State of Tennessee v. Ken Parker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

October 2, 2012 Session

STATE OF TENNESSEE v. KEN PARKER

Appeal from the Criminal Court of Shelby County

No. 09-08166 W. Mark Ward, Judge

No. W2011-02125-CCA-R3-CD - Filed February 14, 2013

Ken Parker (“the Defendant”) was convicted by a jury of first degree felony murder and first

degree premeditated murder. The trial court merged the first degree premeditated murder

conviction into the first degree felony murder conviction and sentenced the Defendant to life

imprisonment. On appeal, the Defendant asserts that the trial court erred in not granting a

mistrial with respect to a police officer’s testimony. Additionally, the Defendant alleges that

the evidence presented at trial was insufficient to support his convictions. After a thorough

review of the record and the applicable law, we affirm the Defendant’s convictions.

Tenn. R. App. P. 3 Appeal as of Right; Judgments

of the Criminal Court Affirmed

J EFFREY S. B IVINS, delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS

and R OGER A. P AGE, JJ., joined.

Joseph S. Ozment (on appeal) and Larry Copeland (at trial) Memphis, Tennessee, for the

appellant, Ken Parker.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Neal Oldham and Paul Hagerman,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

A Shelby County Grand Jury indicted the Defendant and Marquis Ingram on one

count each of first degree felony murder and first degree premeditated murder. Prior to the

Defendant’s trial,1 he moved to suppress his statement made to police. The trial court held

an evidentiary hearing on the Defendant’s suppression motion and subsequently denied the

motion.2 The Defendant proceeded to a jury trial held July 18-19, 2011.

Janie Patterson, the victim’s mother, testified at trial that the victim, a twenty-five-

year-old male, was her youngest of three children. At the time of his death, the victim was

working in a construction job in downtown Memphis. She identified a picture of her son,

the victim. Three days after she last saw the victim, she received a phone call from the police

department, and she went to the Regional Medical Center. When Ms. Patterson arrived, the

victim was “barely hanging on” and “[h]ooked up to all kinds of tubes.” While she was there

at the hospital, the victim passed away. On cross-examination, Ms. Patterson estimated that

the victim was approximately six feet, one inch tall and weighed approximately two hundred

pounds.

Michael Smith testified that at approximately 4:00 a.m. on September 9, 2009, he

walked from his home on Latham Street in South Memphis to a nearby Shell gas station with

his girlfriend. While walking on Patton Street, he noticed a figure on the ground in the street

next to the curb. As he approached the figure, Smith realized that it was a young man 3 who

had been shot. Smith then called the police. He recalled that another couple also was nearby

when he found the victim. On cross-examination, Smith confirmed that the victim was

known around the neighborhood for stealing bikes and using cocaine. He knew the victim

as “Big Shank,” and Smith identified a “shank” as a knife. Other than seeing the victim in

the neighborhood and knowing of his reputation, Smith had no previous interaction with the

victim.

Darron Hickman testified that in September 2009 he was living on Latham Street in

South Memphis. At approximately 4:00 a.m. on September 9, 2009, Hickman and his

girlfriend left their house to go to work. They decided to walk down Patton Street so that

they could stop at the Shell gas station to buy cigarettes. They approached Smith, who drew

Hickman’s attention to someone on the ground. Hickman stood approximately four or five

feet from the victim and noticed blood on the ground. After Smith called the police,

Hickman walked to the Shell gas station and told an attendant, a security guard, and a

neighbor what he had seen.

1

The Defendant and Ingram were tried separately.

2

Because the Defendant does not present a suppression issue on appeal, we will not include a

summary of the testimony from the suppression hearing.

3

The young man later was identified as the victim in this case.

-2-

At the time that he observed the victim, Hickman did not know the identity of the

victim. However, he heard later that it was a man he knew as “Shank,” and he explained that

the two of them attended elementary school together. Hickman identified the Defendant as

someone he knew from his neighborhood and stated that they “rapped” together at

Hickman’s small recording studio. On cross-examination, Hickman agreed that he might

have bought cigars from the Shell gas station but denied smoking marijuana that day.

Simeon Prather testified that on September 9, 2009, he worked as a security guard at

a Shell gas station in South Memphis. His shift lasted from 6:00 p.m. until 6:00 a.m.

Between 4:00 and 5:00 a.m., police officers spoke with Prather and reviewed video from the

evening on the Shell gas station computer system. Prather identified at trial the discs that

included video of the evening from inside and outside the store. He believed that the

victim’s nickname was “Stank.” On cross-examination, however, he agreed that the victim’s

nickname could have been “Shank.” He had seen the victim in the Shell gas station that

night before he was shot. Prather knew the victim as a store customer but also as someone

who asked others for money outside the store. He identified for the police items near the

victim’s body as the items that the victim had purchased at the Shell gas station that evening.

Sergeant Mundy Quinn of the Memphis Police Department (“MPD”) testified that he

was assigned to the homicide bureau and that he was the lead investigator in the present case.

At some point, the Defendant became a suspect, and Sergeant Quinn and another officer,

Sergeant Lundy, interviewed him. Upon reading the Miranda rights to the Defendant, the

Defendant indicated his understanding and signed the waiver of those rights. In the initial

interview, the Defendant denied having any involvement in the victim’s death, despite his

presence with the victim on surveillance video from the Shell gas station. In Sergeant

Quinn’s opinion, the Defendant did not seem upset during this interview. Upon the

Defendant’s denial of any involvement, Sergeant Quinn left and allowed another officer,

Sergeant Goods, the opportunity to interview the Defendant.

On cross-examination, defense counsel asked whether Sergeant Quinn or another

investigator went to retrieve the Defendant from school for questioning, and Sergeant Quinn

responded that it was another investigator. Defense counsel then asked, “Another

investigator did? Is it fair to state were you the directing officer in this investigation or were

you just doing what you were told?” Sergeant Quinn answered, “Well, I mean, there was

[sic] two separate investigations going on at once.” After making an objection, defense

counsel, in a bench conference, stated, “I wasn’t trying to get there. He tainted my jury. He

just told them there were two investigations going on with [the Defendant], Judge. I’m going

to make a motion for mistrial based on that answer.” The trial court dismissed the jury, and

the following interaction commenced:

-3-

Defense: Judge, I’m going to make a motion for mistrial. Officer Quinn just

stated there were two investigations going on at the moment. It’s going to

make the jury believe those two investigations are of [the Defendant]. I mean,

that’s – I just asked him what his involvement was in this investigation. I no

way opened the door to say that there were two investigations or any other

investigation.

That’s – I mean, that’s highly prejudicial to my client, Judge, for him

to be able to come out and say there were two investigations going on. I mean,

what else are they supposed to think other than that there were two

investigations going on concerning [the Defendant]?

....

And now we’re talking about evidence – potential evidence of another

crime coming before this jury. They should have directed their witness, Judge,

to make sure that he was cautious in his answers and not be able to come up

here and say, yeah, well there were two investigations going on. That – I

didn’t open that door, Judge. I just asked him –

Court: Well, let me ask you where were you going with that answer that there

were two investigations? What did you mean by two investigations going on?

....

What was your involvement in the case I think was the question.

....

Witness: It was just – there was [sic] two investigations going on. There was

[sic] two homicide investigations going on.

....

Court: So, [the Defendant] was a suspect in two homicides?

Witness: Right. And when you asked me if I was the lead investigator, yes,

but so was Sergeant Freeman on his case. And you ask me, you know, if I was

directed to do something or if I was directing, if I remember correctly.

-4-

....

Court: Well, I mean, number one: You shouldn’t be going into this other case.

I mean, a rookie would not make that mistake.

....

All right. Number two: Two investigations, that’s all you got out. It’s not two

investigations on him, two investigations – I mean, we don’t know what the

two investigations are. It’s pretty generic at this point, so I don’t see any harm.

Defense: Well, that’s pretty speculative for the jury at this point. Now they’re

going to be wondering what in the world he meant by the two investigations.

Court: Well, do you want to ask him in front of the jury what the two

investigations were?

Defense: Well, I can’t do that, Judge. That’s going to open the door to what

I don’t want.

Court: So, I think I would leave it alone. I mean, the two investigations could

mean that they were looking into this Marquis [Ingram] fellow.

Following more discussion by the trial court, the State, and defense counsel, the trial

court denied the defense’s motion for mistrial. Defense counsel did not request a limiting

instruction.

Defense counsel continued his cross-examination. Sergeant Quinn testified that the

Defendant was seventeen years old at the time of questioning. He noted that, in terms of

extra precautions given the Defendant’s age, he attempted twice to contact the Defendant’s

mother but that she never answered. At approximately 6:00 p.m., Sergeant Quinn finally

spoke with the Defendant’s mother and informed her that the Defendant was in the homicide

bureau.

