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

Briefs M arch 1, 2 005
STATE OF TENN ESSEE v. QAWI NUR , (a/k/a DAR

RIUS JAMES) Direct Appeal from the Criminal Court for Shelby County

No. 02-06231 Chris Craft, Judge

No. W2004-01259-CCA-R3-CD - Filed June 21, 2005

Defend ant, Qawi Nur, a/k/a/ Darrius James, was indicted on one count

of first degree felony

murder and one count of first degree pre meditated murder. The State filed a notice of intent to s eek the death penal ty. Follo wing a jury trial, Defe ndant was convicted of

first degree felony

murder in count one and second degree murder in count two. The trial cour t merged Defendant’s second de gree murder convictioninto his first degree felony murder conviction. The jury sentenced Defendant

to life imprisonment without the possibility of parole for his first deg ree murder conviction. The sole issue raised on appeal challenges the sufficiency

of the convicting evidence. After a thorough review of the re cord, we

affirm t he judg ment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and J.C. M C L IN , JJ., joined. Robert Wilson Jones, District Public Defender; W. Mark Ward, Assistant Public Defender, La rry Nance, Ass istant Publi c Defe nder; an d Diane T

hacker y, A ssistant Pub lic Defe

nder, Me

mphis, Tenness ee, for

the appe llant, Qa

wi Nur, a /k/a Dar rius James. Paul G. Summers, Attorney Gene ral and Reporter; Jennifer L. B ledsoe, Assistant Attorney Genera l; William L. G ib bo ns , D is tr ic t A tt or ne y Ge ne ra l; Mi ch el le Pa rk s, As si st an t D is tr ic t A tt or ne y G e neral; and James Wax, Assistant District Attorney General, for the a ppellee, the State of Tennessee.
OPINION Christie LeeHolmes was the girlfriend of the victim, David Romanoli. Immedia tely prior to the sh ooti ng, Ms. Holmes, the victim, the victim’s younger brother, James, and his friend, Steven Ing lis, were sit

ting in a bathroom

inthe victim’s second floor apartment smoking marijuana. The group heard so meone kic

k the fro nt door ope

n. The victimleft the bathroom, and Ms. Holmes heard him call out, asking who the intruder was and what he or she wanted.-2-

Ms. Holmes followedthe victim as he ran down the stairs after the intruder. When she reached the ground floor, Ms. Holmes saw a black c ar drive

by w ithits doors open. A woman was running after th e car, t

ry ing to flag it down. Ms. Holmes chased the woman. The woman stopped, and an African-American man stepped out of some bushes near the apartment building. Ms. Holmes said that the woman told the man “to shoot [Ms. Holmes], shoot her, pop a cap in her ass, too.” Ms. Ho lm es sa w t ha t t he ma n w as un ar me d a nd de ma nd ed hi s n am e. Th e m an an d w om an ra n a wa y. Ms. H olmes iden

tified De fendant

and Melis sa Swift f

rom photo l ine-ups a s the ma n an d womanshe encountered

outside the victim’s apartment building. Ms. Holmes said that Defendant was wearing a white shirt, bagg y jeans, and tennis shoes w hen she saw him. Ms. Holmes did not see the shooting nor did she hear gunshots. David Barnwell, the victim’s neighbor, said that he heard gunshot s and step

ped out on

to his second floor patio. He saw a woman run past his apartment followed by an Afr ican-American man wearing bagg

y jeans and a

red baseball cap. Officer Hope Bebout

with the Memphis Police Department found a red cap in a b ush ne xt to the apartment

building . A pair

of red nylon swe at pants and a bandana were also found be hind the building. Officer Robert Ha rris found a .38 caliber revolver in a bush next to the apartment building’s back stairwell. Officer Sherman Bonds sa id that the .38 caliber

revolver had four spent casin gs and two live rounds. Heath Barker, a special agent with the Tennessee Bure au of Investigation, testified that the bullet removed from the victim’s body during the autopsy was fire d from the .38 caliber revolver found at the cr ime scene. Nina Sublette, a nurse

practitioner, took a blood sample from Defendant for the purpose of DNA sampling . Special

Agent L awrenc e James att

empted to obtain a D

NA sample

from the clothes found at the cr ime scene. Agent

James was unable to secure a sample from the pants or banda na. The DNA sample taken from the red cap contained DNA from two contributors, one of whom was possibly Defend ant. The DNA ana lys is indicat

ed that th e probab ility

of obtain ing that mixed profi le fromthe African-America n populatio n is appro ximately one in eig

ht. Althoug

h the DNA

sample did not conclusively match Def endant’s, he could not be excluded as a contributor.
Dr. Teresa Allen

Campbell

perfor med the vi ctim’s au

topsy . Dr. Camp

bell said t hat the c ause of death was a gunshot wound to the right

side of the chest. The bullet struck the victim’s left lung and aorta a nd did not exit the body. There was no soot around

the wound indicating that the shooter was more than two feet from the victim when the gun was discharged. Melissa Swift testified that she was indicted for first degree f elony murder in c onnectionwith the victim’s shooting , but pled gu ilty to the lesser included offe nse of facilitation of first degree felony murder. On the afternoon of the shooting, Ms. Swift met Coty Chi ldress an d Jennifer Mohrhoff at a gas station, and invited the women to her apartment to smoke marijuana. When the marijuana was gone, Ms. Childress said that the victim had a supply of marijuana and suggested tha t-3-

the group rob him. Ms. Swift called Defendant and asked him to g o with the women. The three women picke d Defen dant u p at hi s apart ment a nd th en dro ve to t he vic tim’ s apart ment b uild ing.
Ms. Swift said that she and Defendant went upstairs and knocked on the victim’s front door. No one answered, and the two return ed to the c ar. Def endant a nd Ms. Childress then went up the stairs while Ms. Swift waited outside. Ms. Childress knocked on the door, and, once again, no one answered. Defendant kicked the front door down. Ms. Ch ildress and Defendant went inside the apartment but ran back out in a

few sec onds. Def

endant pu shed Ms. Ch

ildress in to Ms. Swift as he ran down the s tairs. Ms. Childress hurt her ankle and ran toward the car . Ms. Swift s aid a man came down the s tairs beh

ind Defe ndant and Ms. Childre ss. Ms. Swift ran around the corner of the apar tment building. She saw Defe ndant c oming toward her with a gun in his hand. Ms. Swift said that she hear

d gunsho ts but did not see Defendant shootthe victim. Defendant took off some o f his clo thes and hid the clothes and gun behind the apartment building . Ms. Swift s aid

that she a nd Defe ndant g ot back in

to the car and retu rned to Ms

. Swift’s apartment. When he got into the car, Defendant said, “I think I shot him.”

Ms. Swift sa

id that she was not armed that afternoon.
Oncross-e

xaminati o n, Ms. Swift said that she saw Ms. Holmes as she ran away from the scene. Ms. Swift said she initially thought that the vict im ha d fired a gun. She did not see Defendant’s gun when he first got in the car p rior to the incident. Defendant left Ms. Swift’s apartme nt, and Ms. Swift and her frie nds ate di nner at a local re stauran

t. Ms. Mohrhoff

said that she was in

dicted f or faci litation of

first deg ree fe lony

murder in connection

with the shooting. Ms. Mohrhoff generally confirmed Ms. Swift’s descript ion of the sequence of events that afternoon. Ms. Mohrhoff said that she and her frie nds, Apri l Smith and Co ty Childress , saw Ms. Swift and her friend, Dara Wiginton, at a gas sta tion, and t he gro up went to

Ms. Swift’s apartme

nt to smoke

marijuana. Ms. Mohr

hoff sai d that Ms. Childress told them where they could get some more drugs. Ms. Mohrhoff drove Ms. Smith’s car first to Defendant’s apartment and then the v ictim’s. M s. Wiginto n and Ms. Smi th stay ed behind at Ms. Swif

t’s apar tment. Ms. Mohrhoff said that Ms. Swift and Defendant went to the victim’s apartment on the second floor and knocked on

the door. When no one answered the knock, Ms. Swift and Defendant came back downstairs. Ms. Childress and Defendant then went upstairs and knocked on the door. Ms. M ohrho ff said that Defendant came running down the stairs followed by Ms. Childress. The victim chased Ms. Swift and Defendant around a cor ner of the apa rtment bui lding, a nd Ms. Mohrhoff heard gunshots. She and Ms. Childress drove off.
Ms. Mohrhoff said that

she had tr

ouble dri ving be cause sh e was so n ervous, and pulled the car over to the side of the street. She saw Ms. Swift and Defendant run up be hind the car. Both of them got in, a

nd Ms. Swif

t dir ecte d Ms. Mohrhoff to dr ive back to Ms. Swift ’s apar

tment. Defend ant said that he had

fired his gun but d

id not know

whether or not he had shot the

victim.-4-

Ms. Mohrhoff

said that Defendant was wearing r ed pants and a tee shi rt when h e first g ot into the car, but she did not remember whether or

not he was wearing a hat. Ms. Mohrhoff r emembered seeing another woman at the crime scene that af ternoon. Ms. Mohrhoff said that news of the shooting was on te levision that night , but the license plate number of the car repor tedly seen at

the scene was not Ms. Smith’s. Th e grou p ate dinner at a lo cal res t aurant a nd then re

turned to Ms. Swift’s apartment. Ms. Mohrhoff’s ne xt-door ne ighbor c alled an d said tha t the polic e had Ms. Smith’s license

plate num

ber. The police we re waiti ng at Ms. Mohrhoff

’s apar tment whe

n she, Ms. Smith, and Ms. Childress arrived. Defendant

argues that the evidence

was insufficient to identify him as the perpetrator of the shoo ting. Defendant concedes that one ey ewitness and the two accomplices identified him as the shooter but con tends that this evidence is not sufficient to support a finding of guilt bey ond a reasona ble doubt. When a defendant challenges the suf ficiency of

the convicting evidence, we must review the evidence in a light most favorable to the prosecution in determining whether a rational trier of f act could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S.307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (19 79). Onc e a ju ry finds a defendant guilty, his or her presumption of innocence is removed and replace d with a presumption of guilt. State v . Black , 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of overcomingthis presu

mption, an

d the State

is entitle d to the str

ongest l egitima

te vi ew of the evidence along with all reas on able inferences which may be drawn from that evidence. Id.; Stat e v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to ha ve resolve d all conf

licts and drawn any

reasonable inferences in favor of the State. State

v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 19 84 ). Qu es ti on s c on ce rn in g t he cr ed ib il it y o f witn esses, the weight and value to be give n the evidence, and all factual issues raised by the evidenc e are r

esolved by th e trier o f fact a nd not this court. State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of guilt predicated upon

direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. M atthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Defendant

was convicted of first degree felony murder

which, as relevant to the ca se su b judice, is defined as “[a] killing of another committed in the perpetration of or

attempt to

perpetr ate any . . . b ur gl ar y . . . .” Tenn. Code Ann. §39-13-202(a)(2). A burg lary is committed when a pe rson enters a building without the consent of the owner with the intent to commit a felony

. Id . § 39-14- 402(a)(1). Especially ag

gravated burglary

is defined as a burglary

of a habitation where the victim suffers serious bodily injury . Tenn. Code Ann. § 39-13-404(a). The State’s proof rested primarily on the testimony of

Defendant’s two accomplices and the corroboration

of the ey ewitness to identif y D efenda

nt as the p erpetr

ator of the off

ense. I t is well settled that a conviction may not re st solely on an acc omplice’s uncorroborated testimony

. State v. Shaw , 37 S.W.3d 900, 903 (2001). The proof necessary

to corroborate the accomplice’s testimony must include “ some fact testifie d to, entir ely independ

ent of the accompl ice’s te sti mon y, which, taken by i ts el f, le ad s t o t he in fe re nc e, no t o nl y that a cr ime has been committed, but also that the-5-

defendant is implica

ted in it; and this independent corroborative te stimony

must also in

clude som e fact establishing the defendant’s identity.” Id . (quo ting State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994)).
Ms. Holmes testified that she followed the victim down the stair s to the ground floor. When she reached the bottom of the stairs, Ms. Holmes saw a woman and a man running away

from the apartment building whom

she late r identif ied as De fendant

and Ms. Swi ft. Ms. Hol

mes said that Ms. Swifttold Defe

ndant “to shoot [Ms. Holmes], shoot her, p op a cap in her as s, too,” but Defendant was not armed at that time. Corroborating evidence need not be suf ficient in and of itself to support a conviction as long as it fairly connects the defendant with the commission of the crime. State v. Gaylor , 862 S.W.2d 54 6, 522 (Te nn. Crim. App. 1992). Ms. Holmes corroborated Ms. Swift’s and Ms. Muhrhoff’s testimony that Defendant was in the victim’s apartment building and later ran away fromthe crime

scene with Ms. Swif

t. Ms. Holmes’ testimony implicates Defendant in the shooting and positively identifies him as a participant. Whether the testimony

of an ac complice

is sufficie ntly corroborated

is a question for the jury. State v. H eflin , 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999). B ased on our re view of th e recor

d, the evi dence is

sufficie nt to suppor

t a finding

that Ms. Sw ift’ s and Ms. Muhrhoff’s testimony wa s sufficiently corr oborated.
Ms. Swift and M s. Muhrhoff testified that they pic ked up Defendant and drove to the victim’s apartment to steal marijuana. Defendant kicked down the victim’s door and soon came running back downthe stairs with the victim behind him. Both women heard gunshots. Ms. Swift rounded the corner of the apartm ent bu ildi ng a nd saw Defendant with a gun in his hand. Ms. Swift saw Defendant

hide the gun

at the back of the building. The gun later retrieved fr om a bush in this area was determined to be th e weapon which f ired the fata l shot. Ms. Muhrhoff said Defendant was wearing red pants when he joined the group, and a pa ir of red nyl on sweat

pants wa s found in

a bush behind the vic ti m’s apartment building. Defendant told Ms. Swift and Ms. Muhrhoff that he had fired his weapon b

ut did not kn

ow whethe

r he hit the

victim. Viewing the ev idence in a light most favorable to the State, we find that the evide nce was sufficient to support

Defend ant’s co nviction o f first de gree f elony mu rder beyond a reasona

ble doubt.
CONCLUSION The judgment of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE