The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1996 SESSION
FILED
July 26, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) No. 02-C-01-9504-CR-00104
APPELLEE, )
) Shelby County
v. )
) Wil V. Doran, Designated Judge
EVERETT D. CAIN, )
) (First Degree Murder)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
W. Mark Ward Charles W. Burson
Assistant Public Defender Attorney General & Reporter
147 Jefferson Avenue 500 Charlotte Avenue
Suite 900 Nashville, TN 37243-0497
Memphis, TN 38103
(On Appeal) John P. Cauley
Assistant Attorney General
Robert T. Hall 450 James Robertson Parkway
Assistant Public Defender Nashville, TN 37243-0493
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103-1947 John W. Pierotti
(At Trial) District Attorney General
201 Poplar Avenue, Suite 301
OF COUNSEL: Memphis, TN 38103-1947
A C Wharton, Jr.
Shelby County Public Defender Paul F. Goodman
201 Poplar Avenue, Suite 2-01 Assistant District Attorney General
Memphis, TN 38103-1947 201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
OPINION FILED: _______________________________
AFFIRMED
JOE B. JONES, Presiding Judge
OPINION
The appellant, Everett D. Cain, was convicted of murder in the first degree by a jury
of his peers. He was sentenced to life imprisonment in the Department of Correction. Two
issues are presented for this Court's review. The appellant contends that the evidence is
insufficient, as a matter of law, to support a finding by a rational trier of fact that he was
guilty of murder in the first degree beyond a reasonable doubt. He argues that the state
failed to prove the elements of premeditation and deliberation. The appellant also
contends that the trial court committed error of prejudicial dimensions by failing to grant his
motion for mistrial after the assistant district attorney general commented upon the
appellant’s failure to give the police a statement following the Miranda warnings during the
state's opening statement. After a thorough review of the record, the briefs of the
respective parties, and the authorities which govern the issues, it is the opinion of this
Court that the judgment of the trial court should be affirmed.
The appellant is confined to a wheelchair. On July 19, 1992, the appellant was
playing a dice game on the steps of Kenny Fason's apartment. Several people were
watching the game. Virginia Reece, Fason's mother, observed the game from her second-
story apartment. When she heard four gunshots, she looked out of her window. She
noticed the appellant placing a silver object, which appeared to be a gun, under his leg.
The people observing the dice game dispersed when the shots were fired. The appellant
rolled himself away in his wheelchair.
The appellant went to the apartment of Christine Threat, which was near the situs
of the shooting. Threat had gone to a neighbor's apartment to use the telephone. When
she returned to her apartment, she found the appellant sitting in her living room. Threat
testified that she did not know the appellant very well, she did not invite him into her
apartment, and she was surprised to find the appellant in the apartment when she
returned. The appellant told Threat that "he shot once in the air and he was waiting for the
motherfucker [Fason] to break and run. And when [Fason] broke and ran, he [the
appellant] shot three more times. And he was going to shoot until he see [sic] the
motherfucker [Fason] fall." The appellant stated that he shot Fason because he had given
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Fason a sum of money to keep for him, and Fason had spent the money. The police
arrested the appellant at Threat's apartment several hours after the murder. The police
were unable to recover the murder weapon.
The appellant shot Fason in the head. The projectile penetrated Fason's brain,
which caused Fason to sustain a severe brain injury. Fason died as a direct and proximate
result of the brain injury approximately two months after the incident in question.
I.
When an accused challenges the sufficiency of the convicting evidence, this Court
must review the record to determine if the evidence adduced at trial is sufficient "to support
the finding of the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).
This rule is applicable to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803
S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).
In determining the sufficiency of the convicting evidence, this Court does not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App.), per. app. denied (Tenn. 1990). Nor may this Court substitute its inferences for those
drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,
305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956).
To the contrary, this Court is required to afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of the witnesses, the weight and value to be
given the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973), our Supreme Court said: "A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State."
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Since a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused, as the appellant, has the burden in this Court of
illustrating why the evidence is insufficient to support the verdicts returned by the trier of
fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a
verdict of guilt due to the sufficiency of the evidence unless the facts contained in the
record are insufficient, as a matter of law, for a rational trier of fact to find that the accused
is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.
In this case, the evidence is sufficient to support a finding by a rational trier of fact
that the appellant was guilty of first degree premeditated murder beyond a reasonable
doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). The victim’s mother, Virginia Reece, testified that a few days before
the murder, she was sitting on her porch when the appellant came by and stated that he
was going to kill her son. When she asked why, he just smiled and rolled away. The
appellant killed the victim in retaliation for the victim’s failure to return the money. Finally,
the appellant’s own admission of shooting once into the air and then waiting for the victim
to try to run before firing the fatal shot indicates a premeditated and deliberate killing done
with reflection and a cool purpose. State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992).
This issue is without merit.
II.
During his opening statement, the Assistant District Attorney General made the
following remarks:
Sergeant Ross, with the Memphis Police Department, will
testify that he . . . talked to Mr. Cain about what happened and
asked him what had happened. And Mr. Cain admitted that he
was there when Kenneth Fason got shot. . . . And Sergeant
Ross asked the question of Everett Cain, ‘Did you shoot
Kenneth Fason?” At which time Everett Cain declined to say
any more, but he admitted to Sergeant Ross that he was
present at the time that Kenneth Fason was shot.
The appellant made no objection and the case went to trial. Sergeant D.E. Ross was the
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third witness for the state. He interviewed the appellant after arrest. He testified that he
gave the appellant the Miranda warnings. The appellant was asked if he understood his
rights and if he wanted to give a statement. The appellant answered “yes” to both
questions. The following questions were written down by Sergeant Ross and the appellant
wrote out his answers.
Q: On July the 19th, ‘92, at approximately 3:55 p.m., did
you shoot Kenny Fason at 255 Scott Street in Memphis,
Shelby, Tennessee?
A: No.
Q: Did you see who shot Kenny Fason?
A: No.
*Q: Were you present when the shots were fired and Kenny
Fason was struck by gunfire?
A: Yes.
Q: How many shots were fired?
A: I don’t know.
*Q: What happened before the shooting occurred?
A: A dice game was going on.
Q: Do you know Kenny Fason?
A: Yes, for a couple of months.
Q: Did you give Kenny Fason $800 to hold for you when
you went to the hospital for a broken finger?
A: No.
Q: Did Kenny Fason owe you any money?
A: No.
Q: Do you know Christine Threat?
A: Yes, she’s a friend I’ve known for three months.
Q: Why did you go to her house after the shooting?
A: About ten minutes after the shooting I went to her
house to get out of the way.
Q: Did you tell her that you shot him?
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At this point, the appellant said he did not want to say anything else. No more questions
were asked and the interview ceased.
At trial, the appellant was only asked about the two statements marked above with
an asterisk. The final question of Sergeant Ross at trial was: “In your presence did Mr.
Cain ever contest his own presence when Mr. Fason was shot?” Sergeant Ross answered
“No.” The appellant did not cross examine the witness.
The next day the appellant moved the trial court to declare a mistrial based upon
the prosecutor’s opening statement. He argued that the statement was “a direct improper
and impermissible reference to this invocation of the Fifth Amendment by the defendant,
and it cannot be properly published to the jury.”
This issue has been waived. The failure to make a contemporaneous objection
when the assistant district attorney general made the comment during his opening
statement constituted a waiver of this issue. Tenn. R. App. P. 36(a); State v. McPherson,
882 S.W.2d 365, 373 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Gregory,
862 S.W.2d 574, 578 (Tenn. Crim. App. 1993); State v. Thomas, 818 S.W.2d 350, 364
(Tenn. Crim. App.), per. app. denied (Tenn. 1991). Nevertheless, this Court will consider
the issue.
It is well established that a prosecutor’s comment on the accused’s exercise of his
privilege against self-incrimination violates the Federal and State Constitutions. State v.
Hale, 672 S.W.2d 201, 202 (Tenn. 1984); Thomas, 818 S.W.2d at 364. It is fundamentally
unfair to use the accused’s silence against him after he has been implicitly warned that
exercising his right to silence cannot be used against him. Greer v. Miller, 483 U.S. 756,
762-63, 107 S.Ct. 3102, 3106-07, 97 L.Ed.2d 618, 628-29 (1987).
However, when the accused does give a voluntary statement after being informed
of his constitutional rights, it is not error to comment on the scope of this voluntary
statement in that the questioning was terminated at some point by the accused. State v.
Kelly, 683 S.W.2d 1, 5-6 (Tenn. Crim. App.), per. app. denied (Tenn. 1984); Ware v. State,
565 S.W.2d 906, 908 (Tenn. Crim. App.), cert. denied (Tenn. 1978); Parks v. State, 543
S.W.2d 855, 857 (Tenn. Crim. App.), cert. denied (Tenn. 1976). This is what transpired
in the case at bar. The state did not use the appellant’s post-Miranda silence for
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impeachment by arguing that he had the opportunity to explain his innocence but failed to
do so. See Greer, 483 U.S. at 763-64, 107 S.Ct. 3108, 97 L.Ed.2d at 628-29; Dole v.
Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98-99 (1976). In Ware, this
Court stated: “Once the defendant gave his initial statement at the scene of his arrest, it
was not improper for officer Johnson to testify that he ‘didn’t say anything’ else, or for
Sergeant Porter to testify that shortly thereafter at the police station, ‘he wouldn’t give me
a statement.’” 565 S.W.2d at 908.
Even if the statement were error, the error would be harmless beyond a reasonable
doubt. Evidence of the appellant’s guilt is overwhelming. Ms. Reece testified that the
appellant had threatened to kill the victim before the murder. Ms. Threat testified that the
appellant bragged about committing the murder shortly after the killing. Also, the jury was
instructed on several occasions not to consider statements of counsel as evidence. In
ruling on the appellant’s motion made a day after the alleged error, the trial judge stated:
The Court in its general instructions and during the trial, even
at the adjournment yesterday, cautioned the jury that they
should accept evidence only that comes from this witness
stand. It cautions the jury that statements of counsel as to
proof are not evidence and they should not take them as
evidence. . . . That’s been emphasized to the jury already. It
will be restated in the Court’s final instructions to the jury.
This Court finds that the state did not improperly comment on the appellant’s right
to remain silent. Furthermore, even if it were error, it would be harmless beyond a
reasonable doubt. Any improper inference in the state’s opening statement that the
accused was admitting guilt by exercising his right to remain silent would have little, if any,
effect considering the appellant made other admissible statements strongly indicating his
guilt. The trial court did not abuse its discretion in denying the appellant’s untimely motion
for a mistrial based on the single statement made in the prosecution’s opening statement.
________________________________________
JOE B. JONES, PRESIDING JUDGE
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CONCUR:
___________________________________
GARY R. WADE, JUDGE
___________________________________
JERRY L. SMITH, JUDGE
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