### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY 2000 SESSION

STATE OF TENNESSEE, v. ANTONIO BREWSTER.

Direct Appeal from the Criminal Court for Davidson County No. 96-D-1897 J. Randall Wyatt, Jr., Judge

No. M1999-00989-CCA-R3-CD - Decided May 5, 2000

Defendant

was convicted in the Criminal Court, Davidson County, Wyatt, R a ndall J., of felony murder in the perpetration of a robbery, attempted agg ravated robbery, aggra

vated robbery, and

two counts of attempted first-degree murder. The defendant appealed. The Court of Crimina l Appeals, Smith J., held that: (1) the trial court did not err in denying

the defendant’s

motion to suppress hi

s statement; (2) there was suffi c ient evidence that the defendant murdered a bystander in the perpetration of a robbery to support conviction for fe lony mu rder; and (3) the defendant was not denied the effe

ctive assistance

of counsel at tria

l. Affirmed.

T.R.A.P. 3 A ppeal as of Right; Judgment o f the Criminal Cour

t of Davidson County is Affirmed.

JUDGE JERRY L. SMITH , delivered the op

inion of the court,

in which JUDGE DAVID G. HAYES, and JUDGE NORMA MCGEE OGLE, joined.

R.N. (Bo) Taylor, Goodlettsville, Tennessee for the appellant Antonio Bre wster.

Paul G. Summers, Attorne y General and Reporter, L

ucia n D . Geise, Assistant

Attorney Ge

neral; Victor S. Johnson, District Attorney General and Thomas B. Thurman, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The de fendant, Antonio Brewster, was indicted for felony murder, a ttempted aggravated rob

bery
, aggravated

robbery, and tw o counts of attempted first-degre e murder. Fol lowing a suppres sion hearing, the trial court denied the defendant’s motion to suppress his statement. After a jury trial

, the defendant was convicted on all counts as charged. Then, following a sentencing hearing, the jury sentenced the defe nda nt t o li fe wi tho ut p arol e for the fel ony m urder, a nd the trial court sentenced the defendant to five (5) years incarcera tion for attempted aggravated burglary , t en (10) years for aggravated

burglary , both to be served conc

urrently wi

th the life sentence. The court also sentenced the defendant to twenty-two yea rs for each count of attempted first-degree murder, but ordered ea ch

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twenty-two

(22) year sentence to be served consecutively to each other and to the life sentence, thus giving the defendant a total effective sent ence of life with

out parole plus forty-four (44) yea

rs. After failing to timely file a motion for new trial, the defendant filed a motion to allow the late filing for

a motion for new trial. The trial court denied that motion, but appointed new appellate counsel to represent the defendant. The defenda nt then filed a post-conviction petition seeking a delayed appeal. See Tenn. Code Ann. § 40-30-213. The trial court granted the defendant permission to seek a delayed appeal, and the defendant filed a motion for ne w trial. After a hearing on the motion

for new trial, the trial court modified the defendant’s sentence

so that all of hi s sentences would be served concu

rrently, bu

t otherwise denie

d the motion. This appeal raises th

e following issue

s: 1. Whether the tria

l court should have

suppressed the de

fendant’s state

ment; 2. Whether

the evidence was sufficient to sustain a conviction for felony murder; and 3. Whether the def

endant was denie

d the effective

assistance of co

unsel. After a thoroug

h review of the r

ecord, we affi

rm the judgment of

the trial court.

FACTUAL BACKGROUND On Saturday, August 17, 1996, at about 9:30 a.m., the defendant and his accomplice, James Grant, entered a Hooters restaurant in Nashville armed with nine-millimeter pistols. Both men had partially masked faces. The defendant was tall, while Mr. Grant was shorter and stockier. Several employ e es saw the two men after they entered. The defendant asked one of the employees where the manag er was, and the employee replied that the manager had g one to the bank. The two assailants then directed all of the employees i nside a walk-in c

ooler. After the

employees w

ent in the cooler, between $11.00 and $14.00 was taken from a table near the manager ’s office. The manager, Fred Washington, returned from the bank about 9:45 a.m. and, after he entered the restaurant, saw one of the assailants holding a gun. Mr. Washington immediately attempted to flee out the front door of the restaurant, and the assailant shot Mr. Washington twice, on ce in the

r ight le g and once in the left side. Mr. Washington managed to run into the parking lot, but the assailant shot him once again in the leg after Mr. Washington ran outside. Just before Mr. Washington was chased outside, Nathan Orton drove into the Hooters parking lot in his picku p tr uck with Gregor y Crews as a

passenger. Mr

. Orton parked the

truck briefly

to try to determine whether the restaurant was open for business. After they parked, Mr. Orton saw a

man witha gun chasing another man out of the restaurant into the parking lot and shoot him. Mr. Crews told

Mr. Orton to drive away, and Mr. Orton tried to do so. However, Mr. Orton was una

ble
to put t he truck into g ear, and they did not move. After shooting Mr. Washington, the assailant turned hi s atte ntion to the parked truck and starte

d shooting into the p

assenger comp

artment. Although a bullet grazed Mr. Orton’s back, Mr. Orton dove out of thedri ver’ s do or an d ran away. Mr. Crews was not able to escape. He was shot to death inside the truck. Meanwhile, across the stree t, Ch arles Coss , the manager o f a motel, witnesse

d the events unfolding at Hooters. He sa w two men leaving

th e restaurant

chasing other people. He saw the larger of the two men shooting at a man he was chasing, and he saw the man who was being chased fall to the ground. Then Mr. Coss saw the man who had been shooting turn and begin to fire into Mr. Orton’s truck. Finally, he saw Mr. Orton run across the parking lot and the assailant shooting at Mr. Orton as he ran.

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When Mr. Orton fled, he went to a nearby Waffle House

restaurant and yelled for help. Two
restaurant patrons, Rachel Johnson and her fiancé, Chance

Blackwell, hea

rd Mr. Orton say

that his friendhad been shot. Ms. Johnson called 911 on her mobile telephone. Then Ms. Johnson and Mr. Blackwell

saw a cream-colored Chevrolet Caprice leave the parking lot with its tires squeali ng. They decided to try

to follow the vehic

le inM s. Johnson’s truck. Although they momentarily

lost sight of the Caprice when it tu

rned into an apar

tment complex, they

regained visua

l contact with

the

car and maintained it until the car stopped at a pay phone. Police apprehe nded the driver of the Caprice, Lane Locke, at the pay phone. When Mr. Locke had pulled into the a partment complex, the defendant and Mr. Grant got
out of his car, and int

o another. From

there, they drove to Mark Springer’s house. Mr. Springe r, a friendof Mr. Grant’s, then drove the two men to mee t Jason Harrington, an other friend, in Murfreesboro. From there, the d efendant, Mr. Gr

ant, and Mr. Harr

ington all w

e nt to Mr. Harrington’s house. There, Mr. Harrington overheard the defendant and Mr. Grant talking, and one of them said that “they

had some heat on th

em and needed to l

ay low for a

little while.” He a

lso overheard the men complaining that Lane Locke “wasn’ t in the right place at the right time or he’d parked the car in the wrong place.” That evening, the defendant, Mr. Grant and Mr. Harring

ton watched the e

vening news,

and

saw a stor y about the sho oting earlier that day. After the news reported tha t Mr. Locke had been
arrest ed and wa s cooperating with authorities, the defendant and Mr. Grant asked Mr. Harrington
to drive them to Florida. Mr. Harringt on agreed, and began drivin g them south that nigh t. However, Mr. Harrington convinced the de fendant and Mr. Grant to stop for the night in Marion Cou nty, Tennessee, and

stay in a hotel until the next day. The next day, Mr. Harrington called police and told them where the defendant and Mr. Grant were. Police app rehe nde d th e def end ant and Mr. Gran t at the hot el l ate r th at d ay. After police took him into c ustody, the defendant waived his Miranda rights and gave a statement in which h e admitted attempting to

