# FILED
October 7, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON JANUARY 1997 SESSION STATE OF TENNESSEE, ) ) No. 02-C-01-9602-CR-0 0048 Appellee, ) ) Shelby County v. ) ) Chris B. Craft, Ju dge HOLLIS G. WILLIAMS, ) ) (Murder First Deg ree) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: W. Mark W ard John Knox Walkup Asst. Shelby County P ublic Defender Attorney General & Repor ter 147 Jefferson, Suite 900 500 Charlotte Avenue Memphis, TN 38103 Nashville, TN 37243-0497 (On Appeal) Robin L. Harris Ronald S. Johnson Assistant Attorney Gener al Asst. Shelby County P ublic Defender 450 James Robertson Parkwa y 201 Poplar Avenue, Suite 201 Nashville, TN 37243-0493 Memphis, TN 38103-1947 (At Trial) William L. Gibbons District Attorney General Betty J. Thomas 201 Poplar Avenue, Suite 301 Asst. Shelby County P ublic Defender Memphis, TN 38103-1947 201 Poplar Avenue, Suite 201 Memphis, TN 38103-1947 James C. Beasley, Jr. (At Trial) Assistant District A ttorney General 201 Poplar Avenue, Suite 301 OF COUNSEL: Memphis, TN 38103-1947 A C Wharton, Jr. Amy J. Weirich Shelby County Public

Defender Assistant District A ttorney General 201 Poplar Avenue, Suite 201 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947 Memphis, TN 38103-1947

OPINION FILED: ____________________________

______ AFFIRMED Joe B. Jones, Pre siding Judge 

### O P I N I O N1 The defendant also was armed with a .38 caliber pistol. 1 The appellant, Hollis G. Williams (defendant) , was convicted of firs t-degree felony murder by a jury of his peers. The State of Tennessee s ought the extreme penalty of death. However, the j ury set his punishment at life without the possibil ity of parole. The defendant presents threeissues for review . He contends (a) the evidence is insufficient , as a matter of law, to support his conviction for a murder c ommitted during an attempt to commit ro bbery, (b) the trial court committed error of prejudicial dimensions by ruling his two convictions for attempt to c ommit robbery could be used t o impeach him if he opt ed to testif y in support of his defense, and (c) the trial court committed error of prej udicial dimensionsby permitting the stat e to introduce victim i mpact testimony during th e sentencing hearing. After a thorough re view of the record, the briefs submitt ed by the parties, and the law governing the issues presented for review, it is the opinion of this Court the judgment of the trial court should be affirmed. The victim, Manop S. T homas, was fif teen years of age and a sophomo re in high school when he was fatally wounded by the defendant. He lived a t home with his mother and three other siblings

. On the afternoon of Januar y 31, 1994, the victim was en route to a residence on Redcli ff Cove in the Frayser area of Memphis. While walking to hi s destination, he me t Wordies Tate, a friend and classmate. Tate was riding his bicycle. He asked Tate to go with him to the Redcliff Cove res idence. Tate agreed to accompany the victim. Tate rode his bicycle slow

ly as he and the victi m proceeded to the victim’s destination. A s Tate and the victim wer e crossing the street, a car coming from the opposit e direction stopped. The defendant ex ited the ve hicle and to ld the vic tim to come

to the car. The victim knew the

driver of the vehicle, Clifford Sims. He entered the vehi cle through the backdoor on the passenger side of the ca r. A conve rsation ens ued. Sims told the victim he would see him later. The v ictim and the defendant exited the c ar simultaneously. The defendant removed a .380 automatic pisto l from his clothing. 1 He told the victim to “drop it off,” meaning the victim shoul d give him the Michigan starter ja cket he was wearing. When the defenda nt reached for the hood attached to the jacke t, the victim broke loose2

and ran a way . The defendant followed the victim and began firing the .380 pi stol at the victim. He fired approximately four shots. One projectile struck the victim in the left lower back. The projectile penetrated the l eft lung and struck the victi m’s heart. A pathologist testified the organs in the chest cavity were shifted to the rig ht side of the victim. In summary, the victim died as a re sult of the gunshot w

ound and the complications it created. The defendant left the situs of the killi ng in Sims’s vehicl e. He told Sims the victim should have “dropped it off” when h e told him to do so. The defendant related to Sims he was goingto either

Chicago, Illinois o r Detroit, Michigan. The defendant also expressed
concern about Sims because he thought Si ms was the only witness to the killing . The defendant did not know Tate also saw most of what occurred, and Tate c ould ide ntify Sims’s vehicle and the defendant. Tate w itnessed most of what

occurred on the

date in question. I.

