State of Tennessee v. Matthew Perry ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 12, 2011
STATE OF TENNESSEE v. MATTHEW PERRY
Direct Appeal from the Criminal Court for Shelby County
No. 08-02978 Paula Skahan, Judge
No. W2010-00951-CCA-R3-CD - Filed September 8, 2011
A Shelby County jury convicted the Defendant, Matthew Perry, of first degree felony murder
and attempted aggravated robbery, and the trial court sentenced the Defendant to serve an
effective sentence of life in the Tennessee Department of Correction. On appeal, the
Defendant contends that the trial court erred when it: (1) denied a pretrial motion to suppress
his admissions to police; (2) improperly allowed certain photographs of the victim into
evidence at trial; and (3) allowed irrelevant testimony. Finally, the Defendant asserts that the
evidence is insufficient to support his convictions. After a thorough review of the record and
the applicable law, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.
Mark Mesler, Memphis, Tennessee, for the Appellant, Matthew Perry.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William L. Gibbons, District Attorney General; Jennifer Nichols, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts
This case arises from the shooting death of Asa McGhee at his home on October 3,
2007. Based on these events, a Shelby County grand jury indicted the Defendant for first
degree felony murder, the murder occurring during the perpetration of attempted robbery, and
attempted aggravated robbery.
A. Suppression Hearing
On December 12, 2008, the trial court held a suppression hearing to address whether
the Defendant’s admissions to police officers were illegally obtained. The following
evidence was presented at the hearing: Sergeant Ragland,1 a Memphis Police Department
officer, testified that, at the time of the shooting, the Defendant was seventeen years old but
turned eighteen a week before his arrest for these charges. After he was developed as a
suspect, Sergeant Ragland obtained an attachment from the juvenile court for the Defendant.
Ultimately, the Defendant was located on October 23, 2007, in Brownsville, Tennessee, and
he was transported to Memphis on October 24, 2007.
Sergeant Ragland recalled that October 24 was his day off, but when he learned that
the Defendant had been apprehended and transported to Memphis, he went to the office.
According to police records, the Defendant was placed in an interview room at 12:37 p.m.
Sergeant Ragland advised the Defendant, both orally and in writing, of his Miranda rights,
and the Defendant waived those rights and agreed to speak with the police officers at 1:32
p.m. Sergeant Ragland recalled that the Defendant had obtained his GED (general
educational development) diploma and appeared to understand the rights that were explained
to him. The Defendant’s formal statement was not taken until 6:13 p.m. that evening and
was completed at 7:18 p.m. Sergeant Ragland explained that the delay was due to the fact
that, during the initial interview, the Defendant denied involvement. The Defendant later
admitted involvement, but he never admitted being the shooter. Because the Defendant
indicated another person was involved, police officers spent a “great deal” of time trying to
identify the other person in their database so the Defendant could identify him. The
Defendant referred to the person as “Big P,” but the police were unable to establish a real
name for “Big P” and thereby confirm the Defendant’s account of a second person’s
involvement. The Defendant’s “final story” regarding “Big P” was that he “just kind of
knew this guy” but did not know where he lived. The Defendant told police officers that he
met “Big P” prior to the homicide at a Burger King near the intersection of Hollywood and
Interstate 240. The Defendant also said that he knew that “Big P” sometimes “h[u]ng[] out”
at a carwash on Hollywood.
Sergeant Ragland said that the Defendant was in the interview room from 12:37 p.m.
until the statement was completed almost seven hours later. He said that the Defendant was
allowed to use the restroom during that time and was offered food and water. Sergeant
Ragland denied that anyone threatened the Defendant or that any promises were made to the
Defendant in exchange for his statement. Sergeant Ragland said that the Defendant was
1
This witness is referenced as Sergeant Ragland, with no first name provided, in the record.
relatively cooperative except that he would not provide further information about “Big P.”
Sergeant Ragland said it “was really frustrating” because it seemed as though the Defendant
did not grasp the gravity of the charges against him.
Sergeant Ragland testified that, after the juvenile hearing where the Defendant’s cases
were transferred to criminal court, police officers again met with the Defendant to ask about
“Big P’s” role and whether the Defendant wanted to provide more information. The
Defendant refused to give any further information and was only interested in discussing why
police had not recovered his car.
On cross-examination, Sergeant Ragland testified that the Defendant was shackled to
a chair in the interview room and that four different officers spoke with the Defendant during
the six-hour period. None of the conversations with the Defendant during this time were
recorded. Sergeant Ragland agreed that he told the Defendant that his cooperation would
help. He explained this statement to the Defendant by saying, “It’s been my experience that
the Court is more lenient with those who are cooperative with the Court, and by that I mean
people are remorseful and tell the facts the way they are and show - - remorse is a big thing.”
Sergeant Ragland agreed that the Defendant was crying during portions of his statement.
Sergeant Ragland recalled telling the Defendant that he was potentially facing life in prison,
but he denied telling the Defendant he could avoid a life sentence if he cooperated. Sergeant
Ragland said that he told the Defendant the following:
[Y]ou’re involved in something serious, and that’s what you need to grasp, . .
. and so if you want a portion of your life back, then you need to make this
right, and the way to make this right is to confess, put this behind you, move
forward so you can tell the Court, tell the judge, whoever, I did it. I’m sorry.
It was wrong. I have learned something as opposed to I don’t know what
you’re talking about.”
Sergeant Ragland testified that he was aware that the District Attorney General’s
Office had a “no deals” policy for first degree murder cases but that he did not inform the
Defendant of this policy. Sergeant Ragland explained that he did not inform the Defendant
of this policy because, in his experience, even though a defendant may be charged with first
degree murder he may not necessarily be convicted of that crime.
The Defendant testified that he had never been arrested before and could read and
write “very well.” The Defendant said that he understood when Sergeant Ragland told him
he was facing life in prison for the victim’s death. The Defendant agreed that he gave police
a statement and explained that he did so because he was told that, if he cooperated, he could
“possibl[y]” get less time than a life sentence. The Defendant said that he was never told that
the District Attorney General had a policy not to reduce first degree murder charges. The
Defendant recalled meeting with the police officers a second time and said that he was never
advised of his Miranda rights and that he told the police officers that he did not want to
speak with them without his attorney present.
On cross-examination, the Defendant agreed that police officers reviewed his rights
with him and that he understood his rights and chose to speak with the police officers.
Based upon this evidence, the trial court denied the Defendant’s motion to suppress.
B. Trial
At the Defendant’s trial, the parties presented the following evidence: Paris Humes,
the victim’s girlfriend and mother of his child, testified that she worked as a medical clerical
assistant. She often left their baby with the victim while she was at work. At around 8:00
a.m. on the morning of October 3, 2007, Humes called the victim, who sounded as if she woke
him, and arranged to drop off their two-month old son with the victim while she attended a
physical examination required for a new job. Humes arrived at the victim’s home at
approximately 9:30 a.m. and parked her car under the carport. She noticed that the victim’s
car was parked in the street with a car door and the trunk open.
Humes said that she proceeded to take her baby out of the car and that, while doing so,
a man she had never seen before exited the house through the carport door. Humes described
the man, who we will refer to as “Big P,”2 as approximately six-feet tall, with brown skin, a
“low haircut,” and a tattoo on his lower right arm. He was wearing a white short-sleeved t-
shirt, jeans, and white gloves with a blue stripe down the sides. Humes and “Big P” stared
at one another as he walked past Humes. Humes picked up her son and walked into the
victim’s home through the carport door. As she entered, she noticed that the wood along the
side of the carport door was cracked. Humes said that, upon entering the house, she did not
see anyone else and began walking toward the victim’s bedroom when “Big P” re-entered the
house and asked Humes if she was the victim’s girlfriend. Humes confirmed she was the
victim’s girlfriend and then asked where the victim was, but “Big P” did not respond. Humes
continued toward the victim’s bedroom and heard voices, one of which she recognized as the
victim’s voice. When she entered the bedroom, she saw a man she recognized as “ATL,”
whom she later identified as the Defendant, wearing a white t-shirt and kneeling between the
far side of the bed and the wall, over the victim, who was on the floor.
Humes explained that she recognized the Defendant as “ATL” because the Defendant’s
phone number was programmed into the victim’s cellular telephone as “ATL,” and she had
2
In later testimony it became clear that police officers thought this man was the man
the Defendant referred to as “Big P.” Although police officers were never able to confirm this information
or find a person named “Big P,” for the clarity of these facts, we will refer to the second person involved in
these crimes as “Big P.”
seen this name appear on the victim’s phone screen numerous times. After seeing his name
appear on her boyfriend’s phone several times, Humes met the Defendant one night when she
and her boyfriend ate at Picadilly, where the Defendant worked. As Humes and the victim
left the restaurant, the victim introduced Humes to the Defendant and told her that the
Defendant wanted to buy the victim’s watch. Humes described the victim’s watch as black
with diamonds circling the face of the watch. Humes recalled that before the shooting she
saw the Defendant on one other occasion at the victim’s house.
When Humes entered the victim’s bedroom, the Defendant turned and looked directly
at Humes. Humes recalled that she could hear the victim’s voice coming from the floor on
the far side of his bed but that she could not see him. “Big P” entered the room, and Humes
asked him “what was going on,” and he responded, “[Y]ou know what this is.” Humes heard
the victim telling the Defendant, “[M]an, I ain’t got nothing.” It was then that Humes saw
that “Big P” was holding a gun and that she began screaming, “[P]lease don’t kill him!” “Big
P” told Humes to be quiet and that he was not going to kill the victim, and he forced Humes
and her baby into a bathroom connected to the bedroom and closed the door. Humes could
no longer see the men but heard the Defendant telling the victim, “Man, I got your baby in
here, and your girl here now, you going to give me the money or what.” The victim
maintained that he did not have any money. Meanwhile, Humes screamed, and “Big P” beat
on the bathroom door and instructed her to “shut up.”
The argument between the Defendant and the victim continued with the victim’s urging
the Defendant to check his car to confirm that the victim did not have any money. The
Defendant told the victim that they had already checked his car and that they found no money.
Humes then heard the Defendant say, “[M]an, give me the gun,” and immediately thereafter
three or four gunshots rang out. Humes recalled that she heard the victim groan after every
gunshot except the last. “Big P” hit the bathroom door again and said, “[B]aby girl, stay in
there, don’t come out,” and the men left. When Humes heard the sound of a car leaving, she
came out and checked on the victim. She described him as lying on the floor with his eyes
rolled back. She looked at the victim’s body underneath the blanket he was wrapped in and
saw gunshot wounds. Humes heard someone bang on the window and, when she looked up,
she saw a man who asked if she was okay. He told Humes he had called the police, but, by
this time, Humes was already on the line with an emergency operator who instructed her to
raise the victim’s legs, which she did. Humes watched as the victim’s breathing began to slow
and then stopped. Emergency personnel arrived and Humes told police officers that “ATL”
had shot the victim.
Humes testified that she went to the police station and gave a statement about the
shooting. She was also shown a photographic line-up, and she identified the Defendant as
“ATL,” the man who had shot the victim.
On cross-examination, Humes agreed that, although she heard the Defendant ask for
the gun and then heard gunshots, she did not see “Big P” hand the Defendant the gun because
she was behind a closed door in the bathroom.
