State of Tennessee v. Christopher Ivory Williams

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 13, 2010

STATE OF TENNESSEE v. CHRISTOPHER IVORY WILLIAMS

Direct Appeal from the Circuit Court for Madison County

No. 08-193 Roger A. Page, Judge

No. W2009-01638-CCA-R3-CD - Filed May 9, 2011

Defendant-Appellant, Christopher Ivory Williams, was convicted by a Madison County

Circuit Court jury of first degree premeditated murder and felony murder. The trial court

merged the felony murder conviction with the first degree premeditated murder conviction

and sentenced Williams as a violent offender to life imprisonment. On appeal, Williams

argues that: (1) the evidence is insufficient to support his conviction for first degree

premeditated murder; (2) the trial court erred in failing to dismiss the felony murder count

of the indictment on the ground that no underlying felony was specified in the indictment;

(3) the trial court erred in allowing the victim’s mother to authenticate pictures of the victim

at trial; (4) the State committed prosecutorial misconduct during closing arguments; (5) the

trial court erred in considering Williams’ prior arson conviction for impeachment purposes.

Upon review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.

W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.

George M. Googe, District Public Defender; Paul E. Meyers, Assistant Public Defender,

Jackson, Tennessee for the Defendant-Appellant, Christopher Ivory Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney

General; James G. (Jerry) Woodall, District Attorney General; and Benjamin C. Mayo,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTS AND PROCEDURAL HISTORY

On January 7, 2009, a Madison County Circuit Court jury convicted Williams of first

degree premeditated murder and felony murder. The same day, the trial court merged his

conviction for felony murder with his conviction for first degree premeditated murder and

sentenced him as a violent offender to life imprisonment. Williams filed a motion for new

trial on February 2, 2007, which the trial court denied. Williams then filed a timely notice

of appeal.

Trial. Michael Wade Parson, an investigator with the Violent Crimes Unit of the

Jackson Police Department, testified that he investigated the homicide of the victim,

Myshesha Shaw, at 99 Dairy Street, Jackson, Tennessee, on July 3, 2007. He found the

victim in her bedroom and noticed that she had bruises on both arms, bruises on her left and

right cheeks, dried blood and lacerations to her lips, a small scratch on her neck, and an open

laceration on her right leg. Investigator Parson noticed that both clothes on the bedroom

floor and a pillow in the room had bloodstains on them. He also saw an Auburn University

basketball jersey, a blue headwrap, and two BankcorpSouth ATM receipts near the victim’s

body. One of the ATM receipts was dated July 2, 2007, with a time of 3:53 p.m.

Investigator Parson also stated that buccal swabs were taken from the Defendant-Appellant,

Christopher Ivory Williams, and his brother, James Charles Williams, who was also known

by the nickname of “240.” The Defendant-Appellant identified his brother as a possible

suspect during his interview with law enforcement.

Rochelle Staten, an officer with the Jackson Police Department, testified that he also

responded to the crime scene at 99 Dairy Street on July 3, 2007. He stated that he was the

first officer to observe the victim. He said that the victim was in the back bedroom of the

house and was sitting on the floor with her back against the bed, as if she were watching

television, but she was deceased. Officer Staten also noticed that the victim had “some

marks on her face and on her lips that didn’t appear right.”

Terry Buckley, an investigator with the Jackson Police Department, testified that he

was a patrol officer at the time that he was involved in the victim’s case. Upon arriving at

the scene, he took photographs, collected evidence, and made sketches of the crime scene.

He observed an Auburn University basketball jersey with the number twelve, several clothes,

a headwrap, as well as a bed sheet and pillow with bloodstains in the bedroom where the

victim’s body was found.

Aimee Oxley, a crime scene analyst and latent fingerprint examiner for the Jackson

Police Department, testified that she was involved in the collection of evidence associated

with the victim’s case. She took several photographs of the victim at the hospital that

depicted the injuries on her face, neck and arms. However, she was unable to collect any

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latent fingerprints on the chrome pipe that was found in the bedroom where the victim’s body

was found.

Michael Holt, a captain with the criminal investigation division of the Jackson Police

Department, testified that he was a unit commander with the violent crimes unit at the time

he investigated the victim’s case. He stated that he interviewed the Defendant-Appellant,

Christopher Ivory Williams, and took a statement from him. He then read Williams’

statement to the jury. In the statement, Williams alleged that his brother, “240” and the

victim had been making fraudulent checks together. Williams said that he recently

discovered that Ken Ashford, who also went by the name Marcus Armstrong, was the father

of the victim’s oldest daughter and that he and the victim argued about Ashford all the way

from Mississippi to his mother’s home in Tennessee. Williams stated that he and the victim

had talked about posting Ashford’s bond and making fraudulent checks in Ashford’s name

so that Ashford would be arrested for their crimes. Williams claimed that the victim had

previously been making fraudulent checks and had at least $13,500 in her bank account.

When Williams discovered that the victim’s apartment was in Ashford’s name, Williams

accused her of saving all of her money for Ashford instead of for him. Williams was afraid

that the victim was going to resume her relationship with Ashford and was going to have

Williams arrested for the victim’s and Ashford’s crimes. Williams admitted that he

“smacked” the victim “a little bit” and busted her lip shortly before the victim’s death but

claimed that his brother, “240,” and the victim had also been fighting on the night of July 2,

2007. Williams said he returned to his mother’s home at 5:30 a.m. on July 3, 2007, and woke

up the victim. The victim immediately complained that her arms hurt, and Williams observed

bruises on her arms from her fight with “240.” Williams informed the victim and his mother

that he was going to kill “240” because he had hurt the victim and had been making

fraudulent checks with the victim. Williams locked the victim in the bedroom and went

outside to the porch. When Williams’ mother came outside, he accused her of taking the

victim’s side. Williams then hit “240” in the back of the head during a fight. Williams stated

that he again left his mother’s house, and when he returned the next morning, Williams found

the victim dead. Williams’ aunt instructed him to leave before the police arrived, and

Williams caught a ride to Greenwood and spent the first night after the victim’s death in a

motel.

Cathy Ferguson, a Special Agent with the Tennessee Bureau of Investigation, testified

that she interviewed Williams, the Defendant-Appellant, with Captain Holt. She also spoke

with Williams alone after the conclusion of the first interview. Special Agent Ferguson told

Williams that she did not believe his version of the events and asked him questions about the

scratches on his arms. Williams then gave her a second written statement, in which he

admitted that he and the victim fought from approximately 8:00 p.m. on Sunday night until

early Monday morning. He stated that during their fight, he grabbed the victim by her throat

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and pinned her against the wall. He admitted punching the victim in her stomach, side, back

and chest, although he claimed, “I didn’t hit her as hard as I could.” Special Agent Ferguson

said that Williams then told her that his mother called him on Monday to let him know that

“240” had been hitting the victim. Williams returned to his mother’s home, and the victim

told him that “240” had been beating her with a “cane fishing pole” because the victim owed

“240” some money and because she refused to release her ATM pin number to him.

Williams could not recall whether the victim eventually gave the pin number to “240” or not.

Williams later told the victim to go to the bedroom, and she refused, so he “pushed her hard”

and she fell into the room and hit a wall, causing “her head [to] bounce[] against the wall.”

He said the victim “held her head and sat down on the bed crying.” They talked for a few

minutes, and Williams locked her in the bedroom. When Williams’ aunt arrived, William

unlocked the bedroom door. Before Williams left his mother’s house, he hugged the victim,

who was still sitting on the bed crying.

Amanda Lynn Jordan, the vice president over operations for BankcorpSouth,

identified still photographs and paperwork from the Highland Park branch of the bank

showing that individuals attempted to access the victim’s bank account on July 2, 2007 at

3:53 p.m. She explained that the victim’s account had carried a zero balance since June 22,

2006, and had been inactive since that time. She also identified a still photograph from the

ATM machine that was not accompanied by a bank transaction. She stated that a man

wearing a Auburn jersey with the number twelve was depicted in the picture. She also

identified three other still photographs accompanied by bank transactions that depicted the

same man wearing an Auburn jersey and a black stocking cap. Some of the photographs also

depicted a female with the man in the Auburn jersey, and these photographs showed the

female attempting to conduct some of the bank transactions. Jordan also identified several

pictures of the same man in the Auburn jersey attempting to access the victim’s account with

two different cards at the Madison Park branch of the bank on July 2, 2007 at 8:34 p.m.

Jordan said that one of the cards was a BankcorpSouth ATM card, but she could not identify

the other card. The female was not depicted in the photographs taken at the Madison Park

branch.

Roger Lee Newberry testified that he was Christopher Ivory Williams’ cousin. He

said that he went over to Williams’ mother’s home at 99 Dairy Street on July 2, 2007 and

heard “hollering and yelling and fussing.” When he walked into one of the bedrooms, he saw

Williams, the Defendant-Appellant, hitting the victim and asking her for “the numbers”.

Later, Newberry and Williams’ brother and mother all tried to get Williams to stop hitting

the victim. Williams told them to “get out of his business” but stopped hitting the victim at

that time. Newberry said that later that night Williams asked him to drive him to a

BankcorpSouth ATM machine at approximately 8:30 p.m. Before leaving to go to the ATM,

Newberry saw Williams’ brother, James Charles Williams, arrive at the house. Shortly

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thereafter, he drove Williams to the ATM. He saw that Williams was unable to get any

money from the ATM, and Williams informed Newberry that the victim had given him the

wrong ATM pin number. When he and Williams returned from the ATM, the victim was at

the house and was alive and well. Newberry said that he stayed a little while longer at the

house before going home. After he left the house that night, he called to check on the

victim’s welfare. Newberry confirmed that he never took Williams’ brother, “240”, to an

ATM the night of July 2, 2007 and never saw “240” beating up the victim that night or

demanding the victim’s ATM pin numbers.

Eric Echtenkamp, the assistant coroner for the Madison County Medical Examiner’s

office, testified that he was responsible for filing a report regarding the victim’s body for the

medical examiner’s office. Upon examination, he noticed hemorrhaging around the victim’s

eyes, which indicated a lack of oxygen. He also observed numerous cuts, bruises, and

bleeding on the victim’s body, as well as a puncture wound on her left shin. Echtenkamp

opined that the victim’s cause of death was homicide by strangulation.

Patrick Ihrie, a Special Agent forensic scientist with the Tennessee Bureau of

Investigation, testified that the blood from the bedroom pillows came from the victim. He

also stated that a swab taken from the victim’s left arm provided a limited partial DNA

profile which showed that the DNA came from a male, that James Charles Williams could

be excluded as a contributor of that DNA, and that Christopher Ivory Williams, the

Defendant-Appellant, could not be excluded as a contributor of that DNA. Special Agent

Ihrie acknowledged that the presence of Christopher Ivory Williams’ DNA on the victim did

not mean that the Defendant-Appellant actually inflicted the injuries to the victim. He further

acknowledged that he had no way of knowing how the Defendant-Appellant’s DNA got on

the victim’s arm.

Dr. Adele Lewis, an assistant medical examiner for the State of Tennessee, testified

that he performed the autopsy of the victim. Dr. Lewis stated that the victim died of

strangulation and/or asphyxia and blunt force injuries to her head, face, and neck. He stated

that the victim also had abrasions to both cheeks, a large amount of blood underneath her

scalp, scrapes on her left shoulder, cuts on her left leg, bruising on her arms and legs, cuts

and bruises on her lips, scrapes and bruises on the right side of her neck, and hemorrhaging

on her right eyelid consistent with strangulation.

ANALYSIS

I. Sufficiency of the Evidence. Williams contends that the evidence was insufficient

to support the jury’s finding that he acted with premeditation or intentionally killed the

victim. He asserts that Newberry’s testimony merely showed that he observed Williams and

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the victim fighting but saw that the victim was fine at the time that he and Williams returned

from the ATM. In addition, Williams notes that his own statement showed that he and the

victim had been fighting and that he had hit the victim but had not hit her as hard as he could.

His statement further showed that the victim had also been fighting with his brother, James

Charles Williams, shortly before her death. Regarding premeditation, Williams argues that

“there was no evidence presented of use of a deadly weapon, there was no evidence of

particular cruelty, there was no evidence of any threats or declarations of intent to kill made

by [him], there was no evidence that [he] ever procured a weapon, there was no evidence of

any preparation to conceal the crime, [and there was no] evidence of calmness immediately

following a killing.” Williams further contends that no evidence establishing his intent to

kill was presented at trial. Instead, he argues that the evidence showed only that he and the

victim fought over money and that the victim was later found dead.

In response, the State argues that a rational jury could have determined that Williams

killed the victim intentionally and with premeditation based on the evidence presented at

trial. The State asserts that there was no evidence at trial that the victim provoked Williams;

instead, the proof showed that Williams believed that the victim and Ashford were setting

him up to be arrested and that Williams was unsuccessful in obtaining the victim’s money

from the ATM. The proof further showed that Williams beat the victim from Sunday night

to Monday morning, and when the victim failed to release her pin number so that he could

withdraw her money from the ATM, Williams strangled her, all of which supports the

argument that Williams acted intentionally and with premeditation. We agree.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from that evidence. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,

the standard of review applied by this court 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, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of

Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court

or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact

of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case

where there is direct evidence, circumstantial evidence, or a combination of the two. State

v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551

S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The

trier of fact must evaluate the credibility of the witnesses, determine the weight given to

witnesses’ testimony, and must reconcile all conflicts in the evidence. State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the

evidence, this court shall not “reweigh or reevaluate the evidence.” Matthews, 805 S.W.2d

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at 779 (citation omitted). This court has often stated that “[a] guilty verdict by the jury,

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

all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659 (citation

omitted). A guilty verdict also “removes the presumption of innocence and replaces it with

a presumption of guilt, and the defendant has the burden of illustrating why the evidence is

insufficient to support the jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982)).

“The identity of the perpetrator is an essential element of any crime.” State v. Robert

Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,

at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).

The State has the burden of proving “the identity of the defendant as the perpetrator beyond

a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.

1995)). The State may prove the perpetrator’s identity using only circumstantial evidence.

State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Reid, 91 S.W.3d 247, 277

(Tenn. 2002)). However, “[t]he jury decides the weight to be given to circumstantial

evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence, are questions

primarily for the jury.’” Id. (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)

(citation omitted)). This court may not substitute its inferences for those drawn by the trier

of fact in cases involving circumstantial evidence. State v. Lewter, 313 S.W.3d 745, 748

(Tenn. 2010) (citing Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956)). We note that the

standard of review “is the same whether the conviction is based upon direct or circumstantial

evidence.” State v. Hanson, 279 S.W.3d 265, 275 (quoting State v. Sutton, 166 S.W.3d 686,

689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000).

First degree murder is the premeditated and intentional killing of another person.

T.C.A. § 39-13-202(a)(1) (2003). Premeditation is defined as “an act done after the exercise

of reflection and judgment.” Id. § 39-13-202(d). This section further defines premeditation:

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.

Id. “‘Premeditation’ is the process of thinking about a proposed killing before engaging in

the homicidal conduct.” State v. Brown, 836 S.W.2d 530, 540-41 (Tenn. 1992) (quoting C.

Torcia, Wharton’s Criminal Law § 140 (14th ed. 1979)).

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The existence of premeditation is a question of fact for the jury to determine and may

be inferred from the circumstances surrounding the offense. State v. Rosa, 996 S.W.2d 833,

837 (Tenn. Crim. App. 1999) (citing Brown, 836 S.W.2d at 539). “[T]he use of a deadly

weapon upon an unarmed victim; the particular cruelty of the killing; declarations by the

defendant of an intent to kill; evidence of procurement of a weapon; preparations before the

killing for concealment of the crime; and calmness immediately after the killing” may

support the existence of premeditation. Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d

at 541-42; State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)). This Court has also noted that

the jury may infer premeditation from any planning activity by the defendant before the

killing, evidence concerning the defendant’s motive, and the nature of the killing. State v.

Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995) (citation omitted).

We agree with the State that, based on the proof at trial, a rational jury could have

found that Williams, the Defendant-Appellant, killed the victim intentionally and with

premeditation. Newberry testified that he observed Williams hitting the victim and asking

her for “the numbers.” Newberry later drove Williams to the ATM machine, but Williams

told him that he was unable to withdraw any money because the victim had given him the

wrong ATM pin number. Testimony from Jordan, the bank representative, identified still

photographs showing that an individual resembling Williams attempted to withdraw money

from the victim’s bank account at the Highland Park Branch of the bank at 3:53 p.m. and at

the Madison Park branch of the bank at 8:34 p.m. on July 2, 2007. Williams’ first statement

to police made it clear that he believed that the victim and Ashford were setting him up to

be arrested, thereby preventing him from receiving any of the alleged $13,500 that the victim

possessed. In his second statement to police, Williams admitted that he and the victim fought

from 8:00 p.m. Sunday to the early morning hours on Monday. He also acknowledged

punching the victim in the stomach, side, back, and chest; he also admitted pushing her so

hard that her head bounced against the bedroom wall. The proof showed that Williams had

scratches on his arms following the victim’s death, and although Williams’ brother, “240,”

was excluded as a contributor of the partial DNA profile recovered from the victim’s arm,

Williams could not be excluded as a contributor of the DNA. Dr. Lewis confirmed that the

victim died of strangulation and/or asphyxia and blunt force injuries to her head, face, and

neck. We conclude that the evidence as a whole supported the theory that Williams strangled

the victim when it became clear that he would not receive any money from her. Although

Williams attempted to cast blame on his brother for the victim’s death, no other evidence

supported this defense theory, and the jury was free to determine that Williams’ statements

implicating his brother in the victim’s death were not credible. See Odom, 928 S.W.2d at

23. Therefore, we conclude that there was more than sufficient evidence to support Williams’

conviction for first degree premeditated murder.

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II. Dismissal of Felony Murder count of Indictment. Williams contends that the

trial court erred in failing to dismiss the felony murder count in the indictment. Specifically,

he argues that because the felony murder count did not specify the underlying felony, it failed

to place him on notice of the appropriate mens rea for the underlying offense and failed to

fulfill the requirements set out in State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). Although

Williams acknowledges that the trial court merged the felony murder conviction with the first

degree premeditated murder conviction, he maintains that the felony murder count of the

indictment allowed the State to increase its odds of obtaining a murder conviction and

allowed the State to place the defense at a disadvantage regarding trial preparation.

In response, the State argues that the indictment was sufficient because it provided

Williams with notice of the charged offense, gave the trial court jurisdiction over the case,

and protected Williams from double jeopardy. Moreover, the State contends that this court

has previously held that a felony murder indictment must allege that the murder was

committed during the perpetration of a felony but need not include specific allegations of the

elements and facts of the underlying felony. See State v. Alfonzo E. Anderson, No. W2000-

00737-CCA-R3-CO, 2002 WL 1558491, at *2 (Tenn. Crim. App., at Jackson, Jan. 9, 2002)

(citing State v. Jimmy Wayne Baker, No. W1998-00531-CCA-R3-CD, 2001 WL 252082,

at *11 (Tenn. Crim. App., at Nashville, Mar. 14, 2001), perm. to appeal denied (Tenn. Sept.

10, 2001); Alan D. Lawhorne v. State, No. 273, 1990 WL 70908, at *2 (Tenn. Crim. App.,

at Knoxville, May 31, 1990), perm. to appeal denied (Tenn. Oct. 1, 1990)). Finally, the State

asserts that the trial court properly denied Williams’ motion to dismiss the felony murder

count of the indictment. We disagree but conclude that the trial court’s error harmless.

The United States Constitution and the Tennessee Constitution state that a defendant

is entitled to knowledge of “the nature and cause of the accusation.” U.S. Const. amend. VI;

Tennessee Const. art. I, § 9. Pursuant to State v. Hill, an indictment is valid if it contains

sufficient information “(1) to enable the accused to know the accusation to which answer is

required, (2) to furnish the court adequate basis for the entry of a proper judgment, and (3)

to protect the accused from double jeopardy.” 954 S.W.2d at 727. In addition, pursuant to

Tennessee Code Annotated section 40-13-202, the indictment must

state the facts constituting the offense in ordinary and concise language,

without prolixity or repetition, in such a manner so as to enable a person of

common understanding to know what is intended, and with that degree of

certainty which will enable the court, on conviction, to pronounce the proper

judgment. . . .

T.C.A. § 40-13-202 (2006).

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Here, count two of the indictment charging Williams with felony murder provided:

THE GRAND JURORS of Madison County, Tennessee, duly

empaneled and sworn, upon their oath, present that

CHRISTOPHER IVORY WILLIAMS

on or about July 3, 2007, in Madison County, Tennessee, and before the

finding of this indictment, did unlawfully and recklessly kill MYSHESHA

SHAW during the perpetration of or attempt to perpetrate a felony, in violation

of T.C.A. § 39-13-202, all of which is against the peace and dignity of the

State of Tennessee.

Near the end of trial, the State acknowledged that count two of the indictment did not

specify the underlying offense for felony murder. The trial court indicated that it would

charge a particular underlying offense to the jury based on the proof presented at trial. The

court also stated that it would not charge alternate underlying felonies because it was fearful

that the jury would not reach a unanimous verdict. Defense counsel agreed that it was proper

for the State to make an election regarding the underlying offense before the jury was

instructed; however, he also argued that the State should have specified a particular

underlying offense in the felony murder count of the indictment. The trial court noted that

it had never seen a felony murder indictment where the underlying felony was not specified.

However, the trial court later issued a ruling finding that count two of the indictment was

sufficient:

As to Count Two, of course, the first argument deals with the

insufficiency of the indictment because in the indictment the State did not l[ist]

a specific [underlying] felony. And they usually do.

I’ve done considerable research on this matter. And I’ll just say I’ve

looked at the cases Vaughn [v.] Worthington, [No. E2007-00808-CCA-R3-

HC, 2008 WL 58956, at *2 (Tenn. Crim. App., at Knoxville, Jan. 4, 2008)],

which is a Court of Criminal Appeals case. . . .

Also, there’s a case, Mills vs. Lindamood, [No. M2007-01622-CCA-

R3-HC, 2008 WL 544643, at *2-3 (Tenn. Crim. App., at Nashville, Feb. 19,

2008),] which is also a Court of Criminal Appeals case, citing and setting forth

what has to be covered for the indictment in a felony murder.

And, of course, [in] most [of] these cases . . . the State did set out the

specific [underlying] felony in the indictment.

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I have found cases where the State indicted the statute – Of course, we

know that the felony murder statute, [Tennessee Code Annotated section] 39-

13-[202(a)], includes several specifically delineated [underlying] felonies. I

found cases where the State alleged all of them under the statute and then

chose one at trial. I don’t really see the difference in alleging all of them in the

indictment and just saying that . . . a specific felony was committed.

Also, as part of this consideration we must look at Rule 12(b)(2).

12(b)(2) concerns defects in the indictment and it reads as follows: []Motions

that must be made before trial; A, a motion alleging a defect in the institution

of the prosecution; B, a motion alleging a defect in the indictment,

presentment, or information, et cetera, it says. But at any time while the case

is pending the Court may hereto claim that the indictment fails to show

jurisdiction of the Court or to charge an offense.

And I think after reading these cases and looking at 12(b)(2) that I’m

going to give the State the benefit of the doubt here and let Count Two go to

the jury.

Now, as to what’s been made out as to the specific felony, we’re going

to get into tremendous legal problems if we do an either/or here with robbery

or kidnapping. I’m going to use kidnapping as the felony to charge to jury.

Neither the State nor the defense had anything to add following the court’s ruling. Although

the State had previously talked about using the offense of robbery or kidnapping as the

underlying offense for felony murder, the trial court subsequently charged the jury with

kidnapping as the only underlying offense for the felony murder count of the indictment.

In its ruling, the trial court noted that the defense failed to make a pretrial motion

alleging a defect in the indictment pursuant to Tennessee Rule of Criminal Procedure

12(b)(2). This rule states, generally, that a failure to raise an objection prior to trial based on

a defect in the indictment results in waiver. Tenn. R. Crim. P. 12(b)(2)(B); see also Wyatt

v. State, 24 S.W.3d 319, 322 (Tenn. 2000). However, as noted by the court in this case, a

claim that the indictment fails to charge an offense can be heard by a trial court at any time

while the case is pending. Tenn. R. Crim. P. 12(b)(2)(B). Accordingly, the defense’s failure

to make a pretrial motion pursuant to Rule 12(b)(2)(B) does not result in waiver.

On the date of Williams’ offense, felony murder was defined as “a killing of another

committed in the perpetration of or attempt to perpetrate any first degree murder, act of

terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse,

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aggravated child neglect or aircraft piracy[.]” T.C.A. § 39-13-202(a)(2) (2006). In order to

sustain the Appellant’s conviction for felony murder in this case, the State was required to

prove that the Appellant killed the victim in the perpetration of one of the specified

underlying felonies in section 39-13-202(a)(2). The record shows that the State intended to

prove that the killing was committed in the perpetration of kidnapping or robbery, but

neither of these underlying offenses were specifically stated in the felony murder count of

the indictment. Although the trial court noted the indictment’s failure to designate an

underlying felony for this count and specifically charged the jury with the offense of

kidnapping as the underlying felony, we must determine whether the trial court’s failure to

dismiss this count of the indictment based on the absence of a specified underlying felony

was error.

The Tennessee Supreme Court has held that the defendant must intend to commit the

underlying felony at the time of the killing:

Given the fact that the felony-murder rule is a legal fiction in which the intent

and the malice to commit the underlying felony is “transferred” to elevate an

unintentional killing to first-degree murder, we are reluctant to extend the

doctrine to include cases in which there was no intent to commit the felony at

the time of the killing. Thus, in a felony-murder case, intent to commit the

underlying felony must exist prior to or concurrent with the commission of the

act causing the death of the victim.

Id. at 107. In other words, “[a]lthough intent to kill is not required under the felony murder

statute, the perpetrator must possess the requisite intent to commit the underlying felony for

a felony murder conviction to be sustained.” State v. John Dennis Rushing, No. 01C01-

9501-CR-00020, 1996 WL 63920, at *6 (Tenn. Crim. App., at Nashville, Feb. 13, 1996),

perm. to appeal denied (Tenn. July 22, 1996); see also T.C.A. § 39-13-202(b) (stating that

no culpable mental state is required for first degree felony murder, other than the intent to

commit the underlying felony). We note that the underlying felonies listed in section 39-13-

202(a) have differing mens rea. Proof of the intent to commit the underlying felony, and at

what point it existed, is a question of fact to be decided by the jury after consideration of all

the facts and circumstances. State v. Buggs, 995 S.W.2d 102, 107-08 (Tenn. 1999) (citing

Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973); State v. Holland, 860 S.W.2d 53, 59 (Tenn.

Crim. App. 1993)).

Here, the State failed to designate a particular underlying felony in the indictment and

consequently failed to provide Williams with notice of the underlying offense and its mens

rea, which resulted in an invalid indictment and precluded a lawful felony murder conviction.

See Hill, 954 S.W.2d at 727; John Dennis Rushing, No. 01C01-9501-CR-00020, 1996 WL

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63920, at *6. Accordingly, the trial court did, in fact, err in failing to dismiss the felony

murder count in the indictment. However, we conclude that this error was harmless, given

that the trial court merged the felony murder conviction with the first degree premeditated

murder conviction. See Tenn. R. App. P. 36(b) (“A final judgment from which relief is

available and otherwise appropriate shall not be set aside unless, considering the whole

record, error involving a substantial right more probably than not affected the judgment or

would result in prejudice to the judicial process.”). Williams is not entitled to relief on this

issue.

III. Identification of Victim’s Photographs by Victim’s Mother. Williams argues

that the trial court erred in allowing the victim’s mother, Jeanette Dandrige, to authenticate

pictures of the victim taken while the victim was alive and after she was deceased. He

contends that this testimony “was of minimal probative value as the identity of the victim was

uncontroverted . . . and carried a risk of unfair prejudice due to its inflammatory nature.” He

also asserts that he was “substantially harmed” by the “inflammatory nature” of testimony

provided by the victim’s mother.

In response, the State contends that Dandridge’s testimony regarding these

photographs was relevant and probative because it established the corpus delicti and the

identity of the individual alleged to have been killed. See State v. Nesbit, 978 S.W.2d 872,

app. at 901-02 n.2 (Tenn. 1998) (Although proof of a reasonable creature in being is not

required by the current criminal code, the State must still prove the deceased’s identity, or

the corpus delicti, beyond a reasonable doubt, and “the defendant’s statements alone are not

sufficient to establish this element.”); Bolden v. State, 203 S.W. 755 (Tenn. 1918) (“The

evidence to establish the corpus delicti in cases of homicide must show that the life of a

human being has been taken, which question involves the subordinate inquiry as to the

identity of the person charged to have been killed . . . .”). The State also asserts that while

the photographs identified by Dandridge may have been prejudicial, they were not unfairly

prejudicial.

The trial court has discretion regarding the admissibility of photographs, and a ruling

on this issue “will not be overturned on appeal except upon a clear showing of abuse of

discretion.” State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). First, a photograph must

be “verified and authenticated by a witness with knowledge of the facts” before it can be

admitted into evidence. Id. Second, a photograph must be relevant to an issue that the jury

must determine before it may be admitted. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998)

(citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); Banks, 564 S.W.2d at 951).

However, if the photograph’s “prejudicial effect outweighs its probative value,” it should not

be admitted. See Tenn. R. Evid. 401 and 403; Banks, 564 S.W.2d at 951. A relevant

photograph “may be excluded if its probative value is substantially outweighed by the danger

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of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” See Banks,

564 S.W.2d at 951. Unfair prejudice has been defined by the Tennessee Supreme Court as

“an undue tendency to suggest decision on an improper basis, commonly, though not

necessarily an emotional one.” Id. Photographs must never be used “solely to inflame the

jury and prejudice them against the defendant.” Id.

We conclude that the trial court did not abuse its discretion in admitting the

photographs of the victim identified by her mother, Jeanette Dandrige. While the

photographs were prejudicial to the defense, the probative value of the photographs was not

substantially outweighed by the danger of unfair prejudice. The transcript shows that the

photographs were properly authenticated by Dandridge and were relevant to the State proving

the corpus delicti and the identity of the person killed beyond a reasonable doubt. Moreover,

there was nothing gruesome, graphic, or horrifying about the picture of the deceased victim

identified by Dandridge. Compare Banks, 564 S.W.2d at 950-51 (citing People v. Jenko, 102

N.E.2d 783, 785 (Ill. 1951)) (“[P]hotographs of [a] corpse are admissible in murder

prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome and

horrifying character.”). The record shows that these photographs were not offered by the

State merely to inflame the jury. Accordingly, Williams is not entitled to relief on this issue.

IV. Prosecutorial Misconduct. Williams contends that the State made improper

remarks during closing argument that constituted prosecutorial misconduct. Specifically, he

argues that the State improperly asserted during its closing that the reason Williams’ mother

and brother allowed the victim to be killed and/or were not called to testify by the State, even

though they were witnesses to the victim’s murder, was because they were fearful of

Williams. He further argues that the record as a whole contains no other reference to the fact

that fear was the reason why Williams’ mother and brother allowed the attack of the victim

to take place and were not called to testify. Finally, he contends that the State’s remarks

during closing improperly misled the jury and that he was prejudiced by the trial court’s

failure to provide curative measures regarding the remarks.

In response, the State argues that the prosecutor’s statements were made in direct

response to questions posed to the jury by the defense during closing arguments. The State

contends that the prosecution’s response of fear answered the question of why these

individuals did not prevent Williams from killing the victim rather than why these individuals

did not testify at trial. Finally, the State asserts that, based on the evidence at trial regarding

Williams’ threats to his brother and mother, it is reasonable to conclude that these family

members were afraid of him. We agree with the State.

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The defense made several comments during its closing about the State’s failure to

have Williams’ mother and brother to testify, despite the fact that they were present at the

time the victim was killed. The defense specifically posed the following questions to the jury

during closing arguments:

And I hear time and time again how there was no way for [the victim]

to tell us what happened. And that’s obvious. I know that’s obvious. But

there are a lot of other people that could tell [us] what . . . happened. And the

thing is, we’ll never know.

And if all these other people are so innocent, so innocent they would be

here today[,] and we don’t even hear about their statements. Then why didn’t

they call the police? Why didn’t they stop my client?

Why did every time my client left did they not get [the victim] out of

there? How could they not hear it? Apparently this beating went on over the

course they’re saying of days in a house that you’re at and you’re just going to

let it happen? You’re not going to call the cops? Why? If you’re so innocent,

why?

It makes no sense. . . . And I would have liked to have heard why and

I know y’all [sic] would have liked to have heard why.

....

And if all these people knew that he intended to kill her, why would

they do nothing, absolutely nothing?

....

I just ask or I want to leave you with this. If they’re so innocent, why

did they allow this to happen? If they know so much information and are there

today and are innocent, where are they now?

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The State responded to the questions posed by the defense by making the following

statements:

The Defendant is making a large issue, and I understand why. A large issue

of the fact that Christopher Ivory Williams’ mother was not called to testify,

and Christopher Ivory Williams’ brother was not called to testify, witnesses to

that beating right there, and the defense attorney asked you the question if they

are so innocent, why allow this to happen? Fear. Fear.

Prosecutorial misconduct does not constitute reversible error absent a showing that

it has affected the outcome of the trial to the prejudice of the defendant. State v. Bane, 57

S.W.3d 411, 425 (Tenn. 2001) (citing Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)). In

order to be entitled to relief on appeal, the defendant must “show that the argument of the

prosecutor was so inflammatory or the conduct so improper that it affected the verdict to his

detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996) (citing

Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)).

The courts of this state have routinely noted that “closing argument is a valuable

privilege that should not be unduly restricted.” Bane, 57 S.W.3d at 425 (citation omitted).