The defendant contends the evidenc e contained in the record is insufficient, as a matter of law, to support a finding by a rational trier

of fact that he was guilty of felony murder beyond a reasonable doubt

. He argues the record is devoid of evidence that he was attempting to commit th e crime of robbery when the killing occurr ed.

A.

When an accused challenges the sufficiency of the convicting evidence, this Court must review the record to determine if the evidence addu ced attrial is sufficient "to support the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is applicable to findi ngs of guilt based upon direct evidence, cir cumstantial evidence, or a co mbin ation of direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determin ing the s ufficiency of the convicting evidence, this Court does not reweigh or

reevaluate the evidenc e. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim.3

App.), per . app . denied (Tenn. 1990). Nor may thi s Court substitute its inferences for those drawn by the trier of fact from cir cumstant ia l evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert

. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this Court is required to afford the State of Tenn essee the strongest legitimateview of the evidence contained in the record as well as al l reasonable and legitimateinferences which may be dr awn from the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (T enn. 1978). Questionsconcerning the credibi lity of the witness es, the weight and v alue to be given the evidence, as

well as all factual i ssues raised by the evidence are r esolved by the trier of fact, not this Court. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 197

3), our Supr

eme Court said: "A guilty verdi ct by the jury, appr oved by t he trial judge, accredi ts the testimony of the witnesses for the State andresolves al l conflicts in favor of the theory of the State." Since a verdict of guilt r emoves the presumptionof innocence and replaces it w ith
a pre sumption of guilt, the accused, as the appellant, ha s the burden in this Court o f illustratingwhy the evidence is insufficient to support the v erdict returned by the t rier of fa ct. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not di sturb a verdict of guilt due to the sufficiency of the evidence unless the f acts c ontained in th e record are insufficient, as a matter of law, for a rational trier of fact to find tha t the accused is guilty beyond a reasonable doubt. Tuggle , 639 S.W.2d at 914.

B.

The record es tablishe s beyo nd a reasonable doubt the defendant was i n the process of attempting to commit aggr avated robbery when the killingoccu rred. Sims, a lifelong friend of the defendant, testified t he de fendant removed a .380 pistol from his clothing and attempted to take the starter jacke t the victim was wearing. When the victim broke away

and ran, the defendant followed the victim. He fired four or five projec tiles as he pursued the victim. One o f these project iles struck the victim. The victim died as a result of the projectile striki ng him. In su mmary, the evidence is clearly sufficient to support4

a finding by a rational tri er of fact the defendant was attempting to commit aggravated robberybeyond a reasonable doubt. Tenn. R . App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This issue is without merit.

II.

The defendant moved the trial court to rule upon the admissib ility of two prior aggravatedrobbery convicti ons to impeach him if he testi fied in sup port of his defense. The trial court foundthe probative value of these fel onies for impeachment outweig hed the prejudicial effect the admission of these convic tions may have upon the tr ier of fact. The defendant argues the similarity of his prior convictions to the offense for which he was being tried, killing the victim during an attem pt to commi t aggravated robbery, would be highly prejudicial. The State of Tennessee may use a prior conviction to impeach an accuse d if the conviction meets the criteria established by Rule 609, Tennessee Rule s of Ev idence. According to this rul e, a convi ctio n may be used to impeach the accus ed if (a) the conviction was for a crime t hat is punishable by death or impr isonment in excess of one (1) year or

a misdemeanor involving dishonesty or a false statement, (b) less than ten ( 10) years elapsed between the date the accused was r eleased from confinement for the prior conviction and the commencement of the prosecution f or the present offense, (c) the State of Tennessee gave reasonable written notice of the particular conviction it intends to use to impeach him,and (d) the t rial court determi nes the probative value of the felony or misdemeanor

on the issue of credibility outweighs its prej udicial effect on the trier of fact. State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App.), per . a pp . d ismissed (Tenn. 1992). In this case, the first three requisites , (a) through (c), have been satisfied. Thus, the only issue is whether t he probative value of the aggravated robbery c onvictions outweighs

the unfair prejudicial effect due to the similarity betw een the convictions and the offense alleged in the indictment. In determining whether the pro bative value of the felony sought to be used to2 It is a well-establi shed rule of law that questions concerning the admissibi lity of evidence rest within the sound discretion of the trial court; and

an appellate court wil l not interfere with the exercise of this discretion absent a clear abuse appearing on the face of the record. State v. Van Tran , 864 S.W.2d 465, 477 (Tenn. 1993), cert. denied , 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994); State v. Harris , 839 S.W.2d 54, 73 (Tenn. 1992), cert