Sergeant Darren Goods of the MPD testified that he was assigned to the homicide

division and assisted in the investigation of the present case. He interviewed the Defendant

after Sergeant Quinn and another officer had spoken with the Defendant. Eventually, the

Defendant admitted his involvement and explained to Sergeant Goods what had transpired

in this case. Sergeant Goods read the following from the Defendant’s statement:

-5-

Question: On Wednesday, September the 9th, 2009, at approximately 4:20

a.m., Reco D. Patterson was the victim of a criminal homicide that occurred

at Patton and Lucy. Are you the person responsible for this homicide?

Answer: Yes, followed by his initials, K.P.

Question: Do you know – sorry. Did you know Reco Patterson prior to this

incident?

Answer: No. And that’s [the Defendant’s] signature on the bottom of page

one.

Question: What type of weapon did you use?

Answer: A .32 Chrome with a duct tape handle revolver.

....

Question: How many times did you shoot Reco Patterson?

Answer: Four.

Question: Were you alone or was there someone else with you during this

incident?

Answer: It was someone else with me.

Question: What is this person’s name?

Answer: Marquis Ingram.

....

Question: What part did Marquis Ingram play in this incident?

Answer: He just threw the shoes away.

....

Question: Was anything taken from the victim during this incident?

-6-

Answer: Just money. I don’t know how much.

Question: What did you do with this money?

Answer: I don’t know. I spent it though.

....

Question: Who took the money from the victim?

Answer: I did.

Question: Where did you get the money?

Answer: Out of his shoe.

....

Question: Can you tell me in detail the events that took place before, during,

and after this incident?

Answer: Before me and Marquis went to the Shell, we heard the victim . . .

talking about some money to some lady, saying he was going to pay her and

she didn’t want to hear what he had to say. . . . So, he left and went to the

Shell. Me and Marquis went to the Shell too.

On our way back from the Shell, I tried to rob him. He rushed me, I

shot, and that was . . . what happened. After I shot him, I just went on ahead

and got the money and walked off with his shoes and the money. Marquis

threw his shoes in the garbage and then I went to my grandma’s house.

Sergeant Goods identified photographs labeled by the Defendant identifying himself

and Ingram at the Shell station. The Defendant also identified the victim in the picture. The

Defendant told Sergeant Goods that he gave the weapon to a male named Derek Taylor.

Sergeant Goods eventually retrieved that weapon from Taylor’s father.

On cross-examination, Sergeant Goods testified that he never tried to contact the

Defendant’s mother before taking the Defendant’s statement. Sergeant Goods acknowledged

that he spoke with Ingram before his interview with the Defendant. During his interview

with the Defendant, he verified the Defendant’s statement with the information from the

-7-

crime scene report and the interview with Ingram. According to the crime scene report, the

victim had been shot four times, and his shoes had been taken. Sergeant Goods described

the Defendant as fairly calm during the interview.

Sergeant Michael Hill of the MPD testified that he worked with the crime scene

division and responded to the crime scene in this case at 5:39 a.m. on September 9, 2009.

At the time that Sergeant Hill arrived at the scene, the victim’s body no longer was present.

He observed and collected from the scene “a t-shirt with what appear[ed] to be blood on it,

two cigars, some cheese dip, a set of keys, . . . an open pack of Newports, and a smoked

cigarette.” He identified each of these items in pictures from the crime scene. On cross-

examination, Sergeant Hill acknowledged that he did not collect fingerprints or DNA from

the scene. He did not know if the items were sent away for forensic testing because his job

consisted solely of collecting and “tagging” the items.

Sergeant Paula Harris of the MPD testified that she worked in the homicide bureau

during the present case. As part of her involvement in the case, Sergeant Harris retrieved

five bullet packs from the medical examiner’s office around the time of September 24, 2009.

She identified the bullets at trial as the evidence that she sealed in an envelope.

Dr. Marco Ross, a medical examiner and forensic pathologist with the Shelby County

Medical Examiner’s Office, testified as an expert in the field of forensic pathology. He

performed an autopsy on September 10, 2009, on the victim in this case. Dr. Ross observed

“various injuries on the body that included some abrasions and lacerations on the face and

four gunshot wounds.” He determined that the cause of the victim’s death was multiple

gunshot wounds and considered the manner of death a homicide.

Dr. Ross further explained his findings following an internal examination:

There is a gunshot wound on the top of the head. That gunshot wound went

through the skull and there [were] some bullet fragments left in the scalp just

before going into the skull and then the bullet continued into the brain – or at

least part of the bullet did – and left part of the – on the left side of the brain,

they left a track on the left side of the brain and we recovered a bullet fragment

from inside the left side of the brain.

