FILED

October 28, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9606-CC-00222

)

Appellee, ) SULLIVAN COUNTY

) 

)

V. ) 

) HON. R. JERRY BECK, JUDGE

ERNEST LEON POWERS, JR. ) 

) (ESPECIALLY AGGRAVATED

Appellant. ) ROBBERY; FELONY MURDER) 

FOR THE APPELLANT: FOR THE APPELLEE:

LYNN DOUGHERTY JOHN KNOX WALKUP

HUDSON & DOUGHERTY Attorney General & Reporter

131 Eighth Street

P.O. Box 189 KENNETH W. RUCKER

Bristol, TN 37621 Assistant Attorney General

425 Fifth Avenue North 

2nd Floor, Cordell Hull Building

Nashville, TN 37243

H. GREELEY WELLS, JR.

District Attorney General

PHYLLIS H. MILLER

Assistant District Attorney General

BARRY P. STAUBUS

Assistant District Attorney General

P.O. Box 526 

Blountville, TN 37617-0526

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Ernest Leon Powers, Jr., was convicted of felony murder,

in the perpetration of robbery, and especially aggravated robbery following a jury

trial in the Sullivan County Criminal Court. Defendant was sentenced to life

imprisonment on the felony murder conviction, and the trial court sentenced him

to twenty (20) years for the conviction of especially aggravated robbery. The

sentences were ordered to be served consecutively. In this appeal as of right

pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, Defendant

presents five issues: (1) The trial court erred by denying his motion to suppress

statements taken from Defendant by law enforcement officers in violation of his

protection against self-incrimination and his right to counsel; (2) the evidence was

insufficient to sustain the convictions of felony murder and especially aggravated

robbery; (3) the trial court erred by overruling his objection to the admissibility of

a photograph of the victim which the Defendant argues the probative value was

far outweighed by the prejudicial effect; (4) the trial court erred in denying his

motion for new trial based upon an alternate juror falsely swearing during voir

dire; and (5) the trial court erred by ordering the sentences to be served

consecutively. Finding the evidence to be sufficient and no reversible error, we

affirm the judgment of the trial court. 

I. MOTION TO SUPPRESS STATEMENT
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The Defendant gave two statements to Detectives Dale Boyd and Rick

Hodges of the Sullivan County Sheriff’s Department, one on September 21, 1994

and another on September 22, 1994. Both statements were taken while

Defendant was in custody. On each occasion, Defendant was advised of his

rights according to Miranda v. Arizona, 384 U.S. 436 (1966), and the Defendant

signed a waiver of those rights on each occasion prior to giving the written and

signed statements. Recently, in State v. Odom, 928 S.W.2d 18 (Tenn. 1996), the

supreme court held as follows:

The party prevailing in the trial court is entitled to the strongest

legitimate view of the evidence adduced at the suppression hearing

as well as all reasonable and legitimate inferences that may be

drawn from that evidence. So long as the greater weight of the

evidence supports the trial court’s findings, those findings shall be

upheld. In other words, a trial court’s findings of fact in a

suppression hearing will be upheld unless the evidence

preponderates otherwise. 

Odom, 928 S.W.2d at 23.

Detective Boyd and Detective Hodges testified at the suppression hearing.

Each stated that the Defendant understood everything. He was coherent and

understood his rights. The Defendant did not request an attorney. Both officers

confirmed that there was no coercion of the Defendant. 

Defendant testified that he reques ted an attorney during the second

interview when the officers described all of the evidence they had gathered

subsequent to the first interrogation. He claimed to have asked the officers three

different times for an attorney. He also claimed that the officers told him the
-4-

punishment for first degree m urder was the death penalty. He claimed that

Detective Hodges made promises to him regarding the charges and punishment

if he would just “come clean.” 

In its findings of fact, the trial court stated that it had considered all of the

proof, and the demeanor of the witnesses, and cam e to the conclusion that the

statements were freely, voluntarily, and knowingly given by the Defendant.

Our review of the record indicates that the evidence does not preponderate

against the finding of the trial court. Therefore, this issue is without merit.

II. SUFFICIENCY OF THE EVIDENCE

On the night of September 16, 1994, the victim, Jimmy Lee Cullop, Sr.,

was found dead on the bedroom floor of his trailer located in Sullivan County,

Tennessee. The victim lived alone. He was found by one of his daughters and

a friend, Eddie McElyea. The body was in an advanced state of decomposition.

