State of Tennessee v. Alberto Conde-Valentino

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 19, 2016 Session

STATE OF TENNESSEE v. ALBERTO CONDE-VALENTINO

Appeal from the Criminal Court for Davidson County
No. 2012-C-2035 J. Randall Wyatt, Jr., Judge

No. M2015-01872-CCA-R3-CD – Filed October 4, 2016

The defendant, Alberto Conde-Valentino, appeals his Davidson County Criminal Court
jury convictions of felony murder and especially aggravated robbery, claiming that the
trial court abused its discretion by denying his motion for severance of co-defendants,
that the trial court erred by refusing to instruct the jury on accomplice testimony, and that
the evidence was insufficient to sustain his convictions. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Manuel B. Russ, Nashville, Tennessee (on appeal); and J. Michael Engle, Assistant
District Public Defender (at trial), for the appellant, Alberto Conde-Valentino.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Brian Ewald, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

The Davidson County Grand Jury charged the defendant and his two co-
defendants, Rodney Earl Jones and Xavier Tull-Morales, with felony murder and
especially aggravated robbery arising out of the robbery and fatal shooting of the victim,
Victor M. Parham. The trial court conducted a jury trial in February 2014.

The State‟s proof at trial showed that, in March of 2012, the victim
primarily resided with his girlfriend, Starnesha Grant, in Antioch but maintained his
apartment at 935 Allen Road in Donelson. According to Ms. Grant, the victim owned a
lawn-care business but also sold drugs, primarily marijuana and pills.
 Ms. Grant testified that the victim and Mr. Jones, a co-defendant, had been
roommates in the past and that Mr. Jones had been in the victim‟s presence when the
victim was carrying large sums of money:

It wasn‟t uncommon for [the victim] to have money, you
know, in several places when he was walking around, you
know, maybe in his shoes, in his pockets, so he has always
had, you know, he had money on him.

....

For I mean, drug dealing purposes, so if it was maybe
something that was about to come up he would have, you
know, extra money that you don‟t want to have, you know,
thousands of dollars just in your pocket, you want to kind of
have it spread out, that is for if he was to get stopped by, you
know, the police, or if somebody was to try to, you know, rob
him or anything.

When Ms. Grant left her residence between 8:00 and 8:15 on the morning
of March 14, 2012, the victim was asleep in the bed. Shortly after arriving at work, Ms.
Grant had to return home to retrieve a shirt, and the victim was still asleep.

Sometime prior to noon on March 14, one of the victim‟s closest friends,
Carlos Burroughs, contacted him and spoke with him on the telephone “for a little bit.”
During the conversation, the victim told Mr. Burroughs that “he had to run to the house,”
which Mr. Burroughs took to mean the Allen Road residence.

When Ms. Grant left work at 4:30, she stopped by the victim‟s Allen Road
apartment “to basically roll up some marijuana” and “relax.” Upon arrival, she noticed
that the car that the victim had been driving was parked by the residence with the
windows “cracked” but that the vehicle was unlocked, “which [was] very uncommon.”

It is always common for us to lock the cars, always
common to lock a car when you leave it, so which means that
would have just mean[t] to me that okay he just ran into the
house really quick and he was going to go right back down,
so I opened up the car trunk and put the remain[der] of the
marijuana I had gotten from a coworker from work in the
trunk of my car and it was like, and I texted him, was like
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 hey, you know, I‟m in the driveway.

....

Then when he didn‟t respond, I‟m like that‟s weird,
but the car is here and it is unlocked, let me go knock, knock
on the door, you know, so I went and knocked on the door at
that point.

Ms. Grant was “[v]ery concerned” when the victim did not come to the door. She
knocked “a couple more times,” then she left to attend a class in Mount Juliet. As she
was leaving, she thought she saw someone through the apartment window, and she
returned to the apartment, this time “banging” on the front door. When no one answered
the door, she left and went to class.

Ms. Grant returned to the apartment after her class ended at 8:30, and she
found it “very strange” that the victim‟s car, which was still unlocked with the windows
partially lowered, had not been moved and that there were no lights on inside the
apartment. Ms. Grant testified that the victim “always kept a light on.” Ms. Grant drove
to her residence, and when she was unable to reach the victim by telephone, she
contacted Mr. Burroughs and asked him to accompany her to the Allen Road residence.
Mr. Burroughs had also been attempting to reach the victim by telephone, to no avail.

When they arrived, the pair “banged on the door” and attempted to enter
through another door, but all doors to the apartment were locked. When Ms. Grant
returned home, the victim‟s brother, Darius Parham, contacted her because he had been
unable to reach the victim.

Early the following morning, Ms. Grant and Darius Parham returned to the
Allen Road apartment to find it in the same condition as it had been the previous evening.
Mr. Parham used an identification card to pick the lock to the victim‟s back door. Upon
entering the apartment, Mr. Parham immediately noticed a knife on the floor, and after
taking a few more steps, he encountered the victim‟s body. Ms. Grant described the
scene:

[W]e immediately s[aw] [the victim], just he was, uh, he was
laying there and on his stomach, um and we s[aw], um, a
knife on the floor, so we thought he was stabbed or
something, so when I – when I see him on the floor, I was
like DJ call 911, call, you know, call 911, and I was like, I
was trying to flip him over, he had his shoe off, just one shoe
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 though and I couldn‟t flip him over. I just remember
hollering out to DJ. I said, help me, help me, help me. I can‟t
– he is too heavy, I can‟t push him over. He‟s so – he‟s so
stiff.

Officers with the Metropolitan Nashville Police Department (“Metro”)
arrived on the scene on March 15. Upon entering the residence, Metro Officer Johnny
Lawrence observed that the victim‟s body “was partially against the front door,” and he
noticed “some blood and several shell casings.” Metro Officer Jeb Johnston testified that
the victim “was obviously deceased.” Metro Officer Lynette Mace photographed the
crime scene and collected evidence, including a cooler located in an upstairs bedroom
which contained $251 and “a baggie of an unknown substance.” Metro Officer John
Nicholson testified that he directed another officer, since retired, to process the two
vehicles at the residence and that the officer found several pill bottles which contained
oxycodone.

Metro Detective Jason Moyer collected video surveillance footage from the
Bar-B-Cutie restaurant located “on the corner of Donelson and Allen Road, near the
address of the incident.” Through Detective Moyer‟s testimony, the State introduced into
evidence still photographs taken from the restaurant‟s video surveillance footage which
showed a black sport utility vehicle (“SUV”) passing by at 11:56 a.m. and again at 1:39
p.m. on March 14, 2012.

Antwoine Jobe, a childhood friend of Mr. Jones, testified for the State,
admitting that he was facing federal narcotics and firearm charges and that he had prior
drug convictions as well. Mr. Jobe stated that he intended to plead guilty to the pending
charges and conceded that it was his understanding that he could potentially benefit in the
sentencing phase based on his cooperation in the instant case.

Mr. Jobe admitted that he was a “drug dealer” and that he sold marijuana
and cocaine. Mr. Jobe knew the victim, having grown up with him, and knew that the
victim “sold weed and pills.”

In March of 2012, Mr. Jones arrived at Mr. Jobe‟s residence in a black
GMC Yukon SUV sometime before noon. Mr. Jones mentioned that “he had his Little
G‟s with him,” and Mr. Jobe, who walked outside to see the men to whom Mr. Jones was
referring, saw the defendant and Mr. Tull-Morales seated in the SUV. Mr. Jobe stated
that he had seen the three men together on prior occasions.

Mr. Jobe returned to his apartment and gave Mr. Jones money for gasoline
and a small amount of marijuana, at which point Mr. Jones stated that “we fixin‟ to get
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ready to rob Little Vic.” Mr. Jobe knew that Mr. Jones was referring to the victim.
According to Mr. Jobe, Mr. Jones had mentioned the possibility of robbing the victim on
two prior occasions, telling Mr. Jobe that it would be easy and that the victim “was not
going to do nothing.” Mr. Jones had even invited Mr. Jobe to participate in the robbery
on prior occasions, but Mr. Jobe had declined and had counseled Mr. Jones against it.

Mr. Jones explained to Mr. Jobe that he had sold pills to the victim “a
couple of times in the past,” and that, on this occasion, he intended to act as “a middle
man” between a seller and the victim. Mr. Jones anticipated that the victim would have
$2,000 in cash to purchase the pills. Mr. Jobe spent 20 to 30 minutes counseling Mr.
Jones against the robbery, and when Mr. Jones left the apartment, Mr. Jobe believed that
Mr. Jones had changed his mind. Mr. Jobe even provided Mr. Jones with “some extra
drugs” and encouraged him “to go home, to just chill out.” At approximately 5:00 or
6:00 p.m. that same evening, Mr. Jones telephoned Mr. Jobe and stated, “„I should have
listened to you. Little Vic might be dead.‟” Mr. Jobe described Mr. Jones‟s demeanor at
that time as “nervous” and “[s]cared.”

The following day, Mr. Jobe picked up Mr. Jones at his residence; Mr. Jobe
had already heard that the victim had been killed. During their time together in the car,
Mr. Jones stated that “he met up with him and, uh, it went wrong.” Mr. Jones had a
small-caliber automatic handgun in his possession, which Mr. Jobe opined was “probably
like a .32 automatic or a little small .380 or something,” and Mr. Jones stated that he “had
to get rid of it.” Mr. Jobe would not permit Mr. Jones to place the gun inside the
glovebox, so as they were crossing a bridge on Old Hickory Boulevard, Mr. Jones tossed
the gun into the river. During this same car ride, Mr. Jones asked Mr. Jobe to provide
him with an alibi by saying that Mr. Jones had been working for him at the time of the
victim‟s murder, but Mr. Jobe declined.

Approximately one week later, Mr. Jones told Mr. Jobe that he “was going
to kill hisself [sic] at one point.” Mr. Jones also mentioned that he believed that Mr. Tull-
Morales had “said something to his girlfriend or he told somebody what is going on,”
which caused Mr. Jones to state that “[h]e was going to do something to him . . . [l]ike
kill him or something.” Mr. Jobe counseled against this course of action, encouraging
Mr. Jones to find a way to get Mr. Tull-Morales out of town. A few days later, Mr. Jones
contacted Mr. Jobe and told him that he had taken his advice and transported Mr. Tull-
Morales to Florida.