rob the restaurant. He also admitted shooting Mr. Washington, but denied shooting into Mr. Orton’s truck. Police recovered a Baretta n ine-millimeter pistol f

rom Mark Springer’s car, and a Glock ninemillimeter from a

friendof Mr. Springer

. Investiga

tors found a total o

f sixteen (16) shell

casings, six (6) bullets, and two (2) bullet fragments at the crime scene. A ballistics expert determined that all sixteen casings w

ere fired from t

he Glock nine-mill

imeter, and that a

ll six bullets could

have been firedfrom that gun, but, in any event, could not have been fired from the Baret ta. The bullet fragments could not be analyzed.

SUPPRESSION OF DEFENDANT’S STATEMENT

The defendant first claims that the trial court erred whe n it denied his motion t

o suppress his
statement. Specifically, he claims that he asked for an attorney several times but the police refused
to honor his invocation of his right to counsel . An appell ate court sh ould uphol d a trial cou rt's decision on a

motion to suppress, u

nless the evidenc e in the reco rd preponde rates agains t the findi ng. State v. Odom

, 928 S.W.2d 18, 23 (Tenn. 1996). "Questions of credibility of witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact." Id. The part y preva iling in the trial c ourt is entitled to th

e strongest

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legitimate view of the evidence, as well as al l reasonable a nd legitimate inferences that may be drawn from the evidence. Id. In this case, Detective Larry Flair, the Police Officer who questioned the defendant, testified
at the suppression hearing that the defendan t never aske d for an atto rney during ques tioning, that the defendant voluntarily

waived his Miranda

righ ts, and tha t he vol unt ari ly c onfess ed. On crossexamination, the Detective denied allegations that the defendant had asked for an attorney before he gave his statement. The defendant then testified that he had asked for an attorney, but that the police refused to honor his request. The trial court noted that the suppression hearing turned on the

issue of the witness’ cre dibility, and apparently credited Dete ctive Flair’s testimony over that of the defendant. Although we do not question the trial court’s credibility determination, the entire record may be considered on appeal. “[I]n evaluating the correctnes s of a trial court's ruling on a pretrial motion
to suppress, appellate courts may consider the proof adduced both at the suppression hearing and at trial.” State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998). In this case, another detective

c on tradictedDetective Flair following the trial. At the sentencing hearing, Detective D aniel Wh itehurst, who was also present when the defendant gave his taped statement, testified that th e defendant had, in fact, asked for an attorney before he g ave his statement to De te ctive Flair. Spe cif ica lly, Detective Whitehurst testified that the defendant said that he was willing to make a statement, but that he wo uld rather talk to an attorney first. The detective also testified that immediately thereafter the defendant stated “no, I’ll do it now; it’s going to come out anyway.” I n order for an a

ccused to invoke his Fifth Am

endment right to

counsel, that invocation must be clear and unequivocal. Davis v. United States , 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994); State v. Huddleston
, 924 S.W.2d 666 (Tenn.1996). This “clear articulation rule” mandates that when a suspect

clearly requests an attorney, no further questioning may occur until an attorney has been made available or the sus pect reinitiates the conversation. Davis , 512 U.S. at 458. However, if the suspect’ s request for an attorney is ambiguous, then police may continue the questi oning. Id. at 461-62. In or der to determine

whether the suspe

ct has clearly

articulated his desire to consult

with an attorney, the Supreme Court employed the objec tive standard of whether

a reasonable police officer under the circumstan ces would know tha t the suspect wante

d to cease questioning. Id. at 458. Thus, even if the defendant did initially r

equest an attorne

y before ma

king a statement

, the
statement is nevertheless admissible in evidence
, because the defendant’s statement that he wanted

an attorney was followed “in the same breath” with a statement that he did not want an att

