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, Randall J., of felony

murder in the perpetration of a robbery, attempted aggravated robbery, aggravated robbery, and two

counts of attempted first-degree murder. The defendant appealed. The Court of Criminal Appeals,

Smith J., held that: (1) the trial court did not err in denying the defendant’s motion to suppress his

statement; (2) there was sufficient evidence that the defendant murdered a bystander in the

perpetration of a robbery to support conviction for felony murder; and (3) the defendant was not

denied the effective assistance of counsel at trial.

Affirmed.

T.R.A.P. 3 Appeal as of Right; Judgment of the Criminal Court of Davidson County is

Affirmed.

JUDGE JERRY L. SMITH, delivered the opinion 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 Brewster.

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General;

Victor S. Johnson, District Attorney General and Thomas B. Thurman, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant, Antonio Brewster, was indicted for felony murder, attempted aggravated robbery,

aggravated robbery, and two counts of attempted first-degree murder. Following a suppression

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 defendant to life without parole for the felony murder, and the trial court sentenced

the defendant to five (5) years incarceration for attempted aggravated burglary, ten (10) years for

aggravated burglary, both to be served concurrently with the life sentence. The court also sentenced

the defendant to twenty-two years for each count of attempted first-degree murder, but ordered each
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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 sentence of life without parole plus forty-four (44) years. 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 defendant 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 new trial. 

After a hearing on the motion for new trial, the trial court modified the defendant’s sentence

so that all of his sentences would be served concurrently, but otherwise denied the motion. This

appeal raises the following issues:

1. Whether the trial court should have suppressed the defendant’s statement;

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

3. Whether the defendant was denied the effective assistance of counsel.

After a thorough review of the record, we affirm 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

employees saw the two men after they entered. The defendant asked one of the employees where

the manager was, and the employee replied that the manager had gone to the bank. The two

assailants then directed all of the employees inside a walk-in cooler. After the employees went 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, once in the

right leg 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.Washingtonwas chased outside, Nathan Orton drove into the Hooters parking

lot in his pickup truck with Gregory 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 with a 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 unable

to put the truck into gear, and they did not move. After shooting Mr. Washington, the assailant

turned his attention to the parked truck and started shooting into the passenger compartment.

Although a bullet grazed Mr. Orton’s back, Mr. Orton dove out of the driver’s door and ran away.

Mr. Crews was not able to escape. He was shot to death inside the truck. 

Meanwhile, across the street, Charles Coss, the manager of a motel, witnessed the events

unfolding at Hooters. He saw two men leaving the 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, heard Mr. Orton say that his

friend had 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 squealing. 

They decided to try to follow the vehicle in Ms. Johnson’s truck. Although they momentarily lost

sight of the Caprice when it turned into an apartment complex, they regained visual contact with the

car and maintained it until the car stopped at a pay phone. Police apprehended the driver of the

Caprice, Lane Locke, at the pay phone. 

When Mr. Locke had pulled into the apartment complex, the defendant and Mr. Grant got

out of his car, and into another. From there, they drove to Mark Springer’s house. Mr. Springer, a

friend of Mr. Grant’s, then drove the two men to meet Jason Harrington, another friend, in

Murfreesboro. From there, the defendant, Mr. Grant, and Mr. Harrington all went 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 them and needed to lay low for a little while.” He also

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. Harrington watched the evening news, and

saw a story about the shooting earlier that day. After the news reported that Mr. Locke had been

arrested and was cooperating with authorities, the defendant and Mr. Grant asked Mr. Harrington

to drive them to Florida. Mr. Harrington agreed, and began driving them south that night.

However, Mr. Harrington convinced the defendant and Mr. Grant to stop for the night in Marion

County, 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 apprehended the defendant and Mr. Grant at the hotel later that day. After police took

him into custody, the defendant waived his Miranda rights and gave a statement in which he

admitted attempting to rob the restaurant. He also admitted shooting Mr. Washington, but denied

shooting into Mr. Orton’s truck. 

Police recovered a Baretta nine-millimeter pistolfrom Mark Springer’s car, and a Glock ninemillimeter from a friend of Mr. Springer. Investigators found a total of sixteen (16) shell casings,

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

all sixteen casings were fired from the Glock nine-millimeter, and that all six bullets could have been

fired from that gun, but, in any event, could not have been fired from the Baretta. The bullet

fragments could not be analyzed. 

SUPPRESSION OF DEFENDANT’S STATEMENT

The defendant first claims that the trial court erred when it denied his motion to 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 appellate court should uphold a trial court's

decision on a motion to suppress, unless the evidence in the record preponderates against the finding.

 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 party prevailing in the trial court is entitled to the strongest
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legitimate view of the evidence, as well as all reasonable and 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 defendant never asked for an attorney during questioning, that the

defendant voluntarily waived his Miranda rights, and that he voluntarily confessed. 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’ credibility, and apparently credited Detective 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 correctness 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

contradicted Detective Flair following the trial. At the sentencing hearing, Detective Daniel

Whitehurst, who was also present when the defendant gave his taped statement, testified that the

defendant had, in fact, asked for an attorney before he gave his statement to Detective Flair.

Specifically, Detective Whitehurst testified that the defendant said that he was willing to make a

statement, but that he would 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.” 

 In order for an accused to invoke his Fifth Amendment 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 suspect 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

questioning. Id. at 461-62. In order to determine whether the suspect has clearly articulated his

desire to consult with an attorney, the Supreme Court employed the objective standard of whether

a reasonable police officer under the circumstances would know that the suspect wanted to cease

questioning. Id. at 458. 

Thus, even if the defendant did initially request an attorney before making 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 attorney.

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 Young, No. 01C01-9605-CC-00208, 1998 WL

258466, *12 (Tenn. Crim. App., May 22 1998 at Nashville)(holding that defendant’s statement: "I'm

sorry, I'm just wondering if I should have a lawyer,” made five minutes into custodial interview, was

not clear enough to unequivocally invoke the defendant’s fifth amendment right to counsel under

Davis). 

This issue is without merit.

SUFFICIENCY

 The defendant next asserts that the evidence adduced at trial was insufficient to support a

first-degree felony murder conviction. When the sufficiency of the evidence is challenged, 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 essential elements of the

crime beyond a reasonable doubt. See Jackson v. Virginia, 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 State is entitled to the strongest legitimate view of the evidence and to all

reasonable and legitimate inferences that may be drawn therefrom. See State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). In determining the sufficiency of the evidence, this Court does not

reweigh the evidence, see id., or substitute its inferences for those drawn by the trier 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 approved 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 State v. 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 murder, in relevant part,

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 statute also provides “[n]o culpable mental state is

required for conviction [for felony murder] except the intent to commit the [underlying felony].”

Id. § 39-13-202(b). Robbery is defined 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 defendant if the state proved that the defendant intended to commit a

theft, and did so or attempted to do so, by putting the victim of the theft in fear, and that the

defendant killed a person in the perpetration of, or the attempt to perpetrate that theft.

In this case, the defendant and an accomplice entered a closed restaurant early in the morning

armed with pistols and asked where the manager was. After employees told the defendant and his

accomplice that the manager had gone to the bank, the defendant 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 restaurant. One of the occupants of the

truck was killed by the defendant’s gunshots while the other occupant escaped. The defendant and

his accomplice then fled. We find this evidence more than sufficient to convict the defendant of

first-degree felony murder. SeeState 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 furtherance 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.1988) (stating that the fact that robbery was complete before 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 merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
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Tennessee Constitution guarantee a criminally accused the right to representation by counsel. See

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975); Hicks v. State, 983 S.W.2d 240, 245 (Tenn.

Crim. App.1998). The United States Supreme Court and the Tennessee Supreme Court have both

recognized that the right to such representation encompasses the right to "reasonably effective"

assistance, that is, within the range of competence demanded of attorneys 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 counsel's

conduct so undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result." Strickland, 466 U.S. at 686. Two components must be

considered: first, a defendant must show that counsel's performance was deficient in some way;

second, a defendant must show that the deficient performance actually prejudiced the defense. Id.

at 687; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). A defendant 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. 

Under Tenn. Code Ann. § 40-30-210(f), a post-conviction petitioner seeking relief for

constitutional claims is required to prove the allegations "by clear and convincing evidence."

Although, in this instance, the claim of ineffective assistance of counsel was raised in the motion for

a new trial, the same standard applies. State v. Burns, 6 S.W.3d 453. Thus, the burden is on the

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 was ineffective (1) for only

meeting with the defendant on five (5) or six (6) occasions before trial, and for only spending about

thirty minutes with the defendant 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 only witness was the defendant’s trial

attorney, Greg Galloway. Mr. Galloway testified that he met with his client more than five or six

times before trial, and 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 statement, 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 have

investigated the ballistics evidence more thoroughly before trial, but that he did not because he was

confused about the nature of the evidence. Although the defendant did not inquire about Mr.

Galloway’s failure to offer a defense, Mr. Galloway stated that the defendant made it clear that he

did not want to testify. Finally, the defendant did not inquire about Mr. Galloway’s adequacy at the

sentencing hearing. However, on cross-examination, Mr. Galloway stated that although he contacted

members of the defendant’s family, they would not attend the trial.

The record reflects that the defendant completely failed to show any prejudice resulting from

any claimed deficiency. 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 present the testimony of any
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uncalled witnesses or otherwise present any evidence that Mr. Galloway’s alleged deficiencies

worked to the defendant’s actual prejudice. See Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim.

App. 1996).

This issue has no merit.

Accordingly, the judgment of the trial court is AFFIRMED.