mr. Wilson, a/k/a “L.A.,” planned the robbery and that the Defendant and Darius Bowles

were each armed 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 and Mr. Bowles

was to take the money. Mr. Wilson gave the order to approach the victim and the Defendant ran up

to the victim, brandished the pistol and demanded money. The victim began screaming and throwing

papers. The Defendant then shot the victim. Mr. Temple testified that after shots were fired,

everyone scattered. Mr. Temple denied threatening the Defendant in order to convince him to

participate in the robbery.

The Defendant testified at trial that on the night of the murder he and Darius Bowles went

to the home of a mutual friend for dinner. Also present were Mr. Broadie, Mr. Wilson, and Mr.

Temple. The Defendant had met neither Mr. Wilson nor Mr. Temple before. The Defendant

claimed that Mr. Broadie suggested robbing a nearby Texaco. The Defendant further claimed that

when the conversation turned to crime he and Mr. Bowles attempted to leave, but Mr. Temple

threatened them with a pistol. As the group approached the Texaco, Mr. Broadie and Mr. Temple

changed the plan and decided to rob Ace Check Cashing. The Defendant stated that, although he

was armed, he was still frightened of Mr. Broadie and Mr. Temple. The Defendant was ordered to

rob the victim. During the robbery, the victim began to scream and throw things. The Defendant

stated that he began to wrestle with the victim and heard Mr. Temple telling him 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. Broadie and Mr. Temple again threatened the Defendant

and Mr. Bowles after the robbery.

Darius Bowles testified as a rebuttal witness for the State. Mr. Bowles 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 further stated that he had spoken

with the Defendant since the crime and the Defendant informed him that he was going to tell the jury

that he was forced to participate in the crime and encouraged Mr. Bowles to say the same.

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

him guilty beyond a reasonable doubt. Tennessee Rule of Appellate Procedure 13(e) prescribes that

“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable

doubt.” Evidence is sufficient if, 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. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d

274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destroys 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 State v. Buggs, 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d

185, 191 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the evidence, an appellate court must afford the State “the strongest legitimate

view of the evidence as well as all reasonable and legitimate inferences that may be drawn

therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “reweigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,

995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial

testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See

Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and

value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate

courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. App. 1987).

The Defendant was convicted of first degree felony murder and attempted especially

aggravated robbery. Felony murder is a killing committed during the perpetration or attempted

perpetration of a robbery. See Tenn. Code Ann. § 39-13-202(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. § 39-13-401. A robbery becomes an especially aggravated robbery when it is accomplished with

a deadly weapon and the victim suffers serious bodily injury. See id. § 39-13-403. One attempts to

commit an offense when one acts with the intent “to complete a course of action or cause a result that

would constitute the offense, under the circumstancessurrounding the conduct as the person believes

them to be, and the conduct constitutes a substantial step toward the commission of the offense.”

Id. § 39-12-101(a)(3).

In the present case, the Defendant and his codefendants testified that the Defendant

approached the victim, pointed a gun at the victim’s head and demanded money. When the victim

resisted, the Defendant shot him three times, killing him. The Defendant’s only defense was that he

was forced to participate in the robbery by two of his codefendants who threatened to kill him if he

did not cooperate. The codefendants denied the Defendant’s allegations and stated that the

Defendant participated 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 coercion, but

stated that he participated in the crime because he needed money.
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Accordingly, we find that the Defendant’s conduct in approaching the victim and pointing

a gun at the victim’s head constituted a substantial step toward the commission of an especially

aggravated robbery. Furthermore, the murder of the victim occurred during the attempted especially

aggravated robbery. Accordingly, we find sufficient evidence to support the Defendant’s convictions

of felony murder and attempted especially aggravated robbery. This issue is without merit.

VICTIM PHOTOGRAPHS

The Defendant next challenges the admission of photographs of the victim’s wounds,

alleging that the photos were inflammatory and prejudicial. Initially, we note that a trial court's

decision regarding the admissibility of photographs will not be reversed on appeal absent a clear

showing of an abuse of discretion. See State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994).

