State of Tennessee v. Montea Wilson ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
December 4, 2001 Session
STATE OF TENNESSEE v. MONTEA WILSON
Appeal from the Criminal Court for Shelby County
Nos. 99-03924, 99-03925 Chris Craft, Judge
No. W2000-00748-CCA-R3-CD - Filed May 3, 2002
A jury convicted the defendant, Montea Wilson, of felony murder and attempted especially
aggravated robbery. The trial court merged the attempted robbery conviction with the felony murder
conviction and the jury sentenced the defendant to life without the possibility of parole. In this
appeal of right, the defendant contends (1) that the evidence was insufficient; (2) that the trial court
erred by failing to exclude certain evidence as unfairly prejudicial; (3) that defense counsel was
erroneously prohibited from making a full opening statement; (4) that the trial court erred by denying
a defense request for expert witness funds; (5) that prior robbery convictions were erroneously
admitted for impeachment purposes; (6) that the trial court erred by limiting the testimony of defense
witness Sammie Ballard; and (7) that the trial court erred by permitting certain testimony at a
suppression hearing. Because there is no reversible error, the judgment of the trial court is affirmed.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and DAVID G.
HAYES, JJ., joined.
James V. Ball (on appeal) and Gerald Skahan (at trial), Memphis, Tennessee, for the appellant,
Montea Wilson.
Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and
Jerry Kitchen, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
On December 2, 1997, there was an attempted armed robbery at Ace Check Cashing on
Getwell Road in Memphis. At trial, the state submitted the prior sworn testimony of Janice Hogue,
the Ace Cash Express Director of Security and Facility Management, who was employed in the
corporate office. Ms. Hogue’s testimony established that Ace Cash Express, a nationwide business
with branches providing check cashing and money order services, generally used armored cars to
deliver cash to each branch. The policy was to permit each branch to maintain a maximum level of
cash on the premises and, when that level was reached, employees were required to request special
armored car pick-up services. At the end of each work day, any cash on hand was to be placed in
a safe and the alarm activated. There were no security cameras. Ms. Hogue’s testimony was that
the victim, Cecil Wayne Goldman, who managed the branch located on Getwell Road, set the alarm
system at 6:47 p.m. and had 90 seconds to exit the building. The branch had approximately $27,000
in cash at closing, an unusually large amount.
Shirley Smith testified that on the evening of the offenses, she was entering the Wendy’s
restaurant on Getwell when she heard several individuals arguing loudly at Ace Check Cashing next
door. She saw two young black men with the victim in front of the business and overheard one of
the black men say, “You dumb ass . . . .” There were three gunshots and the victim fell to the
ground. The black men left the scene on foot, crossing through the Wendy’s parking lot towards the
Greenwich Square apartments. The victim, who was carrying papers and office supplies in a
cardboard box, had been shot and was bleeding. Ms. Smith recalled the gunman was wearing a dark
blue jacket.
Dr. Thomas Deering performed an autopsy on the victim. He testified that the victim died
of multiple gunshot wounds. A shot to the abdomen, which struck the victim’s aorta, would have
been fatal and, according to Dr. Deering, caused a loss of consciousness within four to five minutes.
Although Dr. Deering could not determine the number of bullets that may have been involved in the
shooting, he found four entrance wounds and four exit wounds.
Officer Cham Payne of the Memphis Police Department Crime Scene Unit processed the
scene. He testified that he and other unit officers found a set of keys, blood on the surrounding
concrete, three .380 bullet casings, and one spent bullet. Officer Payne estimated that the Wendy’s
restaurant, where Ms. Smith witnessed the attack, was 100 yards from the scene. He testified that
the shell casings were not checked for fingerprints, explaining that semi-automatic weapons slide
the bullets into the magazine, typically destroying any fingerprints. The officer stated that the heat
generated by the firing of a weapon also obliterates fingerprints.
Three days after the shooting, Officer Mark Rewalt, also of the Memphis Police Department
Crime Scene Unit, he recovered an unloaded .380 semi-automatic pistol from a trash can at a bus
stop in front of Clark Towers on Poplar Street. The gun had been placed in a bag.
Quiana Payne, who lived in the Greenwich Square apartments and considered the defendant
to be her boyfriend, testified that on the evening of the murder, she contacted the defendant on his
cellular telephone. He responded that he was “taking care of business” and would call back, then
immediately hung up. Three days later, Ms. Payne saw the defendant at the residence of Anita
Hunter, where he lived. She recalled that the defendant packed clothes and a black-handled .380
semi-automatic pistol into a gym bag. Later, when she learned of the defendant’s involvement in
the victim’s murder, she returned the bag to Ms. Hunter’s residence. Ms. Payne also identified the
.380 pistol recovered by Officer Rewalt as that of the defendant. She stated that the defendant was
driving a burgundy Mazda 929.
-2-
During cross-examination by the defense, Ms. Payne acknowledged that she met the
defendant through her past employment as an entertainer at the Pure Passion club. She testified that
she learned after the murder that the defendant was dating three other women at the same time he
dated her. Ms. Payne stated that she had called the defendant at exactly 6:53 p.m. on the date of the
shooting, maintaining that she recalled the time because it was so unusual for him to hang up on her.
Officer Bryant G. Jennings, a member of the Memphis Police Department Crime Scene Unit,
executed a search warrant at the apartment shared by Anita Hunter and the defendant. He stated that
officers seized a small safe, a small piece of black cloth with cut-out holes, and a pair of black
gloves.
Don Carman, a specialist in forensic firearms identification with the TBI Crime Laboratory,
examined a black-handled pistol found by officers in a gym bag in the defendant’s apartment. He
described the weapon as a .380 semi-automatic manufactured by Davis Industries. The magazine
held five bullets. Agent Carman stated that unless the gun jammed, it would eject shell casings when
fired. He was unable to connect any of the shell casings found at the scene to the black-handled
Davis .380. Agent Carman, who also examined the Morrison .380 semi-automatic recovered from
the bus station trash can, testified that while shell casings ejected by the gun had similar markings
to those recovered at the scene, the quality of the markings was insufficient for him to reach any
definite conclusions. He affirmatively concluded that the Morrison .380 had fired the spent bullet
found at the murder scene.
Darius Bowles, indicted for the same offenses as the defendant, testified that he first met the
defendant, whom he also knew as “LA,” in December of 1997 through his cousin, Javon Webster.1
He stated that on the day of the murder, the defendant, accompanied by Webster and Vincent
Broddy, picked him up in a maroon Honda and drove around for approximately two hours before
arriving at the defendant’s apartment in Greenwich Square at approximately 6:00 p.m. He testified
that the defendant, who claimed to be a member of the International Black Mafia, planned the
robbery of the Ace Check Cashing , arranged everyone’s participation, and discussed a four-way split
of the proceeds. Bowles stated that the defendant provided him and Webster with weapons,
instructing him to be a “look-out” for Webster, who was to apprehend the victim. He claimed that
the defendant developed a plan whereby Webster was to confront the victim outside, return him to
the store, and force the surrender of the cash. Bowles recalled that the defendant believed they could
recover $50,000 to $75,000 in cash. He identified the Morrison .380 recovered from the trash can
by Officer Rewalt as the one given to Webster and the black-handled .380 as the gun he was
provided.
According to Bowles, the men positioned themselves outside of the store at 6:30 p.m. to wait
on its closing. He testified that he and Webster were stationed in bushes outside of Ace Check
1
Javon Webster w as convicted of felony murder and attempted especially aggravated robbery as a result of
these offenses. This court affirmed his convictions on Februa ry 7, 200 2. See State v. Javon Webster, No. W2000-
01912-CCA -R3-CD (Tenn . Crim. App., at Jackson, Feb. 7, 2002).
-3-
Cashing with Jasper Temple, who lived in the Greenwich Square apartment complex and who had
agreed to participate in the robbery. Temple used a walkie-talkie to communicate with the defendant
and Broddy, who were located across the street. Bowles testified that he was wearing a blue Adidas
sweatshirt, gray jogging pants, and black and white Air Jordan tennis shoes. The other members of
the group were generally wearing dark clothing. Bowles recalled that when the defendant provided
the code word “A-okay” over the walkie-talkie, Webster ran to the door of Ace Check Cashing.
Bowles, who followed Webster, contended that the victim “started hollering,” panicked, and threw
a box at Webster. Webster wrestled briefly with the victim and, as Temple yelled, “Shoot him,” shot
three to four times. Bowles testified that after the shooting, he ran through a field and the Wendy’s
restaurant parking lot to the Greenwich Square apartments. Afterward, the five men met at a green
generator in the complex, where he and Webster returned their guns to the defendant. Bowles
contended that he asked Webster why he shot the victim and Webster was unable to explain. He
estimated that the men waited for approximately 30 minutes before the defendant drove them home.
The defendant said, “Just be cool,” and informed him that he would telephone the next day. Bowles
was arrested three days later and showed police where to find the defendant. While acknowledging
that he had belonged to a gang, Bowles contended that he committed the crimes for money and that
they were not gang-related.
During cross-examination, Bowles maintained that he had joined the Crips gang in early 1997
and quit midway through the year. He denied that he had ever achieved a rank in the gang or
“thrown” gang signs. Bowles agreed, however, that Webster, Broddy, and Temple were Crips. He
admitted telling police that his cousin, Webster, had stated that he intended to rob Ace Check
Cashing and invited him along. He also acknowledged that he initially lied to police by telling them
that he did not know his cousin’s last name. Bowles agreed that he did not mention Broddy in his
first statement to police, but denied that he had protected him out of gang allegiance. He testified
that the defendant, at the time of the offenses, was dressed in jeans, a silver coat, and tennis shoes.
Robert White, a patrol officer with the Memphis Police Department, testified that he, Officer
Sammie Ballard, and others arrested the defendant at his girlfriend’s apartment in Greenwich Square.
He testified that the defendant was not there when they arrived, but later drove into the parking lot.
Officer White stated that when police approached, the defendant fled on foot. He was finally
apprehended on a stairway landing.
Captain John A. Wilburn, who was a sergeant in the Memphis Police Department homicide
division at the time of the murder, testified that he took a recorded statement from the defendant on
December 11. When he learned that the defendant wanted to talk, he checked him out of jail and
transported him to the homicide offices. After being advised of and waiving his Miranda rights, the
defendant gave the following statement:
After I got back from Mississippi, me and [Broddy] drove into Greenwich Square
apartments and I run into [Webster] and [Bowles], “[T]ip” and Billy all standing
around outside in the back of the cove. We all were sitting out there talking for a
second. Webster decided that they wanted to go and rob the check cashing place over
-4-
there on Getwell. [Webster] asked if anybody had any units (guns). [Broddy] said,
“Yeah, I got a .380.” I said, “Well, I got a gun too.” So, [Webster, Bowles], Billy
and Tip decided they would go rob the check cashing place. They asked me if I
would watch out for the police. [Bowles] had already had the walkie-talkie’s and we
were playing with them outside.
[Broddy] gave [Webster] his .380 and I had a .380 that I gave to [Bowles]. Billy
went inside his house and put on some black clothes, [Broddy] had already had on
some black (clothes), and Billy, [Webster, Bowles], Tip and [Broddy] walked down
to the check cashing place. When they walked down there, [Bowles] had a walkie-
talkie[;] [Broddy] had a walkie-talkie. [Broddy] and Billy were gon’ stand on the
opposite side of the street, and Tip and [Webster] and [Bowles] were gon’ be in the
bushes, and I was gon’ ride up the street and see if I saw any police. If I saw the
police, I was instructed to blow the horn.
I rode up Getwell to Amoco gas station, turned around, I came back to the Greenwich
Square apartments. Then I rode back up to the Amoco gas station. As I was riding
back up to the Amoco gas station, I heard three (3) shots go off. When I looked over
toward the check cashing place, I saw [Webster] struggling with the guy that was
inside . . . . That’s when the guy had a box or something . . . I saw that fly up in the
air. That’s when I heard the shots. I saw Webster shoot the guy three (3) times. My
window was down, I heard the guy hollering for help, and he was screaming.
I drove on down to American Way, made a left and went down to Lamar, came back
up to Knight Arnold, made a left and came back around to Getwell. Went back to
Greenwich Square apartments. That’s when they all came running back over there.
That’s when [Bowles, Webster, Broddy], Billy and Tip came running back over there
to the apartments. They came inside my sister’s apartment, and [Webster] said,
“Man, I didn’t get no money. The guy was grabbing on me.” We sat around there
and we talked for a couple more minutes. Everybody got scared. I went outside, me
and [Broddy] were outside and security guards were telling us that they were looking
for some guys dressed in black, for us to go in the house.
Billy went home, Tip went home and I took [Webster] and [Bowles] home.
[Webster] took the gun with him, the .380 that he used. The other gun was left there
at my sister’s apartment. [Bowles] took the walkie-talkie’s back to the guy that
loaned them to him.
Captain Wilburn executed a search warrant at the defendant’s apartment on December 9, one week
after the murder. During the search, he and other officers seized a black bag containing a black
jumpsuit and a smaller black bag with the black-handled .380 inside.
-5-
Memphis Police Department Officer Sammie Ballard, called as a defense witness, testified
that on the day following the murder, he and other officers canvassed the scene, including Greenwich
Square, looking for suspects and passing out Crime Stoppers cards. Officer Ballard recalled that two
days later, at approximately 9:00 a.m., police received information which lead to the arrest of
Webster and Bowles. Another tip led to a handgun in a trash can on Poplar Street. Officer Ballard
testified that when the defendant was arrested, he gave them information implicating Webster and
Bowles.
Dr. Carl Nelson, who qualified as an expert on gang affiliation, testified that he was
employed by the Tennessee Department of Correction at the Memphis Correction Center. He stated
that he had interviewed the defendant and that it was his opinion that the defendant was not a gang
member. According to Dr. Nelson, there is no gang known as the International Black Mafia. He
explained that the Crips originated in Los Angeles in approximately 1969 or 1970 and that the gang
had moved eastward to sell illegal drugs. Dr. Nelson described the Crips as having no national
structure but being tightly run at the local level, with fellow gang members referring to one another
as “cousins.” He stated that the Crips made a practice of blaming their crimes on rival gang
members or snitches that they were able to befriend. During cross-examination by the state, Dr.
Nelson conceded that the defendant had not necessarily been falsely accused because he was
implicated by gang members. He also acknowledged that he did not confer with anyone involved
in the crime other than the defendant.
Anita Hunter testified that at the time of the offenses, the defendant was living with her in
her Greenwich Square apartment. She stated that she and the defendant were “friends” and
acknowledged that the defendant had two to three other girlfriends. Ms. Hunter recalled that when
she returned home after work at approximately 5:30 p.m. on the day of the murder, the defendant
was not there, but that he was acting normally when he returned at 9 or 9:30 p.m. At approximately
10:30 p.m., she left for work and could not remember whether the defendant was at the apartment
when she returned the next morning. Upon cross-examination by the state, she confirmed that on
the date of the murder, the defendant, pursuant to her request, was in the process of moving out of
her apartment.
Denise Wright, who was dating the defendant in December of 1997, testified that at that time,
the defendant was living with Anita Hunter, whom she believed to be his sister. She recalled that
she visited that apartment on five or ten occasions and would occasionally spend the night. Ms.
Wright testified that she had once seen the Morrison .380 police found in the Poplar Street trash can.
It was on a night stand in the den at the apartment. The defendant and Broddy were the only others
present. Ms. Wright claimed that on the day of the murder, the defendant was at her apartment from
approximately 5:00 or 5:30 p.m. until 9:00 p.m except for a period of ten or 15 minutes at 6:45 p.m.
when he left after receiving a cellular telephone call or page. Ms. Wright contended that because
employees of the district attorney’s office had tried to confuse her during pre-trial questioning, her
statement contained error regarding the timing of various events. She maintained that her trial
testimony was truthful.
-6-
During cross-examination, Ms. Wright acknowledged that she had reviewed her pre-trial
statement and had not asked for corrections. She claimed that the black-handled .380 found in the
gym bag in the defendant’s apartment was hers, as was the car the defendant was driving on the day
of the murder. She admitted that in her prior statement, she told authorities that the defendant and
Broddy had accompanied her to Mississippi on the day of the murder to pick up her child, leaving
at approximately 3:00 p.m. and returning an hour and one-half later. Ms. Wright acknowledged that
she told investigators that she had loaned the defendant her car for the remainder of the day and that
he brought it back to her at approximately 8:00 p.m. She also acknowledged that she had initially
stated that she then drove Broddy and the defendant home, drove back to her apartment briefly, and
then returned to the defendant’s apartment.
The defendant, who was 28 years old at the time of trial, testified that his real name was
Marcus Montea Floyd. He acknowledged that he had been convicted of theft in 1991, robbery twice
in 1993, and criminal impersonation in 1997. The defendant stated that in November and December
of 1997, he lived with Anita Hunter, with whom he had had a prior sexual relationship. He
acknowledged that during that time, he simultaneously dated several women without advising any
of them of his multiple relationships. He and Ms. Hunter referred to one another as “brother” and
“sister.” The defendant testified that at the time of the offenses, he had known Vincent Broddy for
approximately one month and the remainder of those involved for a matter of weeks. He maintained
that the gun used by Webster belonged to Broddy and that the one used by Bowles belonged to
Denise Wright. The defendant stated that on the day of the murder, he awakened at 5:15 or 5:30 a.m.
to call in to work because he was not feeling well. He claimed that he then drove Denise Wright to
her residence and returned to his apartment to sleep. The defendant testified that at approximately
11:30 a.m., Broddy, Webster, and Bowles arrived at his apartment and asked whether he still had the
gun belonging to Ms. Wright. Contending that he was not in a gang and had never heard of the
International Black Mafia, he accused Broddy, Webster, Bowles, and Temple of being members of
the Crips gang. The defendant claimed that he gave the gun to Bowles without asking the three men
their intentions and that the men left his apartment at approximately 12:30 p.m. He stated that he
remained at his apartment until returning to Ms. Wright’s residence at approximately 5:00 p.m. The
defendant stated that he stayed at Ms. Wright’s for two to three hours before leaving for ten to 15
minutes after receiving multiple pages from Quiana Payne. He explained that he went to a local
store to purchase cigarettes and call Ms. Payne and then returned to Ms. Wright’s apartment where
he watched television for the remainder of the evening.
The defendant testified that during the next two days, he saw police officers canvassing the
area, passing out fliers and Crime Stoppers information. He stated that three days after the murder,
he called Crime Stoppers and identified Webster and Bowles as the assailants. The defendant
contended that he would not have called Crime Stoppers had he committed the crimes. He claimed
that after conversing with Officer Ballard several times that day, he acquired the Morrison .380 from
Broddy, wrapped it in a plastic bag, and placed it in a garbage can on Poplar for police. The
defendant testified that he acknowledged to Officer Ballard that “LA,” was his nickname, which
stood for “Ladies All the Time.” The defendant claimed that he drove to Ms. Hunter’s apartment
to return her car and was arrested by police. He testified that he gave officers the alias Montea
-7-
Wilson because he had a prior record in his own name. The defendant contended that the statement
that he gave police on December 11 was false because he “wanted to give them everything that they
wanted at that particular time.” He maintained that they wanted him to place himself at the scene
so that he would be a good witness and that he acquiesced in their request. The defendant denied
any role in planning the offenses.
During cross-examination, the defendant claimed that he had falsely testified at a suppression
hearing that he was at Anita Hunter’s apartment at the time of the offenses. He also acknowledged
that he had lied during his direct examination by testifying that his two prior robbery convictions
were for offenses occurring on the same date. The defendant admitted that his resume indicates that
he graduated from Crenshaw Senior High in California when he actually failed to complete high
school at Jackson Central Marion in Jackson, Tennessee. He testified that he lied extensively in his
first statement, at which time he told police that he was in Mississippi at the time of the crimes and
that Webster and Bowles had confessed to the murder while riding around in a car. The defendant
contended that he gave a second statement admitting his own involvement only because the police
told him that his first statement was “no good” because he was not at the scene. He explained that
he lied at the suppression hearing only because he was concerned about being charged with perjury
and wanted his testimony to be consistent with his second statement.
Lieutenant Raymond H. Hopkins of the Memphis Police Department, who works with Crime
Stoppers, testified that Crime Stoppers keeps records of all tips received and forwarded to
investigators. Callers are given secret codes to ensure their anonymity, then asked to call back later.
Lieutenant Hopkins identified tip number 016542 as having been telephoned in at 9:10 a.m. on
December 5, 1997. He stated that the tipster gave the names of two suspects in the Ace American
Check Cashing incident, Javon and Pookie, and said that they had committed the crime in order to
prove their loyalty to the Crips gang. Lieutenant Hopkins testified that the caller stated he had
received his information from the suspects. In response to questioning by the state, he acknowledged
that he had no knowledge whatsoever of the identity of the caller.
I
The defendant first asserts that because the state’s evidence against him consisted solely of
the uncorroborated testimony of accomplice Darius Bowles, it was insufficient to sustain his
conviction for felony murder. The state argues otherwise.
On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). 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. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
-8-
as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn.
298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears
the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992).
A defendant cannot be convicted upon the uncorroborated testimony of accomplices.
Sherrill v. State, 204 Tenn. 427, 433-35, 321 S.W.2d 811, 814-15 (1959); Prince v. State, 529
S.W.2d 729, 732 (Tenn. Crim. App. 1975). An accomplice is defined as a person who knowingly,
voluntarily, and with common intent with the principal offers to unite in the commission of a crime.
Clapp v. State, 94 Tenn. 186, 194-95, 30 S.W. 214, 216 (1895); Letner v. State, 512 S.W.2d 643,
647 (Tenn. Crim. App. 1974). The rule is that there must be some fact testified to which is entirely
independent of an accomplice's testimony; that fact, taken by itself, must lead to an inference that
a crime has been committed and that the defendant is responsible therefor. State v. Fowler, 213
Tenn. 239, 245-46, 373 S.W.2d 460, 463 (1963). This requirement is met if the corroborative
evidence fairly and legitimately tends to connect the accused with the commission of the crime
charged. Marshall v. State, 497 S.W.2d 761, 765-66 (Tenn. Crim. App. 1973). Only slight
circumstances are required to furnish the necessary corroboration. Garton v. State, 206 Tenn. 79,
91, 332 S.W.2d 169, 175 (1960). To be corroborative, the evidence need not be adequate in and of
itself to convict. See Conner v. State, 531 S.W.2d 119, 125 (Tenn. Crim. App. 1975).
Initially, the defendant does not challenge his underlying felony conviction of attempted
especially aggravated robbery. Tennessee Code Annotated section 39-13-202 provides in pertinent
part as follows:
(a) First degree murder is:
* * *
(2) A killing of another committed in the . . . attempt to perpetrate any . . .
robbery, . . . .
Tenn. Code Ann. § 39-13-202(a)(2).
Darius Bowles testified that on the day of the crimes, he, the defendant, Broddy, and Webster
went to the defendant’s Greenwich Square apartment, where the defendant planned a robbery of the
Ace Check Cashing business and provided weapons. He testified that the defendant claimed that he
had been watching the business and that the cash on hand was substantial, testimony corroborated
to a degree by the approximately $27,000 in the safe. Denise Wright, one of the defendant’s
girlfriends, testified that she had loaned her maroon car to the defendant the day of the crimes. Ms.
Wright also claimed ownership of the black-handled .380 that Bowles claimed to have received from
the defendant and recalled having seen the Morrison .380 in the defendant’s apartment shortly before
the murder. The defendant led police to the Morrison .380. The black-handled .380 was found in
the defendant’s apartment in a bag that also contained black clothing consistent in appearance with
clothing described by Bowles. Finally, the defendant admitted to police that he participated in the
-9-
robbery. While there was contradictory evidence, there was corroborative evidence connecting the
defendant with the crimes. The jury accredited the testimony of the state’s witnesses, as was its
prerogative. See State v. Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995).
The proof established that Webster fired the fatal shots. A person may be held criminally
responsible for an offense committed by 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." Tenn. Code Ann. § 39-11-
402(1) (1991). Mere presence during the commission of a crime is not sufficient. “Presence and
companionship with the perpetrator of a felony before and after the commission of the offense are
circumstances from which one’s participation in the crime may be inferred.” State v. Ball, 973
S.W.2d 288, 293 (Tenn. Crim. App. 1998). One need not complete any particular act or take
physical part in the crime. Id. There was evidence at trial that the defendant planned the robbery,
solicited the involvement of the others, armed two of the participants, orchestrated the events via
walkie-talkie, and intended to share in the proceeds. In our view, that was far more than mere
presence and was sufficient evidence for a jury to find beyond a reasonable doubt that the defendant
was criminally responsible for the felony murder of the victim.
II
Next, the defendant asserts that the trial court erred by denying his motion in limine to
exclude the black mask, black gloves, and black jumpsuit recovered by police from his apartment.
The defendant argues that the evidence was irrelevant because the state failed to show that any of
the items of clothing were used in the attempted robbery and murder. He also contends that the
prejudicial effect of the evidence substantially outweighed any probative value. The state responds
that the evidence was properly admitted as relevant to identity.
Relevant evidence is that "having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable" than it otherwise
would be. Tenn. R. Evid. 401. Generally, all relevant evidence is admissible. Tenn. R. Evid. 402.
At the discretion of the trial court, however, relevant evidence may be excluded if it presents a
danger of unfair prejudice:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger 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.
Tenn. R. Evid. 403. This court must not reverse the trial court absent an abuse of discretion. See
State v. Stout, 46 S.W.3d 689, 700 (Tenn. 2001).
In our view, the trial court properly admitted evidence of the gloves and jumpsuit. Although
the defendant correctly points out that neither Webster nor Bowles was wearing black at the time of
the robbery, there was testimony that others involved either were already wearing black clothing or
-10-
had changed into black clothing. The defendant’s apartment was utilized for the planning of the
robbery and for regrouping afterward. The jumpsuit was in a bag with one of the guns used in the
robbery and was corroborative of other testimony. The officers’ discovery of the black jumpsuit and
black gloves in the apartment was, therefore, relevant and evidence thereof was not unfairly
prejudicial.
The black cloth with holes, referred to as a mask, presents a more difficult issue. In our view,
the trial court should have granted the defendant’s motion in limine to exclude the black mask.
There was no evidence of any kind that masks were used in the commission of the crimes. That the
defendant possessed the item was irrelevant and, in fact, could have been construed by the jury as
evidence of the defendant’s involvement in other crimes. Given the overwhelming nature of the
evidence against the defendant, however, it is our view that the error was harmless, having no effect
on the results of trial.
III
The defendant next argues that the trial court erred by limiting his counsel’s opening
statement at trial. There is little information regarding this issue in the record. Although not
included in the record, the state apparently filed a motion in limine seeking to exclude certain of the
defendant’s statements to law enforcement officers. While there is no order or other pronouncement
by the trial court indicating its action on the motion, the ruling evidently had the collateral effect of
limiting defense counsel’s opening statement. The defense response to the state’s motion was that
the challenged statements were not hearsay and, being exculpatory, should be considered by the jury
along with the defendant’s inculpatory comments. While reviewing its rulings on various motions
in limine just prior to trial, the trial court clarified its limitations on defense counsel’s opening
statement:
[Defense Counsel] is going to be allowed to tell the jury in opening statement if he
wishes that the defendant . . . inculpated his co-defendants in a statement to the
police. . . . In other words, he turned them in.
He can’t talk about the substance of that statement, but he can ask the state
witnesses on cross-examination . . . [whether the defendant] turn[ed] them in to
establish a bias, a reason, for those co-defendants to rat on him.
* * *
In any event, [defense counsel] has a right to tell the jury . . . that his defense
is . . . that these co-defendants turned him in because he turned them in, and they’re
bias[ed] against him.
Shortly into his opening statement, defense counsel commented, “The proof is going to show [the
defendant] made a call to Crime Stoppers.” At a bench conference following an objection by the
state, the trial court instructed defense counsel not to “mention the [defendant’s calls to] Crime
Stoppers.” In doing so, the trial judge observed that the limitation was based on the inability of
-11-
Officer Ballard, who had taken the calls, to lay a foundation for their admission by identifying the
defendant as the caller.
The purpose of the opening statement has been described as a means of informing the jury,
in a general way, of the nature of the case, the underlying theories, and the essential facts to be
placed into proof. Harris v. Baptist Memorial Hospital, 574 S.W.2d 730, 732 (Tenn. 1978).
Tennessee Code Annotated § 20-9-301 provides every party, in either a civil or criminal case, with
the right "to make an opening statement to the court and jury setting forth [its] . . . contentions, views
of the facts and theories of the lawsuit." Trial courts are afforded considerable authority in
controlling the opening statements of counsel and will not be reversed absent an abuse of discretion.
State v. Stout, 46 S.W.3d 689, app. at 713 (Tenn. 2001); State v. Kimberly Wolfe, No. 122 (Tenn.
Crim. App., at Knoxville, March 13, 1991).
Here, it is difficult to determine what limitations the trial court placed on defense counsel’s
opening statement other than the reference to Crime Stoppers. In our view, the trial court did not
abuse its discretion by imposing such a narrow limitation. As the trial court indicated in its ruling,
Officer Ballard was unable to identify the defendant as the Crime Stoppers caller who reported
Webster and Bowles. That the jury would hear such evidence depended upon whether the defendant
chose to testify. The trial court did not prohibit defense counsel from advancing the theory that the
defendant was implicated in the crimes only because those actually involved were angry at his
reporting them to police. Further, the record suggests that defense counsel actually, and perhaps
prematurely, terminated his opening statement. After the state’s initial objection and the bench
conference thereon, defense counsel resumed his opening. When the state lodged a second
objection, defense counsel unilaterally ended his remarks. The defendant, of course, has the burden
or providing an adequate record for review of an issue. Without more information, this court cannot
assess any error to the trial court.
IV
The defendant next contends that the trial court erred by denying his pre-trial ex parte motion
for funds to hire an expert in the field of confessions. The state argues that the defendant has failed
to demonstrate that the ruling denied him a fair trial.
Initially, the record does not contain the defendant’s motion or any transcripts of any hearings
on the matter. While there is the state’s motion for a sealed transcription of the ex parte hearing on
the request for an expert or investigative services, that document is general in nature and provides
no case-specific information. The trial court’s order, which is sealed, provides generally that the
defendant failed to demonstrate a particularized need for a confession expert. Again, it is the duty
of the appellant to supply an adequate record for a determination on the merits. State v. Price, 46
S.W.3d 785, 812 (Tenn. Crim. App. 2001). Otherwise, a claim must be treated as waived.
Despite any waiver, the record suggests that the type of expert sought by the defendant, a
general authority in the field of confessions, might invade the province of the jury as the arbiter of
credibility.
-12-
In his brief, the defendant concedes that there were substantial inconsistencies between his
pretrial statements and his trial testimony, but asserts that the statements were false and coerced by
police. He argues that
[w]ith the number of statements and contacts with police after his arrest, . . . funds
for an expert regarding confessions would have leveled the playing field . . . by
allowing him to present crucial facts which speak to his belief that he was threatened
with the death penalty and how this psychologically impacted him to cooperate with
his jailers.
Our supreme court addressed an analogous issue in State v. Coley, 32 S.W.3d 831 (Tenn.
2000). In Coley, the trial court refused to admit the testimony of an expert in the field of eyewitness
identification proffered by the defense. Concluding that the testimony was inadmissible per se, a
majority of our high court ruled that the exclusion was proper:
Here, as in Ballard, we are presented with testimony of a general nature
designed to affect the juror's decision on the credibility of witnesses. Using the
Ballard rationale, expert testimony concerning eyewitness identification "solicits the
danger of undue prejudice or confusing the issues or misleading the jury . . . ." Id.
at 561. As a result, it may "lead a jury to abandon its responsibility as fact finder and
adopt the judgment of the expert," rather than "assist" the jury in making its own
determination of credibility. See [i]d.
* * *
Governed by the fundamental principles of McDaniel, and the rationale of
Ballard and Dyle, we find that expert testimony concerning eyewitness identification
simply offers generalities and is not specific to the witness whose testimony is in
question. Moreover, we are of the opinion that the subject of the reliability of
eyewitness identification is within the common understanding of reasonable persons.
Therefore, such expert testimony is unnecessary. It may mislead and confuse, and
it could encourage the jury to abandon its responsibility as fact-finder. Such
responsibility is a task reserved for and ably performed by the jury, aided by skillful
cross-examination and the jury instruction promulgated in Dyle when appropriate.
For these reasons, we find that general and unparticularized expert testimony
concerning the reliability of eyewitness testimony, which is not specific to the
witness whose testimony is in question, does not substantially assist the trier of fact.
Thus, we hold that such testimony is inadmissible under Tenn. R. Evid. 702 and that
the trial court, therefore, properly excluded Johnson's testimony.
Id. at 835, 837-38; see also State v. McKinney, ___ S.W.3d ___, No. W1999-00844-SC-DDT-DD,
slip op. at 6 (Tenn. 2002) (observing that expert testimony on eyewitness identifications is per se
inadmissible and holding that defendant had failed to show due process violation).
-13-
In State v. Smith, 42 S.W.3d 101 (Tenn. Crim. App. 2000), the trial court allowed a DCS
investigator and a police officer to testify that criminal suspects, as a matter of course, generally
initially deny any wrongdoing. A panel of this court held that admission of that testimony as expert
testimony was error:
We conclude that the challenged testimony . . . that criminal suspects
typically deny committing offenses before confessing during police interrogation was
not admissible as expert testimony. First, the testimony was simply not relevant.
Rule 401 of the Tennessee Rules of Evidence states that " '[r]elevant evidence' means
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence." Here, the general behavior of other criminal
suspects during questioning by police had no value in the determination of whether
Defendant was guilty of the offenses for which he was charged in this case. Second,
evidence about the behavior of criminal suspects in other cases did nothing to assist
the trier of fact to understand the evidence or determine a fact in issue. . . .
Id. at 112.
In our view, the testimony of the confessions expert sought by the defendant would have been
inadmissible under the rationale expressed in Coley and Smith. The credibility of witnesses is a
matter solely within the province of the jury. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App.1987). Because truthfulness is within the understanding of reasonable persons,
unparticularized expert testimony regarding confessions would not be of substantial assistance to the
jury. See Tenn. R. Evid. 702. Rather, such testimony poses a danger of confusing the jury and
“could encourage the jury to abandon its responsibility as fact-finder.” Here, the defendant testified
extensively regarding his statements to police and the truthfulness thereof. He presented testimony
that the statements were false and that he felt compelled to make them in order to cooperate with
police and avoid prosecution and the death penalty. The denial of funds for a confessions expert was
proper.
V
Next, the defendant argues that the trial court erred by permitting the state to impeach him
with two 1993 robbery convictions. The state contends that the convictions were properly admitted.
Rule 609 of the Tennessee Rules of Evidence provides in relevant part as follows:
For the purpose of attacking the credibility of a witness, evidence that the
witness has been convicted of a crime may be admitted if the following procedures
and conditions are satisfied:
* * *
(2) The crime must be punishable by death or imprisonment in excess of one
-14-
year under the law under which the witness was convicted or, if not so punishable,
the crime must have involved dishonesty or false statement.
(3) If the witness to be impeached is the accused in a criminal prosecution,
the State must give the accused reasonable written notice of the impeaching
conviction before trial, and the court upon request must determine that the
conviction's probative value on credibility outweighs its unfair prejudicial effect on
the substantive issues. The court may rule on the admissibility of such proof prior to
the trial but in any event shall rule prior to the testimony of the accused. If the court
makes a final determination that such proof is admissible for impeachment purposes,
the accused need not actually testify at the trial to later challenge the propriety of the
determination.
Tenn. R. Evid. 609(a)(2) – (3).
In determining whether the probative value of a prior conviction on the issue of credibility
is outweighed by its prejudicial effect on the substantive issues, a trial court should "(a) 'assess the
similarity between the crime on trial and the crime underlying the impeaching conviction,' and (b)
'analyze the relevance the impeaching conviction has to the issue of credibility.'" State v. Farmer, 841
S.W.2d 837, 839 (Tenn. Crim. App. 1992) (quoting Neil P. Cohen et al., Tennessee Law of Evidence
§ 609.9 (2d ed. 1990)). A trial court's ruling under Rule 609 will not be reversed absent an abuse
of discretion. See Johnson v. State, 596 S.W.2d 97, 104 (Tenn. Crim. App. 1979).