orn ey. That is not the type

of “unequivocal” invocation of the defendant’s right to counsel envisioned by the Davis Court. See State v. James Clayton Y oung , No. 01C01 -9605-CC- 00208, 199 8 WL 258466, *12 (Tenn. Crim.App., May 22 19 98 at Nashvi lle)(hold ing that def endant’s st atement: "I'm

sor ry, I'm just wonde

ring if I sho

uldhave a lawyer,” made five minutes into custodial interview, was
not clear enough t

o unequivocally

invoke the defen

dant’ s fifth amen dment right to counsel under Davis ). This issue is without m

erit. SUFFICIENCY The defendant next asserts that the evidence adduce d at trial was insuf ficient to support a first-degree

felony murder conviction. When the sufficiency of the evidenc e is cha llenged, the

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standard for review by an appellate court is whether, after considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the esse ntial elements of the crime beyond a re

asonable doubt.

See Jackson v. Virgini

a , 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Burns , 979 S.W.2d 276, 286-87 (Tenn. 1998); Tenn. R. App. P. 13(e). On appeal, the Sta te is entitled to the

strongest legi

tima te view of th

e evidence and t

o all reasonable

and legitimate in

ferences that m

a y be drawn

therefrom. See State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). In determining the sufficiency of the evidence, this Court does not reweigh the evidence, see id ., o r su bst itu te i ts i nfer ence s fo r th ose draw n by t he tr ier of fact. See Liakas v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (Tenn. 1956). A guilty verdict rendered by the jury and appr oved by the trial judge accredits the testimony of the witnesses for the State, and a presumption of guilt replaces the presumption of innocence. See Burns , 979 S.W.2d at 287; State

v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the appellant bears the burden of proving that the evidence is insufficient to support the jury verdict. See Statev. Pike , 978 S.W.2d 904, 914 (Tenn. 1998); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The statute under which the defendant was convicted defines felony murd er, in relevant p

art,

as "a killing of another committed in the perpetration of, or attempt to perpetrate any . . . robbery

. . . ." Tenn. Code Ann. § 39-13-202(a)(2). The statu te also pr ovides “[n

]o culpable mental s

tate is

re quired for conviction [for felony murder] except the intent to commit the [underlying felony ].” Id. § 39-13-202(b). R

o bbery is d

efined as "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." Id. § 39-13-401. Thus, the evidence was sufficient to

convict the defe

ndant if the state proved that

the defendant int

ended to commit a theft, and did so or attempted to do so, by putting the victim of the theft in fear, a nd that the defendant killed

a person in the pe

rpetration of, or

the attempt to perp

etrate that thef

t. In this case, the defendant and an accomplice entered a closed restaurant early in the morning armedwith pistols and asked where the manager was. After employ ees told the defendant

and his accomplice that the manager had gone to the bank, the defen da nt locked several employees in a cooler. The defendant and his accomplice then took tip money that was lying on one of the tables in the restaurant. When the manager returned, the defendant shot at the manager and chased him out of the restaurant and into the parking lot. The defendant shot the manager several times, and then began to fire at the possible eyewitnesses parked outside the resta

urant. One of the

occupants

of the truck was killed by the

defendant’s gunshots while the other occupant escaped. The defendant and his a ccompl ice then fled. We find this evidence more than sufficient to convict the defendant of first-degree

felony murder. See State v. Lee
, 969 S.W.2d 414, 416 (Tenn. Crim. App.1997) (holding that where victim was killed in a collision that followed a high-speed chase as defendant fled from the scene of a robbery, the homicide occurred in the fur therance of the robbery ; flight from the scene of a crime is an integral part of the crime); see also State v. Brown , 756 S.W.2d 700, 702-03 (Tenn. Crim. App.198 8) (stat ing that the fac t that robbery

was complete bef

ore the victim was

killed did
not make the murder " collateral" to the robbery where defendant picked up the victim with the intent of robbing him and killed him to prevent identification). This issue has no mer

it.