Iris Pinson testified that, in March of 2012, she was a neighbor of Mr. Tull-
Morales, and that, although she believed that he had a romantic interest in her, they were
only friends. Ms. Pinson saw Mr. Tull-Morales every day, and he and the defendant
would often come to her apartment to “hang out.” Although Ms. Pinson was acquainted
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with Mr. Jones and knew him to drive a large, black SUV and spend time with Mr. Tull-
Morales and the defendant, she had only seen him “maybe like 6 or 7 times.”

On an unspecified morning in March of 2012, the defendant, Mr. Tull-
Morales, and Mr. Jones came to Ms. Pinson‟s residence, and both the defendant and Mr.
Tull-Morales told Ms. Pinson that they intended to rob someone. Ms. Pinson recalled
that the defendant “was really excited and hyped” about the prospect of the robbery. Mr.
Jones “talk[ed] about what they were going to get from the robbery,” which was “[d]rugs
and money.” When the three men left Ms. Pinson‟s residence, Ms. Pinson saw that both
the defendant and Mr. Jones had guns “in plain view.” Mr. Tull-Morales told Ms. Pinson
that he, too, had a gun, but she “knew that he didn‟t have any money to buy a gun.”

Ms. Pinson saw the three men leave in Mr. Jones‟s black SUV. The men
returned to Ms. Pinson‟s home after it was dark outside. Ms. Pinson noticed that Mr.
Tull-Morales “had a lot of blood” on “his hands, on his shirt” and that he was in
possession of “a lot of money” and two “[b]aggies” of drugs, “one with some cocaine in
it and there was one with a bunch of pills in it.” The defendant had “a similar amount” of
blood to that of Mr. Tull-Morales on his shirt and hands, and the defendant “was really
nervous and shaky” and “kept saying that he was going to go to jail.” Mr. Jones “just had
a little blood on his hands and [it was] kind of smeared, but he wasn‟t like [Mr. Tull-
Morales] and [the defendant].”

Ms. Pinson testified about the events of the day as described by Tull-
Morales:

He told me that he waited in the car for a really long time and
then he told me that he went up the stairs and knocked on the
door and said that he had to go to the bathroom. He was let in
and he said that the couch was sitting this way and he said he
walked past [the victim] and got his attention and he shot
him. He said he blew his face off.

The defendant described the events to Ms. Pinson thusly:

He said he walked in – he walked up the stairs, knocked on
the door and was let in and he said, uh, he ran around the
couch and he was stabbed, I don‟t remember if he said [Mr.
Jones] or him did it, but he said that he stabbed him and he
said he unloaded on him.

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The defendant “threw up all over the place,” including “upstairs” in Ms. Pinson‟s
residence and “more than once off of the back porch.” According to Ms. Pinson, the
three men argued because the money and drugs had already been divided, and Mr. Tull-
Morales and the defendant believed that they “didn‟t get their fair share.”

With respect to Mr. Jones, Ms. Pinson recalled that he made the following
statements:

He, well, he said for us to keep our mouth shut about what
had happened, he told me to keep my mouth shut about what
is going on at the house whenever they got back and he said
that he didn‟t know what anybody was talking about
whenever, that he just pretended like nothing had happened.

Ms. Pinson made the three men leave her residence “as fast as [she] could.” Ms. Pinson
explained that she did not contact the police that night because she was “scared,”
explaining that she lived “in the middle of horrible projects by [her]self with [her] two
kids and [her] sister and they live right behind [her] and both of them have friends,
multiple friends there.” Ms. Pinson believed that “she would have been hurt with [her]
kids.”

A “couple of weeks” later, Mr. Tull-Morales was visiting Ms. Pinson, and
the two of them were watching the local news on television when pictures of the victim
and the outside of the victim‟s apartment appeared on the screen. Ms. Pinson
immediately realized that she knew the victim and had been to his apartment on prior
occasions, explaining that the victim had been “friends with [her] sister‟s boyfriend.”
When Ms. Pinson told Mr. Tull-Morales that she knew the victim, he told her “that he
was sorry and he . . . tr[ied] to apologize to” her.

Shortly thereafter, Mr. Tull-Morales went to Florida, telling Ms. Pinson that
“[h]e had shot [the victim] and he didn‟t want to go back to prison.” Approximately six
weeks later, Ms. Pinson contacted the police and told them everything she knew about the
victim‟s murder. At the behest of the police officers, she attempted a controlled
telephone call to Mr. Tull-Morales, but he did not answer the call. Two days later, using
a recording device given to her by the police, Ms. Pinson recorded a telephone
conversation with Mr. Tull-Morales, during which Mr. Tull-Morales reiterated that he
had “walked up the stairs, . . . he knocked on the door and said he had to go to the
bathroom, walked inside and shot him.”

Dejyitnu Gabru, the mother of Mr. Jones‟s girlfriend, testified that, in 2012,
she had registered for a family cellular telephone plan. One of the cellular telephones on
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that plan had the number 615-300-6009, which belonged to one of her grandsons who
was also Mr. Jones‟s son. Ms. Gabru later learned that Mr. Jones had been using that
particular telephone and telephone number. Ms. Gabru also stated that her daughter
owned a GMC Yukon, which Mr. Jones drove.

Metro Detective Andrew Vallee testified as an expert witness in the field of
cellular telephone record analysis and interpretation. Detective Vallee explained that
cellular antennas are strategically placed to provide customers with the best possible
cellular telephone reception. Cellular call records will indicate which antennas were used
during telephone calls, and the placement of those antennas indicates the general area in
which the call was placed:

Sprint records normally tell us the originating and the
terminating cell sites and what that means is when you press
the send button on your device it will log the cell site that you
are at at that point in time and then you drive around and stay
on the cell phone, when you press the end button on your
phone, that is the terminating si[t]e, that will also log that cell
site.

Upon examining the victim‟s, Mr. Jones‟s, and Ms. Grant‟s cellular
telephone records, Detective Vallee determined that the final transmission from the
victim‟s telephone occurred in a communication with Mr. Jones‟s telephone at 12:16 p.m.
on March 14, 2012, and that both telephones used the cellular tower near the victim‟s
apartment on Allen Road.

Through the victim‟s cellular telephone records, Metro Detective Andrew
Injaychock also analyzed the victim‟s cellular telephone records and determined that Mr.
Jones had called the victim “several times a day” leading up to March 14 but that after
that final 12:16 telephone call, Mr. Jones “never called him again.” With respect to the
black SUV, Detective Injaychock explained its connection to the victim‟s murder:

We had seen, well, one [Ms.] Pinson had mentioned that they
showed up at her house driving it; two, there were Facebook
photos of Mr. Jones and the other defendants posing near it;
and then we also saw the Bar-B-Cutie video of the GMC
driving at the time of the cell phone hitting off of the tower.

On May 20, 2012, Detective Injaychock located a black GMC Yukon at the home of Mr.
Jones‟s girlfriend. Through the aid of a Metro officer who spoke Spanish, Detective
Injaychock interviewed the defendant at some point, and the defendant denied knowing
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the victim or ever visiting the victim‟s apartment. The defendant did, however, admit
that he knew Mr. Tull-Morales and Mr. Jones, but he claimed that they “were just
acquaintances” and that they “did not hang out very often.”

Doctor Thomas Deering, the forensic pathologist who conducted the
victim‟s autopsy, determined that the victim had been shot six times and had died on
March 14 around noon. Doctor Deering opined that the most significant gunshot wound
entered the victim‟s left shoulder and struck his aorta, causing “a fatal wound.” Doctor
Deering believed that all six gunshot wounds were inflicted at approximately the same
time. Given the lack of soot or stippling on the victim‟s body, Doctor Deering opined
that the shots were fired from “more than two feet away.” Doctor Deering determined
that the cause of the victim‟s death was multiple gunshot wounds and that the manner of
death was homicide.

Special Agent Alex Brodhag with the Tennessee Bureau of Investigation
(“TBI”) testified as an expert in the area of firearms examination. Agent Brodhag
examined five .380 caliber cartridge casings collected from the crime scene and
determined that “all five had been fired in the same weapon.” In addition, Agent
Brodhag examined the four bullets recovered from the victim‟s body and one bullet
recovered from the crime scene and determined that all five “had been fired through the
same barrel.”

TBI Special Agent Chad Johnson testified as an expert witness in the field
of forensic biology. Agent Johnson analyzed deoxyribonucleic acid (“DNA”) swabs
collected from the crime scene and determined that a swab taken from “the hallway door
of the crime scene” matched the defendant‟s DNA profile.

With this evidence, the State rested. Following the trial court‟s denial of
the defendant‟s motion for judgments of acquittal and a Momon colloquy, neither the
defendant nor the two co-defendants elected to testify, and none chose to present any
proof.

Based on this evidence, the jury convicted the defendant as charged of first
degree felony murder in the perpetration of a robbery and especially aggravated robbery.
The trial court imposed a sentence of life imprisonment for the felony murder conviction,
and, following a sentencing hearing, the trial court imposed a concurrent sentence of 15
years for the especially aggravated robbery conviction, to be served at 100 percent by
operation of law. Following the denial of his timely motion for new trial, the defendant
filed a timely notice of appeal.

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 In this appeal, the defendant contends that the trial court erred by denying
his motion to sever co-defendants, that the trial court erred by refusing to instruct the jury
on accomplice testimony, and that the evidence was insufficient to support his
convictions. We will address each issue in turn.

I. Severance

The defendant first contends that the trial court abused its discretion by
denying his pretrial severance motion. Specifically, the defendant asserts that the
inculpatory out-of-court statements of his co-defendants violated his Confrontation
Clause rights, thus necessitating a severance.

“The grant or denial of a motion for severance of defendants is a matter that
rests within the sound discretion of the trial court, and [the reviewing court] will not
disturb the trial court‟s ruling absent clear abuse of that discretion.” State v. Dotson, 254
S.W.3d 378, 390 (Tenn. 2008) (citing Hunter v. State, 440 S.W.2d 1, 6 (Tenn. 1969);
State v. Burton, 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988)). “The test is whether or
not the defendant was clearly prejudiced in his defense by being jointly tried with his co-
defendant.” State v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000) (citing State
v. Wiseman, 643 S.W.2d 354 (Tenn. Crim. App. 1982)); see also Dotson, 254 S.W.3d at
390 (“The test to be applied . . . in determining whether the trial court abused its
discretion is whether the [d]efendant was „clearly prejudiced.‟” (quoting Hunter, 440
S.W.2d at 6)). “The record must demonstriate that „the defendant was clearly prejudiced
to the point that the trial court‟s discretion ended and the granting of [a] severance
became a judicial duty‟ before an accused is entitled to a reversal of his conviction.”
Burton, 751 S.W.2d at 447 (quoting Hunter, 440 S.W.2d at 6); see also State v. Price, 46
S.W.3d 785, 803 (Tenn. Crim. App. 2000).

The Sixth Amendment to the federal constitution and article I, section 9 of
the Tennessee Constitution afford the criminal accused the right to confront the witnesses
against him. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Although the
provisions are not coterminous, our supreme court “„has largely adopted the standards
used by the United States Supreme Court . . . in determining whether the Tennessee
constitutional right has been violated.‟” State v. Parker, 350 S.W.3d 883, 897-98 (Tenn.
2011) (quoting State v. Maclin, 183 S.W.3d 335, 343 (Tenn. 2006)); see also State v.
Lewis, 235 S.W.3d 136, 144 (Tenn. 2007).

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme
Court held that “[w]here testimonial evidence is at issue . . . the Sixth Amendment
demands . . . unavailability and a prior opportunity for cross-examination.” Crawford,
541 U.S. at 68. “Where nontestimonial hearsay is at issue, it is wholly consistent with the
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Framers‟ design to afford the States flexibility in their development of hearsay law.” Id.
In Crawford, the Court laid the groundwork for what came to be known as “the primary
purpose” test for distinguishing testimonial statements from non-testimonial statements.
The Court refined the test in later opinions:

Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822 (2006). The Court noted that objective
evaluation of “the circumstances of an encounter and the statements and actions of the
parties” is necessary to determine whether a statement is testimonial or non-testimonial.
Michigan v. Bryant, 562 U.S. 344, 360 (2011). If the hearsay statement is non-
testimonial in nature, then the declarant is not considered a witness as contemplated by
the Confrontation Clause, and the statement is admissible, subject to traditional hearsay
limitations. Davis, 547 U.S. at 822; State v. Lewis, 235 S.W.3d 136, 143 (Tenn. 2007).

In the instant case, the defendant complains of the admission of testimony
by both Mr. Jobe and Ms. Pinson:

In the case before the bar, Mr. Jobe testified to statements that
he was allegedly told by Mr. Jones that also implicated [the
defendant] as well as Mr. Jones himself. Particularly, he
stated that he intended to rob [the victim] and insinuated that
[the defendant] would participate with him when speaking to
Mr. Jones. . . . Similarly, Ms. Pinson testified that she heard
Mr. Tull-Morales and Mr. Jones each make statements, in the
presence of the other two co-defendants, that they intended to
commit a robbery and this, by association, implicated [the
defendant].

Here, Mr. Jobe‟s statements concerning Mr. Jones‟s plans to rob the victim
with the aid of Mr. Tull-Morales, a co-defendant, and the defendant and his later
statements that the victim had been killed were not “made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.” Crawford, 541 U.S. at 51-52. Similarly, the testimony
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of Ms. Pinson regarding the three defendants‟ statements about their robbery plans and
their later statements about the murder and robbery of the victim were not made “to
establish or prove past events potentially relevant to later criminal prosecution.” Davis,
547 U.S. at 822. These statements were all non-testimonial in nature and therefore did
not violate the rule announced in Crawford. Id.

Our conclusion that the statements do not run afoul of Crawford does not
end our inquiry in this instance because the statements at issue are those of a non-
testifying co-defendant. In Bruton v. United States, the Supreme Court held that
admission of a statement of a non-testifying co-defendant which expressly incriminates
the complaining defendant violates the complaining defendant‟s constitutional right of
confrontation. See Bruton v. United States, 391 U.S. 123, 126 (1968); see also U.S.
Const. amend. VI; Tenn. Const. art. 1, § 9; Smart v. State, 544 S.W.2d 109, 111-12
(Tenn. Crim. App. 1976). The Supreme Court revisited the issue in Richardson v. Marsh
and stated that Bruton was limited to those instances where the co-defendant‟s challenged
statement “„expressly implicat[ed]‟ the [complaining] defendant as his accomplice.”
Richardson v. Marsh, 481 U.S. 200, 208 (1987) (quoting Bruton, 391 U.S. at 124) (first
alteration in Richardson). The Court observed that the statement at issue in Richardson
“was not incriminating on its face, and became so only when linked with evidence
introduced later at trial.” Id.

The Court further refined the Bruton rule in Gray v. Maryland, where the
court confirmed that “Richardson placed outside the scope of Bruton’s rule those
statements that incriminate inferentially” but cautioned, however, that “Richardson must
depend in significant part upon the kind of, not the simple fact of, inference.” Gray v.
Maryland, 523 U.S. 185, 195-96 (1998). The Court found that the statement at issue in
Gray, which had been redacted so as to leave a blank in the space previously occupied by
Gray‟s name, “with the blank prominent on its face . . . „facially incriminat[es]‟ the
codefendant.” Id. (quoting Richardson, 481 U.S. at 208) (alteration in Gray). The Court
indicated that the use of a neutral pronoun might have saved the statement from being
inadmissible. Gray, 523 U.S. at 196-97. Several United States Courts of Appeal have
similarly concluded that a Bruton issue can be avoided by the use of a neutral pronoun in
place of the complaining defendant‟s name. See, e.g., United States v. Logan, 210 F.3d
820, 821–23 (8th Cir. 2000); United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir.
1999); United States v. Verduzco-Martinez, 186 F.3d 1208, 1214 (10th Cir. 1999); United
States v. Taylor, 186 F.3d 1332, 1335–36 (11th Cir. 1999).