The other gunshot wound, the second one that we described, went into

the head just in front of the left ear and that bullet continued into the base of

the skull. Basically, into a bone skull that we call the petrous bone. This is a

large bone. Sort of as you travel from the ear to the center part of your head

inside the brain, you have to pass through the petrous bone. And the bullet

-8-

ended up inside that particular bone, causing a fracture on the base of the skull

right up against the underside of the brain.

The third gunshot wound that we described entered into the back side

of the neck on the left side. And the bullet basically went through some

muscle and fatty tissues on the left side of the neck and ended up inside the

cheek and we recovered a bullet from the left cheek.

The fourth gunshot wound we described went into the left mid-back.

That bullet went through the – through the back part of the left lung actually

and then it went through the diaphragm, which is a muscle separating the chest

organs from the abdominal organs. And after going through the diaphragm,

the bullet is now passing through the upper part of the abdomen. And actually

the bullet then went through part of the colon or large intestine in that part of

the abdomen.

The surgeons that actually operated on him had removed that portion

of the colon. The bullet then continued on through the – again, the diaphragm.

In the front of the body, we found the bullet inside the left chest cavity.

Dr. Ross surmised that the wound to the back that penetrated the lung and colon, as

well as the wound to the top of the head, would have been potentially lethal. From the four

gunshot wounds, Dr. Ross recovered five bullet packs. He further explained,

From the gunshot wounds associated with the top of the head, we separated

that into two packs. Since the bullet fragments were from different locations,

we collected the bullet fragments from the scalp tissues that went into one

pack and then the bullet fragment that we found in the brain went into another

pack.

He identified the bullet packs previously identified by Sergeant Harris.

Dr. Ross testified that the toxicology report indicated the presence of ethanol in the

victim’s body at a level of .028 on a breathalyzer scale. Additionally, the report revealed the

presence of some breakdown products of marijuana and cocaine. The presence of the

breakdown products indicated that the victim had used marijuana and cocaine within the past

twenty-four hours but likely not within the immediate minutes leading up to the incident.

Dr. Ross identified photographs of the victim and noted that three of the lacerations

on his face had “a ring-like character to them, meaning that a hollow, cylindrical-shaped

-9-

object impacted those particular areas to cause those lacerations.” He could not determine

what the cylindrical-shaped object was but acknowledged that it could have been the barrel

of a gun. Dr. Ross estimated that the victim was at least three feet from the gun when shot.

Marquis Ingram testified that he was eighteen years old and had been indicted for the

crimes in the present case. He had known the Defendant for approximately five years

because he lived near the Defendant’s grandmother’s house. According to Ingram, he and

the Defendant were close friends. On the night of the incident, Ingram and the Defendant

were at the Defendant’s grandmother’s house. At some point, the Defendant asked Ingram

to go with him to the Shell gas station to get some food. On the way there, they observed the

victim knocking on an apartment door and “asking about some money.” Ingram did not

know the identity of the victim at that time.

Ingram observed the victim put the money in his shoe and relayed that information to

the Defendant. According to Ingram, he did not have a gun with him, but the Defendant had

showed him a gun in the Defendant’s pocket. This gun was a .38 with a brown handle. The

Defendant then informed Ingram that he was going to rob the victim. Ingram and the

Defendant followed the victim at a distance as the victim went to one store, which was

closed, and then eventually to the Shell gas station. Ingram and the Defendant separated as

they followed the victim, and once Ingram reached the Shell gas station, the Defendant was

walking with the victim. All three men walked inside, and once Ingram and the Defendant

left the store, they went to a side street where the Defendant waited for the victim. Ingram

continued walking to the end of the street, but, before crossing the street, he heard gunshots.

He ran back to find the victim on the ground. When he asked the Defendant whether the

Defendant shot the victim, the Defendant answered affirmatively. The Defendant was

kicking the victim “[t]o the head or somewhere near the head,” and the victim was not

moving. The Defendant confiscated the victim’s shoes as well as some food, and Ingram and

the Defendant left the scene. According to Ingram, the Defendant “dumped the shoes in the

garbage can, went to his grandma’s house, washed his hands, and told [Ingram] to walk him

halfway home.” As they walked to the Defendant’s house, the Defendant told Ingram that

he would kill Ingram if Ingram told anyone what happened. Ingram described the

Defendant’s demeanor as calm.

Approximately a week later, Ingram turned himself in and gave a statement to police.

On cross-examination, he admitted that he initially was not truthful to the police. He

acknowledged that the Defendant never stated that he was going to shoot or intended to harm

the victim. He also acknowledged telling the police that he was ten feet away from the

Defendant when the Defendant shot the victim, but Ingram reiterated at trial that he did not

see the shooting.

-10-

Derek Taylor, Sr., testified that he lived in South Memphis in September 2009. He

was living both at his girlfriend’s house and at his parents’ house. His son, Derek Taylor,

Jr., also lived with his parents. On September 16, 2009, Taylor, Sr. found a small handgun

in a shoe box in a bedroom at his parents’ house. He removed the gun from the house and

did not tell anyone about it until detectives called to ask about its presence. He agreed to

meet the detectives at a Texaco station where he directed the officers to where he hid the gun.

On cross-examination, he acknowledged that Taylor, Jr. had been staying in the

bedroom where the gun was found. Taylor, Sr. never had seen the gun before finding it in

the shoe box that day.

Sergeant David Parks of the MPD testified that in September 2009 he was assigned

to the homicide division. He assisted Sergeant Goods in collecting evidence in the present

case. During the investigation, Sergeant Parks learned that a possible suspect had placed a

weapon in the suspect’s home. Upon speaking with residents there, Taylor, Sr. notified the

detectives that he was in possession of the weapon in question. They arrived at a Texaco

station to meet Taylor, Sr., and Taylor indicated that the weapon was hidden inside a plastic

bag beside the ice machine. Sergeant Parks identified at trial the weapon that he found that

day, a .32 caliber revolver. On cross-examination, Sergeant Parks stated that he did not know

whether the weapon was tested for fingerprints.

James E. Johnston, Jr., a criminal investigator in the gang unit for the Shelby County

District Attorney General’s Office, testified that he was asked to transport a weapon to the

Tennessee Bureau of Investigation (“TBI”) for ballistic testing with bullet packs retrieved

from the medical examiner’s office. He identified the box that he used to transport the

weapon to the TBI.

Special Agent Dan Royse, a forensic scientist supervisor with the Firearms

Identification Unit at TBI, testified as an expert in firearms identification. He explained that

firearms identification is a “discipline of forensic science that deals with the examination of

fired bullets, fired cartridge cases, fired shot shell cases, and other ammunition components

to determine which specific firearm” had been used in a given situation. From his testing of

the handgun and the five bullet packs, Special Agent Royse determined that the handgun was

in “normal operating condition.” He also determined that four of the five bullet packs were

fired from the handgun given to him for testing. One of the bullet packs contained fragments

of the bullet that were too small to determine conclusively that the bullet was fired from that

handgun. However, Special Agent Royse acknowledged that the fragment could have been

part of another fragment tested and matched to the handgun.

-11-

At the conclusion of the State’s proof, the defense moved for judgment of acquittal,

and the trial court denied the motion. The Defendant chose not to testify, and the defense

presented no witnesses. The jury deliberated and found the Defendant guilty of first degree

murder in the perpetration of a robbery and first degree premeditated murder. The trial court

merged the two offenses4 and sentenced the Defendant to life imprisonment.

The Defendant filed a motion for new trial, which the trial court subsequently denied.

He now appeals, arguing that the trial court erred in denying the Defendant’s request for

mistrial following statements made by Sergeant Quinn. He also challenges the sufficiency

of the evidence supporting his convictions.

Analysis

Sergeant Quinn’s Testimony

The Defendant contends that “the trial court erred and abused its discretion in failing

to grant a mistrial concerning the statements of Sergeant Mundy Quinn.” The State responds

that the trial court properly denied the Defendant’s request for a mistrial.

The determination of whether to grant a mistrial is a decision left to the trial court’s

sound discretion, and this Court will not disturb the trial court’s determination “absent a clear

abuse of discretion on the record.” State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002).

Essentially, “[t]he purpose for declaring a mistrial is to correct damage done to the judicial

process when some event has occurred which precludes an impartial verdict.” State v.

Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). A court should grant a mistrial

only when a “manifest necessity for such action” exists. State v. Saylor, 117 S.W.3d 239,

250 (Tenn. 2003) (citing State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App.

1991)). “‘In other words, a mistrial is an appropriate remedy when a trial cannot continue,

or a miscarriage of justice would result if it did.’” Saylor, 117 S.W.3d at 250 (quoting State

v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000)). The party seeking the mistrial bears

the burden of establishing its necessity. Williams, 929 S.W.2d at 388.

In deciding whether to grant a mistrial, “‘no abstract formula should be mechanically

applied and all circumstances should be taken into account.’” State v. Mounce, 859 S.W.2d

319, 322 (Tenn. 1993) (quoting Jones v. State, 403 S.W.2d 750, 754 (Tenn. 1966)). This

Court has considered the following three factors in assessing whether the trial court abused

its discretion in its decision not to grant a mistrial: “(1) whether the State elicited the

4

Although not specified in the transcript, the judgment orders reflect that the trial court merged the

first degree premeditated murder conviction into the first degree felony murder conviction.

-12-

testimony, (2) whether the trial court gave a curative instruction, and (3) the relative strength

or weakness of the State’s proof.” State v. Welcome, 280 S.W.3d 215, 222 (Tenn. Crim.

App. 2007).

Turning to the first factor, whether it was the State who elicited the questioned

testimony, here Sergeant Quinn was responding to a question posed by the defense. Defense

counsel, on cross-examination, had asked Sergeant Quinn whether it was he or another

investigator who retrieved the Defendant from the school for questioning. When Sergeant

Quinn answered that it was another investigator, defense counsel responded, “Another

investigator did? Is it fair to state were you the directing officer in this investigation or were

you just doing what you were told?” Sergeant Quinn answered, “Well, I mean there was [sic]

two separate investigations going on at once.” Given that Sergeant Quinn’s testimony was

a response to defense counsel’s questioning and not the State’s, the first factor weighs against

an abuse of discretion determination.

We next turn to the second factor, which is whether the trial court provided the jury

with a curative instruction. Following lengthy discussion among the trial court, the defense,

and the State, the trial court denied the defense’s motion for mistrial. The trial court did not

give a curative instruction to the jury, but no such instruction was requested by the defense.

As a result, “the right to a curative instruction was waived when [defense] counsel failed to

request it.” State v. McPherson, 882 S.W.2d 365, 371 (Tenn. Crim. App. 1994) (citing State

v. Mackey, 638 S.W.2d 830, 835-836 (Tenn. Crim. App. 1982)); see also State v. Griffis, 964

S.W.2d 577, 599 (Tenn. Crim. App. 1997) (“If a party fails to request a curative instruction

. . . , the party effectively waives the issue for appellate purposes.”). Therefore, this factor

weighs against an abuse of discretion on the part of the trial court.

Finally, we look to the third factor, which is “the relative strength or weakness of the

State’s proof.” Welcome, 280 S.W.2d at 222. The jury had more than ample proof to

convict the Defendant. The Defendant gave a statement implicating himself in the robbery

which resulted in his shooting the victim. Ingram, the Defendant’s accomplice, corroborated

the Defendant’s statement. Additionally, the forensic evidence supported the jury’s verdict.

Therefore, this final factor clearly weighs against an abuse of discretion determination.

Accordingly, the Defendant is entitled to no relief on this issue.

The Defendant asserts that this Court should grant relief under a plain error review.

We first note that we have held that the Defendant is not entitled to relief on the merits of this

issue because the trial court did not abuse its discretion. Moreover, the Defendant would not

receive relief under a plain error review because, as noted in looking at the substantial proof

in this case, the error did not “probably change[] the outcome of the trial.” State v. Smith,

24 S.W.3d 274, 282-83 (Tenn. 2000) (stating that relief will not be granted when the record

-13-

establishes that at least one of the five elements of plain error relief cannot be met) (quoting

State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994)).

Sufficiency of the Evidence

The Defendant also challenges the sufficiency of the evidence supporting his

convictions for first degree murder. Our standard of review regarding sufficiency of the

evidence is “whether, after viewing 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); see also Tenn.

R. App. P. 13(e). After a jury finds a defendant guilty, the presumption of innocence is

removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191

(Tenn. 1992). Consequently, the defendant has the burden on appeal of demonstrating why

the evidence was insufficient to support the jury’s verdict. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982).

The appellate court does not weigh the evidence anew. Rather, “a jury verdict,

approved by the trial judge, accredits the testimony of the witnesses for the State and resolves

all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State

v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest

legitimate view of the evidence and all reasonable or legitimate inferences which may be

drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty verdicts

based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.

2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our

Supreme Court adopted the United States Supreme Court standard that “direct and

circumstantial evidence should be treated the same when weighing the sufficiency of such

evidence.” Id. at 381. Accordingly, the evidence need not exclude every other reasonable

hypothesis except that of the defendant’s guilt, provided the defendant’s guilt is established

beyond a reasonable doubt. Id.