Ponsay Bratcher testified that he lived in the same neighborhood as the victim and
owned a lawn care service. Bratcher said that he provided lawn service for several yards in
the neighborhood and that, on the morning of October 3, 2007, he was going to work on a
yard on Cordell Street near the victim’s home. When Bratcher arrived at this location he
found a purple car, which he thought was a Ford Taurus or Chevrolet Cavalier, parked at an
odd angle in front of the house. Bratcher explained that this struck him as odd because of the
positioning of the car, as well as the fact that this home was unoccupied and owned by a realty
company. Bratcher recalled having seen this purple car before at the victim’s house. Because
the car was partially in the yard, Bratcher decided he would mow this lawn later. Bratcher
then drove on to Churchill Street where he maintained two yards located across the street from
the victim’s home. Bratcher said that, as usual, he parked in front of the victim’s house
because he believed no one would be home at that time of day. As he approached the house,
Bratcher noticed a man run out to the victim’s car that was parked on the street, open a door,
and look around inside the car. When the man saw Bratcher, he pulled his black t-shirt up
over his face exposing a white t-shirt underneath and ran back to the carport where he grabbed
another man who was looking into a Corolla. The two men, both covering their faces with
their shirts, ran to the victim’s car and drove away. Bratcher described the two men as being
of “slim build” with “clean haircut[s]” and said both men were wearing gloves.
When the two men drove off in the victim’s car, Bratcher believed the men were
stealing the car so he followed them a short distance so he could tell the victim which
direction the men went. Bratcher then returned to the victim’s home, and when he got out of
his truck, he heard someone in the victim’s house screaming. Bratcher ran up to the window
of the victim’s home and knocked on the window. Bratcher recalled that both the front door
and the carport door were open. The woman inside was screaming “[H]elp, help, help, they
shot him!,” so Bratcher called 9-1-1.
Bratcher testified that he remained outside the victim’s home until police arrived and
that he gave a statement to police. After doing so, Bratcher went to put some of his lawn
equipment away, which required him to pass by the house on Cordell Street where the purple
car had been parked earlier that morning. This time, however, the purple car was gone.
Instead, the victim’s car, with the doors and trunk open, was parked in the street one house
down from where the purple car had previously been parked.
Bratcher testified that he was shown a photographic line-up and that he was unable to
make a positive identification of either of the two men he had seen take the victim’s car.
On cross-examination, Bratcher agreed that, although he could not identify the two
men in a photographic line-up, he did tell the 9-1-1 operator that he had seen both men before.
He also gave a specific description of what the two men were wearing. He said that both men
were wearing black T-shirts, but that one man had a white T-shirt underneath his black shirt,
and the other man had a blue t-shirt underneath his black shirt. Bratcher testified that one of
the men was carrying something black but Bratcher could not identify the item and that he did
not see whether either man had a weapon.
Cottrell Armstrong testified that he was the victim’s step-father and had known the
victim since he was ten or eleven years old. Armstrong said that, at the time of the victim’s
death, the victim was living with Armstrong and the victim’s mother in their house on 2840
Churchill Street. Armstrong described his house as having two entries, the front door that
faced the street and a door in the carport. Armstrong said that, upon his departure from his
home that morning to go to work, he exited the home through the carport door and did not
notice any damage to this door. After his wife summoned him home due to these events, he
noticed damage to the door in the carport that “appeared to be an attempt to push the door in.”
Corey Armstrong testified that he had daily contact with the victim and was familiar
with the victim’s personal possessions. On the day of the victim’s death, Corey3 was asked
to clean up the victim’s room after emergency personnel left. After straightening and cleaning
the victim’s room, Corey was unable to find the victim’s wallet, one of the victim’s princess-
cut diamond earrings, and the victim’s black watch with diamonds circling the face of the
watch.
Dr. Miguel Laboy, an assistant medical examiner, testified that he performed the
victim’s autopsy. Dr. Laboy reported that he found three gunshot wounds to the body: one
in the chest, one in the abdomen, and one in the head. Dr. Laboy testified that the bullet that
caused the head wound entered the back of the victim’s head and was fired from a gun
located at an indeterminate range. Dr. Laboy testified that this gunshot wound was fatal and
that, after receiving this head wound, the victim would have been unable to make any major
movement.
Dr. Laboy testified that a “contact range” gunshot wound was present on the victim’s
chest and that the bullet that caused this wound perforated the victim’s left lung, fractured his
ribs, and exited through his back. Dr. Laboy testified that, without proper medical attention,
this wound could have been fatal as well. As to the gunshot wound to the victim’s abdomen,
Dr. Laboy testified that it was a contact range wound that penetrated the abdominal cavity
causing significant internal damage. Due to this damage, Dr. Laboy testified that the victim
would have required “rapid medical care, and some proper medical surgical intervention” in
order to survive.
3
Because there are two witnesses who share the last name Armstrong, we reference Corey
Armstrong by his first name. By referring to him by his first name we mean no disrespect to this witness.
When asked if it would have been possible for Humes to hear the victim groan after
the first and second gunshot wound, Dr. Laboy responded that it would be unlikely for
someone to make multiple sounds after getting shot in the head. He qualified this by stating
that he did not know specifically what type of sound Humes heard, but he believed it unlikely
that the victim could talk or moan after the gunshot wound to the head. A toxicology analysis
indicated traces of alcohol in the victim’s blood. Dr. Laboy testified that the cause of death
in this case was multiple gunshot wounds and the manner of death was homicide. On cross-
examination Dr. Laboy agreed that he could not determine the order in which the gunshot
wounds occurred.
Ricky Davison, a Memphis Police Department officer, testified that he reported to this
crime scene to collect and document the evidence through photographs and sketches. Officer
Davison identified photographs taken at the scene. Officer Davison testified that he collected
the comforter that had been used to wrap the victim. He recalled that the comforter bore what
appeared to be blood and two bullet holes. A nine-millimeter live round, a forty-caliber live
round, three forty-caliber casings, and a bullet fragment were all recovered from the victim’s
bedroom. Officer Davison testified that no fingerprints of value were recovered from the
scene.
Jason Singleton, a Brownsville police officer, testified that, in October 2007, he
received a request from the Memphis Police Department for assistance in locating the
Defendant. On October 27, 2007, Lieutenant Singleton went to the Defendant’s
grandmother’s residence, and the Defendant’s grandmother indicated that the Defendant had
left two or three hours before. The Defendant’s grandmother consented to a search of the
residence and provided officers with the name Felicia Mann, who she said was the
Defendant’s friend. She believed the Defendant might be with this person. Lieutenant
Singleton said he was familiar with Mann and went to her address. Mann told officers that
the Defendant had slept in her home the night before but that he had just left. Mann consented
to a search of the room in which the Defendant stayed the previous night. After officers found
a forty-caliber handgun on the dresser, Mann denied ownership of the handgun. Mann offered
to make contact with the Defendant by phone and arrange a meeting with the Defendant.
Mann arranged a meeting, and police officers then followed Mann to the meeting location and
placed the Defendant under arrest.
The State submitted a stipulation by the parties, which stated that Cervinia D. Braswell,
a forensic scientist with the Tennessee Bureau of Investigation, examined the forty-caliber
pistol confiscated from the room in which the Defendant spent the night at Mann’s home and
the bullet casings and fragments found at the scene of the crime and determined that the bullet
casings were not fired from the pistol.
Lieutenant Ronald Collins, a Memphis Police Department officer, testified that he
interviewed the Defendant on October 24, 2007. Lieutenant Collins said that, before the
interview, the Defendant was advised of his Miranda rights, and the Defendant agreed to
speak with the police officers about the shooting of the victim. When the Defendant was
asked if he was responsible for the homicide, he replied, “If it wasn’t for me, it would have
never happened.” The Defendant told the police officers that “Big P” was with him and he
described “Big P” as having a “brown complexion, short hair, bulgy eyes, kind of fat nose.
Probably about five nine, six foot. Kind of heavy set. Stocky. In his twenties.” The
Defendant said the weapon used in this homicide was a black or silver automatic handgun that
“Big P” kept in his pants. The Defendant said that he bought weed from the victim and knew
him as “Ace” or “Little Ace.” The Defendant then provided the following description of the
events leading to the shooting of the victim:
Big P called and asked me if I knew where any good green was, and I told him
my guy got it. We got together and we was fixing to go. On the way there, he
kept asking, what he got. What kind of work he working with. We pull up to
the house and park on the side of the road behind his car. I got out of the car.
I walked up and knocked on the door and ring the doorbell. Big P got out the
car with the gun and was like, man, come on, I know he got something in
there. I go back over there and I ring the side doorbell. When I walk back to
the other side Big P was bum rushing through the door. He was walking
through the house and he saw [the victim] and he fired a shot. I went on to the
side of the bed with [the victim] and was talking to him. For a span of at least
twenty to thirty minutes I was on the side of the bed with [the victim]. Then
Big P walked in and said Ace’s momma was outside. Big P walked out of the
room and came back with a pistol to a girl that wasn’t [the victim’s] momma.
It was [Humes], [the victim’s] baby’s momma she had his baby with her. I’m
telling the dude to give me a gun because she didn’t have nothing to do with
it, but he didn’t give it to me, so I just told [Humes] and the baby to go in the
bathroom. Like ten minutes later, Big P came back and was like, come on,
let’s go. I was still on the side of the bed with [the victim]. After awhile, Big
P told me to go. I started to leave, I heard one more gunshot, so I walked back
in there with [the victim]. He was fixing to die, and then I seen Big P pull off
in the car, so I ran out of the house and ran around the corner and tried to
follow him. I got around the corner and the car doors was open and the trunk
was open. Big P was in the car talking about we was fixing to go and let’s go,
and I got in the car with him. On the way to the house I was just asking him
what happened. He said he got bad and he didn’t get nothing. We got back
to the Burger King. I got out of the car and he yanked out in my car. I left and
went out of town to Brownsville. I don’t even know where my car at. On the
[way] back [ ] to the Burger King, Big P told me not to say his name or he
knew where my girlfriend and everybody stay at. He said don’t put my name
in nothing. I didn’t even get nothing. I told him all right. I don’t know
nothing.
The Defendant said that, at the time of the shooting, he was wearing jeans and a white T-shirt.
He described “Big P” as wearing shorts and a black T-shirt. The Defendant denied that either
of them were wearing gloves. The Defendant told police that, “to [his] knowledge,” nothing
was taken from the victim.
Based upon this evidence, the jury convicted the Defendant of first degree felony
murder in the perpetration of an attempted robbery and attempted aggravated robbery. The
trial court ordered the Defendant to serve an effective sentence of life in the Tennessee
Department of Correction. It is from these judgments that the Defendant now appeals.
II. Analysis
On appeal, the Defendant asserts that the trial court erred when it: (1) denied his
pretrial motion to suppress his admissions to police; (2) improperly allowed the introduction
of certain photographs of the victim into evidence at trial; and (3) allowed irrelevant
testimony. Finally, the Defendant asserts that the evidence is insufficient to support his
convictions.
We note that, in the table of contents section of the Defendant’s brief, an additional
argument related to the medical examiner’s testimony is listed. Beyond this listing in the table
of contents there is no further mention of this issue in the Defendant’s brief. The State also
makes no mention of this issue in its brief. Thus, because there is no argument or citation to
law we treat this issue as waived pursuant to Rule 10 (b) of the Rules of the Court of Criminal
Appeals of Tennessee.
A. Motion to Suppress
The Defendant contends that the trial court erred in denying his motion to suppress his
statement to police because the Defendant’s statement “was absolutely obtained by ‘direct or
implied promises’ that a confession would result in a lesser charge.” The Defendant asserts
in his brief that detectives used the Defendant’s “youth, his emotional state of mind and the
promise of a lesser charge to coerce a confession out of him.” In the argument portion of his
brief, however, he only addresses the detectives’ alleged promise of a lesser charge. The State
responds that the record supports the trial court’s finding that the Defendant was not coerced
into giving a statement.
After hearing testimony from Sergeant Ragland and the Defendant at the suppression
hearing, the trial court made the following findings:
[T]his Court finds the statements made by Defendant during the
interrogation on October 24, 2007 to be admissible at trial. Considering the
totality of the circumstances and additional factors, Defendant’s statements
were given knowingly and voluntarily. First, Defendant signed an advice of
rights form that explained his Miranda rights. The form also questioned
whether Defendant understood the rights explained to him and whether in light
of those rights, he wished to continue to speak with law enforcement.
Defendant answered both questions in the affirmative. The advice of rights
form is evidence of sufficient Miranda warnings. Moreover, after the
advisement of rights form was signed, Defendant did not request an attorney
at the interview and thus, did not invoke his right to counsel.
Next, the length of the interview was appropriate and did not overbear
Defendant’s will such that his statements could be considered involuntary.
Tennessee courts have held, after an evaluation of all the circumstances, that
statements made during an interrogation lasting for eight hours were voluntary.
In th[is] case, the entire interrogation was discontinuous and lasted slightly
over six hours. Defendant was also provided food, sleep,4 and the
use of restroom facilities as necessary. Thus, the length of the interrogation,
when considered under the totality of the circumstances, did not overbear the
will of Defendant and his statement was made voluntarily.
Additionally Defendant’s statement may be considered voluntary
because there is insufficient evidence to support the claim that his statement
was induced by the promise of a lesser sentence. . . . [T]here is conflicting
testimony as to what was specifically said or promised to Defendant. The
conflicting testimony provides insufficient evidence to show that Defendant
was improperly influenced with the promise of a lower sentence in exchange
for his confession during interrogation. Moreover, there is insufficient
evidence to support the proposition that Defendant was compelled to confess
by the promise of leniency.
(citations omitted).
The standard of review for a trial court’s findings of fact and conclusions of law in a
suppression hearing was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). This
standard mandates that “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23; see State v. Randolph, 74 S.W.3d
330, 333 (Tenn. 2002). The prevailing party in the trial court is “entitled to the strongest
legitimate view of the evidence adduced at the suppression hearing as well as all reasonable
4
The trial court lists “sleep,” however, our review of the record reveals that officers testified
only as to food, water, and restroom facilities. We view this as a minor oversight which does not affect
the outcome of this case.
and legitimate inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23.
Furthermore, “[q]uestions of credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge
as the trier of fact.” Id. However, this Court reviews the trial court’s application of the law
to the facts de novo, without any deference to the determinations of the trial court. State v.
Walton, 41 S.W.3d 75, 81 (Tenn. 2001). The defendant bears the burden of demonstrating
that the evidence preponderates against the trial court’s findings. Odom, 928 S.W.2d at 22-
23; State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
The Fifth Amendment to the United States Constitution provides that “[n]o person .
. . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth
Amendment’s protection against compulsory self-incrimination is applicable to the states
through the Fourteenth Amendment). Article I, Section 9 of the Tennessee Constitution
provides that “in all criminal prosecutions, the accused . . . shall not be compelled to give
evidence against himself.” Tenn. Const. art. I, § 9. “The significant difference between these
two provisions is that the test of voluntariness for confessions under Article I, § 9 is broader
and more protective of individual rights than the test of voluntariness under the Fifth
Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992).
Generally, one must affirmatively invoke these constitutional protections. An
exception arises, however, when a government agent makes a custodial interrogation.
Statements made during the course of a custodial police interrogation are inadmissible at trial
unless the state establishes that the defendant was advised of his right to remain silent and his
right to counsel and that the defendant then waived those rights. Miranda v. Arizona, 384
U.S. 436, 471-75 (1966); see also Dickerson v. United States, 530 U.S. 428, 444 (2000);
Stansbury v. California, 511 U.S. 318, 322 (1994). A defendant’s rights to counsel and
against self-incrimination may be waived as long as the waiver is made voluntarily,
knowingly, and intelligently. Miranda, 384 U.S. at 478; State v. Middlebrooks, 840 S.W.2d
317, 326 (Tenn. 1992). In this case, the Defendant does not dispute that he made a voluntary,
knowing, and intelligent wavier of his rights to counsel and against self-incrimination during
the interviews with Sergeant Ragland and Lieutenant Collins. Instead, the Defendant argues
that the statements he made during his custodial interrogations were involuntary because they
were the product of coercion.
“Confessions that are involuntary, i.e., the product of coercion, whether it be physical
or psychological, are not admissible.” State v. Phillips, 30 S.W.3d 372, 376 (Tenn. Crim
App.2000) (citing Rogers v. Richmond, 365 U.S. 534, 540 (1961)). In order to make the
determination of whether a confession was voluntary, the particular circumstances of each
case must be examined. Id. at 377 (citing Monts v. State, 218 Tenn. 31, 400 S.W.2d 722, 733
(1966)). “Coercive police activity is a necessary prerequisite in order to find a confession
involuntary.” Id. (citing State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)). “The crucial
question is whether the behavior of the state’s officials was ‘such as to overbear petitioner’s
will to resist and bring about confessions not freely self-determined.’” Id. (quoting Rogers,
365 U.S. at 544 ); see State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980). The question must
be answered with “complete disregard” of whether the defendant was truthful in the
statement. Phillips, 30 S.W.3d at 377 (citing Rogers, 365 U.S. at 544).
After thoroughly reviewing the testimony at the suppression hearing, we conclude that
the evidence does not preponderate against the trial court’s findings that the Defendant
voluntarily made his statement to the officers.
The Defendant relies heavily upon his alleged complaint that his confession was
coerced because police officers “promised” him a lesser sentence if he were to cooperate and
provide them a statement. Sergeant Ragland acknowledged that he told the Defendant he
could receive a life sentence for a murder conviction, but he denied promising the Defendant
he would not receive a life sentence if he cooperated with detectives. The trial court found
that the testimony of Detective Ragland was credible and therefore denied the Defendant’s
motion to suppress. Questions of credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge
as the trier of fact. Odom, 928 S.W.2d at 23.
As to the issues of the Defendant’s youth and “emotional state” contributing to a
coerced confession, we conclude that the facts presented at the suppression hearing weigh in
favor of the trial court’s finding. The Defendant was eighteen years old at the time of the
interview, he had completed his GED, and he could read and write “very well.” Both
Sergeant Ragland and Lieutenant Collins testified that, after being arrested, the Defendant
signed the Miranda rights form, and said that he did not want an attorney. The Defendant also
testified that he understood his rights and waived them. Although the Defendant cried at
times while giving his statement, no other evidence in the record shows that he was in an
“emotional state of mind.” And, although the Defendant was kept in an interrogation room
for slightly more than six hours, the interrogation was not continuous due to police attempts
to confirm the Defendant’s story about “Big P.” During this time, the Defendant was offered
food, water, and access to the restroom.
The Advice of Rights forms signed by the Defendant, the officers’ testimony, and the
Defendant’s testimony regarding his understanding and waiver of his rights, support the trial
court’s finding that the confession was not the product of coercion. Accordingly, after
thoroughly reviewing the evidence from the suppression hearing, we conclude that the
evidence does not preponderate against the trial court’s findings that the Defendant voluntarily
made the statements to the agents. The Defendant is not entitled to relief as to this issue.
B. Introduction of Photographs
The Defendant next asserts that the trial court improperly admitted certain photographs
into evidence. He objects to the admission of the following photographs: (1) a photograph
of the victim with his children; and (2) the duplicative photographs of the victim’s head
injuries. The State responds that, because the trial court looked at every disputed photograph
and ruled that the photographs were relevant and that their probative value substantially
outweighed any prejudicial effect, the photographs were properly admitted into evidence.
Under Rule 401, “‘Relevant 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.” Tenn. R. Evid. 401. Rule
402 states, “All relevant evidence is admissible except as provided by the Constitution of the
United States, the Constitution of Tennessee, these rules, or other rules or laws of general
application in the courts of Tennessee. Evidence which is not relevant is not admissible.”
Tenn. R. Evid. 402. Finally, Rule 403 states, “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. “The decision regarding
the admissibility of photographs pursuant to these Rules lies within the sound discretion of
the trial court and will not be overturned on appeal absent a clear showing of an abuse of that
discretion.” State v. Young, 196 S.W.3d 85, 105 (Tenn. 2006) (citing State v. Banks, 564
S.W.2d 947, 949 (Tenn. 1978)).
1. Photograph of the Victim with his Children
The Defendant argues that the trial court erred when it entered a photograph of the
Defendant with his two children because it was not relevant and was unfairly prejudicial. The
State responds that this picture also included the Defendant’s watch, which was referenced
in Humes’s testimony and was relevant to establish the Defendant’s identity and motive for
robbing the victim.
The photograph at issue is a photograph of the victim sitting in a chair holding his baby
while gesturing playfully at another young child. A black watch with diamonds circling the
face of the watch sits in the cup holder of the chair in which the victim sits. At trial, defense
counsel objected to the photograph on the basis that its probative value was outweighed by
the danger of unfair prejudice, pointing out that Humes had not mentioned the Defendant’s
interest in buying the victim’s watch in any of her three prior statements to police. The State
responded that this photograph was relevant as to the Defendant’s identity as one of the two
men responsible for the victim’s murder and that it was the only picture the State possessed
of the watch at issue. The trial court overruled the Defendant’s objection and found that the
photograph was relevant and that the probative value was not outweighed by the danger of
unfair prejudice. When denying the Defendant’s motion for new trial based upon this issue,
the trial court stated that the photograph was relevant to show the Defendant’s motive for
robbing the victim. The trial court stated, “I thought it certainly was relevant to show the jury
the motive that [the Defendant] had for thinking that the victim had apparently a lot of money
and items of worth.”
Upon our review of the record, we conclude that the trial court did not abuse its
discretion by admitting this photograph into evidence. The picture was relevant to identify
the Defendant as one of the two men Humes observed in the victim’s house. Humes could
visibly identify the Defendant as “ATL” because of her knowledge of the Defendant as the
person who was interested in the victim’s watch. The photograph was also relevant in
demonstrating a motive for the attempted robbery alleged by the State. The probative value
of this evidence is not outweighed by the prejudicial effect of the jury seeing a photograph of
the victim’s two small children. Through Humes’s testimony, the jury was already aware that
the victim had a newborn son, who was present in the house during the victim’s murder, and
the State informed the trial court that this was the only picture it possessed of the watch.
Thus, the trial court did not err by admitting the photograph of the victim with his two
children. The Defendant is not entitled to relief on this issue.
2. Photographs of the Gunshot Wound to the Victim’s Head
The Defendant contends that the trial court erred in admitting two photographs of the
same injury the victim sustained to the back of his head. The State responds that the
photographs of the victim’s head injuries were probative in establishing the type of injury the
victim sustained and relevant to supplement the medical examiner’s testimony.
The leading case regarding the admissibility of photographs of murder victims is State
v. Banks, 564 S.W.2d 947 (Tenn. 1978), in which our Supreme Court indicated that the
admissibility of photographs of murder victims is within the discretion of the trial court after
it considers the relevance, probative value, and potential unfair prejudicial effect of such
evidence. Generally, “photographs of the corpse are admissible in murder prosecutions if they
are relevant to the issues on trial, notwithstanding their gruesome and horrifying character.”
Id. at 950-51. However, “if they are not relevant to prove some part of the prosecution’s case,
they may not be admitted solely to inflame the jury and prejudice them against the defendant.”
Id. at 951. The determination of the admissibility of photographs lies within the sound
discretion of the trial court, and that discretion will not be overturned on appeal absent a clear
showing of abuse. State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing State v. Allen, 692
S.W.2d 651, 654 (Tenn. Crim. App.1985)).
Our Supreme Court provided guidance to trial courts for determining the admissibility
of relevant photographic evidence and opined that a trial court should consider:
(1) the accuracy and clarity of the picture and its value as evidence; (2)
whether the picture depicts the body as it was found; (3) the adequacy of
testimonial evidence in relating the facts to the jury; and (4) the need for the
evidence to establish a prima facie case of guilt or to rebut the defendant’s
contentions.
State v. Brock, 327 S.W.3d 645, 694 (Tenn. Crim. App. 2009) (citing, Banks, 564 S.W.2d at
950).
In the case under submission, the State initially sought to enter three pictures of the
victim’s head injuries into evidence at trial but, after the Defendant’s objection, offered to
enter only two of the three pictures. One of the pictures was taken at the scene of the crime
and was a close-up of the back of the victim’s head. The other photograph was taken of the
victim’s head and trunk during the autopsy, after the wounds had been cleaned. Defense
counsel objected to the State’s showing multiple pictures of the gunshot wound to the back
of the victim’s head due to the graphic nature of the photos. The State asserted that the
pictures showed whether soot or stippling was present, which indicated the range from which
the gun was shot. Defense counsel argued that the uncleaned wound was not probative and
was prejudicial. After hearing arguments from both sides, the trial court overruled the
Defendant’s objection, finding that the pictures were not “so gruesome” as to “inflame the
jurors.” The trial court went on to say that the probative value of showing the jurors what the
gunshot caused was not outweighed by the danger of unfair prejudice. Again, in denying
relief as to this claim at the hearing on the motion for new trial, the trial court found that the
pictures were relevant to rebut the Defendant’s statement that the victim ran back to his
bedroom after he was shot.
We have reviewed the photographs in question and conclude that the trial court did not
abuse its discretion in admitting these two photographs into evidence. There was dispute in
the proof as to the identity of the shooter and the order in which the shots were fired. The
Defendant’s statement to police was that “Big P” shot the victim and that then the victim ran
back to his bedroom, and that then after “twenty to thirty minutes” of the Defendant talking
with the victim next to his bed, “Big P” shot the victim again. Humes testified that she
thought the Defendant shot the victim, who was lying on the floor next to his bed, after the
victim repeatedly denied having any money. Dr. Laboy testified that the gunshot wound to
the victim’s head was fatal and that the victim would have been unable to speak or make any
subsequent movement after sustaining this wound. The photographs were relevant evidence
that supported the testimony of the medical examiner that the victim would not have been able
to speak or move after sustaining the head wound. See State v. Cole, 155 S.W.3d 885, 913
(Tenn. 2005). We recognize that the second photograph was taken during the autopsy, after
the body had been moved from the crime scene, and that this weighs against its admissibility.
See Banks, 564 S.W.2d at 951; State v. LeRoy Hall, No. 03C01-9303-CR-00065, 1996 WL
740822, at *26 (Tenn. Crim. App., Knoxville, Dec. 30, 1996), no Tenn. R. App. P. 11
application filed. In this instance, however, the photographs were taken prior to any treatment
that might have significantly altered the appearance of the injuries.
Additionally, as noted by the trial court, the photographs are not particularly gruesome.
We conclude that the probative value of the photographs is not outweighed by their prejudicial
effect, and the trial court did not abuse its discretion in allowing their admission. Further, it
does not affirmatively appear that the “admission of the photographs has affected the results
of the trial.” See Banks, 564 S.W.2d at 953. The Defendant is not entitled to relief on this
issue.
C. Testimony of Corey Armstrong
The Defendant argues that the trial court erred by allowing Corey Armstrong, the
victim’s stepbrother, to testify at trial about items missing from the victim’s room after the
homicide. Specifically, the Defendant asserts this was error because: (1) the State did not list
Corey as a potential witness and his name was not mentioned in any discovery materials, and
(2) his testimony as to missing items was not relevant to the State’s case because the
indictment alleged an attempted robbery rather than a completed robbery. The State responds
that because this evidence substantially corresponded to the charges in the indictment, the
Defendant was sufficiently informed of the charges against him.
1. Discovery Materials
Tennessee Code Annotated section 40-17-106 directs the State to list “the names of
such witnesses as [it] intends shall be summoned in the cause” on the charging indictment.
See also Tenn. Code Ann. § 40-13-107; Tenn. R. Crim. P. 16, Advisory Comm’n Cmts. The
purpose of this statute is to prevent surprise to the defendant at trial and to permit the
defendant to prepare his or her defense to the State’s proof. This duty is merely directory, not
mandatory, however, and, therefore, the State’s failure to include a witness’s name on the
indictment does not automatically disqualify the witness from testifying. State v. Harris, 839
S.W.2d 54, 69 (Tenn. 1992) (“Rule 16, Tenn. R. Crim. P., does not require nor authorize
pretrial discovery of the names and addresses of the State’s witnesses.”). In cases of
nondisclosure, a defendant must demonstrate prejudice, bad faith, or undue advantage to
obtain relief. Id. The determination of whether to allow the witness to testify is left to the
sound discretion of the trial judge, which is exercised upon examination of the circumstances
presented in that particular case. State v. Underwood, 669 S.W.2d 700, 703 (Tenn. Crim.
App. 1984) (citing McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (Tenn. 1963)).
At trial, the Defendant objected to the State’s calling Corey Armstrong to testify
because Corey Armstrong was not named in the State’s witness list or in any of the discovery
materials it provided to the Defendant. The State responded that the State only learned of
Corey Armstrong after it furnished its witness list and the requested discovery to the
Defendant. The trial court overruled the Defendant’s objection but gave defense counsel the
opportunity to interview Corey before he testified at trial.
In addressing this issue at the Defendant’s motion for new trial, the trial court found:
[T]he reality is one of these people came in at the last minute, you know,
family members, and they give information and the State does have an
obligation to provide that to you as soon as they hear about it. And I
understand [ ] [i]t is tough as Defense counsel to prepare and deal with that,
but in this case I did not feel that was anything done in a purposeful way. I did
not feel it was unfair surprise and you certainly were given the opportunity to
speak with him prior to his testimony.
The determination of whether to allow the witness to testify is left to the sound
discretion of the trial judge. Underwood, 669 S.W.2d at 703. The trial court did not find that
the omission was purposeful, and it afforded defense counsel the opportunity to interview
Corey before he testified. Moreover, non-disclosures of this nature will not afford a defendant
relief unless he can demonstrate that prejudice resulted from the omission, Underwood, 669
S.W.2d at 703, which Defendant has failed to do. The Defendant is not entitled to relief as
to this issue.
2. Variance between Indictment and Proof at Trial
Both the Federal and Tennessee Constitutions guarantee the criminally accused
knowledge of the “nature and cause of the accusation.” U.S. Const. Amend. VI; see also
Tenn. Const. art. I, § 9. In order to comply with these constitutional guidelines, an indictment
or presentment must provide notice of the offense charged, adequate grounds upon which a
proper judgment may be entered, and suitable protection against double jeopardy. T.C.A. §
40-13-202 (2003); State v. Byrd, 820 S.W.2d 739, 740-41 (Tenn. 1991).
This Court explained, “A variance between an indictment or a subsequent bill of
particulars and the evidence presented at trial is not fatal unless it is both material and
prejudicial.” State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000) (citing State v.
Moss, 662 S.W.2d 590, 592 (Tenn. 1984)). A variance is material only where the indictment
or the bill of particulars and the proof do not substantially correspond. Id. (citing State v.
Mays, 854 S.W.2d 638, 640 (Tenn. 1993)). A variance is prejudicial when it causes the
defendant to be misled or surprised at trial, or leaves the defendant vulnerable to a second
prosecution for the same offense. Moss, 662 S.W.2d at 592. It is not reversible error when
a defendant is sufficiently aware of the charge and is able to adequately prepare for trial. Id.
The indictment and the proof substantially corresponded, and the indictment provided
the Defendant with sufficient notice and protection against double jeopardy. The transcript
reflects that the Defendant was adequately prepared for trial, and he has failed to establish that
he was prejudiced by Corey’s testimony recounting items missing after the shooting.
Furthermore, the State did not attempt to rely upon theories and evidence at the trial that were
not fairly embraced in the allegations made in the indictment or the bill of particulars.
Shropshire, 45 S.W.3d at 71. The Defendant is not entitled to relief on this issue.
D. Sufficiency of the Evidence
The Defendant contends the evidence is insufficient to support his convictions because
of alleged inconsistencies in the testimony of the State’s witnesses. The State responds that
the jury heard and resolved any alleged inconsistencies when it convicted the Defendant on
both charges.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P. 13(e), State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass,
13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In determining the sufficiency of the
evidence, this Court should not re-weigh or re-evaluate the evidence. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferences for
those drawn by the trier of fact from the evidence. State v. Buggs, 995 S.W.2d 102, 105
(Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the
credibility of the witnesses, the weight and value of the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997); Liakas, 286 S.W.2d at 859. “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.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v.
Grace, 493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee Supreme Court stated the rationale
for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274,
279 (Tenn. 2000)). 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. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
The Defendant challenges the credibility of the testimony of witnesses as the basis of
his sufficiency argument. We note that it is the jury’s prerogative to evaluate and weigh the
evidence. Any alleged inconsistent statements and credibility issues were brought out on
direct or cross-examination. The weight and credibility of the testimony of a witness and the
reconciliation of conflicts in testimony, if any, are matters entrusted exclusively to the jury.
By its verdict, the jury exercised its prerogative and chose to accredit the testimony of the
State’s witnesses. Nonetheless, we will review the Defendant’s case in its entirety for the
sufficiency of the evidence.
1. Felony Murder
In this case, the Defendant was convicted of first degree felony murder in the
perpetration of an attempted robbery, which requires proof beyond a reasonable doubt that the
Defendant killed the victim during an attempt to perpetrate a robbery. See T.C.A. §
39-13-202(a)(2) (2006). The mental state required for the conviction was that the Defendant
possessed the intent to commit the underlying offense, which in this case was the attempt to
commit robbery. Robbery is “the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” Id. §§ 39-13-202(b) and 39-13-401(a).
The evidence, considered in the light most favorable to the State, proves that the
assailants forcibly entered the victim’s home through the carport garage door and demanded
money from the victim. The Defendant was kneeling over the victim who was lying on the
floor, wrapped in his bed comforter. When the victim repeatedly denied having any money,
and the Defendant and “Big P” were unable to find any money in the victim’s vehicle, the
Defendant asked “Big P” for the gun and shot the victim three times. The Defendant and “Big
P” then fled in the victim’s vehicle, leaving the victim to die as a result of the shooting.
This evidence shows that, during the course of an attempted robbery, the Defendant
shot and killed the victim. Accordingly, we conclude that the evidence is sufficient to support
the jury’s finding that the Defendant was guilty beyond a reasonable doubt of first degree
murder in the perpetration of an attempted robbery. As such, the Defendant is not entitled to
relief on this issue.
2. Attempted Aggravated Robbery
As relevant to this case, a conviction for attempted aggravated robbery consists of an
attempt to commit the “intentional or knowing theft of property from the person of another
by violence or putting the person in fear” and is “accomplished with a deadly weapon” or
causes the victim “serious bodily injury.” T.C.A. § 39-13-401 and 402 (2006).
The evidence, considered in the light most favorable to the State, proves that the
Defendant entered the victim’s home and demanded money from the victim. The Defendant
then shot the victim three times.
Accordingly, we conclude that the evidence is sufficient to support the Defendant’s
conviction for attempted aggravated robbery beyond a reasonable doubt. As such, the
Defendant is not entitled to relief on this issue.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the trial
court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE