# FILED
November 5, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9604-CR-00119 Appellee, ) ) Shelby County V. ) ) Honorable W . Fred Axley, Judge ANDREW R. EWIN G, ) ) (Felony Murder) Appellant. ) )

FOR THE APPE LLANT: FOR THE APPELLEE: A C Wharton John Knox Walkup Shelby County Public

Defender Attorney General & Repor ter Edward G. Thompson Kenneth W. Rucker Assistant Public Defender Assistant Attorney Gener al 616 Adams Avenue 450 James Robertson Parkwa y Memphis, TN 38103 Nashville, TN 37243-4351 William L. Gibbons District Attorney General Edgar A. Peterson, IV Assistant District A

ttorney General Criminal Justice Comple x, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED: _______________________
AFFIRMED PAUL G. SUMM ERS, Judge-2- O P I N I O N
The appellant, Andrew R. Ewing, and his co-defendant, Derrick C. Brooks, were tried jointly

by a jury for first degree murder. Ewing and Brooks were found guilty of felony murder for committing a murder durin g the perpetration of an aggravated burglary. Both men were sentenced to life in prison. Because Derrick C. B rooks’ ap peal has been seve red from Andrew R. E wing’s appe al, we will address only

the issues presented by A ndrew Ewing in this opinion.
Andrew Ewing rai ses the following three issues on appeal: (1) w hether the evidence is sufficient to supp ort his conviction for murder in the perpetration of an aggravated burgl ary; (2) whether the touching by the prosecutor of the victim’s mother’s ar

m during her testimony r ose to the level of prosecutor ial indiscretion; and (3) w

hether the prosecutor’s cl osing argument was i mproper. After carefully review

ing the record, we affirm the trial court’s judg ment.
Approximately three or four weeks before March 20, 1 994, the day of the shooting, Andrew Ew

ing and Willie Fifer had an altercati on at Fifer’s house on 3559 Clayphil in Memphis over Fifer’s sister, Yolanda. Yolanda and Andr ew Ewing had two chi ldren together. On this particular morning, Y

olanda had asked her brothers, Willie and James, to t ake her son to school in her car. Unbeknownst to the two brothers, Andrew Ew ing had hidden in the back sea t of the car. While ri ding around , the Fifer br others had di scussed the problems between their sister and Andrew Ewing, and Ewing had overheard this conversation. When the Fifer broth ers returned to their home on 3559 Clayphil, Ewing jumped out of the car, and he and Yolanda began to arg ue. Willie Fifer tried to get the two to leave, but Ewing broke the back window of Yolanda Fifer’s car. Willie and his brother, James,chased Ewing until they caught him at a grocery store. Willie and M arlo Terry tried to settle the argument, but James Fifer grabbed Ewing by the throat. The altercation ended, and James and Willie-3- Fifer, along with M arlo Terry, returned t o their home at 3559 Clayphi l.

Within a few minutes of th is altercation, Willie Fifer drove the car toward Andrew Ewing’s father’s house. Fifer had planned to get Ewing’s father to repair his car. As Willie Fifer was driving down a s treet, Ewing ran into the middle of the street and pushed a garbag e can into Fifer’s car. The F ifer brothers chased Ewing into a store and

began fighting him. Ew ing ran out of the store to a market, but the doors of the market w ere already locked. The al tercation then ended.
On the night of the shooting, M arch 20, 1994, Andrew Ew ing’s girlfriend, Teresa Landers, and her two c hildren arrived at Ew

ing’s place of employment, an Exxon gas station, at approximately 10 p.m. She and her two children were asleep on the floor when Joe Lur ry, Ewing’s un cle, came into the gas stati on around 2 a.m. Ewing told Landers that he needed to see about something and then left Landers in charge of the gas station.
Because Joe Lurry had been dr inking, Ewing dr

ove Lurry’s car,and after driving around for aw

hile, Ewing stopped the car. In approximately

two to three minutes, Derrick Brooks got into the car. After an un successful attempt to buy beer, Ewing drove the car “onto a dead end street and stated, ‘there the house is right there.’” Ew

ing parked the car about a bl ock past the house. Ewing and Brooks got out of the car and s tarted walking tow

ard the house. Lurry, w ho decided to see what was happening, approached th e house and saw Ewin g, holding a stick in his

hand, kick the front door of the house three to five times.
Inside the house at 3559 Clayphil were Marlo Terry; Keisha Taylor, his girlfriend; and Willie Fifer. Marlo Terry and Keisha Taylor were in the back bedroom, and Willie Fifer was on the couch in the living room.Fifer had begun to fall asleep when he heard someone kicking the front doo r of the duplex. He-4- ran down the hallway , beat on Terry’s bedroom door, and begged Terry to l et him in the room. Someone hit Fifer from behind in the head, and he fell to the ground. When he rolled over he made eye contact with Andrew