On the preceding day, Mr. McElyea had gone by the house to see the victim but

noted his vehicle was gone and assumed that the victim was not at home.

However, Mr. McElyea had noticed flies in the bedroom window and through a

partially opened curtain, observed the victim’s television in his bedroom was

turned on. 

The last time that any friend or family member had seen the victim alive

was Monday night, September 12, 1994. 
-5-

At the time of his death, the victim owned a van, a Malibu vehicle, a Chevy

Blazer truck, and a Buick Electra automobile. It was well known that the victim

would not loan to anyone his Buick Electra, which was yellow in color with a dark

vinyl top. He owned two handguns, including a silver-colored .22 caliber nineshot revolver. A nine-shot .22 caliber pistol with its serial numbers having been

ground off was identified by fam ily members and friends as either definitely being,

or very similar to, the same type of gun owned by the victim at the time of his

death. This pistol was found in the possession of the Defendant at the time of his

arrest on Septem ber 21, 1994. 

Testimony of witnesses and photographs introduced into evidence

indicated that various items of personal property located on dressers,

nightstands, and a filing cabinet in the victim’s home were arranged and located

on the furniture in a normal fashion and had not been knocked over or otherwise

disturbed. The State’s theory was that this indicated that there had been no

struggle between the victim and the Defendant prior to the homicide. 

According to witnesses, the Buick Electra automobile was missing from the

victim’s home as early as Tuesday, September 13, 1994. One witness, an

acquaintance of the Defendant, stated that a vehicle meeting the description of

the Buick Electra was parked at a motel in Nashville, Tennessee where the

Defendant was staying following the homicide. Three glasses and two plates

which had been used by the victim, his daughter, and her child, on the night of

September 12, 1994, were found on the kitchen counter on the night that the

victim’s body was discovered. 
-6-

Various witnesses who observed the Defendant on the days following the

homicide did not see any cuts, bruises, or abrasions on the Defendant, and he

did not mention the existence of any such injuries at the time he gave his

statements to law enforcement officers. 

The forensic pathologist who performed the autopsy testified that the victim

had six “sharp force” wounds on the front of his body and one on the back.

Death was due to excessive blood loss into the right side of his chest caused by

one of the stab sounds. There were no defensive wounds on the victim ’s body.

The pathologist also testified that a knife which was introduced into evidence and

had been taken from the Defendant’s personal effects following a search of his

motel room, could have caused the wounds to the victim.

One of the victim’s daughters testified that he had between $130.00 and

$140.00 cash in his possession on Saturday, September 10, 1997, which he kept

in his wallet. Neither the victim’s wallet nor the missing Buick Electra automobile

were ever recovered by law enforcement officers. Also, the Defendant’s

compound bow was missing following the discovery of the body, and was never

recovered. 

Also recovered during a search of the Defendant’s personal effects was a

pair of tennis shoes. W hen one of the shoes was compared by a forensic

scientist from the T.B.I. Lab with blood stains from a portion of the floor of the

victim’s mobile home, this shoe’s tread was found to be consistent with respect

to size, shape, and design to a foot print in the blood stains. 
-7-

The victim’s driver’s license was found in the bathroom trash can at the

victim’s home. A woman from Nashville, Tennessee with whom Defendant had

resided in motel rooms for a short period of time prior to the homicide testified

that the Defendant left for a few days and came back, indicating that he had been

to Bristol, Tennessee. When he returned, the witness observed Defendant with

a gun identified as the one belonging to the victim.

An acquaintance of the Defendant, William Greg Beavers, who had seen

a car fitting the description of the Buick Electra at the motel, also testified that

following the homicide, he told the Defendant that he had heard what the

Defendant had done. Defendant responded that he was sorry for what he had

done. The witness testified that he and Defendant both understood the

conversation concerned the victim’s death.

After his arrest, the Defendant called Mr. Beavers from the jail and asked

him to go to his motel room , recover a red bag and dispose of everything in it.

The Defendant stated a knife was in the bag. He also requested the witness to

tell anyone who asked, that Mr. Beavers had gone to Bristol and picked up the

Defendant. Mr. Beavers told the Defendant that he would not get involved and

subsequently gave a statement to police. Mr. Beavers testified that he did have

two prior felony convictions for robbery and burglary, and he had pending

charges in another county from an incident which occurred in January 1995. 

In his first statement to police on September 21, 1994, Defendant indicated

that he was in Nashville the week of September 12, 1994, until he left on Friday

night to go to Bristol, arriving between 4:00 and 5:00 a.m. Saturday morning,
-8-

September 17. He gave a brief summary of his activities while in Bristol over the

weekend, none of which incriminated him regarding the homicide of Mr. Cullop.

He explained possession of the gun by saying that a friend of his in Bristol named

“Jim Cullop” with whom he had worked at Georgia-Pacific, had given him the gun

sometime before. He claimed the serial numbers were filed off when the gun was

given to him. The Defendant claimed to be a friend and “drinking buddy” with the

victim. 

In his second statement on the next evening, the Defendant claimed that

he was in Sullivan County on September 13, 1994 and went to the victim’s house

at approximately 10:00 p.m. to ask the victim to loan him a car. He claimed that

the victim invited him inside and offered the Defendant a beer. They talked for

approximately two hours. When the Defendant asked the victim why Defendant

had been laid off from work, he stated the victim immediately changed his attitude

and acted like he wanted to fight. Defendant claimed that the victim started

pushing him and when the Defendant began to walk toward the front door, the

victim went into his bedroom and retrieved a .22 caliber “nickel plated” pistol.

Defendant claimed that he grabbed the gun and began wrestling over it with the

victim. After wrestling into the bedroom, Defendant observed a long knife lying

on the dresser. Defendant stated that he picked up the knife with his right hand

and started “sticking him,” referring to the victim. When the victim fell, the gun

dropped from his hand. Defendant picked up the gun, found the sheath for the

knife and placed the knife inside it. Claiming that the victim’s billfold was lying

on the dresser, Defendant stated that he took $110.00 from the billfold and threw

it back onto the bed. He admitted to taking the knife, the gun, and $110.00 cash

with him when he left the victim’s home. Defendant stated that he went to his
-9-

sister’s house and then hitchhiked to the outskirts of Nashville where he walked

back to a friend’s house. 

None of the family members or friends of the victim who were asked, had

ever seen a knife in the possession of the victim which resembled the knife found

in possession of the Defendant.

There was proof of blood splatters on the ceiling and furniture in the

victim’s bedroom, along with a large quantity of blood upon the bed and floor.

Only one witness was called on behalf of the defense, a neighbor’s daughter,

who testified that she observed the victim standing at his mailbox at

approximately 9:20 a.m. on the morning of September 13, 1994. She stated the

victim was wearing clothing which was not the same type of clothing he was

wearing at the time of discovery of his body. 

There was also testimony which showed that Defendant was in possession

of the knife prior to the homicide. 

When an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979). Questions concerning the credibility of the witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987).
-10-

Nor may this court reweigh or reevaluate the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). 

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence 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); Grace, 493

S.W.2d at 476.

At the time of the commission of this offense, “robbery” was defined as the

intentional or knowing theft of property from a person by violence or putting that

person in fear. Tenn. Code Ann. § 39-13-401. “Felony murder” was defined as

“a reckless killing of another committed in the perpetration of, or attempt to

perpetrate any . . . robbery . . . .” Tenn. Code Ann. § 39-13-202. 

From the proof at trial, the jury could easily find that the Defendant left

Nashville, armed with a deadly weapon, being a knife, and went to the victim ’s

mobile home late at night. There was no physical evidence of a struggle, no

defensive wounds upon the body of the victim, and there were various items of

personal property m issing from the victim’s home. This evidence, in addition to

proof of the Defendant’s flight back to Nashville, along with no apparent injuries

to the Defendant, and his conflicting statements, could easily be found by a
-11-

rational trier of fact to prove beyond a reasonable doubt the offense of felony

murder in the perpetration of a robbery. 

“Especially aggravated robbery” is robbery accomplished with a deadly

weapon where the victim suffers serious bodily injury. Again, there was

overwhelming proof of the use of a deadly weapon and obvious proof of serious

bodily injury to the victim. 

The Defendant’s statement clearly proved that Defendant had killed the

victim. The jury was entitled to reject the Defendant’s claims of self defense in

his statement to law enforcement officers in light of the physical evidence, and

the conflicting statements given by the Defendant. The proof in this case, both

direct and circumstantial, is sufficient to show that the killing was in the

pursuance of the felony of robbery rather than collateral to it. Farmer v. State,

201 Tenn. 107, 296 S.W.2d 879 (1956); State v. Severs, 759 S.W.2d 935, 938

(Tenn. Crim. App. 1988).

Accordingly, this issue is without merit.

III. ADMISSIBILITY OF PHOTOGRAPH

Defendant objected at trial to the admissibility of a photograph which

depicted the victim’s bedroom as it appeared when his body was discovered. In

the photograph, the victim’s body is lying face-up on the floor to the left of, and

parallel to the head of the bed. The photograph is taken by someone standing

at the foot of the bed. The picture also includes the chest of drawers, nightstand,
-12-

and portions of other furniture upon which various items of personal property had

been placed and were apparently undisturbed. There is blood depicted on the

bed, on the floor, the chest of drawers and on portions of the victim’s body. The

upper portion of the victim’s body is somewhat obscured by shadows in the

photograph. 

After a hearing out of the presence of the jury, the trial court overruled

Defendant’s objection and ruled that the probative value of the picture was not

outweighed by any prejudicial effect.

At trial and on appeal, Defendant argues that the prejudicial effect of the

photograph far outweighed its probative value.

In State v. Banks, 564 S.W.2d 947 (Tenn. 1978), the supreme court held:

The matters to be taken into consideration include the value of

photographs as evidence, that is, their accuracy and clarity, and

whether they were taken before the corpse was moved, if the

position and location of the body when found is material; the

inadequacy of testimonial evidence in relating the facts to the jury;

and the need for the evidence to establish a prima facie case of guilt

or to rebut the defendant’s contentions. If the inflammatory nature

of the photograph is thus outweighed, it is admissible.

Banks, 564 S.W .2d at 951. 

The photograph not only shows that items of personal property were not

disturbed in the victim’s bedroom, but that the bedroom was apparently small as

the items of furniture were close together, therefore reinforcing the State’s theory

that no struggle had occurred. This proof was relevant to rebut the Defendant’s
-13-

self defense claims asserted in his statement to law enforcement officers. The

photograph does show some bloating of the body as a result of decomposition,

but it is a distant photographic shot which is not particularly gruesome. The trial

court noted that the bloated nature of the victim’s body was relevant to establish

a time fram e for the death. 

Following the hearing out of the presence of the jury, the trial court made

findings of fact that any prejudicial effect did not outweigh the probative value of

the photograph. The record reflects that the trial court properly considered all

factors and there was no error in admission of the photograph into evidence.

This issue is without merit.

IV. ALTERNATE JUROR’S RESPONSES DURING VOIR DIRE

Two alternate jurors were initially picked at the beginning of the trial. One

of the alternates had to be dismissed due to health problems. During the jury

selection process, the other alternate juror responded to the Assistant District

Attorney’s questioning as follows:

[Assistant District Attorney]: Ms

.

[alt

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,

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-14-

a

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,

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?

[Alternate Juror]: N o

.

After the trial had concluded, it came to the attention of the Defendant that

the alternate juror, at the time she answered the above question during voir dire,

had an adopted brother who had been convicted of a serious felony in another
-15-

state, and that she was aware of this situation at the time she answered the

question. 

At the motion for new trial, the alternate juror’s brother testified that his

sister had visited with him at his place of incarceration prior to her selection for

jury service. He further stated that he had never spoken with his sister

concerning the Defendant’s case. Even though he knew the Defendant, he did

not meet him until after the trial had concluded. 

The State offered into evidence, and the trial court admitted, without

objection from the Defendant, affidavits of the twelve jurors who served,

deliberated, and rendered the verdicts. In each of these affidavits, each juror

stated that he or she followed the trial court’s admonitions and did not discuss or

begin deliberations in the Defendant’s trial until after receiving jury instructions

from the trial court. Furthermore, each juror stated in the affidavit that he or she

had no conversations with the alternate juror concerning the merits of the

Defendant’s case or any conversations with the alternate juror that would have

influenced or affected that juror’s deliberations in the Defendant’s case. 

It was undisputed that the alternate juror was dismissed prior to the

beginning of deliberations and took no part in the deliberations. The alternate

juror was sequestered in the multi-day trial along with the other jurors.

The Defendant argues that the false swearing by the alternate juror raised

a presumption of bias and partiality on the part of the alternate, and that he is
-16-

thus entitled to a new trial. He also argues that the State failed to rebut the

presumption of bias and partiality.

An affidavit of the alternate juror was also admitted into evidence at the

hearing on the motion for new trial and in part the affidavit states that the

alternate juror did not discuss the merits of the Defendant’s case while

sequestered with the other jurors. 

We agree that a defendant is entitled to a fair and impartial trial under our

state constitution and the United States Constitution, and that this right includes

that a jury be free from any reasonable suspicion of bias or prejudice. Hyatt v.

State, 221 Tenn. 644, 430 S.W .2d 129, 130 (1967). 

In State v. Akins, 867 S.W.2d 350 (Tenn. Crim. App. 1993), the defendant

was convicted of vehicular homicide by intoxication following a jury trial. During

the jury selection process, a potential juror who ultimately served on the jury

which reached the verdict failed to disclose information that she had been a

probation officer, a DUI probation counselor and had worked in an adolescent

alcohol and drug rehabilitation program. This silence was despite persistent,

straightforward questioning by both counsel which should have caused her to

disclose the information. Our court in that case found actual prejudice to the

defendant and reversed the conviction and remanded the case for a new trial.

In doing so, the court recognized that when a juror wilfully conceals or fails to

disclose any information on voir dire which would reflect on the juror’s lack of

impartiality, a presumption of prejudice arises. Akins, 867 S.W.2d at 355.
-17-

However, our court also recognized that a presumption of bias in some cases can

be dispelled by the absence of actual partiality. Akins, 867 S.W .2d at 357. 

Upon our review of the record, we agree with the trial court’s conclusions

that the State was able to overcome any presumption of bias or partiality beyond

a reasonable doubt. The overwhelming proof was that the alternate juror did not

discuss the Defendant’s case with any of the jurors who reached a decision

during the time she was sequestered with the other jurors. She did not

participate in the deliberations, and even if the Defendant was able to conclude

conclusively that the alternate juror would have been partial or biased in reaching

a decision, there is no proof that this affected the jury’s verdict in this case. While

our conclusions might be different if the alternate juror had participated in the

deliberations and rendering of the verdict, in the situation before us, we find no

reversible error. 

This issue is without merit.

V. SENTENCING

The Defendant does not challenge the length of his sentence for especially

aggravated robbery, but does argue that the trial court erred by ordering this

sentence to be served consecutively to the life imprisonment sentence for felony

murder. When an accused challenges the length, range, or the manner of

service of a sentence, this court has a duty to conduct a de novo review of the

sentence with a presumption that the determinations made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned
-18-

upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circum stances." State v. Ashby,

823 S.W .2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The trial court found three factors that support the decision that the

Defendant’s twenty year sentence for especially aggravated robbery should run

consecutively to his life sentence for first degree felony murder. The three factors

are: (1) The Defendant has an extensive record of criminal activity, Tenn. Code

Ann. § 40-35-115(b)(2); (2) the Defendant is a dangerous offender, Tenn. Code
-19-

Ann. § 40-35-115(b)(4); and (3) the Defendant was on probation at the time of

sentencing, Tenn. Code Ann. § 40-35-115(b)(6). 

Proof of the existence of the factors necessary to justify consecutive

sentencing must only be established by a preponderance of the evidence. Tenn.

Code Ann. § 40-35-115(b). Only one factor need be proven to support a

consecutive sentence. Tenn. Code Ann. § 40-35-115(b). 

We are able to affirm the trial court’s decision ordering consecutive

sentencing based upon the uncontradicted proof that Defendant was on

probation for a felony conviction at the time he committed the present offenses.

Because only one ground is required to justify consecutive sentencing, as long

as that ground is proven by a preponderance of the evidence, we are able to

affirm the trial court’s order of consecutive sentencing. See Tenn. Code Ann. §

40-35-115. We also find that from the entire record that consecutive sentencing

is necessary to protect the public against further criminal conduct by the

Defendant, and the consecutive sentencing reasonably relates to the severity of

the offenses comm itted in this case. See State v. Wilkerson, 905 S.W.2d 933,

939 (Tenn. 1995). 

Finding that the evidence is sufficient to sustain the conviction and that no

reversible error occurred, we affirm the judgments of the trial court.

____________________________________

THOMAS T. W OODALL, Judge 
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CONCUR:

___________________________________

JOSEPH M. TIPTON, Judge

___________________________________

JERRY L. SMITH, Judge