State v. Michael Ware

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBE R SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9610-CR-00354
)
Appellee, )
) FILED
) SHELBY COUNTY
VS. ) November 14, 1997
) HON. CHRIS CRAFT
MICHAEL T. WARE, ) JUDGE Cecil Crowson, Jr.
Appellate C ourt Clerk
)
Appe llant. ) (Felony Mu rder)

ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

A. C. WHARTON JOHN KNOX WALKUP
Public Defender Attorney General and Reporter

WA LKER GW INN GEORGIA BLYTHE FELNER
Assistant Public Defender Assistant Attorney General
201 Poplar, Suite -01 425 5th Avenu e North
Memphis, TN 38103 Nashville, TN 37243

JOHN W. PIEROTTI
District Attorney General

AMY WEIRICH
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Street
Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 OPINION

The Defendant, Michael T. Wa re, was convicted by a Shelby Co unty jury

of one coun t of felony murde r.1 He was sentenced to life imprisonment. He

appe als his conviction raising one issue: Th at the e videnc e was legally

insufficient to suppo rt the verdict of guilt. As s ubparts to this issue , he asse rts

that the conviction was based on accomplice testimony without sufficient

corroboration and that the testimony of the accomplice was essen tially “bough t”

by the prosecution and violative of his due process rights. We affirm the

judgm ent of the tria l court.

On the evening of June 17, 1994, the victim in this case, Barry Watts, was

at his mother’s house repairing a broken taillight on her car around 5:00 or 6:00

p.m. He finished the job in approxim ately thirty minutes and then left in his car,

a Buick Regal. He telephoned his mother at approximately 10:00 p.m. and talked

with her.

That same evening, Florene Williams borrow ed her boyfriend , Henry

Clark ’s car, a 197 6 or 197 7 four-do or, blue an d white B uick LeS abre. She drove

the car to visit her friend, Deloris Wilson, at the Cedar Court Apartments on

Seven th Street in Memphis, Tennessee. She arrived there between 6:30 and

7:00 p.m. M s. W illiams was socializing, drinking and getting high on crack

cocaine. During the evening, Ms. Williams checked on her car two or three times

and saw the Defendant and “Sweet Pea” (Corey Hunter) hanging around. They

1
Tenn. Code A nn. § 39-13-202(a)(2).

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were agitating to get her car. When she was leaving to go back home, she got

in the vehicle and b egan to rem ove the “club” from the steering wheel. The

Defendant and Hunter approached the car with the Defendant on the driver’s side

and Hunter on the passenger’s side. They threatened Ms. Williams and hit her

on the sid e of the neck and fa ce with a bottle or club. She relinquished the

vehicle because she knew the Defendant had a gun. This was somewhere

between 8:00 and 10:00 p.m.

Ms. Williams returned to her friend’s apartment and stayed within the

complex that evening. She did not sleep. Ms. W illiams did n ot report th e theft

to the police although a pay telephone was nearby because she was afraid of the

Defen dant an d did not w ant to be s een ca lling the po lice.

Meanwhile, the Defendant and Hu nter dr ove the stolen vehicle aroun d until

it develop ed me chanica l problem s and sto pped ru nning. They pulled the car over

on Leath Stree t in front o f W illiam W alker’s hous e. Mr. W alker a nd his family

were sitting out in their yard and drinking beer at approximately 11:30 when he

saw two black males in the car. Mr. W alker knew the victim, Barry Watts, and

saw him pull his car up to the stalled vehicle. The s treetlight was dim, bu t Mr.

Walker saw the victim get out of his vehicle and appea r to help the two men. He

described both of them as six feet tall with slender builds and dark complexions.

One man looked like he had long “nappy” hair. It appeared that they first tried to

jump start the vehicle, then the two men got into the victim’s vehicle. One man

sat in the front passenger seat and the other g ot into th e bac k sea t. The victim

drove them awa y. Later, the stalled vehicle was identified as belong ing to Henry

Clark, wh o was initia lly a suspe ct.