Ewing. Although Fifer saw another man in his house, he could not i dentify the other man. Ewing hit Fifer

three to four times, as Fifer c ontinued begging Terry to let him into the bedroom. Terry fin ally let Fifer into th e bedroom, and Terry stood with his back agains

t the door trying to k

eep the men from entering the bedroom. Meanwhile, Fifer, w

ho crawled under the bed, to ld Keisha Taylor that one of the men was Andrew Ewi ng. Taylor heard loud s hots, and Terry fell to the floor

.

Because the house did not have a telephone, Taylor had to go ne xt door for help. Fifer stayed at the house with Terry unti l he died, and then he went next door as well. The next door neighbor final ly answered the door and called the police. After the shots w ere fired, Ewing, Bro

oks, and Lurry left. Lurr y asked Ewing what happened, and Ewing answered, “That’s all right, man. We got this.” Ewing drove Brook

s to his house and then drove Lurry back to the Ex

xon station, arriving there ar

ound 4 a.m. Lurry told Teres a Landers, Ewing’s g irlfriend, that someone had been shot and then he left. Ew ing told her that he had ki cked the door down and had started fig hting with Peanut, the ni ckname for Willie Fifer. Ewing also told Lander s that he followed Fifer tow ard the bedroom and that Derrick Brooks shot i nto the bedroom through the door. Ewing further stated tha t he heard someone in the bedroom say that they had been hit.
The next day Ewing called his girlfrien d, Teresa Landers, and asked her to lie about the times that she v isited the gas station. He wanted her to say that she had left th e gas stati on between 1 2:00 and 1:00 a .m.

On March 22, 1994, Derrick Brooks, after having been advised of his rights, stated that he enter ed the residence at 3559 Clay phil with Andrew E wing-5- and Joe L urry. He fu rther sta ted that they ente red the ho use by kno cking down the door. He also stated that he shot a gun four times inside the house because he thought that somebody was going to get a gun and shoot him. Dr. Jerry Francisco, the Shelby County medical examiner, testified that the cause of Marlo Terry’s death was a g unshot wound to the back.
In his first issue, the appel lant argues that the evi dence is insufficient to support his felony murder c onviction. He contends tha t there is no evidence that he knew his co-defendant had a pi stol and there is no evi dence of where he was when his co-defendant fired the g un. Furthermore, he maintains that there is no evidence th at he knew the victim o r had any an imosity to ward him.
The state argues that the evi dence is sufficient to support Ew ing’s felony murder conviction. The state contends that Ewing called Derrick Brooks and told him to go with him. Ewing, who then left his place of employment, drove the car, with Derrick Brooks an d Joe Lurr y as passen gers, to th e addres s of Marlo Terry, the victim. Ewing

along with Brooks got out of the car and walked to the front of the duplex. After grabbing a stick to use as a weapon, Ewing kicked the front door several times until it opened. Ewing then entered the house, chased W illie Fifer, and repeatedly hit F ifer in the head with a sti ck. The state maintains that although Ewing did not fire the gun that killed Marlo Terry, Ewing is criminally responsible for the conduct of Derrick Brooks.
Great weight is acc

orded jury verdic

ts in criminal trial s. Jury verdict s accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s favor. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes , 874 S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, th e state is entitled to both the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832 (Tenn. 1978). Moreover, guilty

verdicts remove the presumption of innocence, enjoyed by-6- defendants at trial, and replace i t with a presumption of gui lt. State v. Grace , 493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, car ry the burden of overcoming a presumption of guilt when appealing jury convictions

. Id.
When appellants challen ge the sufficiency of the evidence, this Court must determine whether, after v iewing the evidenc

e in a light most favorabl e to the prosecution, any rati onal trier of fact could have found the essential elements of a crime beyond a reasonable doub t. Jackson v. Virginia , 443 U.S. 307 (1979); Tenn. R. App. P. 13(e); State v. Duncan , 698 S.W.2d 63 (Tenn. 1985). The weight and credibil ity of a witness’ tes timony are matters entrust ed exclusively

to the jury as the trier

s of fact. State v. Sheffield , 676 S.W.2d 542 (Te nn. 1984); Byrge v. State , 575 S.W.2d 292 (Te nn. Crim. App. 1978).
Evidence of the appellant’s g uilt is overwhel ming. Apparently it w as the appellant’s idea to go to Willie Fifer’s house that night, and he recruited Derrick Brooks’ help. The appellant dr ove the car to the house, and onc e there, he kicked the door down and began beating Willie Fifer. At trial , Fifer identified the appellant as th e person who atta cked him the nigh t of the shoot ing. Although the appellant did not shoot the gun that killed Marlo Terry, he is criminally responsible for the conduct of Der rick Brooks under Tenn. Code Ann. § 39-11- 402 (1991). The evidence is sufficient to support the appellant’ s conviction for felony murder. This issue i s without merit.
In his second issue, the appel lant argues that the touching by the prosecutor of the victim’ s mother’s arm during her testimony was prosec

utorial indiscretion. The prosecutor showed Eddie Mae Parker, the victim’s mother, a picture of her son taken by the Shelby County Medic al Examiner. During

the testimony of Ms. Parker, the prosecutor touched Ms. Parker’s arm to steady her. The appellant maintains that the pros ecutor was only tr

ying “to elicit sympathy from the jury” and that this act by the prosecutor pr ejudiced his case.-7- The state, however, arg ues that the prosecutor’s ac tions were not improper. The state asserts that the prosecutor approached the witness with the permission of the court and show ed her a picture of her dead son for identification. The witnes s became upset, so the prosecutor touched the witness “in an attempt to calm her and to prevent her from falling out of the chair.” Th e appella nt’s atto rney did no t request a mistria l or a curat ive instruction, but request ed only a bench conference to ex press disapproval of the prosecut or’s actio ns. Afte r this ben ch confe rence, th e prosecu tor did no t have any further physical contact with the witness. The state maintains that if there was error, it was harmless.
The appellant’s attorney expressed only disapproval of the prosecutor’s action in a bench conference, but now argues that this act by the prosecutor prejudiced his case. How ever, as the state notes, the appellant did not request a mistrial or a curative instruction in response to the prosecutor’s action. Because the appellant did not take actio n “to prevent or nulli fy the harmful effect of an error” pursuant to Rule 36(a) of the Tennessee Rules of Appell ate Procedure, he is not entitled to relief now. This issue is without merit.
In his third issue, the appel lant asserts that the prosecutor made improper remarks during his cl osing argument that inflamed the jury. First, the appellant argues that the prosecutor’s de scription of th e autopsy of th e victim as “slic[ing] him open like the piece of meat that the se guys made him” was prejudicial because it encouraged “sy mpathy for the deceased and prejudi ce against the defendant.” The appellant also contends that the prosecutor injecte d extraneous issues into the case by quoting from a 1992 speech by Memphis Mayor W. W. Herenton, “regarding the need to s top homicide among the minority populations.”
Regarding the prosecut or’s statement about the autopsy of the victim, the-8- state argues that the statement only “focused the jury on the reality of this ma n’s death and was a fair comment of the ev idence presented at trial.” Also, the state contends that the issue of the p rosecutor quoting from a 199 2 speech of Mayor Herenton is w

aived because the appellant fail ed to cite to the record, failed to make a contemporaneous ob jection at trial, and failed to raise this incident as prosecutorial misconduct in his motion for new trial.

First, it is necessar

y to determine whether the statements made by the prosecut or were imp roper, an d if so, “wh ether th e improp er condu ct could h ave affected the verdict to the prejudice of the de fendant.” Harrington v. State , 385 S.W.2d 758 (Tenn. 1965). Five factors are c onsidered in determining w hether the improper conduct could have affected th e verdict: (1) the conduct viewed in context a nd in light of the f acts and circumst ances of the case; (2) the cur ative measures undertaken by the cour t and the prosecution; (3) th e intent of the prosecutor in making the i mproper statement; (4) the cumula tive effect of the improper conduct and any other errors in the record; and (5) the relative s trength or weakness of the case. Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).
The victim was a young, twenty-one-year-old man who was shot in his home by intruders in the mi ddle of the night. We agree with the st ate that the prosecutor’s statement about the autopsy of the victim emphasized to the jurors the finality of this young person’s death, albeit in g raphic terms. Howev er, the prosecutor’s statement w as not improper. The appellant’s issue regarding the prosecutor’s quote from a speech by Mayor Herent on is waived. We have discovered that the court enter ed the felony murder judgment as murder during the perpetra tion of a robbery, not agg ravated burglary . Therefore, we respectfully remand to the trial court for entry of the proper judgment reflecting the offense returned by the jury’s verdi ct.
The judgment of felony murder is affirmed,and the case is remanded with-9- instructions consistent with this opinion.

________________________ PAUL G. SUMMERS, Ju dge

CONCUR:

____________________________ JOHN H. PEAY, Judge

____________________________ DAVID G. HAYES, Jud ge