The opinion
06/29/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 11, 2017
STATE OF TENNESSEE v. FRED BEAL
Appeal from the Criminal Court for Shelby County
No. 11-07745 Chris Craft, Judge
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No. W2016-00905-CCA-R3-CD
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Defendant, Fred Beal, was convicted by a jury of first degree premeditated murder,
felony murder, attempted first degree murder, two counts of attempted especially
aggravated robbery, and employing a firearm during the commission of a dangerous
felony. He appeals, arguing that the evidence is insufficient to support the convictions.
As part of our review of the record, we note that there is no judgment form for Count 1 in
the record. On remand, the trial court should enter a judgment form for Count 1, first
degree felony murder. In all other respects, the judgments of the trial court are affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
and Remanded
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
J. ROSS DYER, JJ., joined.
Laurie W. Hall (at trial and on appeal) and Juni Ganguli (at trial), Memphis, Tennessee,
for the appellant, Fred Beal.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Neal Oldham and
Colin Campbell, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
Factual and Procedural Background
Amelia Campbell, also known as “Mimi,” and Travis Metcalf were shot while
hanging out on a Memphis street in July of 2011. Ms. Campbell, the victim, was killed
by a gunshot wound to the head. Mr. Metcalf was wounded by a gunshot to the back.
Defendant, Brandon Holmes, and Cremario Smith were named in a multi-count
indictment by the Shelby County Grand Jury. Defendant and Mr. Holmes, both
juveniles1 at the time of the incident, were charged with first degree murder, felony
murder, two counts of attempted especially aggravated robbery, attempted first degree
murder, and employing a firearm during the commission of a felony. Mr. Smith was
indicted for facilitation of first degree murder and facilitation of attempted first degree
murder. At the time of trial, Mr. Holmes was prepared to enter a guilty plea to second
degree murder in exchange for a sentence of twenty-seven years. Mr. Smith had not
entered into a plea agreement at the time of his testimony at trial.
Estella Beal2 lived in the area near where the incident took place. That evening,
she went to a friend’s home on Shasta Street to charge her phone because she did not
have electricity. When she left the friend’s house, she stopped to talk to the victim, the
victim’s four-year-old child, and the victim’s cousin, Jerrica Reed. The women were
“[s]itting right there on the curb” next to a “vacant lot” where there was a “barrel and
table to play [d]omino[e]s.” Ms. Beal stood and talked to the women for just a short time
when she “noticed someone go across the field behind” them. There were two men
running, one of whom was tall and slim and the other was short, and both were wearing a
“scarf or something tied across their face[s].” Ms. Beal asked the women if they knew
who was running behind them. Before they could answer, someone was telling everyone
to “get down.” Ms. Beal “bent down over the child” and then “heard shots.” She
estimated that there were four but no more than five shots fired. Ms. Beal was unable to
clearly see the shooters but told police on the night of the incident that the taller man
fired the first shot. When the shots subsided, Ms. Beal noticed that the victim had fallen
“backwards in the chair.” Travis Metcalf, who was “getting ready to cross the street as
the shooting started,” was also hit by a bullet.
Angela Clark, the neighbor of the victim, was also standing on the street talking to
victim on the night of the shooting. She recalled that their conversation was about the
“kids going back to school and buying uniforms and where was the cheapest place[] to
go” when “two guys came from off . . . Dexter Street.” One of them had a “T-shirt on
their head and the other one had a bandana or something on their head.” Because it was
hot outside, Ms. Clark “instantly thought that something was wrong” when she noticed
the way the men were dressed. She summoned her two-year old, who was playing
1
It is not clear from the record whether this case started in juvenile court and was transferred to
adult court.
2
Ms. Beal is no relation to Defendant.
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nearby, when suddenly one of the men “pulled up a pistol” and told everyone to “get
down.” Ms. Clark only saw one of the men shooting. She described him as “tall and
brown skin” while the other man was “short and dark.” She did not know who the men
were at the time.
Ms. Clark, a certified medical assistant, helped Mr. Metcalf, who had been shot in
the buttocks area. She instructed him to stay still and called an ambulance. Ms. Clark
checked on the victim, who had been shot in the head. The victim still had a pulse at the
time, but her heart stopped beating about twenty seconds later. According to expert
testimony, the victim died from a single gunshot wound to the head from a bullet with
markings consistent with a .38 caliber. The bullet that killed the victim could not have
been fired with a .22 caliber.
Jerrica Reed, the victim’s cousin, immediately thought it was a “robbery” and
described the scene as follows:
Well while we was sitting there two guys came from the cut, well from a
pathway across the street, and they was walking behind us as if they was
going to go through another cut that was behind us, but they didn’t. They
came behind us. You know, I slightly turned to them and was like what are
you guys doing and they said get down, get down. They started shooting.
Ms. Reed described the shooters as two black males, noting that one was tall and one was
shorter. She was unable to see their faces because they had “shirts or bandanas or
something on their faces.” The men were about ten to twelve feet away when they told
her to get down. She saw “one gun” and heard “more than four” shots and thought that
both of the men were shooting. Ms. Reed saw the victim get shot in the head and Mr.
Metcalf lying in the street. Ms. Reed and Ms. Beal both called 911. The men ran away
without taking anything from anyone. Officer Lemarcus Webb responded to the shooting
call. As part of the investigation, officers recovered a black MP3 player and several
small caliber bullet casings from the scene.
Ms. Reed admitted that earlier in the day of the shooting, she had gotten into an
argument with a young man named Justin Lewis, who lived nearby. According to Ms.
Reed, she was walking on Dexter Street when Mr. Lewis swerved his car toward her
body. Ms. Reed cursed at him. Ms. Reed saw Mr. Lewis and his brother, Raydontae3
Wells, several minutes later but refused to argue with them because they were “little
boy[s].” Ms. Reed testified that Mr. Wells later rode a bicycle on Shasta Street and
repeatedly called Ms. Reed a “ho.” Ms. Reed told police that the shooters were
3
Raydontae Wells is also referred to at trial as “Dontae.”
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physically shaped like Mr. Lewis and his brother and was able to identify Mr. Lewis in a
photographic lineup as the person she argued with prior to the shooting.4
Travis Metcalf recalled standing outside when “somebody come behind me asking
me to drop it off.” He explained that “drop it off” was a “statement [used] when a person
intends to rob you.” Initially, he thought it was a joke, but when he realized that the “two
people with shirts and stuff tied around their mouth” were serious, he put his hands up
and started running. He did not make it all the way to the sidewalk before he was shot in
the back. Mr. Metcalf admitted that he initially identified Justin Lewis and Raydontae
Wells as the perpetrators but was not certain at the time of trial that they were the men
who attempted to rob him and eventually shot him.
One of the co-defendants, Brandon Holmes, testified that he and Defendant
planned on robbing a man on Shasta Street after hearing that someone had “a whole lot of
money” from a refund check. They discussed the robbery while hanging out on Meagher
Street on July 19, 2011. At the time, Defendant was already in possession of a .38
special revolver. Mr. Holmes planned to get a .22 caliber pistol from his cousin,
Cremario Smith.
That same day, Mr. Smith was driving to his grandmother’s house on Houck
Street in Memphis with his “baby mama,” Laquisha Renee Kelly, and his two-year-old
son. Mr. Smith was approached by Mr. Holmes and Defendant about participating in a
robbery. Mr. Smith knew Defendant from “the hood.” Defendant was in possession of a
gun that looked like a “cowboy” gun.5 Mr. Holmes and Defendant told Mr. Smith they
had a “lick,” or a potential robbery target. Mr. Smith did not think they were serious at
the time. Defendant and Mr. Holmes left on foot. Ms. Kelly overheard the conversation
and confirmed that Mr. Holmes and Defendant were talking about a possible robbery.
Several hours later, Mr. Smith drove his car and met up with Mr. Holmes at a
church on Meagher Street. Mr. Smith explained that he had been smoking marijuana and
did not want to “ride with no gun and smoke weed at the same time,” so he gave Mr.
4
Justin Lewis, a convicted drug dealer who was incarcerated at the time of trial, admitted that he
and his brother, Mr. Wells, had an ongoing feud with Ms. Reed at the time of the incident. Mr. Lewis
was on a date with Latoya McKinley on the night of the incident. After the date, Mr. Lewis went to the
store and to a “[c]ouple [of] friends’ house[s].” He and his brother were arrested that night as potential
suspects in the incident but later released.
5
Ms. Kelly also described the gun, though her trial testimony about who possessed which gun
was somewhat inconsistent. At first, Ms. Kelly denied that Mr. Holmes was in possession of a weapon
when she saw him. However, after reviewing her statement to police during which she claimed both men
possessed weapons, she testified that both men had guns. On cross-examination, she testified that Mr.
Holmes actually possessed the “cowboy” gun.
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Holmes his gun to take to Mr. Holmes’s brother, Leroy Safari Collins. The gun was a
“green .22 caliber automatic.” At the time, Mr. Smith was accompanied by his
“homeboy Boom.”6 Mr. Smith saw Mr. Holmes walk off “like he was going to meet his
brother.” After giving Mr. Holmes the gun, Mr. Smith and Boom went to Tops Barbeque
to pick up a friend. When Mr. Smith “rolled back through” on Shasta Street later that
night, he saw a lot of police but claimed that he did not know about the shooting at that
time.
Once Defendant and Mr. Holmes had the guns, Mr. Holmes testified that they
“walked on [over to] Shasta” Street. It was about a ten to fifteen minute walk. Mr.
Holmes described that there were “a whole lot of people out there” standing by a tree.
Mr. Holmes and Defendant “put the shirts [they were wearing] over [their] face[s]” and
pulled out their guns as they walked toward the people. Defendant told everyone to “get
down.” The people looked “shocked.” Mr. Holmes stated that Defendant fired the first
shot. Mr. Holmes was standing in the middle of the street and Defendant was standing to
the side of the people, “[a]bout five feet away from them” while he was shooting. Mr.
Holmes shot the .22 caliber pistol three times and heard “[a]bout seven or eight” shots
total. He did not know who or what he hit with his shots. After the shooting stopped,
Defendant and Mr. Holmes left Shasta Street and walked back to Meagher Street. Mr.
Holmes was “[s]cared.” The men went to the house of Mr. Holmes’s cousin, Star, where
Mr. Holmes got into an argument with his brother. Mr. Holmes called his grandmother
and sister, who came to pick him up “[a]bout twenty minutes” later.
Mr. Smith saw both Mr. Holmes and Defendant after the incident. Mr. Holmes
was getting into the car of his grandmother, Odessa Holmes. About two days later, Mr.
Smith and Ms. Kelly saw both Mr. Holmes and Defendant at a “foreclosed apartment.”
According to Mr. Smith, Defendant was “still staying there,” using the apartment as a
place to “just go to and kick it.” Mr. Smith overheard Defendant tell Ms. Kelly that “he
shot [the victim], that’s all, because he was trying to protect [Mr. Holmes]” because the
victim had a gun. Ms. Kelly agreed that Defendant told her that the robbery went bad
and that he “shot the bitch” because he thought that the victim was going to shoot him.
Defendant thought that the victim had a gun in her pocket, but it turned out to be an MP3
player. Ms. Kelly explained that she and Defendant were members of the Gangster
Disciples gang at the time, so “he was more lenient in[] telling [her] what happened.”
Leroy Safari Collins, Mr. Holmes’ brother, recalled a conversation on July 19
between Defendant, Mr. Holmes, and Mr. Smith about a potential robbery of someone
who had just gotten a “refund check.” After the conversation, Mr. Collins left with his
girlfriend. The next time he saw Defendant, Defendant told Mr. Collins that he “killed
6
“Boom’s” real name does not appear in the record.
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somebody” because she “had a gun” and was “going to kill” Mr. Holmes. Mr. Collins
understood this to mean that Defendant and Mr. Holmes “went through with the plan.”
Defendant told Mr. Collins he used a .38 caliber revolver and Mr. Holmes used a .22
caliber pistol. The guns were described as “hood guns,” guns that were hidden in a “cut”
in a house that “anybody had access to.” Mr. Collins explained that if you “hung out”
with them,7 you could use the guns. Several days after the incident, Defendant again told
Mr. Collins that he “killed that bitch.”
Mr. Holmes left Memphis and went to St. Louis the morning after the incident.
He stayed in St. Louis for a month before his “granddaddy” came to get him to “go talk
to the police.” Mr. Holmes admitted that he did not call the police after the incident. In
fact, when he first talked to police, he initially denied involvement and then claimed that
he was only a lookout before finally disclosing the true events to the police.
Luther Dewayne Street testified that he had been incarcerated in the same cell as
Defendant prior to trial.8 Mr. Street recalled a conversation during which Defendant told
him that he and Mr. Holmes “were planning on going and rob this dude named Travis
and that they did rob him and he got shot.” Defendant told Mr. Street that “he shot Travis
and the other dude shot the girl but the family was trying to pin it off on him.” Mr. Street
testified that Defendant said he used the .22 caliber pistol during the incident.
Defendant testified at trial. He denied that he was a gang member and denied
planning a robbery. In fact, Defendant denied going anywhere with Mr. Holmes or
telling anyone that he killed the victim. Defendant admitted that he knew Mr. Holmes
“through the neighborhood” and was familiar with his brother, Mr. Collins, as well as Mr.
Smith. Defendant claimed that he did not recall his whereabouts on the night of the
incident. Defendant recalled sharing a cell with Mr. Street but claimed it was when he
was in “the hole” or administrative segregation.
In rebuttal, the State called Officer Keeley Gray, of the Shelby County Sheriff’s
Office Jail Division Gang Unit. As part of her job, she interviewed inmates to determine
their criminal gang affiliation. The Gang Unit keeps a tag system whereby inmates are
identified by their criminal gang affiliation. She testified that Defendant admitted during
7
When Mr. Collins explained that the guns were for use by anyone who hung out with “them,” it
is not clear if he meant people that lived in the neighborhood or people who were members of a particular
gang.
8
Mr. Street was incarcerated at the time of trial but testified that he did not receive any special
treatment as a result of his testimony. Moreover, Mr. Street admitted on cross-examination that he had
multiple arrests and convictions, including criminal impersonation, theft of property, and aggravated
burglary.
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his Gang Unit interview that he was a member of the Gangster Disciples and that he had
gang tattoos. Officer Gray testified that Defendant had been written up in jail for
throwing gang signs.
At the conclusion of the proof, Defendant was convicted as charged in the
indictment, including first degree felony murder, first degree premeditated murder,
attempted first degree murder, two counts of attempted especially aggravated robbery,
and one count of employing a firearm during the commission of a felony. The trial court
merged the first degree premeditated murder conviction with the conviction for first
degree felony murder. Defendant was sentenced to nine years for each conviction of
attempted especially aggravated robbery, six years for employing a firearm during the
commission of a felony and twenty-two years for attempted first degree murder. These
sentences were ordered to run concurrently with each other but consecutively to the life
sentence for the first degree felony murder conviction for an effective sentence of life
plus twenty-two years.
Analysis
On appeal, Defendant argues that there is no evidence that he “intentionally
engaged in an action or intended to commit robbery” or committed premeditated murder.
He argues that the only proof against him at trial came from friends and relatives of Mr.
Holmes or Mr. Holmes himself and that Mr. Holmes was the only person that “positively
identified [Defendant] at the scene of the crime.” In other words, Mr. Holmes’s
testimony was not corroborated, and Defendant’s identity was not proven. Defendant
also argues that there was no proof that a robbery occurred. The State, on the other hand,
points to the overwhelming evidence against Defendant.
When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with
one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d
247, 277 (Tenn. 2002). The prosecution is entitled to the “‘strongest legitimate view of
the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom.’” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v.
Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions concerning the “‘credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact.’” State v. Wagner, 382 S.W.3d
289, 297 (Tenn. 2012) (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)).
“‘A guilty verdict by the jury, approved by the trial court, accredits the testimony of the
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witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.’”
Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). It is
not the role of this Court to reweigh or reevaluate the evidence, nor to substitute our own
inferences for those drawn from the evidence by the trier of fact. Id. The standard of
review is the same whether the conviction is based upon direct evidence, circumstantial
evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).
Felony murder is “[a] killing of another committed in the perpetration of or
attempt to perpetrate any” robbery. T.C.A. § 39-13-202(a)(2). “Robbery is the
intentional or knowing theft of property from the person of another by violence or putting
the person in fear.” T.C.A. § 39-13-401(a). Theft of property occurs when someone,
with the intent to deprive the owner of property, knowingly obtains or exercises control
over the property without the owner’s effective consent. T.C.A. § 39-14-103.
“Knowing” means that a person acted knowingly with respect to the
conduct or to circumstances surrounding the conduct when the person is
aware of the nature of the conduct or that the circumstances exist. A person
acts knowingly with respect to a result of the person’s conduct when the
person is aware that the conduct is reasonably certain to cause the result.
T.C.A. § 39-11-106(a)(20). A person acts ‘“intentionally’” with respect to the nature of
the conduct or to a result of the conduct when it is the person’s conscious objective or
desire to engage in the conduct or cause the result. T.C.A. § 39-11-302(a). To convict
for especially aggravated robbery, the State had to prove that the defendant robbed the
victim with a deadly weapon and that the victim suffered serious bodily injury. Id. § 39-
13-403(a). Serious bodily injury is defined as bodily injury that involves a substantial
risk of death. T.C.A. § 39-11-106(a)(34)(A). A person commits criminal attempt when
he or she acts with intent to complete a course of action that would constitute the offense,
and the conduct constitutes a substantial step toward the commission of the offense.
T.C.A. § 39-12-101(a)(3).
“A person is criminally responsible as a party to an offense if the offense is
committed by the person’s own conduct, by the conduct of another for which the person
is criminally responsible, or by both.” T.C.A. § 39-11-401(a). A person is criminally
responsible for an offense committed by the conduct of another, if “[a]cting with intent to
promote or assist the commission of the offense, or to benefit in the proceeds or results of
the offense, the person solicits, directs, aids, or attempts to aid another person to commit
the offense[.]” Id. § 39-11-402(2). Although not a separate crime, criminal
responsibility is a theory by which the State may alternatively establish guilt based on the
conduct of another. Dorantes, 331 S.W.3d at 386 (citing State v. Lemacks, 996 S.W.2d
166, 170 (Tenn. 1999)). No specific act or deed needs to be demonstrated by the State,
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and the presence and companionship of an accused with the offender before and after the
offense are circumstances from which participation in the crime may be inferred. State v.
Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). To be convicted, however, “the
evidence must establish that the defendant in some way knowingly and voluntarily shared
in the criminal intent of the crime and promoted its commission.” Dorantes, 331 S.W.3d
at 386 (citing State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994)); see State
v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)).
Keeping the elements of the convictions for which Defendant was found guilty in
mind, we note “that a conviction may not be based solely upon the uncorroborated
testimony of an accomplice to the offense.” State v. Bane, 57 S.W.3d 411, 419 (Tenn.
2001) (citing State v. Stout, 46 S.W.3d 689, 696-97 (Tenn. 2001); State v. Bigbee, 885
S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379 S.W.2d 34, 43 (Tenn. 1964)). An
accomplice is “one who knowingly, voluntarily, and with common intent with the
principal unites in the commission of a crime.” State v. Jones, 450 S.W.3d 866, 888
(Tenn. 2014). Although a defendant cannot be convicted solely upon the uncorroborated
testimony of an accomplice, the longstanding rule has been that only slight corroboration
is required. See Hawkins v. State, 469 S.W.2d 515, 520 (Tenn. Crim. App. 1971). By
way of explanation, our supreme court has stated:
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. It is not necessary
that the corroboration extend to every part of the accomplice’s evidence.
Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at 803); see also State v. Fowler,
373 S.W.2d 460, 463 (Tenn. 1963). Corroboration of an accomplice’s testimony cannot
come from the testimony of another accomplice. State v. Boxley, 76 S.W.3d 381, 386
(Tenn. Crim. App. 2001) (citing State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App.
1995)).
To the extent Defendant challenges the State’s proof of his identity, we
acknowledge that “[t]he 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. Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn.
1975)), no perm. app. filed. The State has the burden of proving “the identity of the
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defendant as the perpetrator beyond a reasonable doubt.” Id. (citing State v. Sneed, 908
S.W.2d 408, 410 (Tenn. Crim. App. 1995)). The identity of the defendant as the
perpetrator may be established by direct evidence, circumstantial evidence, or a
combination of the two. Thompson, 519 S.W.2d at 793. The identification of the
defendant as the perpetrator is a question of fact for the jury after considering all the
relevant proof. Strickland, 885 S.W.2d at 87 (citing State v. Crawford, 635 S.W.2d 704,
705 (Tenn. Crim. App. 1982)).
Looking at the evidence presented at trial in a light most favorable to the State, the
testimony of Mr. Smith, Mr. Collins, Mr. Street, Ms. Kelly, and Mr. Holmes indicated
that Defendant and Mr. Holmes discussed their plans to rob someone on Shasta Street
who had a large sum of money. Mr. Smith testified that he was approached by Defendant
and Mr. Holmes to participate in the robbery. Mr. Smith thought the men were joking
but gave Mr. Holmes a gun shortly before the shooting, supposedly so that he could give
the gun to Mr. Collins. Mr. Holmes testified that he and Defendant ran across a “cut” to
Shasta Street and got close to an area where several people, including the victims, were
gathered. Defendant started shooting because he thought that one of the women had a
gun. Mr. Holmes fired several shots as well. Mr. Holmes was not sure who he hit with
his shots. Mr. Smith, Ms. Kelly, and Mr. Collins all testified that Defendant admitted
that he “shot the bitch” after the incident took place. Defendant denied any and all
involvement.
The testimony of Mr. Holmes and Mr. Smith, while not corroborated with regard
to each and every event, was corroborated by the testimony of the other people present
both at the scene of the incident and in the events leading up to the incident enough to
“lead[] to the inference, not only that a crime has been committed, but also that the
defendant is implicated in it.” Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at
803). At trial, the testimony of Ms. Beal, Ms. Reed, and Mr. Metcalf is consistent with
Mr. Holmes’s account of what transpired at the time of the shooting. Moreover, several
of the witnesses at the scene described the shooters, whose physical description matched
that of Defendant and Mr. Holmes. Defendant told several people after the incident,
including Ms. Kelly, that he shot and killed the victim. The evidence presented at trial
established that Defendant and Mr. Holmes were both armed when they encountered the
group on Shasta Street, and both men fired at the victims. There was proof that
Defendant used a .38 caliber revolver, and the bullet recovered from the head of the
victim was consistent with being shot through a .38 caliber and could not have been fired
through a .22 caliber. The jury obviously accredited the testimony of the witnesses for
the State that Defendant had possession of a .38 caliber revolver, opened fire on an
unarmed victim, and had tried to conceal his identity by covering his face. While it is not
clear from the record which of the men shot Mr. Metcalf, it is clear shots were fired from
both the .38 caliber revolver possessed by Defendant and the .22 caliber pistol possessed
by Mr. Holmes and that one of them hit Mr. Metcalf. After the shooting, Defendant and
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Mr. Holmes left together and went to a foreclosed apartment where Defendant was
staying. Additionally, there was testimony at trial that prior to the incident, both
Defendant and Mr. Holmes discussed the robbery of a person who had just received a
large refund check. While the proof indicated that no one was actually robbed during the
incident, Mr. Metcalf testified that he was told to “drop it off,” something that he
understood to indicate that he was being robbed. Ms. Reed thought that she was in the
middle of a “robbery,” and several of the witnesses at the scene testified that the men told
them to “get down” before shooting at them with two different guns.
We conclude that this evidence, when viewed in a light most favorable to the
State, is sufficient to support the convictions for felony murder and attempted especially
aggravated robbery. The proof is also sufficient to support the conviction of attempted
first degree murder and employing a firearm during the commission of a dangerous
felony as the proof established that Defendant knowingly and voluntarily shared in the
criminal intent of attempted first degree murder and assisted in the commission of the
offense as either a principle or upon a theory of criminal responsibility. Further, the
evidence is sufficient to prove that Defendant employed a firearm during the commission
of attempted first degree murder. T.C.A. § 39-17-1324(i)(1)(A).
Conclusion
After our review, we determine that the evidence is sufficient to support the
convictions. However, during our review of the record, we discovered that the judgment
form for Count 2, first degree premeditated murder, indicates that the conviction merges
with Count 1, first degree felony murder. However, there is no judgment form for Count
1 in the record on appeal. On remand, the trial court should enter a judgment form for
Count 1, first degree felony murder. See State v. Davidson, 509 S.W.3d 156, 217 (Tenn.
2016). In all other respects, the judgments of the trial court are affirmed.
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TIMOTHY L. EASTER, JUDGE
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