. denied , 507 U.S. 954, 113 S.Ct. 1368, 122 L. Ed.2d 746 (1993); State v. Baker , 751 S.W.2d 154, 163 (Tenn. Crim. App.), per . app . denied (Tenn. 1987). 5 impeach an accused outweighs its unfair prejudicial effect on the issue to be resolved by the jury, a trial cour

t should (a) “assess the similarity between the crime on trial and the cri me underlying the impeachi ng conviction,” and (b) “analyze the rel evance th e impeaching convic

tion has to the i ssue of cr edibility.” N. C ohen, D. Paine, and S. Sheppeard, Tennessee Law of Evidence , § 609. 9 at p. 288 (2nd ed. 1990); see Farmer , 841 S.W.2d 839. W hen this analysis is applied to the conviction in this case, the trial court did not abuse its discretion b yruling the two aggravated robbery convictions could be us ed to impeach the defendant if he opted to testify in support of his defense. 2 The mere fact a prior convic tion of the accused is identical, or similar in nature, to the offense for which the accused is being tried does not, as a matter of law, bar the use of the conviction to im pe ach an accused as a witnes s. See State v. Miller , 737 S.W.2d 556, 560 (Tenn. Crim. App.), per . app . denied (Tenn. 1987). The appellate courts of this state have held the offense of robbery i s “highly probativ e on the credibility q uestion,” State v. Crank , 721 S.W.2d 264, 266 (Tenn. Crim. App.), per . app . denied (Tenn. 1986), becau se this crime involv es dishonesty. See State v. Stafford , 670 S.W.2d 243, 24 5 (Tenn. Crim. App.), per . app . denied (Tenn. 1984). Thus, the appellate courts have held
a c onvict ion for robbery may be used to impeach an accused being tried for an of fense involving robbery absent circums tances which requir

e a different result. See State v. Goad , 692 S.W.2d 32, 37 (Tenn. Crim. App.), per . app . denied (Tenn. 1985); State v. Norris , 684 S.W.2d 650, 654 (Tenn. Crim. App. 1984), per . app . denied (Te nn. 1985); State v. Davis , 649 S.W.2d 12, 13 (T enn. Crim. App. 1982), per . app . denied (Tenn. 1983); State v. Fluellen , 626 S.W.2d 299, 300 (Tenn. Crim. App.), per . app . denied (Tenn. 1981). The considera tio n of this issue is stric tly academic. The defendant testified at a jury-out hearing that he had no intention of testifying in support of his defense regardless of the trial court’s ruling on the admissibility of his prior convictions. This issue is without merit.6 III.

The defendant contends the trial court c ommitted error of prejudicial dimensions by permitting the State of Tennessee to “prejudice the jur y w ith inflammatory victim impact evidence which was no t releva nt to any aggravating circumstance.” He argues the jury mayhave sentenced the defendant to life rather than life w ithout the possibility of parole. The State of Tennessee contends this evidence was p roperly admitted. The state argues the supr eme cour

t has ado pted the

ration ale of Payne v. Tennessee , 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The state was permitted to el icit from thevictim’s aunt, Mary L. Teal, the foll owing testimony over the objec tion of the defendant:

Q. How many children did M s. T homas (the victim’s mother) have? A. Six. Q. How many of them were living there at the home with her? A. With “Nopie” (the victim) it was four. * * * * Q. Of the f our that we re in t he home with her, who w as the oldest? A. Nopie. Q. And what were the ages of the other children? A. Oh, at the time, I think, ei ght, one year, and nine. Q. What type of relationship did Manop have with his younger brothers and sisters? A. Oh, very clos

e. Q. Specifically, I bel ieve the youngest? A. The ba by. * * * * Q. Ms. Teal, you were describing this relationship that Manop Thomas had with his youngest sibling.7 A. They were very

close. A lot

of people thought that he was the father of his brother, because they had that bound [sic] and he treated him that way. And wh en you would see them out they would come in and say, is that your son? And he would say, yeah. And that’s the way they w ere. Q. What type o

f effe ct has the death of Manop had on, specifically, this y

oung child? A. Uh, he misses him and he knows he’s not there any more. He picks up his pictures, goes to them