INEFFECTIVE ASSIST ANCE OF COUNSEL Both the Sixth Amendment to the Un

ited States Constituti

on and Article

I, Section 9 of the

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Tennessee Constitution guarantee a criminally accused the right to repre sentation by counsel. See Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn.1975) ; Hicks v. S tate , 983 S.W.2d 240, 245 (Tenn. Crim. App.1998). The United States Supreme Court and t he Tennessee Sup

reme Court have b

oth recognized

that the right to such representation encompasses the right to "reasonably effective" assistance, that is, within the range of competence demanded of attorney s in criminal cases. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct . 2052 , 80 L. Ed. 2d 674 (1984); Baxter , 523 S.W.2d at 936. The overall

standard by which effective assistance of counsel is judged is "whether cou nsel's conduct so undermined the prop er funct ioning of the adversarial process that the trial cannot be relied on as having prod

uced a just

result." Strickland , 466 U.S. at 686. Two components

must be considered: first, a defendant must show tha t co uns el's perf orm ance was defi cie nt i n so me w ay; second, a defendant

must show that the deficient performance actually prejudiced the def ense. Id.
at 687; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1 996). A defe ndant must establish both prongs of the test; failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on an ineffective assistance claim. Goad , 938 S.W.2d at 370. Unde r Te nn. Code Ann. § 40-30-210(f), a post-conviction petitioner seeking relief for constitutional claims is required to prove the allegations "by clear a nd convinc ing evid ence." Although, in this instance, the claim of ineffective assistance of counsel was raised in the motion for

a n ew trial, the same standard applies. State v. Burns , 6 S.W.3d 453. Thus, the burd en is on th e defendant to prove that his trial counsel was ineffective by clear and convincing evidence. In this case, the defendant first claims that his trial counsel wa s ineffect ive (1) for only meeting with the defendant on fiv e (5) or six (6) occ

asions before tr

ial, and for only

spending about thirty minutes with the defen dan t on each occasion; (2) for failing to investigate the scene of the defendant’s arrest and interrogation; (3) for failing to investigate the ballistics evidence in the case ; (4) for failing to

offer a defense at trial; and (5) for failing to present an adequate defense during the defendant’s sentencing hearing. At the hearing on the motion for a new trial, the on ly witness was the defendant’s trial
att orn ey, Greg Galloway

. Mr. Galloway

testified that he m

et with his cli ent more than five or six times before trial, a

nd estimated that he spent “at least” thirty (30) minutes per visit with the defendant. He also stated that he did not go to Jasper, Tennessee to investigate the scene of the defendant’s arrest and state ment, but stated that he chose not to go because although the defendant gave his statement in Jasper, the police involved were from Davidson County. Thus, Mr. Galloway did not find the scene of

the defendant’s arrest relevant. Mr. Galloway admitted that he should ha ve investigated

the ballistics evid

ence more thorou

ghly befo re trial, but that h

e did not because

he was confused about the nature of the evidence. Although the defen dant did not inquire about Mr. Galloway’s failure to offer a defense, Mr. Ga lloway stated that the defendant made it clear that he did not want to testify

. Finally, th

e defendant did

not inquire about Mr. Galloway’s adequacy at the sentencing hearing. Howe ver, on cross-e

xamination, Mr. Gall

oway state

d th at although he conta

cted members of the de

fendant’s family

, they would n

ot attend the trial

. The record reflects that the defendant completely failed to show a ny prejudice resulting from any cla ime d de fic ien cy. Indeed, although Mr. Galloway admitted that he should have investigated the ballistics evidence more carefully, the defendant has not shown how a more thorough ballistics investigation would have aided him at trial. Furthermore, he did not presen t the testimony of any

### -7-

uncalled witnesses or otherwise present any evidence that Mr. Galloway ’s alleged defi c iencies workedto the defendant’s actual prejudice. See Scott v. State , 936 S.W.2d 271, 273 (T enn. Crim. App. 1996). This issue has no mer

it. Accordingly, the judgment of the trial court is AFFI RMED.