Initially, our high court has recognized that robbery convictions are probative of credibility.
See State v. Caruthers, 676 S.W.2d. 935, 941 (Tenn. 1984). Here, the defendant does not challenge
the procedural basis for the admission of his robbery convictions. Rather, he claims that the unfair
prejudicial effect of the convictions outweighs their probative value because of their similarity to the
attempted especially aggravated robbery for which he was on trial. The fact that the defendant’s
prior conviction is similar in nature to the offense for which he is being tried does not, however, bar
the use of the conviction to impeach him as a witness. See State v. Miller, 737 S.W.2d 556, 560
(Tenn. Crim. App. 1987). Because no transcript of any hearing that may have been held by the trial
court appears in the record, we do not have the benefit of the trial court’s balancing analysis.
Nevertheless, we cannot conclude that the trial court abused its discretion by admitting the
convictions for impeachment purposes. Here, the credibility of the defendant was a key issue at trial,
with the defendant having provided more than one version of the events surrounding the offenses
and having both admitted and denied involvement. Contrary to argument contained in the defense
brief, no details of the prior convictions were introduced during the guilt phase of the trial. Thus,
the prejudicial impact of any similarity between the offenses was mitigated by the jury’s learning
only that the defendant had two prior robbery convictions. Moreover, any error in admitting the
convictions for impeachment purposes was harmless given the overwhelming evidence of the
defendant’s guilt.
-15-
VI
The defendant next argues that the trial court erred by excluding certain testimony of Officer
Sammie Ballard. The state responds that the proffered testimony was hearsay. Generally, hearsay
evidence is inadmissible. Tenn. R. Evid. 802. Hearsay is "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." Tenn. R. Evid. 801(c).
During a jury-out hearing, the defendant proffered testimony by Officer Ballard that he took
a Crime Stoppers call from a “male black . . . who later said he was [the defendant].” Officer Ballard
testified that he could not “say for a fact that [the caller] was [the defendant],” and that he later
“heard [the defendant] saying that he was the caller.” The trial court then ruled that Officer Ballard’s
Crime Stoppers testimony was inadmissible:
[T]his witness can’t say that this is [the defendant] that called him. And so any
conversation that he had with this person over the phone we cannot ask him what was
said over the Crime Stoppers call.
* * *
I just want to make sure that we don’t have any statements put in the record
in front of the jury that [the defendant] says he made a Crime Stoppers call because
that’s hearsay to no purpose.
In our view, the trial court correctly prohibited Officer Ballard from testifying to the identity
of the Crime Stoppers caller. In our view, the statements made by the caller qualified as hearsay and
were not subject to any exception. Moreover, although Officer Ballard’s testimony regarding the call
was excluded, the defendant testified that he called Crime Stoppers, reciting both the phone number
he called and the identification number he received. Thus, the information was actually presented
to the jury and properly considered during deliberation. Any error by the exclusion would have been
harmless.
The trial court also excluded as irrelevant testimony by Officer Ballard that the defendant
offered police leads regarding a November 5th murder at a McDonald’s restaurant. While that
evidence may be relevant with regard to sentencing, see Tenn. Code Ann. § 40-35-113(9), the trial
court’s ruling that it did not have any tendency to make it more or less probable that the defendant
was involved in the offenses would be accurate, see Tenn. R. Evid. 401.
VII
As his final issue, the defendant asserts that the trial court erred by permitting his testimony
as to the facts of the case at a suppression hearing, rather than limiting the testimony to the
voluntariness of the statements. The defendant cites no authority in support of his claims. Rather
than directing this court to any specific testimony, the defense brief cites volumes six and seven of
the record in their entirety. Because the defendant has the obligation to provide legal authority for
his position and must make specific references to the record, identifying with particularity the
testimony in question, the issue is waived. See Tenn. Ct. Crim. App. R. 10(a).
-16-
Further, the record reflects that the trial court questioned defense counsel about his line of
questioning:
THE COURT: Well, my concern . . . and I’m just saying this as far as I
understand now [the assistant district attorney general] can cross[-]examine him
about this whole case. I didn’t know if you’re just getting into the part about the
statements or what we’re trying to do, but –
[DEFENSE COUNSEL]: Well, I’m leading up to the – to why he made these
phone calls and things like that.
* * *
THE COURT: Well, . . . the phone calls aren’t that relevant to the statements
unless your going to tie it in.
* * *
THE COURT: But that’s fine, you can put on whatever proof you want to put
on.
[DEFENSE COUNSEL]: Yeah, I’m going to try to tie it in here.
At trial, there was no objection to the state’s cross-examining the defendant about his suppression
hearing testimony. See Simmons v. United States, 390 U.S. 377, 394 (1968) (“[W]hen a defendant
testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony
may not thereafter be admitted against him at trial on the issue of guilt unless he makes no
objection.”); State v. Roberge, 642 S.W.2d 716, 718 (Tenn. 1982) (“Further, one accused of a
criminal offense may testify at a suppression hearing without incurring the risk that his testimony
will be used against him by the prosecution as part of its case in chief.”). Because defense counsel
did not take “action . . . to prevent or nullify the harmful effect of an[y] error,” the defendant is not
entitled to relief. See Tenn. R. Crim. P. 36(a).
Accordingly, the judgment of the trial court is affirmed.
___________________________________
GARY R. WADE, PRESIDING JUDGE
-17-