. He won’t allow anyone else to touch his pictures. H e calls his name often, and he’s even picked up a lot of his characteristics. Q. What about the other br oth ers and sisters left at home, how has it affected them? A. John, he was

under Nopie, he’s -- in dealing with it -- he’s mor e to himself, he’s kind of like shut in. And he’s slowly starting to come out. Neesy, she’s the only gir l. Her and Nopie wer

e close and she w ent through a lot of -- I gu ess of what you’d see in an adul t , the stress that

she went through, it compl etely took all of her hairout. And her nerves w ere just shot, and she had a lot of physical ailments behind it. Q. And Mrs. Thomas, what effect has this had on her? A. Emotional, physical -- to [sic] much to des crib e. It comes and goes. She has good day s. She h as bad days. Good physical days, bad physical da ys. Good emotional days,bad emotional days. Some days mightbe a good and a bad day. You just never know. The baby call his name, and ev erybody could be having a good day at the time and it just turns it upside down and all around. You just never know. It’s really just hour to hour in stead of a day to da y. Q. As a resul t of Ms. Thomas’ testimony here in court the other day, was she physically able, or emotionally able to be here to te stify as to what you’re testifyin g to today? A. No, she wasn’t.

Since Payne

the supreme court has not addres sed the admissibility of

victim impact testimony

pursuant toTenn. Code Ann. § 39-13-204(c). How ever, the supreme court has alluded to victim impact testi mon y. See State v. Shepard , 902 S.W.2d 895, 902 (Tenn. 1995)(victim impact argument by state d uring rebuttal summation proper); State v. Bigbee , 885 S.W.2d 797, 811-12 (Tenn. 1994)(victim impact testimony is not precluded by either the federal or state co nst itution); State v. Hurley , 876 S.W.2d 57, 67 (Tenn. 1993), cert

. denied , 513 U.S. 933, 115 S.Ct. 328, 130 L.E d.2d 287 (1994)(victim impact evidence that8

the victim “was the mother of five childrenand her father was a retired ser geant major who had served 26 years i n the special forces as a Green Beret” held proper testimony); see also State v. Brimmer , 876 S.W.2d 75, 86 (Tenn. 1994), cert

. denied 513 U.S. 1020, 115 S.Ct. 585, 130 L.Ed.2d499 (1994); State v. Smith , 857 S.W.2d 1, 14 (Tenn. 1993), cert

. denied , 510 U.S. 996, 114 S.Ct. 561, 126L.Ed.2d 461 (1993); Edward Jerome Harbison
v. State , Hamilton County No. 03-C-01-9204-CR-00125 (Tenn. Crim. App., Knoxv ille, May 21, 1996), per . app . denied (Tenn. November 12, 1996). In State v. Clarence C. Nesbit , Shelby County No. 02-C-01-9510-CR-00293 (Tenn. C rim. A pp., Jackson, April 22, 1997), a panel of this Court concluded that victim impact testimony

is not admissible pursuant to Tenn. C ode Ann. § 39-13-204(c). In Nesbit this Court said:
Under

Tennessee’s ca pit al sentencing scheme, “[t]he only evidence which is relevant during sentencing phase.

. . is that evidence which is relevant to establish or disprov e the existence of aggravating ci rcumstances or mitigati ng factors.” State v. Black , 81 5 S .W.2d 166, 179 (Tenn. 1991)(citing Cozzolino

v. State , 584 S.W.2d 76 5, 768 (Tenn. 1979)(emphasis added); Tenn. Co de Ann. § 39-13-204(c). Any evidence that does not go t o the proof of one or the other o f those issues is irrelev ant to the jury’s deli beration. Cozzolino , 584 S.W.2d at 768. (Footn otes omitted). Slip op. at 31-32. Judge David

G. Hay es, the a uthor of Nesbit , set fo rth a scholarly disserta tion on how victim impact testimony may affect the sentencing process to support the conclusion this testimony was not rel evant to the sentencing pr ocess in death penalty sente ncing hearings. However, a m ajorit y of the panel concluded the err or was harmless bey

ond a reasonable doubt. This Court concludes, as it did in Nesbit , the admission of this evide nce constituted
error. Judge Paul G. Summers and Judge Hayes are of the opinion thevictim impact testimony

introduced by the state constituted harmless error. Judge Joe B. Jones is of the opinion that while the juryspared the defendant a death sentence, the exten sive nature of this testimony could hav e been the difference between a life sent ence and the sentence imposed, life without the poss ibility of parole. Tenn. R . App. P. 36(b). Therefore, Judge9

Jones believes the convic tion should beaffirmed, but this case should be remanded to the trial court for a new sentencing he aring.

_____________ _______________________ _ JOE B. JONES, PRESID ING JUDGE CONCUR:
(see separate concurring opinion) PAUL G. SUMMERS, JUD GE

_______________________________________ DAVID G. HAYES, JUDG E