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 Johnny Broady testified that on June 17, he got off from work at 5:00 p.m.

and was near his home at approximately 5:30 p.m. He saw the victim on Bethel

Street and th e victim stopp ed his car an d talke d to him . The v ictim g ave his

pager number to Broady. Broady and his friends, including a lady he was

entertaining, went to his home on Pearce Street at approximately 6:30 to 7:00

p.m. After about thirty minu tes, Broady pa ged the victim to b uy some crack

cocaine. The victim delivered the crack to Broady’s house at approximately 7:30

or 8:00 p.m. Broady paged the victim one more time at about 10:00 to 10:15 p.m.

to buy more crack.

The victim arrived on Pearce Street with the Defendant and Hunter in the

car with him. Broad y wanted the victim to com e in the hous e, but th e victim told

Broady to ride with them. Broady was reluctant because he would leave his

guests, but agreed to go with the victim. They headed towards Chelsea Street,

turned onto Fifth Street, and then stopped at Greenlaw Avenue to drop off the

Defendant and Hunter. The men had been talking about buying marijuana. They

pulled into the parking lo t at Joh nson ’s Mark et. Th e victim turned off his

headligh ts before rolling to a stop. Broady opened his door to get out and looked

back in. He saw the Defenda nt pull a gun, either a .45 caliber or 9 millimete r, on

the victim a nd told him to “drop it” , in othe r word s, to give the De fenda nt his

money and valuab les. Bro ady tes tified tha t Hunter nud ged h im an d held a gun

to his head an d likewise told him to “drop it.” Broady said h e didn’t have

anything. The Defendant fired the pistol at the victim. Broady jumped out of the

car and ran behind the market. He grabbed a pipe to protect himself and peeked

around the corn er to see if anyone was ch asing him .

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 He saw the brake lights go off and the front car door open. The victim fe ll

out of the car a nd the D efenda nt slid into the driver’s sea t. The ca r sped o ff,

heading east on G reenlaw Avenu e. Broady ran over to the victim alon g with

Darryl Pryor, who had seen the incident from his a partment. Bro ady did not stay,

but told Pryor where he could be found. Broady testified at trial that in a

statement to the police, he stated that he never really looked directly at the

Defendant becau se it was d ark in the ve hicle, but tha t he saw the Defe ndant’ s

face from the flash of the gun when it fired. He did not know the Defendant by

name at the time of the offense, but testified that he was positive that the

Defendant was th e individ ual who shot the victim. He had seen the Defendant

from a distance around his neighborhood. While on the stand, Broady described

the De fendan t’s hair as ha ving a jheri c url.

Darryl Pryor testified that he was sitting outside his apartment around

11:00 p.m. when he noticed a car approach and pull into the market. He noticed

the vehicle’s light go off before it cam e to a stop. He h eard a “pop ” and got

behind a tree. A lthough it is unclear whether before or after he heard the

gunsh ot, he saw a black male run from the vehicle. Afterwards, someone was

pushed out of the car. The vehicle pulled off and drove down Fifth Street. He

went to the victim, who was lying face down and breathing laboriously as if he

were suffocating. He s poke with Bro ady, who did not stay at the scene for long.

Pryor called 911.

Police officers arrived at 12:02 a.m and secured the scene. The Defendant

was dead when the paramedics arrived. Police recovered seven rocks of crack

cocaine in the vic tim’s navel. The medical examiner determined that the victim

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died as a res ult of a g unsh ot wou nd to th e arm which entere d his rig ht lung,

severed two major arteries and lodged in his left lung, causing severe bleeding.

The g un was fired within tw elve inche s from th e victim.

Corey Hunter, who was with the Defendant during the commission of the

crime, testified at trial. He stated that the Defendant lived in the Ce dar Court

Apartm ents and h e me t him there. They wanted to go to a teenager club called

380 Beale . They had n o trans portatio n and beca use it w ould take thirty minutes

to walk there, they wanted a car. He testified that Florene Williams let them use

the car in exchange for a rock of crack cocaine. They took the car and it broke

down on the way to Beale Street. A heavyset man w ith dark s kin sto pped to help

and checked unde r the ho od. W hen th ey dete rmine d the ve hicle co uld not be

revived, they asked for a ride. The victim agreed to take the m part o f the way to

Greenlaw Aven ue. Th e victim drove to Bro ady’s house and picked him up. The

victim pulled in an alley to drop them off when the Defendant pulled a gun and

told him to “Drop it off.” The victim said “Uh” because he was startled and the

Defendant shot him. The victim fell out of the car onto the street. The back door

was open and H unter wa nted to ge t out, but the Defen dant refu sed. They left the

car on Marb le Stree t, then w alked to Bea le Stre et. Th e vehic le foun d on M arble

Street was later identified as the victim’s. Hunter was afraid to leave the

Defendant because the Defendant had a gun. He finally left the Defendant after

they were on Bea le Street fo r a few m inutes.

Hunter was later arrested and gave a statement to police. After that, he

signed an affid avit that his prior statements implicating the Defendant were false.

He testified that th e affidavit wa s mad e at the be hest of the Defendant’s gang

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members, who had a ssaulted him in jail. Hunter did not repo rt the assa ult. The

affidav it stated that the police promised to let Hunter go if he implicated the

Defen dant. Hunter testified that the affidavit was false and that his statement

made to the police and his te stimon y in court wa s the truth.

Sergeant James Fitzp atrick te stified a t trial that h e took Core y Hun ter’s

statement at the police department. Fitzpatrick denied telling Hunter that he

would be relea sed if he identified the sh ooter.

The Defendant was convicted of first-degree felony murder com mitted in

the perpetratio n of a ro bbery and s enten ced to life imp risonm ent. In h is only

issue in this appe al, he contends that the evidence was insufficient to support the

verdict of guilt. When an accused challenges the sufficiency of the convicting

evidence, the standard is whether, after reviewing the evidence in the light most

favora ble to the pros ecution, a ny rationa l trier of fact could have found the

essential elements of the crime beyond a reaso nable d oubt. Jack son v. V irginia,

443 U.S. 307, 31 9 (1979 ). Questions concerning the credibility of the witnesses,

the weight and value to be given the eviden ce, as well as all factual issues raised

by the evidence, are resolved by the trier of fact, not this co urt. State v. Pappas,

754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevalua te the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 197 8).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strong est legitim ate

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view of the evidence and all inference s therefro m. Cabbage, 571 S.W.2d at 835.

Because a verdic t of guilt removes the presumption of innocence and replaces

it with a presump tion of guilt, the accused has the burd en in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913, 9 14 (Te nn. 198 2); Grace, 493

S.W.2d at 476.

A crime may be established by circumstantial evidence alone. State v.

Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). However, before an accused

may be con victed of a criminal offense based only upon circumstantial evidence,

the facts and circumstances “must be so strong and cogent as to exclude e very

other reaso nable hypoth esis sa ve the g uilt of the defenda nt.” State v. Crawfo rd,

225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other words, a “web of guilt

must be woven around the defendant from which he cannot escape and from

which facts and circumstances the jury could draw no other reasonable inference

save the guilt of the de fendant beyo nd a reaso nable doub t.” Id. at 484, 61 3.

After a careful review of the record, we find that the evidence proves that

the Defendant killed the victim during an attempt to rob him. However, the

Defendant argues that the conviction was based on accomplice testimony that

was not sufficiently corroborated. He asserts that Hunter was the only witness

who witn essed the crime and po sitively identified the Defe ndant.

It is well established in Tennessee that a defendant may not be convicted

solely upon the uncorroborated testimon y of an ac comp lice. See, e.g., State v.

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Bigbee, 885 S.W.2d 797, 803 (Tenn.1994). Such corroborating evidence "may

be direct or entirely circumstantial, and need not be adeq uate, in and o f itself to

suppo rt a convictio n," as long as it "legitima tely tends to connect the defendant

with the commission of the crime charge d." Bigbee, 885 S.W.2d at 803 (quoting)

State v. Gaylor, 862 S.W .2d 54 6, 552 (Ten n. Crim . App. 1 992). H owev er, "it is

not necessary tha t the corroboration extend to every part of the ac com plice's

evidenc e." Id. Also, the corroboration may be sufficient although "the evidence

is slight and entitled, when s tanding alone, to little co nsidera tion." Id. Whether

a witne ss' test imon y has b een s ufficien tly corrobo rated is a m atter entru sted to

the jury as th e trier of fact. Id.

Furthermore, the threshold question of whether the witness was an

accomplice must b e answ ered. An accom plice is one “who knowingly,

voluntarily, and with common intent unites with the principal offender in the

commission of a crime .” State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App.

1995). The test is whether the alleged accomplice can be indicted for the crime,

however, a defense of du ress or co ercion m ay be as serted. Id. Establishing

whethe r the witnes s is an ac comp lice is a que stion for the jury. Id.

W e believe that the evidence suggests that Hunter may have been an

accomplice to the crime. In particular, Broady testified that when the Defendant

pulled the gun on the victim, Hunter also pulled a gun and demanded that Broady

“Drop it off.” Having determined that Hunter was an accomplice, we address

whether there was su fficient corroboration of his tes timony. Although Hunter was

the only witness at the time the crime was committed who knew who the

Defendant was, other witnesses sufficiently placed the Defendant at the crime

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scene. Florene William s said the Defen dant took her b oyfriend’s ve hicle with

Hunter. That sam e vehicle was s een by W illiam Walker when it broke down.

Two black males, one with long hair, left the vehicle and got into the victim, Barry

W atts’, car. W alker kne w the victim and sa w the two get in his car. Johnny

Broady saw the victim driving h is vehicle with two passengers. He did not know

the Defendant’s name nor did he see him very well, but later identified the

Defendant as the man he saw in the car. Darryl Pryor saw a man get pushed out

of the car after he was shot. When he saw the man up close, he recognized him

as Barry W atts. Th e vehic le that w as ab ando ned o n Mar ble Street belonged to

the victim.

Although there is circumstantial evidence linking the Defendant to the

crime, we believe that it provides substantial corroboration of Hunter’s testim ony.

This other e videnc e legitim ately links the Defe ndan t to the c rime a nd cle arly

leads one to no other conclusion than that the Defendant committed the crime.

Obviously, the jury accredited the testimony of the State’s witnesses in rendering

its verdic t. W e will no t disturb the jury’s finding in this ap peal.

The Defendant also argues that Hunter’s testimony should have been

excluded because it was tain ted. H e argu es tha t the Sta te offere d Hun ter’s

freedom in exchange for testimony imp licating the Defen dant. He pro ffers

evidence that the State issued a nolle prosequi regarding Hunter after he testified

at the Defe ndant’s tria l. We first note that because the defend ant has failed to

cite authority to support his argument, this issue is waived. Tenn. Ct. Crim. App.

R. 10(b ); State v. Killebrew, 760 S.W .2d 228, 231 (Tenn. Crim . App. 1988 ).

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 Howeve r, even if we were to address this issue, we would conclude that

it lacks merit. While there is evidence that Hunter signed an affidavit stating that

the police prom ised th at he w ould not be prosecuted if he identified the

Defen dant, he exp lained that he was coerced into writing the statement by the

Defe ndan t’s gang members. Hunter denied that he was given an ything in return

for his testimony. Sergeant Fitzpatrick testified that he never made any offers of

leniency in exchange for implicating the Defendant. As this Court has noted:

It is generally recognized that a humble, contrite, and conscientious
repentant who 'throws himself upon the mercy of the court' usually fares
much better than d oes the adam ant accu sed wh o is adjud ged gu ilty
after a leng thy trial. W hile on e indic ted for c rime in the po sition of
cooperating with the government should not be threatened or assured
the court w ill grant fa vored treatm ent in return for his assistance, the re
is no prosc ription a gains t his ho ping th at his va luable help w ill result in
leniency.

Graves v. State, 489 S.W.2d 74, 87 (Tenn. Crim. App. 1972). Accordingly, we

conclud e that this iss ue is witho ut merit.

The judgment of the trial court is affirmed.

____________________________________
DAVID H. WELLES, JUDGE

CONCUR:

___________________________________
JOE B. JONES, PRESIDING JUDGE

___________________________________
JOE G. RILEY, JUDGE

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