IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JULY 1998 SESSION August 31, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9707-CR-00274
Appellee, )
) SHELBY COUNTY
VS. )
) HON. L.T. LAFFERTY,
SAMUEL F. HOWARD, III, ) JUDGE
)
Appellant. ) (Felony Murder, Especially
) Aggravated Robbery)
FOR THE APPELLANT: FOR THE APPELLEE:
CHRISTOPHER L. NEARN JOHN KNOX WALKUP
(Trial and Appeal) Attorney General and Reporter
243 Exchange Avenue
Memphis, TN 38105 PETER M. COUGHLAN
Assistant Attorney General
BILL ANDERSON, JR. Cordell Hull Building, 2nd Floor
(Trial Only) 425 Fifth Avenue North
138 North Third Street Nashville, TN 37243-0493
Memphis, TN 38103-2007
WILLIAM L. GIBBONS
District Attorney General
J. ROBERT CARTER, JR.
ROSEMARY ANDREWS
Asst District Attorneys General
201 Poplar Ave, Suite 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Samuel F. Howard, III, appeals as of right his convictions
by a Shelby County jury of murder in the perpetration of a felony and especially
aggravated robbery. He received concurrent sentences of life and twenty (20)
years. The defendant raises the following issues for review:
(1) whether the evidence was sufficient for a jury to
convict the defendant of murder in the perpetration of
a felony and especially aggravated robbery;
(2) whether the defendant was deprived of a fair trial
because the jury was not individually questioned in
voir dire;
(3) whether the trial court improperly dismissed a
prospective juror;
(4) whether the trial court erred by admitting a
photograph of the victim; and
(5) whether the trial court erred by failing to grant a
mistrial after the state made improper remarks during
closing argument.
After a thorough review of the record, the judgment of the trial court is
AFFIRMED.
FACTS
The victim, Roy Tate, was driving in Memphis with his friend, Rico King,
on the evening of July 24, 1995. He pulled into an Amoco station to use a pay
phone after his girlfriend paged him. As the victim spoke on the telephone, the
defendant and Cedric Solomon approached him from behind. Solomon drew a
nine (9) millimeter handgun and said, “don’t move.” King told the pair, “we’ll give
you whatever you want . . . just don’t kill us.”
The victim turned to face the pair. King testified that at this point he ran
away. The victim attempted to run as well, but was shot twice from behind. The
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defendant and Solomon then got in the victim’s car and drove away. It is
uncontroverted that Solomon, not the defendant, shot the victim.
Eric Denton testified at trial that the defendant and Solomon were riding in
Denton’s vehicle immediately prior to the killing. He stated that as they drove
around Solomon stated he and the defendant needed to rob someone in order to
pay the defendant’s lawyer. Denton testified that he stopped at a store near the
Amoco to purchase beer and use the restroom. Denton testified that as he
exited the store he heard two (2) gunshots and observed Solomon standing by
the Amoco pay phone with a pistol in his hand. Later that night, Denton saw the
defendant and Solomon in the victim’s car. Solomon asked Denton for help in
removing the car’s stereo components to sell them. The defendant and Solomon
asked Denton if he knew of anyone interested in buying the car or its contents.
Anthony Evans testified that the defendant and Solomon approached him
the night of the murder and sold him a car speaker system known as a “kick
box.” Evans testified he gave the defendant $100 for the speakers. Evans
further testified that several days after the murder, he heard the defendant
saying that he beat a murder charge when the police released him after
questioning.
SUFFICIENCY OF THE EVIDENCE
When an accused challenges the sufficiency of the evidence, this Court
must review the record to determine if the evidence adduced during the trial was
sufficient "to support the findings by the trier of fact of guilt beyond a reasonable
doubt." Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt
predicated upon direct evidence, circumstantial evidence or a combination of
direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,19 (Tenn.
Crim. App.1996).
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In determining the sufficiency of the evidence, this Court does not reweigh
or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn.1978). Nor may this Court substitute its inferences for those drawn by the
trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305,
286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the
state the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the
evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.1995).
Because a verdict of guilt removes the presumption of innocence and
replaces it with a presumption of guilt, the accused has the burden in this Court
of illustrating why the evidence is insufficient to support the verdict returned by
the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v.
Grace, 493 S.W.2d at 476.
Further, a defendant who aids and abets a co-defendant in the
commission of a crime, such as aggravated robbery, is liable for any crime
committed by the co-defendant as a natural and probable consequence of the
originally intended crime. State v. Carson, 950 S.W.2d 951, 956 (Tenn. 1997).
The defendant contends that a legitimate interpretation of the evidence
would be that the defendant was forced by Solomon to participate in this criminal
adventure. Further, the defendant contends that he never had the intent to harm
the victim.
Testimony at trial revealed that the defendant and Solomon were looking
for a person to rob the evening the victim was killed. Solomon stated they
needed to steal in order to pay for the defendant’s lawyer in an unrelated case.
Further testimony showed the defendant was actively involved in selling stereo
components from the victim’s car. The defendant also bragged that he beat a
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murder charge when the police initially released him after questioning.
Taking the evidence in a light most favorable to the state, the jury clearly
could have concluded the defendant was a willing participant in the offenses
charged.
This issue is without merit.
VOIR DIRE
The defendant contends the trial court erred in denying his pre-trial motion
for individual voir dire. The record is devoid of any motion or request for
individual voir dire. Nor does the trial transcript reflect any discussion of this
issue prior to voir dire. The issue is, therefore, waived. Tenn. R. App. P. 36(a).
Regardless, the control of voir dire rests within the sound discretion of the
trial judge. State v. Stephenson, 878 S.W.2d 530, 540 (Tenn. 1994). In
Tennessee, the prevailing practice is to voir dire prospective jurors collectively,
rather than individually. State v. Oody, 823 S.W.2d 554, 563 (Tenn. Crim. App.
1991). While Tenn. R. Crim. P. 24(a) gives the trial court the right to individually
question prospective jurors, it is only necessary to do so when there is a
significant possibility that the juror has been exposed to “potentially prejudicial
material.” State v. Claybrook, 736 S.W.2d 95, 100 (Tenn. 1987) (quoting
Sommerville v. State, 521 S.W.2d 792, 797 (Tenn. 1975)). The trial court’s
exercise of its discretion will not be disturbed unless there is an abuse of that
discretion. State v. Irick, 762 S.W.2d 121, 125 (Tenn. 1988).
The defendant does not suggest that any juror had been exposed to
prejudicial information. As such, we find no error in the use of a collective voir
dire. This issue is without merit.
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DISMISSAL OF JUROR FOR CAUSE
The defendant alleges he was prejudiced by the trial court’s dismissal of a
potential juror. The juror expressed doubt regarding his ability to follow the law
of criminal responsibility. At one point the juror stated he could not be fair to
both sides. At another point he said, “I guess so” when asked if he could follow
the law. Over the defendant’s objection, the trial court dismissed the juror.
The decision of a trial court excusing a juror for cause is subject to an
abuse of discretion standard. State v. Kilburn, 782 S.W.2d 199, 203 (Tenn.
Crim. App. 1989). The trial court excused the prospective juror because he was
equivocal in his answer regarding his ability to follow the law. The trial court was
well within its discretion to dismiss the juror.
This issue is without merit.
PHOTO OF VICTIM
The defendant contends the trial court improperly admitted a photograph
of the victim taken at the crime scene. The defendant argues the photograph is
inflammatory, and its probative value was far outweighed by its prejudicial effect.
The admissibility of photographs lies within the sound discretion of the trial
court whose ruling will not be overturned on appeal except upon a clear showing
of an abuse of discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978);
see also State v. Stephenson, 878 S.W.2d at 542; State v. Bordis, 905 S.W.2d
214, 226 (Tenn. Crim. App. 1995). Nevertheless, the photographs must be
relevant to an issue at trial with its probative value outweighing any prejudicial
effect that it may have upon the trier of fact. State v. Braden, 867 S.W.2d 750,
758 (Tenn. Crim. App. 1993); State v. Jennifer Collins, C.C.A. No. 03C01-9704-
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CR-00143, Hamilton County (Tenn. Crim. App. filed March 3, 1998, at Knoxville).
We must, therefore, first determine whether the photograph was relevant.
Relevant evidence is 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.
The photograph showed the victim lying on the pavement of the Amoco
lot. The photograph was used by the state to corroborate the testimony of its
witnesses. In light of the evidence previously introduced, the admission of the
photograph of the victim presents a close question. Arguably, this information
could have been properly relayed to the jury with testimony rather than the
photograph. Although the photograph did show the victim’s blood on the
pavement, the trial court found that the photograph was not inflammatory. We
conclude there was no abuse of discretion by the trial court in admitting this
evidence.
Furthermore, even if the photograph was improperly admitted, its
admission constituted harmless error. Tenn. R. App. P. 36(b). It certainly was
not of the prejudicial magnitude of those utilized in State v. Jennifer Collins,
supra (numerous photographs of “bruised, bloodied, nude, infant victim”).
IMPROPER CLOSING ARGUMENT
The defendant’s final issue relates to alleged improper statements made
by the prosecutor in closing argument. The defendant claims the cumulative
effect of these arguments rendered his trial unfair.
A.
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The first argument said to have prejudiced the defendant concerned
alleged gang activity. The prosecutor stated:
Ladies and Gentlemen, Roy Tate died on July 24,
1995, because Samuel Howard is a wannabe. He’s a
gangster wannabe . . . He wanted to be a gang
member . . . Samuel Howard was more than glad,
that’s his possible initiation into a gang membership . .
.
The defense objected to this statement, and the trial court ruled there was no
indication that the murder was part of a gang initiation. The trial court then gave
the jury an instruction to disregard any comments about gang activities.
Although the prosecutor's remarks were improper, we must determine
whether the defendant was prejudiced. This Court has set out five factors which
must be considered in making the determination whether a prosecutor's
improper conduct could have affected the verdict to the prejudice of the
defendant. These factors are as follows:
1. the conduct complained of in light of the facts and
circumstances of the case;
2. the curative measures undertaken;
3. the intent of the prosecutor in making the improper remarks;
4. the cumulative effect of the improper conduct and any other
errors in the record; and
5. the relative strength or weakness of the case.
State v. Philpott, 882 S.W.2d 394, 408 (Tenn. Crim. App. 1994) (citing Judge v.
State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).
The trial court admonished the jury to disregard any comments about
gang activities. Jurors are presumed to follow the court’s instructions. Henley v.
State, 960 S.W.2d 572, 581 (Tenn. 1997); State v. Blackmon, 701 S.W.2d 228,
233 (Tenn. Crim. App. 1985).
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Based upon the above principles, we conclude the prosecutor’s remarks
did not affect the verdict to the prejudice of the defendant. Certainly, the
prosecutor’s reference to gang activities did not rise to the level condemned in
State v. William Charles Jones, C.C.A. No. 01C01-9512-CC-00402, Maury
County (Tenn. Crim. App. filed June 30, 1997, at Nashville) (numerous “gang”
references along with other inflammatory arguments).
This issue is without merit.
B.
The second prosecution argument alleged to have been improper
concerned the defendant’s partner, Cedric Solomon.
Ladies and Gentlemen, Mr. Anderson wants to know
why the state did not call Cedric Solomon. Why didn’t
they?
The prosecution made this rebuttal argument in response to the following closing
argument of the defendant’s counsel:
I submit to you that the state did not prove any intent
to rob on the part of Samuel Howard through a
witness that they could have put up there and who
might have cleared this entire thing up. Cedric
Solomon. Why didn’t they? Why didn’t they?
The defendant claims the prosecutor’s statement requires a reversal of his
conviction because it implied the defendant had a burden to put on proof. We
respectfully disagree.
The witness, Cedric Solomon, was equally available to testify for either
side. See generally State v. Middlebrooks, 840 S.W.2d 317, 334 (Tenn. 1992);
State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984). Defense counsel first raised
the issue of Solomon’s failure to testify in his closing argument, insinuating the
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state was hiding something by failing to call Solomon. The prosecutor countered
by stating the defense could have called Solomon.
Counsel for the defendant made an allegation that the state was
attempting to keep exculpatory information from the jury. Both sides had the
ability to procure Solomon’s testimony. We agree with the trial court’s ruling that
it was appropriate for the state to apprise the jury of that fact in light of the
defendant’s argument.
This issue is without merit.
CONCLUSION
After a review of the record and the briefs, we find no reversible error and
AFFIRM the judgment of the trial court.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
________________________
CURWOOD WITT, JUDGE
________________________
ROBERT W. WEDEMEYER,
SPECIAL JUDGE
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