### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 1, 200 3
STATE OF TENN ESSEE v. RAYMO N HAYMON
Appeal from the Circuit Court for Dyer County No. C99-175A Lee Moore, Judge

No. W2001-02797-CCA-R3-CD - Filed Septem ber 5, 2003

The Appellant, Raymon Hay mon, was convicted by a Dyer C o unty

jury of the pr emeditat ed first degree mu rde r of

Jo dy Mc Ph ers on a nd w as s ent enc ed t o l ife im pri son men t. In this appeal as of rig ht, Haymon, proceeding pro se , presents the following issues for our review: (1) whether the evidence
was insufficient (a) because the acc omplice’s testimony was not independe ntly corrobora

ted, and (b) due to conflicting and contradictory testimony from

the State ’s witnes ses and hi s proof of alibi; and (2) whether the State committed prosecutorial misconduct by (a) presenting perjured

testimony at trial, and (b) during closing arg ument. Finding no error, the judgment of the Dy er County

Circuit Court is affirmed.

Tenn. R. App.P. 3; Judg ment of t he Circui t Court A ffirmed.

D AV ID G. H AYES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and T HOMAS T. W OODA LL , J., joined. Raymon Hay

mon, Pro Se , Whiteville, Tennessee.

Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; B ren t C

. Ch er ry, Assistant

Attorney Genera l; and C. Philli p Bi vens, District Attorney Ge neral, for the Appellee, State of Tennessee.

OPINION

Factua l Background

On Ju ly 19, 1997, the

Appellan t offered Wiled McMi llin five h undred dollars to h

elp him kill Jody McPherson. According to McMillin, the Appel l ant stated he wanted McPherson killed becaus e “he di dn’t w anna go back to pr ison.” The Appella

nt and McPh

erson ha d previou sly

been arrested for the a ggra vate d robbery

of Pete’s Liquor Store. McMillin refused the of fer, and the-2-

Appellant stated he would get Terr y Cork to help him. McMillin also testified that, later on that eveni ng, he saw the Appellant, Terry Cork, and Jody McPherson riding in a r ed car in the Middle City area. Terry Cork te stified that, on the evening of July 19 th , he left work at 9 :00 p.m. and went to his father’s hou se. Around 10:00 or 10:30 p.m., Cork walked to Erline Warren’s house to watch television. During the evening, the Appellant drove to Warren’s house and, thereafter, he a nd Cork left in a red vehicle driven by the Appellant. The Appellant dropped Cork off at his aun

t’s house and subsequently returned with Jody McPherson in the car. The three men drove towa rd Middle City under the pretext of “hang[ing] out and talk[ing] to some women.” Once en r oute, t he Appellant stated that he needed Cork

and McPhe

rson to help him look f

or a disc arded r

ifle in a f ield that w ould "take care of some business concerning the Pete’s Liquor

Store robbery.”

Upon arr ival at a f ield in Middle City, the men lit newspaper torc hes andlooked for the rifle. As they were searching, Cork observed the Appellant shoot

McPherson several times. Cork claimed that he bega n to run, but the Appellant pulled a second

gun on Co

rk and tol d him “that it was gonna be more than one person out there dead if [Cork] didn’ t listen to what [the Appellant] said.” The Appellant then ordered Cork to also shootMcPherson. The Appellant instructed Cork to wipe the guns off and “throw the guns off the side of a little bridge that was out there, like a little cr eek.”

McPherson’s body was discover ed the next morning with one visible wound to the chest and two other wounds to the head and back. A cell phone wa s found at the scene, which

was linke d to Cork. Cork and t

he Appellant wer

e questio ned by

the polic e, and bo th men denied any involvement in the murder. When the Appellant was interviewed on July 20, 1997, he state d that he knew McPherson had been shot three times, “one from the head, one f rom the chest, and one from the back.” At this point, no details of the murder had been disclosed to the public. After being taken into custody on a bank r

obbery cha

rge in 1999, Cork confessed to his involvement in McPherson’s death and helped the police recover one of the discarded weapons used in the murder.

