# FILED
July 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE AU GUST 1996 SESSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9505- CR-00155

) ) Davidson C ounty v. ) ) Honorable Seth N orman, Judge ) EDWARD M. THOMPSON, ) (First Degre e Murd er an d Esp ecia lly ) Aggrava ted R obb ery) ) Appellant. ) For the Appell ant : For the Appell ee : Larry B. Hoover Charles W. Burson 500 Church Street Attorney Gen eral of Tennessee Nashvil le, TN 37219 and Clinton J. M organ Counsel for the St ate 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Victor S. J ohnson, III Distric t Attorney General and Kymberly

Hattaway-Haas Assistant D istrict A

ttorney Gener

al W ashington Square 222 2nd Avenue N orth Nashvil le, TN 37201-1649

OPINION FILE D:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defen dant, Edward M. Thompson , appeals as of right from his convicti ons by a jur

y in the D avidson Co unty Cri minal Court for first degree murder and especially

aggrav ated robbery , a class A fel ony. He received a l ife sentence for the murder and as a R ange I, standar d offender a concurrent eighteen-year sentence for the especiall y aggr

avated robber

y convi ction. The defendant presents the follow ing issu es f or ou r revie w:

(1) whether th e evidence i s sufficient to supp ort his felony murder conv iction; (2) whether t he court erred by excluding the victi m’s prior convicti ons. (3) whether

the prosecuti ng attorney committed prosecutor ial misconduct byreferring to inadmissibl e evidence dur ing her closing ar

gument. We af firm the judgments of the trial c ourt.

The defen dant was charged with the felony murder and especia lly aggravated robbery of Maurice Jordan. At trial, Office r David Debout of the Nashville Metropolitan Police Depar tment testified that he found the vict im lying on an interstate ramp at 10:35 p.m. on J une 11, 1993. He recalled that thevictim’ s body was half on the ramp, acros s the whit e line, and half on the shoulder. He noticed smal l holes in t he victim’ s back. He c hecked for other ev idence at the sc ene but found nothing.

Sean Jackson, a fr iend of the vic tim, testified th at the vic tim house-sat for him while he was out of town in June 1993. Jackson adm itted that he was involved in selling drugs during that time. He said that he had given the victim his pager in case anyone called about a drug deal. He estima ted that three ounces of cocaine would have sold for $3,000 to $3 ,500 and said that he do ubted that he would have been ab le to obtain such a large amount of co caine.3 The victim’s mother testified that she last saw the victim four days before his death, w hen she and the v ictim’s father had let the v ictim use thei r Chevr olet Blazer

. She s aid t hat t he vic tim wa s resp ectf ul of thei r prop erty a nd th at he would not h ave allowed any

one else to dri ve it. Shesaid that she r eceived the Blazer bac k after the victim’ s death and did not find any evi dence that a w eapon had been fired in it. She also recalled that the victim’s wallet did not have any money in it when she received it after the vic

tim’s death. Sh e testified that t he victi m had been in troubl e for selling drugs w hen he was ni neteen-years old but that to h er knowl edge he did not continue to sell drug s after that time.

Michael Steel , a friend of the defendant’s , testified that h e was li ving at the defendant’s sis ter’s apartment in June 1993. H e recalled th at the defendant and Michael Gor

don came to the apart ment between 11:00 p.m. and midnight on June 11, 1993. He said t hat they had a c ellular phone and a white powdery substance that appeared to be coca ine. He sai d that he saw the defendant use the phone and that the defendant told him that h e got the phone from a Blazer on an interstate exit. Stee l testified that he did n ot recall telling Detective Pridemore that the def endant told him that the defendant had set up, robbed, and ki lled a man named Maur ice. He sai d that he remembered tell ing Detect ive Pri demore that both the d efendant and Gordon had guns at th e time o f the sh ooting. He also rec alled th at he sa w the def endan t driving a Blazer thr

ee or four days

after the shooting and that the defendant tol d him that he had sold the cell ular phone.

On cross-ex

amination, Steel testified that he on ly heard t he defendant say something about a

robbery. He said that the defendant did not tel l him that he set up, robbed, and kil led a man.4 The defen dant’s girlfriend testified tha t she saw the defendant with a darkcolored Blaz er, a cellul ar phone and a lot of money after June 11, 1993. She recal led that the defendant purcha sed clothes w ith the money a nd said that it was unusual for the defendant to have a lot of money. S he said that the d efendant told her that the Blazer bel onged to a friend and that he had boug ht the cellul ar phone. She re called that the defen dant gave her the cellular phone to use while he went vacationing in Florida w ith his family

for approxi mately a week. She said t hat the defendant took the phone from her after he returned from his tr ip.

Officer Greg Ad ams of the Nashvi lle Metropol itan Police D epartment testified that he w

as at the Litton Avenue Apartment s between 11:2 0 and 11:30 p.m. on June 11, 1993, w hen he saw M ichael Gordon drive up i n a dark blue F ord. He test ified that Gordon left the car when hebegan to approac h. Officer Adams sai d that he tried to arrest Gor

don because he thoug ht he saw dr ugs in the car. He sai d that he and Gordon fought and that Gordon even tually g ot away from him. He searched the car and found scales, a pillowcase with two fully loaded hand guns in it, and a small amount of a substance that appeared to be cr

ack cocaine. The guns, a thir ty-eig ht revolver and a twenty-five millimeter semi-automatic pistol, were introduced at trial. Officer Adams testi fied that the substanc e he found later test ed negative for cocaine.

A T.B.I. Forensic Scientist testif ied that both the pistol and revolver were functioning pr

operly. He also identi fied three spent bul lets that he deter mined had been fired from the pisto l.

Detectiv e Bill Pri demore testified about his inv estigation into the shootin g. He subpoenaed the v ictim’s phone records and l earned that the v ictim’s phone had been used hundreds of ti mes since the v ictim’s death . He said that the last cal l the victim pl aced on the phone was at 10:05 p.m. on t he night of the sh ooting and that5

another call was made that n ight at 10:38 p.m. As a res ult of his rev iew of the phone
reco rds, Dete ctive Pride more inte rviewed Micha el St eel o n Jul y 19, 1 993 . Ste el gave the detective the defe ndant’s and Michael Gordon’s na mes. Detective Pridemore said that he left his card and beeper number with Steel and told him that he wanted to t alk to the defendant.

Detectiv e Pridemore tes tified that the defendant contacted him on the beeper later t hat day. When he returned the ca ll, the defendant answered the phone and identified him self. Detective Pridemore said that th e defendant admitted to him that he ha d sho t a ma n and agree d to t urn h imse lf in the n ext mo rnin g. Det ecti ve Pridemore said that the de fendant did no t claim that the shooting was in self-def ense duri ng the phon e con versa tion . W hen the d etec tive m et with the d efe nda nt th e next day, the defendan t waived his Miranda rights a nd gave a v ideo-taped statement . The statement was played for the jury. In it, the def endant admitted that he shot the victim but said that he d id so in sel f-defense.

Dr. Charl es Harlan, t he Chief Medical Examiner of the State of Tennessee, testified that the vic tim died as the r

esult of three g unshot wounds he had received. Dr. Harlan identified the three bullets he recovered from the body. He explained th at one of the vic tim’s wou nds was ca used by a g un being fired more than twenty- four inches away from the v ictim. He s aid that the bull et entered the body slightly inside the l eft shoulder blade, fifty-five a nd a half inches abov e the vict im’s heel and two in ches lef t of his midline . Accordi ng to Dr. Harl an, the bullet tr aveled th rough the victi m’s left lung and was recovered in t he lateral l eft chest wal l. He said that the bullet had trav

eled downward two and a half inches to fifty-three inches above the victim’ s heel.6 Dr. Ha rlan desc ribe d ano ther of t he vic tim’ s woun ds as bein g caus ed by a shot that was fired from a dista nce of four to eight inche s away from the victim. He said that the bullet from that shot entere d the defendant’s back fifty-one and a hal f inches above his heel and four and a half inc hes left of his midl ine. It trav eled through the defendant’s left lung , left ventri cle of his heart , diaphragm and pericardial sac. The bullet was

recovered from the chest wall and had tra veled upward two and a half inches to fifty-four inc hes above the v ictim’s heel

.

The third wo und Dr. Har lan described was cause d by the g un being fired from between twelve to twenty-four in ches away from the vict im’s body. The shot entered the v ictim’s bac k forty-ei ght and a half inc hes above his heel and to the r ight of his midline. According to Dr. Harlan, the bullet traveled from left to right and downward three and a half inche s, completing its travel at forty-five inches above the victim’s heel.

Dr. Harl an also identi fied pictures s howing t he gunshot wounds and other scrapes and abr

asions on the v ictim’s body . Harlan ex plained that the o utside area of the victi m’s right

elbow and t he middle porti on of his left forearm c ontained abrasi ons that were consistent with the victim’s body being scraped across some firm surf ace such as an asphal t road. The v ictim had simi lar areas of abr asions on his knees, rig ht shoulder, and on his left hand and w rist.

The defendant testified cons istently with the statement he had gi ven Detectiv e Pridemore. H e recalled th at he paged the v ictim to buy four ounces of cocaine. He s aid that the v ictim agreed to meet wi th him at a McD onald’s rest aurant and indicated that

he had the cocain e. The defendant said that he and Michael Gordon went to Mc Donald’s in his sister ’s car and th at the vic tim arrived drivi ng a Blaz er and parked next to them. The defendant said that he and Gordon g ot into the Blaz er and that the vic

tim told him that

they needed to get the cocai ne. The defendant recall ed7

that he sat in the back seat of the Blazer and that Gordon sat in the f ront seat. He said that Gordon had a pi llowcas e with a s et of scales in it.

The defen dant testified tha t he, Gordon, and the victim lef t McDonald’s in the Blazer

with the victim dr iving. He said that the victi m pulled out an ol d, rusty revolver while he was driv ing and ordered Gordon and the defendant to empty their pockets. The def endant said that he com plied and placed his mone y on the Blazer’s console. He r

ecalled that thevictim w as pointing a gun at Gordon but was watching him through th e rear-v iew mirr or. He sai d that the vi ctim droveinto a Krystal’s park ing lot and ordered Gordon to driv e. The defendant said that the victi m walked ar

ound the Blazer and got in on the passenger s ide. The defendant testi fied that he pulled out an automatic pistol he had with him and cover ed it wi th his hand w hile the v ictim wal ked around the front of the Bl azer. Hesaid that the v ictim ordered Gordon to ge t on the interstate.
According to the defendant, the v ictim sat si deways in the passeng er seat and watched Go rdon and him. The defendant said that the v ictim turned a s they approached the int erstate and that the victi m leaned forwar d when he tur ned back. The defendant testified that h e shot the vi ctim around five times when the victi m leaned forward. H e said that the v ictim opened the do or when he started shooting and jumped out of the Blazer

.

The defendant recalled t hat Gordon dropped him off after the shooting and that he used the v ictim’s phone to call someone t o get him. H e said that he went back to McD onald’s to g et his sist er’s car a nd then went t o his sister’s apartment. Gordon was at the apartment w hen he arrived. He said t hat Gordon told h im that he had found some cocaine i n the Blazer . The defendant said that he and Gordon w ent to the Blazer

to split up t he cocaine but di scovered t hat it was not real. H e testified that he8

saw Gordon again later that night, after Gordon had been c hased by a pol ice officer. He said that G ordon informed him that the police had been after him and that he had left the pistol in his car.

The defendant testified that he shot the v ictim because h e thought the victim w as going to kill hi m and Gordon. He said that he did not shoot the v ictim at Krystal’s when he was getting into the Blazer because he was afraid that the victim would shoot him back. The defendant ex plained that the t wenty- five milli meter pistol h e used in the shooting belonged to Go rdon. He said that he and Gordon both usually carry a nine millimete r pistol but that he had borr

owed Gordon’ s smaller pi stol that nig ht because he was

wearing shorts. The defendant testified that he ha d not seen Gordon carry a revolver since he w as fifteen or six

teen years old.

The defendant recalled t hat Gordon call ed him two or three days

after the shooting and dr

ove the Blaz er to get hi m. The defendant admitted that he drove the Blazer some and eventually left it in W est Nashville. He also admitted that he and his girlfrie nd used the vi ctim’s phone a l ot.

During c ross-examination, the defendant t estified that the r evolver that had been introduced into evid ence may have been the one the v ictim used on t he night of the shooting. Although he had t estified that the v ictim had used a rusty revolver , he admitted that the revolver that was i n evidence onl y had rust in its chamber and around its barrel . He expl ained that he saw the rust on the victim’ s gun wh en the vict im got out of the Blazer at Krystal ’s. He recalled that the v ictim had the g un in his hand w hen he was shot but testified that he d id not know what happened to the gun when the victim left the truck. He said that he did not tell the police, M ichael Steel, or his g irlfriend immediately after the shooting that he had shot a man in self-defense.9 I The defen dant contends that the evidence is insufficient to support his conviction for first degree murder beca use the proof estab lished that he acted in self-defense. We disagree. Al though the defendant cl aimed that he was forced to shoot the vi ctim after the v ictim, w hile driv ing the Blaz er, robbed both hi m and Michael Gordon at gunpoint, the jury obviously did not accredit this version of events.

Our standard of review when the suffici ency of the ev idence is q uestioned on appeal is "w hether, after v iewing the evidenc e in the lig ht most favorabl e to the prosecution, any

rational tr ier of fact could hav e found the essential elements of the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979). T his means that we may not reweigh the evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferen ces from the evi dence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).

When viewed in this l ight, the pr oof at trial showed that the defendant and Michael Gor

don met with the victi m. The defendant shot the v ictim three t imes in the back, and he and Gor

don took the Blaz er that the v ictim had been dr iving. The defendant then used the v ictim’s phone to make arrang ements to pick upthe car he had driven to meet the victim. Once he reache d the car, he drove to his sister’s apartment wher

e he reunited w ith Michael Gordon to share any drug s that were found in the Blaz er. After the sh ooting, the defendant possessed an unusu ally lar ge amount of money, used the victim’s phon e extensively, and drove the Blazer. Under these facts , the jury was ju stifie d in fin ding tha t the de fend ant kille d the victim during a robbery and not in self-def ense. W e hold that suff icient evidence supports his first degree murder

convicti on.10 II The defen dant also contests the trial court’s f ailure to admit the victim’s prior drug convicti ons. The trial court exc luded the conv ictions becaus e it concluded that they were irrel evant because their probati ve val ue was too s peculative . We agree with the t rial court ’s assessment.

The defendant contends that t he victi m’s convi ctions w ere relevant to show that th e victim was a drug dealer w ho was capabl e of selling a large amount of cocaine. He argues that t he victi m’s ability to obtain large quantit ies of cocaine supports his theory of the c ase that the v ictim decided to rob him and M ichael Gordon because he did not have enough cocaine to fulfill the transacti on.

Evidence i s relevan t if it has “an y tendency to make the ex istence of any fact that is of conse quence to the determinat ion of the action mo re probable or less probable than it

would be w ithout the ev idence.” Tenn. R . Evid. 401. In our vi ew, the victim’s prior drug convictions do not meet this test. W e disagree with the defendant’s assertion that

the victi m’s prior d rug conv ictions have any tendency to show that the victim w as unable to obtai n drugs on th e night of the sho oting or th at the vic tim tried to rob the defenda nt and Gordon. The trial court pro perly excluded the convictions.

III Next, the de fendant contends that the prosecuting attorney committed prosecutoria l misconduct du ring her closing ar gument by referring to ex cluded evidence. The trial court sustained the defendant’s ob jection to Detective Pridemore testifying about what M ichael Steel had told him reg arding the de fendant’s statements on the night of the shooting. D uring cl osing arg ument, the prosecut ing attorney stated the fo llowing:11 Now, Mi chael Steel refused to adm it to you, he said he didn’t remember

that he had told Detective Pridemore within days of the murder that M r. Thompson told hi m that he had “set u p, robbed and killed a man” at this exact area. He sai d “I don’t remember

tell ing h im that.” He did say, “ I remember tell ing Dete ctive Pridemore that Mr. Thompson told m e that Mr. Gordon and Mr. Thomp son each had a weapon.”
The defendant asserts th at these comments were designed to convey to the jury

that, had the t rial c ourt not s topp ed hi m fr om d oing s o, De tect ive Pri dem ore wo uld h ave testified that Stee l told him that the defendant admitted that he had set up, r

obbed and killed a man.
Initially , we note that the defendant failed to obj ect to the clos ing argument at tr ial and has thus waived the issue. See T.R.A.P. 36(a) . In any event, the defendant also failed to object when the prosecutingattorney as ked Steel w hether he told Detecti ve Pridemore that the defendant admitt ed that he had set up, robbed, and killed a man. In this respect, the prosecu tor’s reference to Steel’s inability to recall making such statements was a permissibl e comment on the ev idence that did not constitute misconduct. To the extent the state was summarizing the testimo ny at trial, the argument was entirely proper.
On the other hand, we recog nize that th e prosecutor’ s statement that Steel “refused to

admit” that he t old Detectiv e Pridemore that

the defendant confessed could be interpreted as an att empt to tell the jury that Steel did tell Detective Pridemo re that the defendant made such statements. However, the ul timate issue i s not whether the argument may

be viewed as improper, but whether the jury could conside r the defendant's case w ith impartial ity despi te the alleg edly impro per remark by the prosecutor. See Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App . 1976). In considering the evidence presented, a nd the relatively innocuous statement s in question in relation to t he remainder of the ar gument, weconclude that t he defendant did not suffer improper prejudice.12 In considerati on of the foregoing , and the recor d as a whol e, the judgments of conv iction are affir med.

Joseph M. Tipto n, Judge

CONCUR:

John H. Peay , Judge

David H. Welles, Judge