The weight and credibility given to the testimony of witnesses, and the reconciliation

of conflicts in that testimony, are questions of fact. State v. Bland, 958 S.W.2d 651, 659

(Tenn. 1997). Furthermore, it is not the role of this Court to reevaluate the evidence or

substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,

655 (Tenn. Crim. App. 2003) (citations omitted).

The trial court merged the two murder convictions, and the judgments reflect that the

conviction for first degree premeditated murder was merged into the conviction for first

degree murder in the perpetration of a robbery. First degree felony murder is defined as “[a]

killing of another committed in the perpetration of or attempt to perpetrate any first degree

-14-

murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child

abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy.”

Tenn. Code Ann. § 39-13-202(a)(2) (Supp. 2007). Therefore, we first must consider whether

the evidence was sufficient for the jury to determine that the Defendant committed one of the

underlying felonies required to convict the Defendant of first degree felony murder.

The State’s theory of the case was that the Defendant killed the victim in the

commission of a robbery. Robbery is defined as “the intentional or knowing theft of property

from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-

13-401(a) (2006). A person commits theft of property “if, with the intent to deprive the

owner of property, the person knowingly obtains or exercises control over the property

without the owner’s effective consent.” Id. § 39-14-103 (2006).

The State presented ample evidence for the jury to conclude that the Defendant, with

the intent to rob the victim, deprived the victim of his property by shooting the victim. In his

statement, the Defendant stated that he and Ingram had followed the victim to a Shell gas

station after hearing the victim discuss the payment of money with a lady. After leaving the

Shell gas station, according to the Defendant, he “tried to rob” the victim. The victim,

however, “rushed” the Defendant, and the Defendant shot the victim. After shooting the

victim, the Defendant “went on ahead and got the money and walked off with [the victim’s]

shoes and the money.”

Ingram testified to essentially the same facts leading up to the time that they left the

Shell gas station. However, Ingram also remembered observing the victim put money in his

shoe, and Ingram relayed this information to the Defendant. The Defendant also informed

Ingram that he was going to rob the victim prior to doing so. As they left the Shell gas

station, the Defendant waited for the victim on a side street, and Ingram continued walking

down the street. Before crossing the street, Ingram heard gunshots, and he returned to find

the victim on the ground. The Defendant admitted to shooting the victim. Ingram observed

the Defendant kick the victim and confiscate the victim’s shoes and some food.

The Defendant contends that the State failed to present sufficient evidence for a jury

to convict the Defendant because, according to the Defendant, Ingram’s testimony was

“unreliable” based on the fact that he was an accomplice and was “was testifying in a self

serving manner implicating the Defendant in an effort to exculpate himself.”

In Tennessee, it is well-established that an accomplice’s uncorroborated testimony

cannot be the sole basis of a defendant’s conviction. State v. Bough, 152 S.W.3d 453, 464

(Tenn. 2004); see also State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001); Monts v. State, 379

S.W.2d 34, 43 (Tenn. 1964). Specifically,

-15-

There must be some fact testified to, entirely independent of the accomplice’s

testimony, which, taken by itself, leads to the inference, not only that a crime

has been committed, but also that the defendant is implicated in it; and this

independent corroborative testimony must also include some fact establishing

the defendant’s identity. This corroborative evidence may be direct or entirely

circumstantial, and it need not be adequate, in and of itself, to support a

conviction; it is sufficient to meet the requirements of the rule if it fairly and

legitimately tends to connect the defendant with the commission of the crime

charged.

Bough, 152 S.W.3d at 464 (quoting Bane, 57 S.W.3d at 419).

In the case before us, we not only have the accomplice testimony of Ingram but the

Defendant’s own statement of admission. Moreover, video from the Shell gas station placed

the Defendant and the victim together shortly before the incident. Finally, the forensic

evidence also pointed toward the guilt of the Defendant. Therefore, the evidence presented

at trial provided ample corroboration to Ingram’s testimony that the Defendant shot the

victim in the commission of a robbery. Thus, the evidence is sufficient to establish that the

Defendant committed a robbery on the night of the incident.

We also must determine whether there was sufficient evidence to determine that

someone was killed in the commission of the above felony. Testimony established that the

victim died as a result of multiple gunshot wounds and that the manner of death was

homicide. Additionally, Ingram testified that, shortly after Ingram heard the gunshots, he ran

back to the victim and the Defendant, and the Defendant admitted to Ingram that he shot the

victim. Moreover, in the Defendant’s statement to police, he admitted to shooting the victim

four times, and exactly four bullets were retrieved from the victim’s body.

The Defendant also asserts that the Defendant’s statement should be “disregarded”

because “the statement was taken from the Defendant when he was a juvenile (17 years old),

without a parent, guardian or attorney present.” However, the Defendant moved to suppress

his statement prior to trial, and the trial court denied that motion. Moreover, the Defendant

failed to raise the suppression issue in his motion for new trial or as a separate issue on

appeal. Therefore, the Defendant has waived review of this issue. See Tenn. R. App. P. 3(e).

Accordingly, the statement properly was before the jury. The State clearly presented

sufficient evidence to establish that the victim died during the commission of the robbery.

Therefore, the evidence is sufficient to support the Defendant’s first degree felony murder

conviction. Accordingly, he is entitled to no relief on this issue.

-16-

Although the Defendant’s two convictions were merged, we also will address the

sufficiency of the evidence for his merged offense, first degree premeditated murder, should

an issue arise as to the felony murder conviction upon further appeal. First degree

premeditated murder is defined as “a premeditated and intentional killing of another.” Tenn.

Code Ann. § 39-13-202(a)(1) (Supp. 2007). The existence of premeditation is a factual

determination to be made by the jury in light of all the surrounding circumstances. State v.

Schmeiderer, 319 S.W.3d 607, 635 (Tenn. 2010); see also State v. Vaughn, 279 S.W.3d 584,

594-95 (Tenn. Crim. App. 2008). Premeditation is defined by statute as:

an act done after the exercise of reflection and judgment. “Premeditation”

means that the intent to kill must have been formed prior to the act itself. It is

not necessary that the purpose to kill pre-exist in the mind of the accused for

any definite period of time. The mental state of the accused at the time the

accused allegedly decided to kill must be carefully considered in order to

determine whether the accused was sufficiently free from excitement and

passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d) (Supp. 2007).

Because premeditation requires insight into the defendant’s state of mind, a jury may

infer the defendant’s intent based on his or her actions and the surrounding facts and

circumstances of the killing. State v. Jackson, 173 S.W.3d 401, 408 (Tenn. 2005); see also

Young, 196 S.W.3d at 108; Vaughn, 279 S.W.3d at 594-95. Thus, “[a]lthough a jury may

not engage in speculation, it may infer premeditation from the manner and circumstances of

the killing.” Jackson, 173 S.W.3d at 408 (citing Bland, 958 S.W.2d at 660).

Our Supreme Court has identified a number of relevant circumstances that may

indicate premeditation, including: “the use of a deadly weapon upon an unarmed victim;

. . . evidence of procurement of a weapon; . . . calmness immediately after the killing,”

Bland, 958 S.W.2d at 660; and “failure to provide aid or assistance to the victim,” State v.

Brooks, 249 S.W.3d 323, 329 (Tenn. 2008) (citations omitted). Additionally, the jury also

may take into consideration “the shooting of a victim after [the victim] had turned to retreat

or escape.” State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000) (citations omitted).

The State provided sufficient evidence at trial for a jury to convict the Defendant of

first degree premeditated murder. Although the Defendant stated to police that he shot the

victim when the victim “rushed” him, he also stated that he shot the victim four times with

a handgun. Ingram testified that, prior to the shooting on September 9, 2009, the Defendant

showed Ingram a gun in his pocket and told Ingram that he was going to rob the victim,

indicative of the Defendant’s procurement of a weapon. See Bland, 958 S.W.2d at 660.

-17-

Later, after Ingram heard gunshots, he ran back to where the Defendant was standing. He

observed the victim on the ground, and the Defendant admitted to shooting the victim.

Ingram observed the Defendant kick the victim “to the head or somewhere near the head,”

indicative of the Defendant’s “failure to provide aid or assistance to the victim.” Brooks, 249

S.W.3d at 329 (citations omitted). According to Ingram, the Defendant seemed calm as they

walked toward the Defendant’s house. Finally, Dr. Ross testified that the gunshots entered

the victim’s back, the back of the neck, the side of the head, and the top of the head. At the

very least, the jury could have inferred from the place of entry of the bullets that the victim

was not facing the Defendant when the Defendant shot him.

Viewing these facts with the strongest legitimate view in favor of the State, see Harris,

839 S.W.2d at 75, the jury had adequate evidence before it to find the existence of an

intentional and premeditated killing sufficient to support a first degree premeditated murder

conviction.

CONCLUSION

For the reasons articulated above, we affirm the Defendant’s convictions.

______________________________

JEFFREY S. BIVINS, JUDGE

-18-