The trial court has substantial discretion in controlling the course of arguments and will not

be reversed unless there is an abuse of that discretion. Id. However, an attorney’s comments

during closing argument “‘must be temperate, must be predicated on evidence introduced

during the trial of the case, and must be pertinent to the issues being tried.’” State v. Gann,

251 S.W.3d 446, 459 (Tenn. Crim. App. 2007) (quoting State v. Sutton, 562 S.W.2d 820, 823

(Tenn. 1978)). This court must consider the following factors when determining whether the

argument of the prosecutor was so inflammatory or improper as to negatively affect the

verdict: (1) “[t]he conduct complained of viewed in context and in light of the facts and

circumstances of the case”; (2) “[t]he curative measures undertaken by the court and the

prosecution”; (3) “[t]he intent of the prosecutor in making the improper arguments”; (4)

“[t]he cumulative effect of the improper conduct and any other errors in the record”; and (5)

“[t]he relative strength and weakness of the case.” Judge v. State, 539 S.W.2d 340, 344

(Tenn. Crim. App. 1976).

We conclude that Williams failed to show that the prosecution’s comments during

closing argument affected the outcome of the trial to his prejudice. See Bane, 57 S.W.3d at

425. The prosecution’s statements during closing were neither inflammatory nor improper.

See Farmer, 927 S.W.2d at 591. We agree with the State that the prosecutor’s remark about

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fear was made in direct response to the questions posed by the defense during closing

arguments and that the remark answered the question of why these individuals did not

prevent Williams from killing the victim rather than why these individuals did not testify at

trial. We also agree that there was evidence presented at trial showing that Williams made

threats to his mother and brother, which adequately supported the prosecution’s statements

at closing that Williams’ brother and mother were fearful of him at the time of the offense.

Finally, we conclude that the trial court did not abuse its discretion in failing to provide

curative measures regarding the prosecutor’s remark. Accordingly, Williams is not entitled

to relief on this issue.

V. Consideration of Arson Conviction for Impeachment Purposes. Williams

contends that the trial court erred in considering his prior arson conviction for impeachment

purposes. Specifically, he argues that an arson conviction may not be relevant to a

defendant’s credibility if the offense is committed without dishonesty. See State v. Vance

Shelton, No. E2000-01632-CCA-R3-CD, 2000 WL 1858996, at * 5 (Tenn. Crim. App., at

Knoxville, Dec. 20, 2000), perm. to appeal denied (Tenn. Apr. 9, 2001) (“[C]onvictions for

‘setting fire with intent to burn’ and ‘arson’ are not relevant to a defendant’s credibility,

absent evidence of the actual circumstances supporting the convictions.”).

In response, the State argues that any error of the trial court in considering the arson

conviction for impeachment purposes is harmless. Specifically, the State contends that

Williams “has failed to argue and show how the improper inclusion of his arson conviction

was so prejudicial in this matter and precluded him from testifying, especially considering

the other ten prior convictions about which he does not complain.” We agree with the State.

This Court reviews a trial court’s ruling on the admissibility of prior convictions for

impeachment purposes under an abuse of discretion standard. See State v. Waller, 118

S.W.3d 368, 371 (Tenn. 2003). The admissibility of an accused’s prior convictions is

governed by Rule 609 of the Tennessee Rules of Evidence. Rule 609 permits the accused’s

credibility to be impeached by prior criminal convictions on cross-examination if certain

conditions and procedures are satisfied. The conviction must be for a crime (1) punishable

by death or incarceration in excess of one year, or (2) involving dishonesty or false statement.

Tenn. R. Evid. 609(a)(2). Generally, convictions that are ten years old or more cannot be

used for purposes of impeachment. Tenn. R. Evid. 609(b). The State is also required to give

reasonable written notice prior to trial of the particular convictions it intends to use to

impeach the accused. Tenn. R. Evid. 609(a)(3). Before permitting the use of a prior

conviction, the trial court must find that the probative value of the conviction on the issue of

credibility outweighs its unfair prejudicial effect on the substantive issues. Id. The trial

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court shall rule on the admissibility of the prior conviction before the accused testifies. Id.

If the court rules that the prior conviction is admissible to impeach, there is no requirement

that the accused testify at trial in order to later challenge the court’s ruling on the

admissibility of the prior conviction. Id.

Before Williams made the decision regarding whether he would testify, the trial court

held a hearing to determine whether any of Williams’ prior convictions could be used for

impeachment purposes. During the hearing, the court held that the following convictions

were admissible for the purpose of impeachment: arson, possession of a prohibited weapon,

felony failure to appear, aggravated burglary, identity theft, two convictions for forgery,

facilitation of money laundering, money laundering and criminal impersonation.

We agree with the State’s argument that Williams has failed to show how the trial

court’s admission of this one arson conviction, given the nine other convictions, was so

prejudicial that it prevented Williams from testifying. Accordingly, we conclude that the trial

court’s determination that Williams’ arson conviction would have been admissible for

impeachment purposes is harmless. See Tenn. R. App. P. 36(b) (“A final judgment from

which relief is available and otherwise appropriate shall not be set aside unless, considering

the whole record, error involving a substantial right more probably than not affected the

judgment or would result in prejudice to the judicial process.”). Williams is not entitled to

relief on this issue.

CONCLUSION

Upon review, we affirm the judgment of the trial court.

___________________________________

CAMILLE R. McMULLEN, JUDGE

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