Moreover, “photographs of the corpse are admissible in murder prosecutions if they are relevant to

the issues on trial, notwithstanding their gruesome and horrifying character.” State v. Banks, 564

S.W.2d 947, 950-51 (Tenn. 1978). However, “if they are not relevant to prove some part of the

prosecution's case, they may not be admitted solely to inflame the jury and prejudice them against

the defendant.”Id. at 951 (citing Milam v. Commonwealth, 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 gunshot wounds. The Defendant suggests that he essentially

stipulated to the number of gunshot wounds suffered by the victim. The record is devoid of any

express stipulation. The trial court found that the photos were relevant to establish the number of

shots fired by the Defendant, and that the photos were not inflammatory. Additionally, we have

reviewed the photographs, and while they are unpleasant, they are isolated shots of the three gunshot

wounds and are not particularly gruesome or horrifying. Thus, we find that the trial judge did not

abuse his discretion. This issue is without merit.

DURESS INSTRUCTION

The Defendant also argues that the trial court erred by refusing to instruct the jury with the

special duress instruction requested by the Defendant. The Defendant requested that the trial court

instruct the jury that “the facts relied on by the defendant constituting duress may be considered by

you ladies and gentlemen of the jury as to the defendant’s state of mind which would reduce the

charge of murder in the first degree to murder in the second degree.” The trial court found such a

diminished capacity instruction to be inapplicable because there was no evidence that the Defendant

was mentally unsound or incompetent. The trial court did, however, properly instruct the jury

regarding the law of duress.

There is an affirmative duty upon a trial judge in a criminal case to give the jury a complete

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 every issue of fact raised by the evidence and material to his

defense submitted to the jury under proper instructions. See State v. Phipps, 883 S.W.2d 138, 149-
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50 (Tenn. Crim. App. 1994). However, requested instructions need not be given when existing

instructions are correct statements 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 of the victim because his codefendants placed a gun

to his head and threatened to kill him. Duress is a “defense to prosecution where the person or a

third person is threatened with harm which is present, imminent, impending and of such a nature to

induce a well-grounded apprehension of death 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 act

is committed, and the defense is unavailable to a person who intentionally, knowingly, or recklessly

becomes involved in the situation that subjects that person to compulsion. See id. § 39-11-504

(a)(b).

The Defendant is suggesting through his requested instruction that because he was subjected

to a threat of violence or death by his codefendants he was not capable of acting with the requisite

mens rea to commit first degree murder. Accordingly, the defendant believes he was entitled to a

diminished capacity instruction via his duress defense. The Defendant relies on this court’s decision

in Phipps to support his argument. In Phipps, this Court held that evidence of a defendant’s mental

state or mental condition was relevant and admissible in certain cases to rebut the mens rea element

of an offense. Phipps, 883 S.W.2d at 149. The Defendant’s reliance on Phipps in this case,

however, is misplaced. Phipps, unlike the present case, involved a defendant who suffered from

post-traumatic stress syndrome as a result of his military service in Operation 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 mental state or condition was not in issue. No evidence

was presented to suggest that the Defendant was not a competent and mentally stable individual.

Therefore, the trial court did not err in refusing a jury instruction regarding reducing a charge of first

degree murder to second degree based upon a diminished capacity theory of duress because such an

instruction was not supported by the facts. Indeed, such 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 acted under duress. See Tenn. Code Ann. § 39-11-504. A defendant who commits

a crime under the threat of death or serious bodily injury is entitled to raise that issue before a jury.

Id. If a jury finds that the defendant acted under such a threat the defendant should be acquitted of

all charges. Id. In the present case, the jury clearly rejected the Defendant’s claim that he acted

under duress and convicted him of felony murder and attempted especially aggravated robbery. We

find no error in the trial court’s refusal to give the requested jury instruction. This issue is without

merit.

MOTION TO SUPPRESS
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Finally the Defendant contends that the trial court erred in refusing to suppress his statement

to police because he was held for three days without a judicial determination of probable cause. The

Defendant relies on State v. Huddleston, in which our supreme court held that when 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 confession was

sufficiently an act of free will in order to purge the taint of the unlawful 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 time the detention ripened into a constitutional violation, it is not the product of the

illegality and should not be suppressed.” Id. at 675.

A trial court’s findings of fact during a suppression hearing will be upheld by this Court

unless the evidence preponderates against it. See State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

“The application of the law to the facts found by the trial court, 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 hearing on the motion to suppress, the trial court found that the Defendant’s

confession was taken eleven hours after he was initially taken in for questioning. The trial court then

determined that 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 thorough

review of the record, we conclude that the trial court properly denied the Defendant’s motion to

suppress his statement to police.

Accordingly, this issue is without merit.

MERGER OF OFFENSES

The State raises one issue on appeal, arguing that the trial court erred in merging the

Defendant’s conviction for attempted especially aggravated robbery into his conviction for felony

murder. The State asks this Court to reinstate the conviction and remand this case for sentencing on

the attempted especially aggravated robbery conviction.

Tennessee case law makes it clear that separate convictions and punishments for felony

murder and the underlying felony are permissible when the two offenses are charged as separate

counts. See State v. Godsey, 60 S.W.3d 759, 776 (Tenn. 2001); State v. Blackburn, 694 S.W.2d

934, 937 (Tenn. 1985); State v. Zirkle, 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 multiple punishments be imposed on conviction of a defendant for

felony murder and for the underlying felony.” Blackburn, 694 S.W.2d at 937. In upholding

convictions for both felony murder and especially aggravated robbery, this Court has stated that

“[e]very first degree felony murder does not involve an especially aggravated robbery, nor does every

especially aggravated robbery involve a murder. Neither crime is essentially incidental to the other.”

State v. John Robert Tory, No. 03C01-9306-CR-00202, 1994 WL 398808, at *5 (Tenn. Crim. App.,

Knoxville, Aug. 3, 1994).
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Therefore, the facts in the record are clearly sufficient to support the conviction for attempted

especially aggravated robbery based upon the use of the deadly weapon and the victim’s suffering

serious bodily injury. The felony murder conviction is warranted by the additional fact that the

victim died.

Accordingly, we conclude that the trial court erred in merging the two convictions. The

conviction for attempted especially aggravated robbery is reinstated and that case is remanded to the

trial court for sentencing.

LESSER-INCLUDED OFFENSES OF FELONY MURDER

Finally, 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. Ely, 48 S.W.3d 710 (Tenn. 2001). The State

also asserts that any error in this regard is harmless, because the jury was instructed on the lesserincluded offenses to first degree premeditated murder. The Defendant does not assert any error on

the part of the trial court in charging felony murder. The record does not contain a verbatim

transcript of the jury charge. The copy of the jury charge contained in the technical record indicates

that the jury was charged regarding first degree felony murder, first-degree premeditated murder,

second degree murder, voluntary manslaughter, reckless homicide, and criminally negligent

homicide. Based on the record before us, we cannot conclude that the trial judge erred in his

instructions concerning lesser-included offenses. 

CONCLUSION

For the foregoing reasons, we conclude that the evidence is sufficient to support the

convictions, the trial court did not err in allowing the introduction of photographs of the victim, the

tiral court properly instructed the jury on the law of duress as applicable to the case, and the trial

court properly denied the Defendant’s motion to suppress. However, the trial court erred in merging

the Defendant’s attempted especially aggravated robbery conviction with his felony murder

conviction. Accordingly, the Defendant’s conviction for felony murder is AFFIRMED and his

conviction for attempted especially aggravated robbery is REINSTATED and REMANDED for

sentencing.

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DAVID H. WELLES, JUDGE