# FILED August 31, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9707-CR-00274 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. L.T. LAFFERTY, SAMUEL F. H OWARD, III, ) JUDGE ) Appellant. ) (Felony Mu rder, Esp ecially ) Aggravated Robb ery)

FOR THE APPELLANT : CHRISTOPHER L. NEARN (Trial and Appeal) 243 Exchange Avenue Memphis, TN 38105 BILL ANDERSON, JR. (Tri al On ly) 138 North Third Street Memphis, TN 38103-2007 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter PET ER M . CO UGH LAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General J. ROBERT CARTER, JR. ROSEMA RY AN DREWS Asst District Attorn eys General 201 Poplar Ave, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 OPINION
The defendant, Samuel F. Howard, III , appeals as of right his c onvictions by a Shelby County jury of murder in the perpetration of a felony and especially aggravated robbery. He received concurr ent sentences of life and twenty (20) years. Th e defen dant rais es the fo llowing issu es for revi ew:

(1) whether the evi dence was sufficient for a jury to convict the defendant of murder in the perpetration of a felony a nd espec ially aggrava ted robb ery; (2) whether the defendant w as deprived of a fair trial because the jury was not individually questioned in voir dire ; (3) whether the trial

court improperly dis missed a prospective juror; (4) whether the tria l court erred by adm itting a photograph of the victim; and (5) whether the trial

court erred by failing

to grant a mistrial after the state made impr oper remarks during closing argument. After a thorough review of the record, the judgment of the trial court is AFFIRMED.

FACTS
The victim, Roy Ta te, was driving in Memph is with his friend, Rico King, on the evening of July 24,1995. He pulled into an Amoco st ation to use a pay phone after his girlfriend paged him. As the victim spok e on the telephone, the defend ant and C edric Sol omon ap proache d him fro m behind . Solomo n drew a nine (9) m illimete r handgun and said, “don’t mo ve.” King to ld the pa ir, “we’ll give you whatever y

ou want . . . just don’t k ill us.”
The victim turned to face the pai r. King testified that at this point he ran away. The victim at

tempted to run as well, but was shot twice from behi nd. The3

defendant and Solomon then got in the victim’s car and drove away. It is uncontrove rted that Sol omon, not the d efendant, shot the victi m.

Eric Denton testified at trial that the defendan t and Solomon were riding in Denton’ s vehicle im mediate ly prior to t he killing . He state d that as they drove around Solomon stated he and the defendant needed t o rob someone in order to pay the defendant’s lawy er. Denton testified that he sto pped at a store near the Amoco to purchase beer and use the r estroom. Denton testified that as he exited the store he heard tw o (2) gunshots and observ ed Solomon standing by the Amoco pay phone with a pi stol in his hand. Later that night, Denton saw the defendant and Solomon in the victim’s car. Solomon asked Denton for help in removing the car’s s

tereo components to sell them. The defendant and Solomon asked Denton if he knew of anyone interested in buying the car or its contents.
Anthony Evans testified that the defendant and Solomon approached him the night of the murder and sold him a car speaker system known as a “kick box.” Evans testified he gave the defendant $100 for the speake rs. Evans further testified that severa l days after the murder, he hear d the defendant saying that he beat a murder charge when the polic e released him after questioning.

SUFFICIENCY OF THE EVIDENCE

When an accused challen ges the sufficiency of the evidence, this Court must review the rec

ord to determine if the evidenc e adduced during the trial was sufficient "to support the findings by the trier of f act of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is applicable to f indings of guilt predicated upon direct evi dence, circumstantial ev idence or a combination of direct and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,19 (Tenn. Crim. App.1996).4 In determinin g the sufficie ncy of the eviden ce, this Court do es not reweigh or reevaluate the evi dence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn.1978). Nor may this Court substitute its infer ences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, thi s Court is required to afford the state the strongest leg itimate view of the ev idence contained in the recor d as well as all reasonabl e and legitimate inferences w hich may be drawn from the evidence. State v. Tuttle , 914 S.W.2d 926, 93 2 (Tenn. Crim. App.1995).
Because a verdict of guil t removes the presumption of innoc ence and replaces it with a presumption of guilt, the accused has the burden in this Court of illustrating why

the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace , 493 S.W.2d at 476.
Further, a defendant who aids and abets a co-defendant in the commission o

f a crime, suc

h as aggra

vated robbe ry, is li able for any crime committed by the co-defendant as a natural and probable consequence of the originally intended

crime. State v. Carson , 950 S.W.2d 951, 956 (Tenn. 1997).

The defendant contends that a legitimate interpretation of the evidence would be that the defendant was forced by Solomon to partici pate in this criminal adventure. Further, the defendant contends th at he never had the intent to harm the victi m.
Testimony at trial rev

ealed that the defendant and Solomon wer e looking for a person to rob the evening the victim was ki lled. Solomon stated they needed to steal in order to pay for the defendant’s lawyer in an unrelated case. Further testimony show ed the defendant was activel y involved in s

elling stereo components from the victim’s c ar. The defendant also bragged tha t he beat a5

murder charge when the police initia lly released him af ter questioning.
Taking the evidence in a light most favorable to the state, the jury clearly could have concluded the defendant w as a willing participant in the offenses charged.

This issue is without merit.

VOIR DIRE

The defendant contends the trial court erred in denying his pre-trial motion for individual voir dire . The record is devoid of any motion or request for individual voir dire . Nor does the trial transcript reflect any discussion of this issue prior to voir dire . The issue is, therefore, waived. Tenn. R. App. P. 36(a).
Regard less, the contr

ol of voir dire

rests within the sound

discretion of the trial judge. State v. Stephenson , 878 S.W.2d 530, 540 (Tenn. 1994). In Tennessee, the prevailing practice is to voir dire

prospect ive jurors c ollective ly, rather than individuall

y. State v. Oody , 823 S.W.2d 554, 563 (Tenn. Crim. App. 1991). While Tenn. R. Crim. P. 24(a) gives the trial court the right to individually question prospective jurors, it is only necessary to do so when there is a significant possibility that the juror has been exposed to “potentially prejudicial material.” State v. Claybrook, 736 S.W.2d 95, 100 (Tenn. 1987) (quoting Sommerville v. State , 521 S.W.2d 792, 79 7 (Tenn. 1975)). The trial court’s exercise of its discr

etion will not be disturbed unless there is an abuse of that discretion. State v. Irick , 762 S.W.2d 121, 12 5 (Tenn. 1988).
The defendant does not suggest that any juror had been exposed to prejudicial information. As such, we find no error i n the use of a collective voir dire . This issue is without merit.6 DISMISSAL OF JUROR FOR CAUSE

The defend ant alleges he w as prej udiced b

y the tr ial cou rt’s di smissal

of a potential juror. The juror expressed doubt regard ing his ability t o follow the law of criminal responsibility. At one point the juror stated he could not be fair to both sides. At another point he said, “I guess so” w hen asked if he could follow the law. Over the defendant’s objection, the trial court dismissed the juror.

The decision of a trial court e xcusing a juror for cause is subject to an abuse of discretion standard. State v. Kilburn , 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989). The trial court excused the prospec tive juror because he w as equivocal in his ans

wer regarding hi s ability to follow the law. The trial cour t was well within its discretion to dismiss the juror.

This issue is without merit.

PHOTO OF VICTIM

The defendant contends the trial court improperly admitted a photog raph of the victim taken at the crime scene. The defen dant argues the photograph is inflammatory, and its probati ve value was far outw

eighed by its prejudi cial effect.
The admissibility of photogr aphs lies within the s

ound discretion of the trial court whose ruling

will not be overturned on appeal except upon a cl ear showing of an abuse of discretion. State v. Banks , 564 S.W.2d 947, 94 9 (Tenn. 1978); see also State v. Stephenson , 878 S.W.2d at 542; State v. Bordis , 905 S.W.2d 214, 226 (Tenn. Crim. App. 1995). Nevertheless, the photog raphs must be relevant to an issue at t rial with its pr obative value outwei ghing any prejudicial effect that it may have upon the tr ier of fact. State v. Braden , 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993); State v. Jennifer Collin s , C.C.A. No. 03C01-9704-7

CR-00143, Hamilton County (Tenn. Crim. App. filed March 3, 1998, at Knoxville).
We must, therefore, first determine whether the photograph was relev ant. Relevant evidence is

evidence “having any tendency to make the ex istence of any fact that is of consequence to the determinatio n of the action more probable or less probable than it w ould be without the evi dence.” Tenn. R. Evid. 401.
The photograph showed the victim lying on the pavement of the Amoco lot. The photograph was us ed by the state to corrobor ate the testimony of its witnesses. In lig ht of the evidence previous ly introduced, the admiss ion of the photograph of the victim pr esents a close question. Arguably, this informati on could have been properly relayed to the jury

with testimony rath er than the photograph. Although the photog raph did show the vic tim’s blood on the pa ve me nt , t he

tria l c ou rt fo un d t ha

t t he ph otog ra ph wa

s n ot in fl am mato ry . We conclude there was no abuse of discretion by the trial court in admitting this evidence.
Furthermore, even if the photog raph was improperly admitted, its admission constituted harmles s error. Tenn. R. App. P. 36(b). It certainly w as not of the prejudicial magnitu de of those utilized in State v. Jennifer Collin s , supra (numerous photographs of “bruised, bloodied, nud e, infant victim”).

IMPROPER CLOSING ARGUMENT

The defendant’s final issue relates t o alleged improper statements made by the pros ecutor in closing arg ument. T he defe ndant cla ims the cu mulative effect of these arguments rendered his trial unfair.

A.8 The first argument said to hav e prejudiced the defendant concerned alleged gang activ

ity. The prosecutor stat ed: Ladies and Gentlemen, Roy Tate di ed on July 24, 1995, because Samuel Howard is a wannabe. He’s a gangster wannabe . . .He wanted to be a gang member . . . Samuel Howard w as more than glad, that’s his possible initiation into a gang members hip . .

. The defense objected to this statement, and the trial court ruled the re was no indicati on that t he murde r was part of a gang initi ation. T he trial co urt then gave the jury an instruction to disregard any comments about gang activities.
Although the prosecutor's remarks were improper, we must determine whether the defendant was prejudiced. This Court has set out f ive factors which must be considered in making the determination whether a prosecu tor's improper conduct could have affected the verdict to the prej udice of the defendant. These factors are as f ollows: 1. the conduct complained of in lig ht of the facts and circumstances of the case; 2. the curative measures under taken; 3. the intent of the prosecutor in making the improper rema rks; 4. the cumulative effect of the improper c onduct and any other errors in the record; and 5. the relative strength or weakness of the case. State v. Philpott , 882 S.W .2d 394, 408 (T enn. Crim. App. 1994) (citing Judge v. State , 539 S.W.2d 340, 34 4 (Tenn. Crim. App. 1976).
The trial court admonished the j ury to disregard any comments about gang activities.Jurors are presumed to foll ow the court’s instr uctions. Henley v. State , 960 S.W.2d 572, 581 (Tenn. 1997); State v. Blackmon , 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985).9 Based upon the above principles, we conclude the prosecutor’s remarks did not affect the verdict to the prejudice of the defendant. Certainl y, the prosecutor’s reference to gang activities did not rise to the level condemned in State v. William Charles Jones , C.C.A. No. 01C01-9512-CC-00402, Maury County (Tenn. Cri m. App. filed June 30, 1997 , at Nashville) (num erous “gang” references along with other inflammatory arguments).

This issue is without merit.

B.
The second prosecution argument al leged to have been improper concerned the defendant’s partner, C edric Solomon. Ladies and Gentlemen, Mr. Anders on wants to know why the state did not call Cedric Solomon. Why didn’t they? The prosecution made this rebuttal argument in response to the foll owing closing argument of the defendant’s counse l:

I submit to you that the state did not prove any intent to rob on the part of Samuel How ard through a witness that they coul d have put up there and who might have cleared this entire thing up. Cedric Solomon . Why d idn’t the y? Why d idn’t the y? The defendant claims the prosecutor’s state ment requires a reversal of his
co nv ic ti on be ca us e i t i mp li ed th e d ef en da nt ha d a bu rd en to

pu t o n p ro of . We respectfully disagree.
The witness, Cedric Sol omon, was equally av ailable to testify for either side. See generally State v. Middlebrooks , 840 S.W.2d 317, 33 4 (Tenn. 1992); State v. Francis , 669 S.W.2d 85, 88 (Tenn. 1984). Defense counsel first raised the issue of Solomon’s failure to t estify in his closing

argument, insinuating the10

state was hiding somethi ng by failing to cal l Solomon. The prosecutor counter ed by stating the defense could have called Solomon.
Counsel for the defendant made an allegation that the state was attempting to keep exculpat ory information from the jury. Both sides had the ability to procure Sol omon’s testimony. We agree with the trial court’s ruli ng that it was appropriate for th e state to apprise the jury of that fact in light of the defendant’s argument.

This issue is without merit.

CONCLUSION

After a review of the rec ord and the briefs, we find no r eversible error and AFFIRM the judgment of the tr ial court.

_________________________

JOE G. RILEY, JUDGE

CONCUR:

________________________ CURWOOD WITT, JUDGE

________________________ ROBERT W. WEDEMEYER, SPECIAL JUDGE