Mr. Jobe‟s testimony that Mr. Jones said “we fixin‟ to get ready to rob
Little Vic” includes the neutral pronoun “we” and does not include a direct implication of
the defendant. That the “we” includes the defendant became clear “only when linked
with evidence introduced later at trial.” Richardson, 481 U.S. at 208. The statement
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inculpated the defendant only after Mr. Jobe testified that he saw the defendant and Mr.
Tull-Morales seated outside in the vehicle. Because this statement incriminated the
defendant only when linked with other evidence, it falls outside the scope of the Bruton
rule. Similarly, Ms. Pinson did not testify to any statement made by either co-defendant
that expressly implicated the defendant in the crimes. In consequence, her testimony
does not violate Bruton.

Moreover, federal courts have held that “Bruton is not violated where the
hearsay statement is otherwise admissible under” the co-conspirator hearsay exception.
United States v. Coco, 926 F.2d 759, 761 (8th Cir. 1991) (citing United States v. Bentley,
706 F.2d 1498, 1507 n.7 (8th Cir. 1983), cert. denied, 464 U.S. 830 (1983), and cert.
denied, 467 U.S. 1209 (1984); United States v. Kelly, 526 F.2d 615, 620-21 (8th Cir.
1975), cert. denied, 424 U.S. 971 (1976)); see also United States v. Bartle, 835 F.2d 646,
652 n.3 (6th Cir. 1987) (observing that Supreme Court case law has made it clear that co-
conspirator statements are “„firmly rooted‟ enough in our jurisprudence to assuage any
Bruton concerns”). “[O]utside of the co-conspirator exception to the hearsay rule (where
a statement is made during the course of the conspiracy and not after it has ended), the
Supreme Court has consistently concluded that the uncross-examined testimony of an
alleged co-conspirator is not sufficiently reliable to meet the requirement of the
Confrontation Clause.” United States v. Gomez-Lemos, 939 F.2d 326, 332 (6th Cir.
1991). “The Confrontation Clause is satisfied when the out-of-court statement in
question comes within a firmly rooted hearsay exception.” Coco, 926 F.2d at 761; see
also United States v. Mooneyham, 473 F.3d 280, 287 (6th Cir. 2007) (“Co-conspirator
statements in furtherance of a conspiracy are both inherently trustworthy and „firmly
rooted.‟”).

“„Hearsay‟ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). “Hearsay is not admissible except as provided by these
rules or otherwise by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide
exceptions to the general rule of inadmissibility of hearsay.

As our supreme court recently confirmed, “[t]he standard of review for
rulings on hearsay evidence has multiple layers.” Kendrick v. State, 454 S.W.3d 450, 479
(Tenn. 2015), cert. denied, No. 14A1098, 2015 WL 5032354 (U.S. Oct. 13, 2015). The
“factual and credibility findings” made by the trial court when considering whether a
statement is hearsay, “are binding on a reviewing court unless the evidence in the record
preponderates against them.” Id. (citing State v. Gilley, 297 S.W.3d 739, 759-61 (Tenn.
Crim. App. 2008)). “Once the trial court has made its factual findings, the next questions
– whether the facts prove that the statement (1) was hearsay and (2) fits under one the
exceptions to the hearsay rule – are questions of law subject to de novo review.”
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Kendrick, 454 S.W.3d at 479 (citing State v. Schiefelbein, 230 S.W.3d 88, 128 (Tenn.
Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App. 2005)); see
also Gilley, 297 S.W.3d at 760 (stating that because “[n]o factual issue attends” the trial
court‟s determination whether a statement is hearsay, “it necessarily is a question of
law”). “If a statement is hearsay, but does not fit one of the exceptions, it is inadmissible,
and the court must exclude the statement. But if a hearsay statement does fit under one of
the exceptions, the trial court may not use the hearsay rule to suppress the statement.”
Kendrick, 454 S.W.3d at 479; see also Gilley, 297 S.W.3d at 760-61.

With respect to the testimony of Ms. Pinson, she stated that the defendant
told her “that he was going to rob somebody,” and that, after the victim‟s murder, the
defendant told her “that he stabbed him and he said he unloaded on him” and that “he
knew he was going to jail.” These statements are clearly admissions by a party-opponent
and thus fall under an exception to the hearsay rule. See Tenn. R. Evid. 803(1.2)(A). Her
testimony about statements made by Mr. Tull-Morales and Mr. Jones – that they intended
to commit a robbery – not only did not implicate the defendant, but they were also clearly
statements made by co-conspirators “during the course of and in furtherance of the
conspiracy.” Tenn. R. Evid. 803(1.2)(E). Evidence admissible pursuant to the hearsay
exception for statements made in the course of or in the furtherance of a conspiracy is not
generally excluded by the Bruton rule. See, e.g., Coco, 926 F.2d at 761.

With respect to the testimony of Mr. Jobe, he stated that Mr. Jones arrived
at his apartment on a March morning and mentioned that “he had his Little G‟s with
him.” Mr. Jobe saw the defendant and Mr. Tull-Morales seated in Mr. Jones‟s vehicle.
Mr. Jones then told Mr. Jobe that “we fixin‟ to get ready to rob Little Vic.” The “we”
inferentially implicates the defendant in the robbery plans but was also subject to the co-
conspirator hearsay exception. See Tenn. R. Evid. 803(1.2)(E). Mr. Jobe testified that
Mr. Jones had attempted to recruit him on prior occasions to rob the victim. Although
Mr. Jones did not invite Mr. Jobe‟s participation on March 12, he stopped by Mr. Jobe‟s
apartment with the defendant and Mr. Tull-Morales to inform Mr. Jobe that they intended
to rob the victim, even explaining his plan to act as a middle man and telling Mr. Jobe the
amount of money that the victim had been instructed to have to make the false purchase.
Not long after leaving Mr. Jobe‟s apartment, the three men drove to the victim‟s
apartment, where they proceeded to rob and murder him. Without question, the statement
that Mr. Jones made to Mr. Jobe that “we fixin‟ to get ready to rob Little Vic,” was made
by a co-conspirator “during the course of and in furtherance of the conspiracy” to rob the
victim. Tenn. R. Evid. 803(1.2)(E). Because this hearsay statement “is otherwise
admissible” under the co-conspirator exception, no Bruton violation occurred. See Coco,
926 F.2d at 761.

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 Because the defendant has failed to establish a violation of Confronation
Clause rights under either the Crawford or Bruton rationales, nothing indicates that he
was “clearly prejudiced . . . by being jointly tried with his co-defendant[s].” Howell, 34
S.W.3d at 491. Accordingly, the trial court did not abuse its discretion by denying the
defendant‟s motion for severance.

II. Jury Instruction

The defendant next argues that the trial court erred by denying his request
to instruct the jury on accomplice testimony. Specifically, the defendant advanced the
theory that Mr. Jobe was an accomplice to the charged crimes because he knew of Mr.
Jones‟s planned robbery and assisted Mr. Jones in the disposal of his handgun. The State
responds that the defendant has waived our consideration of this issue by failing to
submit his requested jury instruction in writing. In his reply brief, the defendant counters
that a written instruction was not warranted because he was requesting the Tennessee
Pattern Jury Instruction on accomplice testimony and not a “special” instruction.

Tennessee Rule of Criminal Procedure 30 provides as follows:

At the close of the evidence or at such earlier time during the
trial as the court reasonably directs, any party may file written
requests that the court instruct the jury on the law as set forth
in the requests. The court may also entertain requests for
instructions at any time before the jury retires to consider its
verdict.

Tenn. R. Crim. P. 30(a)(1).

Without question, the defendant failed to submit a written request.
Regardless of whether he was required to submit his requested instruction in writing,
however, the trial court was under no duty to charge the jury on accomplice testimony
because it was not fairly raised by the evidence. See State v. Williams, 914 S.W.2d 940,
949 (Tenn. Crim. App. 1995); State v. McPherson, 882 S.W.2d 365, 374 (Tenn. Crim.
App. 1994). Mr. Jobe‟s involvement in the instant case, as noted by the trial court, was
limited to his “slow[ing] the car down while giving Mr. Jones a ride as they crossed the
river,” permitting Mr. Jones the opportunity to “thr[o]w the gun out the window.” This
evidence was clearly insufficient to support a finding that Mr. Jobe was an accomplice to
the murder and robbery of the victim, and thus, no such jury instruction was warranted.

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 III. Sufficiency

Finally, the defendant contends that the evidence adduced at trial was
insufficient to support his convictions. We disagree.

We review the defendant‟s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
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.
Id.

As charged in this case, felony murder is “[a] killing of another committed
in the perpetration of or attempt to perpetrate any . . . robbery.” T.C.A. § 39-13-
202(a)(2). “Especially aggravated robbery is robbery as defined in § 39-13-401 . . .
[a]ccomplished with a deadly weapon; and . . . [w]here the victim suffers serious bodily
injury.” T.C.A. § 39-13-403(a). “Robbery is the intentional or knowing theft of property
from the person of another by violence or putting the person in fear.” Id. § 39-13-401(a).

Moreover, “[a] person is criminally responsible as a party to an offense, if
the offense is committed by the person‟s own conduct, by the conduct of another for
which the person is criminally responsible, or by both.” T.C.A. § 39-11-401(a).
Additionally, criminal responsibility for the actions of another arises when the defendant,
“[a]cting with intent to promote or assist the commission of the offense, or to benefit in
the proceeds or results of the offense, . . . solicits, directs, aids, or attempts to aid another
person to commit the offense.” Id. § 39-11-402(2); see State v. Lemacks, 996 S.W.2d
166, 170 (Tenn. 1999) (“As reflected in this case, criminal responsibility is not a separate,
distinct crime. It is solely a theory by which the State may prove the defendant‟s guilt of
the alleged offense . . . based upon the conduct of another person.”). Under the theory of
criminal responsibility, the defendant‟s presence and companionship with the perpetrator
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of a felony before and after the commission of the crime are circumstances from which
the defendant‟s participation may be inferred. See State v. Watson, 227 S.W.3d 622, 639
(Tenn. Crim. App. 2006) (citing State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App.
1998)). “No particular act need be shown, and the defendant need not have taken a
physical part in the crime in order to be held criminally responsible.” Id.

Here, the proof adduced at trial established that the defendant and Mr. Tull-
Morales accompanied Mr. Jones to Mr. Jobe‟s apartment on a morning in March 2012,
arriving in a black GMC Yukon SUV; Mr. Jones often drove his girlfriend‟s black GMC
Yukon SUV. Mr. Jones informed Mr. Jobe that “we fixin‟ to get ready to rob” the
victim, something that Mr. Jones had discussed on prior occasions as well. Mr. Jones
explained that he planned to act as the middle man between the victim and the seller and
that the victim was expecting to purchase pills worth $2,000. Ms. Pinson described a
similar situation on a morning in March, when Mr. Tull-Morales, Mr. Jones, and the
defendant came to her apartment, and both the defendant and Mr. Tull-Morales told her
that they intended to rob someone of “[d]rugs and money.” When the three men left her
apartment, Ms. Pinson saw that both the defendant and Mr. Jones had handguns “in plain
view.”

On the morning of March 14, 2012, the victim was asleep in bed at Ms.
Grant‟s apartment in Antioch. Before noon, Mr. Burroughs spoke with the victim by
telephone, and the victim told Mr. Burroughs that “he had to run to the house.” Video
surveillance footage from the Bar-B-Cutie restaurant, which was located near the victim‟s
Allen Road residence, showed a black SUV passing by at 11:56 a.m. on March 14, 2012.
The final transmission from the victim‟s cellular telephone occurred in a communication
with Mr. Jones‟s telephone at 12:16 p.m. on March 14; both telephones used the cellular
tower located near the victim‟s residence. The Bar-B-Cutie surveillance footage showed
a black SUV drive by again at 1:39 p.m.

When Ms. Grant, Mr. Burroughs, and Mr. Parham attempted to contact the
victim later in the day, they were unable to reach him. Ms. Grant was very concerned
that the victim had left his vehicle unlocked and had left no lights on in his apartment,
which, she testified, was very unusual.

In the early evening hours of the same date on which Mr. Jones had visited
Mr. Jobe‟s residence and told him of the planned robbery, Mr. Jones called Mr. Jobe and
stated, “„I should have listened to you. Little Vic might be dead.‟” On the same date on
which the defendant and Mr. Tull-Morales told Ms. Pinson about the planned robbery,
the three men arrived at her apartment after dark. All three men had visible blood on
their clothes and hands, and Mr. Tull-Morales had “a lot of money” and two “[b]aggies”
of drugs, including cocaine and pills. Mr. Tull-Morales told Ms. Pinson that he walked
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into the victim‟s apartment, “got his attention and he shot him. He blew his face off”;
Mr. Tull-Morales reiterated this version of events in a recorded telephone call with Ms.
Pinson a few weeks later. The defendant also provided his version of events to Ms.
Pinson before he “threw up all over the place,” including “upstairs” in Ms. Pinson‟s
residence and “more than once off of the back porch”. The three men also argued over
the division of the drugs and money because Mr. Tull-Morales and the defendant
believed that they did not “get their fair share.”

The following morning, Mr. Jobe picked up Mr. Jones. Mr. Jobe had
already heard that the victim had been killed, and Mr. Jones stated that “he met up with
him and, uh, it went wrong.” During their time in the car, Mr. Jones threw a small-
caliber handgun into the river as the men were driving over a bridge. Mr. Jones asked
Mr. Jobe to provide him with an alibi for the time in which the victim had been
murdered, but Mr. Jobe refused.

On the morning of March 15, Ms. Grant and Mr. Parham broke into the
victim‟s residence and discovered his body on the floor near the front door. Doctor
Deering determined that the victim had been shot six times from “more than two feet
away” around noon on March 14, that the cause of death was multiple gunshot wounds,
and that the manner of death was homicide. Agent Brodhag, after analyzing the cartridge
casings and bullets recovered from the scene and the victim‟s body, determined that all
five casings had been fired from the same weapon and that all five bullets had been fired
through the same barrel. Although the defendant had denied to Metro officers that he had
ever met the victim or visited his apartment, DNA analysis revealed that a swab taken
from a door in the victim‟s apartment matched the defendant‟s DNA profile.

Taking all of this evidence into consideration, we find that the evidence
overwhelmingly supports the defendant‟s convictions of felony murder and especially
aggravated robbery. Although little indicated that the defendant was the victim‟s shooter,
the defendant‟s “presence and companionship” with Mr. Tull-Morales and Mr. Jones
both before and after the commission of this crime permit the inference of the defendant‟s
participation, Watson, 227 S.W.3d at 639 (citing Ball, 973 S.W.2d at 293), and, thus, the
defendant was criminally responsible for the acts of his co-defendants and is therefore
guilty of felony murder and especially aggravated robbery.

IV. Conclusion

Based upon the foregoing analysis, we affirm the judgments of the trial
court.

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 _________________________________
JAMES CURWOOD WITT, JR., JUDGE

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