On June 14, 199 9, a Dy

er County grand jury indicted the Appellant for

the prem editated first degree murder of Jody McPherson. On Mar ch 9, 2001, after a trial by jury, the Appellant wa s convictedas charged and was sentenc ed to life imprisonment. The Appellant’s motion for new trial was denied, and this appeal followed.
ANALYSIS I. Sufficiency of the Evidence

The Appellant first contends that the proof is not suffic ient to support a verdict of premeditated

first deg ree mur der. A ju ry convicti on remove s the pre sumption of innocenc e with which a defendant is cloaked and replace s it with one of guilt, so t h at on appeal, a convicted defendant has the bu

rden of d emonstrating that the evidence is insufficient. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining the suff iciency of the

evidence, this court does not
re weigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).-3-

Likewise, it is not the

duty of this court to rev

isit questi ons of wit

ness credibility on appea l, that function being within the province of the trier of fact. State v. Holder , 15 S.W.3d 905, 911 (Tenn. 1999); State v. Burlison , 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). Instead, the Appellant must establish that t he e vidence

present ed at tria l was so de

ficient t hat no re asonable

trier of fact could have found the essential elements of the offense bey ond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virgini

a , 443 U.S. 3 07, 319, 99S. Ct. 2781, 2 789 (1979 ); State v. C azes , 875 S.W.2d 253, 25 9 (Tenn. 1994 ). Moreover, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences whic h may be draw n theref

rom. State v. H

arris , 839 S.W.2d 54, 75 (Tenn. 1992). These rules are applicable to findings of guilt predicated upon

direct evidence, circumstantial evidenc e, or a c ombination of both dir

ect and c ircumsta

ntial e vidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
A. Corr oboration

of Accom

plice Test

imony

The Appellant contends that the accomplice testimony of Terr y Co rk was no t independently corroborated. He asse

rts that Wiled McMilllin ’s testimo ny t hat, on the night of the murder, he saw the Appellan

t, Terry Cork, a

nd Jody McPherson riding in a re d car in the Middle City are a is not credibl e. Specif

ically , he arg

ues that

the corrobo

ratio n of McMillin that Haymon drove by that night is contradicted by accomplice (Cork) in

that they g ive different directions. They also contradict in time. Cork testifie d under d

irect-e xamination itwas between 11:00 and 11:30 p.m. but on cross-examination he says 1:00 or 1:15 a.m. McMillin testified it was between 1:00 and 1:15 a.m. However the store video contradicts both Cork and McMillin.

It is well-settled that a conviction may not be ba sed solely upon the uncorroborated testimony of an accomplice. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). Th is "ver y sa lutary rule" is designed to prevent

the "obv ious dang ers" of

allowing a defendant to be

convicte d solely

on the bas is of an accomplice's testimony

. Sherrill v . State , 321 S .W.2d 811, 814 (Tenn. 1959). However, Tennessee law requires only a modicu m of evidence in order to sufficiently corroborate the testimony of an acc omplice. State v. Copeland , 677 S.W.2d 471, 475 (Tenn. Crim. App. 1984). With respect to the nature, quality , and sufficiency of the evide nce necessary to corroborate an accomplice's testimony , this court has held:

The rule of c orrobor

ation as a pplied and used in th

is Stateis that the

re must be

some evidence independent of the testimony of the accomplice. The corroborating evidence must connect, or te nd to connec t the def

endant w ith the commission of the crime charged; and, furthermore , the ten dency of the co

rrobora tive evid ence to connect the defe ndant must

be independent of

any testimony

of the accomplice. The corroborativeevidenc e must of it s own fo rce, in depen dentl y of the acc ompl ice's te st im on y, tend to connect the defendant with the commission of the crime. . . . The evidence corroborating the testimony of an accomplice may c onsist of direct evidence, circumstantial evidence, or a combination of direct and circ umsta ntial-4-

evidence. The quan tum of evi dence n ecessa ry to corro borat e an acco mpli ce's testimonyis not require d to be suf ficient e nough to support the accused's conviction independent

o f the ac complice's testimony nor is it required to extend to every portion of th e a cc om pl ic e' s t es ti mo ny. To the contrary , only slight circumstanc es are required to corro borate a n accomp lice'st es timony . The cor roborat ing evid ence is sufficient if it connects the accused with the crime in question.

State v. Griffis , 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (citations omitted). Furthermore, the jury is to determine the d egree of ev idence necessary to corroborate the testimony of an accomplice. State v. Ch ris Billingsley , No. 01C01-9506-CC-00166 (Tenn. Crim. App. at Nashville, May 16, 1996).

From consideration of the proof in the record befor e us, we find the ev idenc e suffic ient to corrobo rate the testimony of Terry

Cork. Terry Cork te stified that the Appellant picked him up in a red car and that he, McPherson, and the Appellant went to a field in the Middle City area, w here the Appellant shot and killed McPherson. Wiled McMillin testified that the Appellant approached him “with a plotto help him kill Jod[y].” According to McMillin, the Appellant stated he wanted McPherson killed be cause “he didn’t want

to go back to prison. They had committed a robbery of Pete’s Liquo

r Store.”McMillin a

lso testif ied that th e Appella nt offer ed him five

hundred dollars if he would assist in the murder; however, McMillin refused. The Appellant then stated tha t he would get Terry Cork to he

lp him. McMillin further

corroborated the statements of Cork by testifying that he saw the Appellant, Cork, and McPherson ridin g in a red car in the Middle City area. The Appellant argues tha

t this test

imony is not credible beca use of time discrepancies between McMillin’s testimony, Cork’s testimony , and his presence at the Short Stop Store at 1:23 a.m. On redire ct, McMillin stated that he didn’tknow the exact time he saw the Appellant on the night of the murder but that it “ was around 1 to 3:00.” Furthermore, the State’s theory at trial was that the Appellant went to the Short Stop Store, and he then went “over to McIver

Apartments and pick[ed] up Jodie McPherson and [took] him out and kill[ed] him.” These dis crepan cies in time to which the Appellant refers would not preclude the jury fro m find ing t hat h e com mitte d the

murde r. We reitera te that the ju

ry is the primary

instrumen

t of justic e to determine the weight and cre dibility

to be given to the testimony of the witnesses and

not this court. Cabbage , 571 S.W.2d a t 835. Clea

rly taken together, these facts give credence to Cork's statements; thus, the requirement of

corroboration has been satisfied.

B. Alibi

As we have determined th at the accomplice testimony is sufficiently corr

oborated, we further find the proof

sufficie nt to support

a conviction for premeditated first degree murder. The Appellant does not dispute thatthe elements of the crime were established at trial. Rathe r, he argues that the inconsiste ncies in th

e proof, specific ally

the five different statements given by co-defendant Terry Cork, in addition to the alibi testimony, excludes the Appellant as the perpetrator of the mu rder . We conclude otherwise.-5-

In the light

most favorable to the State, the proof at trial revealed that, dur ing the late evening hours of July 19 th
, the Appellant picked up Terry Cork, and the two went “riding.” The Appellant dro pped Cork off a

t his aunt’ s house and later r eturned with Jody

McPherso n in the ve

hicle . Th e three men then d

rove toa field in Middle City, where the Appellant shot and killed McPherson. The motive for the murder was that the Appellant feared McPherson would speak withthe police about the prior liquor store robbery

the two men had committed. While the Appellant testifiedin his own defense at trial and presented several alibi witnesses in his defense, the proof is uncontroverted that the Appellant was at the Short Stop Store at 1:23 a.m. on the morning of the murder. Most of the witnesses providing

an alibi te stified on

ly a s to the App ell ant's whe reabouts prior to visiting the ShortStop Store. The only witness that testified that the Appellant re turned home after visiting the ShortStop Store w as his bro ther, Jama al Hay mon. As pr

eviously noted, the State’s theory w as that the Appella

nt w ent to the Short Stop Store, and then picked up Jody McPherson from McI ver Apartme nts. M oreover, the record reflects that the alibi witnesses were family members of the Appellan t. The determination of the w eigh t and credibility of the testimony of witnesses and reconciliation of conflicts in that testimony are matters entrusted

exclusively to the trier of fact and notthis court. State v. S

heffield , 676 S.W.2d 542, 547 (Tenn. 1984 ); Byrge v . State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). Like any other fact at t rial, an alibi def ense presents an issue of fact determinable by the

jury. Cole v. State , 215 S.W.2d 824, 825 (Ten n. 1949); Smith v. S

tate , 566 S.W.2d 553, 556 (Tenn. Crim. App. 1978). The jury chose to accr edit t he tes timo ny of the S tate's witnesses and reject the contentions of the Appellant. The scope of our examination of the evidence is not equivalent to that of the jury' s. In a challeng e to the sufficiency of the evidence, this court does notretry the A

ppellant. We emphasize that our examination in a sufficiency r eview is not

to revisit inconsiste nt, contradicting, implausible, or non credible proof, as these issues are resolved solely by the ju ry. Rathe r, we look to the record to determine whether ther e was substantive probative evidence to support the verdict. State v. David Remus , No. W1999- 01448-CCA -R3 -CD (Te nn. Crim. App. at Jackson, Mar. 8, 2000). The Appe llant has h ad his day in court. B ecause we find the proof le gally

sufficie nt, this issu e is withou

t merit.
II. Prosecutorial Misconduct
Next, the Appellant argu es that the State committed prosecutorial misconduct by (1) "knowin gly

us[ing] perjured testimony of an ac complice, and even argu[ing] the truthfulness of

his testimonyto the jury[,]” and (2) “arguing fa

cts to the jury not based on trial testimony .” The test t o be applied by

the appellate courts in reviewing instancesof prosecutorial misconduct is whether the conduct was so improper or t

he argum ent so inflammatory that it affected the verdict to the Appellant's detriment. Harrington v. State , 385 S.W.2d 758, 759 (Tenn. 1965). In measuring the prejudicial impact of

any misconduct, this court should consider: (1) the facts and circumstances of the case; (2) any

curative measures undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4) the cumulative effect of the improper conduct and a ny other errors in the record; and (5) the relative strength or weakness of the case. Judge v. State , 539 S.W.2d 340, 344 ( Tenn. Crim. App. 1976 ); see also State v. Buck , 670 S.W.2d 600, 609 (Tenn. 1984).1 The exhib its introd uced at trial are n ot includ ed in the reco rd. It is the d uty of t he Appellant to prepare a complete and accurate record on app eal. Tenn. R. App. P. 23(b).

2 Ultim ately, Co rk did plead gui lty to second degr ee murder with an a greed sentenc e rang e of fifteen to twentyfive years to be served conc urren tly with a prio r fede ral cha rge. -6- A. Per jured Tes timony

The Appellan

t bases hi s first

contention on a statement made by Attorney Genera l Bivens t o Terry Cork, during the investigation of the case, in which B ivens encourages Cork to g ive the Sta te information regarding the murder :
You know, the law provides that if y ou provide information [,] that’ s considered a mitigating factor on any

sentence. I’m not going to make any dea l with you that I ’m not going to charg e y ou with this– I’m not going

to charg e y ou . . . with

that. Uh,

. . . first-degree murder ca rries anyw

here from the death pen alty to life in prison. Second degree murder car ries twenty -five (2 5) to for ty ( 40) years. . . . I me an, if

you want to help yourself . . . y

ou can, you know, a

t this point there’s not been any thing that can help us. 1

The Appellant contends that the statement made by B ivens con stituted a n implied de al that the

State would allow Cork to enter

a guilty plea

to second degree murder in re turn for his testimo ny a

gainst the Appellan

t. 2 Furthermore, he argue s that the State committed misconduct by soliciting testimony from Cork to the effect

that no deal wa s offer

ed when C ork made

this state ment. The

State ass erts that, while “[i]t is clear that the State desired Te rry Co rk’s statement in its case against Appellant and there was an explicit encouragement that Cork’s provision of information would be considered
a mitigati ng fac tor on his s entence , . . . ther e is no indi cation of

an agr eement o r promi se by the State.” We agree. Accord ingly , we conc lude that , based u pon the fa

cts and circ

umstance s of this
ca se , t he St at e d id no t c om mi t m is co nd uc t b y of fe ri ng pe rj ur ed te st im on y.
Withinthis section of the Appellant’s brief, he also asserts that the State a gain co mm itted misconduct when it solicited the following false testimony from Cork: Q. Okay. When did y

ou come to the knowledge of Mr. McPherson working f or the Tennessee Bureau of I

nvestigation? A. After I was pic

ked up in ’99. Q. Ok ay. Wh en you sa y pi ck ed up in ’9 9, do you me an on th e b an k r ob be ry?
A. Yes, ma ’am. Q. Okay . That wa s in May , is that co rrect?-7-

A. Yes, ma ’am.

The Appellant contends that, in an interview conducted on March 30, 1999, Cork stated he was
awareof McPherson’s involvement with the T.B.I., and that the State was aware of this information. However, this testimony was solicited by defense counsel not the State. Furthermore, as argue d by the State, the Appellant never establishe s the re levance of Cork’s knowledge of this fa ct and why this discrepancy is re

levant to his defense. The Appellant’s argume nt is without merit. B. Arguing Facts not in Evidence

Fi na ll y, the Appellant

argues that

the attorney g eneral committed prosecutorial misconduct during closing argument. Our supreme c ourt has long recognized that closing argument

is a valua ble privi lege for both t

he State and the de

fense and has a llowed wi de latitud

e to couns el in arg

uing the ir
cases to the jury. State v. Ca uthern , 967 S.W.2d 726, 737 (Tenn. 1994). Trial judg es in turn are accorded wide discretion in their control of those arguments, State v. Zi rkle , 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995), and this discr etion will not be inte

rfere d with

on appeal in the absence of abuse thereof. Smith v. S

tate , 527 S.W.2d 737, 739 (Tenn. 1975). Notwithstanding such, argume nts must be temperate, based upon the evidence introduc ed at trial, relevant to the issues being tried, and not other wiseimproper

under the facts or law. Coker v. State , 911 S.W.2d 3 57, 368 (T enn. Crim. App. 1995). We are mindful of the oft quot ed princ iple that a

prosecu tor must be

free to present his argume nts with log

ical for ce and vigor, " [b]ut, while h e may strike ha rd blows, he is not a

t liberty to strike f oul ones." Berger v. United States , 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935).

It is impossible to set out in detail what can and cannot be said in closing argument. Various factors are invo lved in th is de termination including the facts of the particular ca se and oftentimes responses to argument of opposing counsel. Within the closing arg ument, five general area s of prosecutorial misconduct are recognized:

1. It is u nprofes sional co nduct for th e prosecut or intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

2. It is unprofessional conduct for the pr os ecu tor to express his personal belief or opinion as to the truth or falsity of a ny testimony

or evi de nce or the guilt of the defenda nt. See State v. Thornton , 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999); Lackey v. State , 578 S.W.2d 101, 107 (Tenn. Crim. App. 1 978); T ENN

. C ODE OF P ROF ’ L R ESPONS IBI LI TY DR 7-106(C)(4).

3. The prosecutor should not use argumen ts calculated to inflame the passions or pre judices of

the jury. See Cauth ern , 967 S.W.2d a t 737; State v. Stephenson , 878 S.W.2d 530, 541 (Tenn. 1994).

4. The prosecutor should refrain from arg ument which would divert the jury from its-8-

duty to decide the case on the evidence, by

injecting issues broader than the guilt or innocence of the accused

under the controlling law, or by making predictions of the consequences of the jury' s verdict. See Cauth ern , 967 S.W.2d at 737; State v. Keen , 926 S.W.2d 727, 736 (Tenn. 1994).

5. It is unprofessional

conduct f or a pros ecutor t

o intention ally

refer to or arg ue fact s outside the record unless the facts are matters of common public knowledge.

State v. Denni

s R. Goltz , No. M2001-02019-CCA-R3-CD (Tenn. Crim. App. at Nashville, Jan. 15, 2003) (for pu blica tion ) (cit ing S T ANDA RDS R ELATING TO THE P ROSEC UTION F UNCTIO N AND THE D EFENSE F UNCTIO N §§ 5.8-5. 9 Commenta ry (ABA Pr

oject on St

andardsf or Crimi nal Justice, Approved Draft 1971)).

The Appellan

t challenges the

following

state ments mad e by the prosecutor during closing argume nt: (1) Kimberly

Williams says Ray

mon Haymon called he

r and wants her

to take hi m over to see Ste phanie McPherson, because Jody ha s been found dead down at Middle City near a hog

pen. Raymon Hay mon tells y

ou that he didn’t g o down the

re. He w ent strai ght to Stephanie McPherson’s. AndKimberly Williams tells y ou that he talks about he was shotin the ch e st, in the head, an d in the ba ck. He ha

dn’t see n the body . It’ s just a few hours after

t he body is discove

red. All t

he offic ers tell y

ou, includ

ing Tim Isab ell, that

the body is lay

ing there face

up, nobody’s bothered the body, and y

ou can see that he’s beenshot in the chest. You can’t see that he’s been shot in the back or in the head. You can see he’s been shot in the chest, is the only one you ca

n see. Stephanie McPherson told you nobody called her and told her

how her husband was killed. Kimberly Williams only

testifie d that th e Appella nt stated that Jody McPherson “was shot three times,” and the Sta

te concedes that St

ephanie McPherso n did not te stify who called her and

who told her how her husband was killed. However, Office r Terry McCreig ht testified that the

Appellan t told him that Jody McPherson was shot in the head, bac k, and chest. The Appel lan t relayed tha t he learned this information from Desmon Bry ant, who was a relative of Stephanie McPherson. Officer McCreight

testifie d that, to h

is knowled

ge, Br ya nt was not p

rivy to this info

rmation. T

he State argues that, while Attorney Ge neral Bivens may

have confused the persons who testified to certa in facts in the case, t

h e facts were evidence. We ag ree and conclude that Genera l Bivens did not intentionally misstate the evidence. (2) And w

hy, at 1:23 in th

e morning , does he

go from the east side of town, passed Dodge store, all the way

to the west side of town to Short Stop to spend a

quarter to buy a bag o f chips? . . . B ecause you can see

McIver Apar

tments from there. You-9-

can go over to McIve

r Apartments and pick up Jody McPherson a nd take him out and kill him. The Appe llant arg ues that th

is statemen

t is inaccurate because Stephanie McPher son testified that she and Jody lived at 1216 Tucker Circle a t the time he was murdered. The State’s theory is based upon the testimony of the Appellant that he dr opped Jody McPhers on off atMcIv er Apar tments between11:00 and 11:30 on the night of the murder, the videotape placing the Appellant at the Short Stop Store at 1:23 a.m., andMcMillin’s testimony that he saw the Appellant, Cork, and Mc Pherson togethe r in a red car between the hours of 1:00 and 3:00 a.m. We conc lude that the State did not intentionally mislead the jury as to the inferences it may have drawn. (3) There’s not any

physical evidenc e against Mr. Cork at the scene.

A cell phone linked to Co rk was fo und at the scene. D efense

counsel o bjected to this statement and askedfor a curative instruction, wh ich was refuse d. While thisstatemen t is incorr ect, we again conclude that the State did not intentionally misstate the evidence. F urthermore, the jury

was instructed, “you should disreg ar d a ny arg ument made by the a

ttorneys which y

ou find is not supported by t

he evide nce.” A n appella te court must presume that the jury f ollowed the instruction given by the trial court. State v. Gilliland , 22 S.W.3d 266, 273 (Tenn. 2000).
CONCLUSION

Based u pon the fo

regoing, we c onclude t

he evide nce is mor

e than suf ficient t o support the Appel lant's conviction for premeditated

first deg ree mur der. I n addition , we conc lude that the State didnot commit prosecutorial misconduct. Accordingly , the judgment of the trial court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE