State of Tennessee v. Jereme Dannuel Little , 2013 Tenn. LEXIS 309 ( 2013 )

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 4, 2012 Session
STATE OF TENNESSEE v. JEREME DANNUEL LITTLE
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Hamilton County
No. 253374 Rebecca J. Stern, Judge
No. E2009-01796-SC-R11-CD - Filed March 22, 2013
The defendant was charged with two counts of aggravated robbery and one count of
especially aggravated kidnapping. At the conclusion of the proof, the trial court granted the
defendant’s motion for a judgment of acquittal on the robbery charges. The jury found the
defendant guilty of especially aggravated kidnapping, for which he received an eighteen-year
sentence. On appeal, the defendant alleged that the trial court erred by failing to inform the
jury that he had been acquitted of the robbery charges, by prohibiting defense counsel from
mentioning the acquittals in closing argument, and by allowing the State to refer to the
robbery during its closing argument. The defendant also alleged that the trial court
committed error during jury instructions and that the cumulative errors denied him a fair trial.
The Court of Criminal Appeals affirmed the conviction. We affirm the judgment of the
Court of Criminal Appeals.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed
G ARY R. W ADE , C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
Jeffrey S. Schaarschmidt, Chattanooga, Tennessee, for the appellant, Jereme Dannuel Little.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
John H. Bledsoe, Senior Counsel (on appeal before the Supreme Court); Renee W. Turner,
Senior Counsel (on appeal before the Court of Criminal Appeals); William H. Cox, III,
District Attorney General; and Boyd M. Patterson, Jr., Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
I. Facts and Procedural History
On July 10, 1998, a robbery took place at the Hamilton County residence of Chris
Rogers. Over the next seven years, the robbery remained unsolved. In September of 2004,
Detective Bill Phillips of the Chattanooga Police Department, who had been assigned to
investigate cold cases, received a telephone call from a confidential informant, which led him
to further investigate the 1998 robbery. In an interview of Rogers, Detective Phillips learned
that the original incident report of the robbery was largely consistent with the information
provided by the confidential informant. In early 2005, Detective Phillips interviewed
Demetrius Grayson, who confessed to the 1998 robbery and implicated Jereme Little (the
“Defendant”) as his accomplice. Grayson also claimed that the Defendant had kidnapped
and tortured him after the commission of the robbery. The Defendant was eventually
charged with two counts of the aggravated robbery of the Rogers residence, and one count
of the especially aggravated kidnapping of Grayson.
At trial, Rogers testified that at approximately 1:00 a.m. on July 10, 1998, a man
knocked on his door and asked to speak with his son, Bruce Jackson, who was asleep in the
other room. Afterward, two men entered Rogers’ home and demanded “the dope and the
money.” When Rogers told the men that he did not have any drugs or money, the men
searched the residence. One held Rogers at gunpoint while the other gathered jewelry and
several items from a bedroom dresser. Rogers was forced to lie down in the bathtub, and a
blanket was placed over his head. Jackson was ordered to lie next to the bathtub for ten to
fifteen minutes. When the two men left, Rogers called 911 to report the robbery. He could
not identify either of the two robbers.
Jackson identified the robber who had knocked on Rogers’ door as Grayson,
explaining that he had gone to school with Grayson and knew his brother.1 He recalled that
after Grayson had asked to use the phone and was given a glass of water, a second man
entered the residence with a shirt pulled over his face. At that point, Grayson placed a gun
to Jackson’s head and demanded jewelry and money while the unidentified robber, also
armed, demanded the same from Rogers. When the robbers asked for drugs, Jackson insisted
they had none. Although Jackson identified Grayson, he could not identify the Defendant
as the second robber, even though he had known the Defendant during his youth. On cross-
examination, Jackson testified that he did not believe the Defendant was the second robber
because the body types and tones of voice did not match.
1
When the police conducted their initial investigation, Jackson identified one of the robbers as a
friend, but it is unclear why Jackson did not identify Grayson by his name at that time.
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Grayson, who admitted to having a lengthy criminal record, was in custody for his role
in the robbery at the time of the trial. A witness for the State, he contended that the
Defendant had the idea to rob the Rogers residence because he thought it was a “dope
house.” Grayson testified that he and the Defendant watched “constant[] in and out traffic”
over a period of weeks before making their plans. He recalled that on the night of the
robbery, he rang the doorbell, asked Rogers if he could speak with Jackson, and, when
Jackson brought Grayson a glass of water, the Defendant “stepped inside the house” with
“his shirt on his face.” Both Grayson and the Defendant possessed guns during the robbery.
According to Grayson, when Rogers and Jackson claimed that there was no money or drugs
in the house, he ordered Jackson to the floor while the Defendant ordered Rogers to the floor.
At that point, the Defendant tied Rogers with a phone cord and remarked, “[S]omebody
going to get busted tonight.” Grayson testified that he interpreted the statement to mean that
the Defendant intended to shoot someone if there were no money or drugs, and, when he saw
the Defendant take a blanket and escort Rogers to the bathroom, he ran from the house,
explaining that he wanted no “part of a murder, if there was going to be one.”
Grayson claimed that he tossed his gun away as he ran and attempted to use his cell
phone but could not get in touch with anyone. When he arrived at a grocery in East
Chattanooga, he encountered the Defendant, who called out from his car, threatening to shoot
Grayson if he tried to run. Grayson testified that the Defendant then drove him “to a crack
house on Davenport” (the “Davenport house”)2 and “pistol whipped” him “once or twice.”
He claimed that the Defendant tied him to a chair “in front of a couple of other guys and
tortured [him] for a couple of hours,” demanding to know why he had fled from the scene
of the robbery. According to Grayson, the Defendant forced him to “smoke some crack” and
“eat dog feces” during the ordeal. He contended that after a couple of hours, he escaped the
house by jumping from a window. Grayson acknowledged that he was incarcerated for an
unrelated aggravated robbery and a probation violation when he confessed to Detective
Phillips that he had participated in the 1998 robbery.
On cross-examination, Grayson stated that the Davenport house where he had been
tied up and tortured by the Defendant was rented by Lewis and Gabriel Buchanan (the
“Buchanan brothers”) in the name of an unknown “junkie.” Grayson, who had known the
Buchanan brothers since childhood, testified that they let him stay at the house when he did
2
There is conflicting testimony in the record as to the exact location of the house where the
Defendant took Grayson. Grayson testified that the house was on Davenport Street, Detective Phillips
initially reported the location as 2209 Wheeler Avenue, two defense witnesses testified that the house was
located at 2207 Wheeler Avenue, and several witnesses could only give a general location within the
neighborhood. The record indicates that the parties eventually agreed that the address of the house was 2207
Wheeler Avenue and that Davenport Street may have been the street behind the house.
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not have anywhere else to go. Grayson testified that he, the Defendant, the Buchanan
brothers, and “a few other guys” stayed at the house “off and on,” claiming that they all used
the house to deal in crack cocaine. Grayson stated that the Buchanan brothers were present
after he was tied up by the Defendant and that even though “there were other people walking
in and out,” no one offered assistance or called the police.
Kelvin Ellison, who had a lengthy criminal record, was incarcerated in federal prison
for a probation violation and an attempted aggravated robbery at the time of the trial. Also
called as a witness for the State, he testified that sometime in early 2005, while he was
incarcerated for other federal crimes, he was interviewed by Detective Phillips about the
1998 robbery. During the interview, portions of which were played on audiotape for the jury,
Ellison recalled that in the summer of 1998 he had gone to the Davenport house to see one
of the Buchanan brothers and, while he was there, saw “the dude . . . getting whooped.”
According to Ellison, “they were beating him, had the dog . . . stuff.” Ellison testified that
he told Detective Phillips that the Defendant, who was in the room where “the dude” was tied
to a chair, was responsible for the beating. He also told Detective Phillips that “the dude”
had dog feces “around his mouth and all on his clothes,” and that he thought the reason for
the beating had something to do with money or someone running off with something. At
trial, Ellison repeated the statement he had made to Detective Phillips in 2005 and identified
Grayson as “the dude” he saw tied to the chair. He remembered that the Defendant was
complaining loudly about “people running off on him and messing him over.”
Terna Hatten, who at the time of trial was incarcerated for aggravated assault and had
previously been incarcerated with Ellison in the Hamilton County Jail, testified on behalf of
the defense. He claimed that Ellison had approached him while they were in jail and asked
him to testify falsely against the Defendant to the effect that the Defendant had “robbed
[Grayson] and kidnapped him and supposedly made him eat dog doo doo or some old thing
like that.” Hatten further testified that during their conversation, Ellison had admitted that
an individual called “Two-Hype” had actually committed both the robbery and the
kidnapping.3 Hatten stated that although he had informed Ellison he would “get back with
him and let him know if [he] was wil[l]ing to cooperate,” he chose not to do so because
“it[ was] a lie” and he did not want to send someone “to prison for a tremendous amount of
time for something he didn’t do.” When asked on cross-examination if he had connections
to particular gang activity, Hatten denied his involvement. The State later introduced rebuttal
testimony challenging Hatten’s credibility.
3
Although Hatten did not know the real name of the individual referred to as “Two-Hype,” testimony
from other witnesses established that “Two-Hype” was Lewis Buchanan.
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Lesley Allen, who had a lengthy criminal history and was incarcerated at the time of
the trial, also testified for the Defendant. He claimed that he had learned about the
kidnapping incident from Grayson, who was his cousin. According to Allen, Grayson had
claimed that “Two-Hype” kidnapped him, took him back to a house, and made him smoke
crack and eat dog feces. On cross-examination, Allen admitted that during his incarceration
he was placed in a cell near an area where the Defendant was being held in isolation. The
State attempted to elicit testimony from Allen that he had previously told law enforcement
officers that the Defendant was the one who “held a gun to [Grayson’s] head, forced him to
eat dog feces and forc[ed] him to smoke crack,” but Allen continued to insist at trial that
Grayson had stated that “Two-Hype” committed the offenses. The State later introduced
rebuttal testimony attacking Allen’s credibility.
Johnny Carter, also a defense witness, testified that during the summer of 1998 he
resided at the Davenport “crack house,” where he was allowed to stay without paying rent
because he was a “customer.” Carter claimed that the Buchanan brothers and Grayson also
resided at the Davenport house, but insisted that the Defendant did not. Carter stated that he
would have been surprised to see the Defendant at the Davenport house because “he wasn’t
from that side of town.” He also contended that he had overheard Grayson and the Buchanan
brothers express a desire to kill the Defendant. According to Carter, Grayson and the
Buchanan brothers, during the summer of 1998, became involved in a heated argument after
Grayson took three ounces of crack cocaine from them. Although he left the house before
he witnessed anything, Carter speculated that the Buchanan brothers, who were “capable of
hurting” people, probably “beat [Grayson] down.”
Officer Gene Planer, a corrections deputy who worked for the Hamilton County Jail
while Ellison and the Defendant were both incarcerated there, was called as a defense
witness. He testified that on one occasion during visitation hours, Ellison became irate,
yelled profanities, and threatened to kill the Defendant when he entered the room. According
to the officer, the Defendant had not done anything to provoke Ellison. As a result of the
incident, Officer Planer prepared a disciplinary report against Ellison for threatening the
Defendant and using profanity.
The Defendant testified that he had merely “glanced at [Ellison] and looked the other
way,” but had not done anything to provoke Ellison’s outburst at the Hamilton County Jail.
He denied committing the 1998 robbery and claimed that he had never been to the Davenport
house where Grayson’s kidnapping took place. According to the Defendant, the Buchanan
brothers and Grayson wanted to kill him because he wore “the wrong color [shirt] in the
wrong place,” referring to their separate neighborhoods and possible gang affiliations. The
Defendant, who grew up on “the south side,” testified that if he had gone to the Davenport
house, which was on “the east side,” and tied Grayson to a chair or made him smoke crack
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cocaine and eat dog feces, and the Buchanan brothers had been there to witness the events,
they would have killed the Defendant or members of his family.
At the conclusion of the defense proof, in a jury-out hearing, the trial court granted
the Defendant’s motion for a judgment of acquittal on the two aggravated robbery charges
on the basis that Grayson was an accomplice in the 1998 robbery and that the State had not
provided the requisite corroboration of his testimony. Although there was testimony that
later connected Grayson and the Defendant to the Davenport house, the trial court considered
the testimony to be “after the fact” and not corroborative of the robbery itself. When the trial
court ruled that only the especially aggravated kidnapping charge would be submitted to the
jury, the State expressed its intention to refer to the testimony surrounding the 1998 robbery
during closing argument because the robbery had led to the kidnapping. Defense counsel
objected, arguing that the “problem is that the motive . . . for the alleged kidnapping is this
alleged robbery.” The trial court overruled the objection, permitted the State to refer to the
1998 robbery during closing argument, and instructed defense counsel not to mention the
acquittals during closing argument.
As to the two counts of aggravated robbery, the trial court instructed the jury as
follows: “I have removed these counts under this indictment from your consideration. You
are not to concern yourself with this or to speculate as to the reason why.” In another jury-
out hearing, defense counsel objected to this instruction and asked that the jury be told that
the State had not met the legal standard for accomplice corroboration. The trial court refused
to provide the explanation sought and chose to provide instructions as to especially
aggravated kidnapping, its lesser-included offenses, and criminal responsibility. Defense
counsel did not request, nor did the trial court provide, any limiting instruction as to the
purpose of the evidence related to the robbery charges. The jury returned a verdict of guilt
for especially aggravated kidnapping, and, later, the trial court imposed an eighteen-year
sentence.
On appeal, the Defendant contended that the trial court erred, first by failing to inform
the jury that he had been acquitted of the aggravated robbery charges; second, by prohibiting
defense counsel from mentioning the acquittals in closing argument; and third, by allowing
the State to refer to the 1998 robbery during its closing argument. The Defendant also
asserted that the trial court committed reversible error by its refusal to inform the jury of the
requirement of corroboration for accomplice testimony, and by providing instructions to the
jury as to criminal responsibility. As his final claim, the Defendant argued that the
cumulative errors denied him a fair trial. The Court of Criminal Appeals affirmed the
conviction, holding that any error by the trial court had no effect on the verdict. State v.
Little, No. E2009-01796-CCA-R3-CD, 2012 WL 8718, at *11 (Tenn. Crim. App. Jan. 3,
2012). While acknowledging the decision in State v. Holman, 611 S.W.2d 411 (Tenn. 1981),
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which disallowed evidence—tending to show common scheme or plan—of a prior charge
in a subsequent trial with similar facts because Holman had been acquitted of the prior
charge, the Court of Criminal Appeals held that the Defendant’s “contemporaneous
acquittal” of the robbery charges did not preclude the use of the testimony about the 1998
robbery to establish the Defendant’s motive for the kidnapping of Grayson. Little, 2012 WL
8718, at *9-10 (“Assuming for purposes of argument that a partial acquittal in a joint trial
even has the same effect as a prior acquittal for purposes of applying Holman, we are
unpersuaded that the evidence of motive should be viewed as improper in the present case.”).
II. Analysis
We granted the Defendant’s application for permission to appeal to consider whether
the trial court erred by failing to inform the jury that it had acquitted the Defendant of two
of the three criminal charges for which he had been indicted. The Defendant urges us to
either apply the rule from Holman or adopt the rule followed in Rhode Island, which allows
the introduction of evidence of a prior charge for which a defendant was acquitted but
requires the trial court to inform the jury of the acquittal. See State v. Andujar, 899 A.2d
1209, 1219-22 (R.I. 2006); State v. Bernier, 491 A.2d 1000, 1005-06 (R.I. 1985). In
response, the State submits that because acquittals based on insufficient corroboration of an
accomplice’s testimony are not the equivalent of acquittals based on a not guilty verdict, the
trial court was not required to inform the jury that a judgment of acquittal had been entered
on the robbery charges.
A. Preliminary Considerations
The Court of Criminal Appeals properly observed that because the Defendant did not
seek separate trials for the robbery charges and the kidnapping charge, whether the charges
should have been severed is not at issue. Little, 2012 WL 8718, at *6; see Tenn. R. Crim.
P. 13, 14. At oral argument, defense counsel explained that because the trial court surely
would have denied a motion to sever, none was filed. For years, this Court has consistently
held that the prejudicial effect of other crimes evidence typically warrants a severance. See,
e.g., State v. Dotson, 254 S.W.3d 378, 387-89 (Tenn. 2008); Spicer v. State, 12 S.W.3d 438,
446-47 (Tenn. 2000); State v. Moore, 6 S.W.3d 235, 239-40 (Tenn. 1999). Our rules of
procedure require trial courts to carefully consider the risk of prejudice in proceedings
involving multiple charges. See Tenn. R. Crim. P. 14(b)(1) (providing that when offenses
involve permissive joinder, “the defendant has the right to a severance of the offenses unless
the offenses are part of a common scheme or plan”); Tenn. R. Crim. P. 14(b)(2)(A)
(providing that when offenses involve mandatory joinder, “the court shall grant a severance
of offenses . . . when the court finds a severance appropriate to promote a fair determination
of the defendant’s guilt or innocence of each offense” (emphasis added)). Notwithstanding
the Defendant’s failure to request a severance of offenses prior to trial, the court did, after
the close of the proof, grant the Defendant a judgment of acquittal as to the robbery charges,
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which essentially resulted in a severance of the offenses at that time. Even then, however,
the Defendant did not move to strike the evidence related to the robbery charges.4 As noted
by the Court of Criminal Appeals, after the trial court entered the judgments of acquittal, the
Defendant “could have, and should have, moved to strike any evidence related to the
robber[y].” Little, 2012 WL 8718, at *6. In any event, because he failed to seek a severance
or move to strike, the Defendant now cannot complain of the introduction of proof related
to the robbery charges.
Similarly, the Defendant may not now complain that the trial court, after granting the
judgments of acquittal, failed to provide limiting instructions as to the proof related to the
robbery charges. Although evidence of other crimes, wrongs, or acts is not admissible to
establish a defendant’s propensity to commit the crime for which he or she is on trial, there
are exceptions to this general rule. See Tenn. R. Evid. 404(b) (“Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show action
in conformity with the character trait. It may, however, be admissible for other purposes.”).
Under certain circumstances, proof of other crimes may be admissible to establish motive,
intent, identity, absence of mistake, or common plan or scheme. See Bunch v. State, 605
S.W.2d 227, 229 (Tenn. 1980). Moreover, this Court has expanded the list of exceptions to
include a limited amount of other crimes evidence when necessary to provide a “contextual
background.” See State v. Gilliland, 22 S.W.3d 266, 271 & n.6 (Tenn. 2000) (noting that if
evidence of a prior crime is relevant to an issue other than character and is not unduly
prejudicial, the evidence may be admissible to “paint a picture” of the events leading up to
the charged offense).
Upon request, the trial court should conduct a jury-out hearing to determine whether
evidence of other crimes is admissible under Rule 404(b). Even when such evidence is
admissible, however, trial courts should, when asked to do so, “restrict the evidence to its
proper scope and instruct the jury accordingly.” Tenn. R. Evid. 105; see also State v. Howell,
868 S.W.2d 238, 255 (Tenn. 1993) (“[L]imiting instructions are critical in preventing the
improper and prejudicial use of proof of other crimes.”). In this instance, because the
robbery and kidnapping charges were consolidated at the joint trial, the trial court did not
conduct a Rule 404(b) hearing. Nevertheless, the Defendant, after being acquitted of the
robbery charges, could have requested an instruction limiting the jury’s consideration of the
evidence of the 1998 robbery to either motive or contextual background. Instead, the
Defendant simply objected to any argument by the State that “the motive for the alleged
4
See Tenn. R. Evid. 103(a)(1) (“Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one admitting
evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection
if the specific ground was not apparent from the context.”).
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kidnapping [wa]s th[e] alleged robbery.” The blame for the failure to either seek a limiting
instruction or present the issue in his motion for a new trial “must be laid at the [D]efendant’s
feet.” Laird v. State, 565 S.W.2d 38, 40 (Tenn. Crim. App. 1978); see also Tenn. R. App.
P. 3(e) (“[I]n all cases tried by a jury, no issue presented for review shall be predicated upon
error in . . . jury instructions granted or refused . . . unless the same was specifically stated
in a motion for a new trial.”).5
In summary, the Defendant had the opportunity to either soften or altogether avoid the
potential prejudice associated with other crimes evidence, but did not do so. Instead, the
Defendant “took the [road] less traveled by, [a]nd that has made all the difference.” Robert
Frost, The Road Not Taken, in Mountain Interval 9, 9 (1916).
B. Evidence of the Acquittals
The Defendant contends that the trial court erred by failing to inform the jury of his
acquittals on the robbery charges, by prohibiting the Defendant from making reference to the
acquittals during closing argument, and by allowing the State to refer to the 1998 robbery
during its final argument. The core issue, however, is whether the trial court erred by failing
to inform the jury that the Defendant had been acquitted of the robbery charges.
Rule 29 of the Tennessee Rules of Criminal Procedure provides as follows:
Grounds for Judgment of Acquittal—On defendant’s motion or its own
initiative, the court shall order the entry of judgment of acquittal of one or
more offenses charged in the indictment, presentment, or information after the
evidence on either side is closed if the evidence is insufficient to sustain a
conviction of such offense or offenses.
Tenn. R. Crim. P. 29(b). “This rule empowers the trial judge to direct a judgment of acquittal
when the evidence is insufficient to warrant a conviction either at the time the [S]tate rests
or at the conclusion of all the evidence.” State v. James, 315 S.W.3d 440, 455 (Tenn. 2010)
(citing Overturf v. State, 571 S.W.2d 837, 839 & n.2 (Tenn. 1978)). When a motion for a
judgment of acquittal is made at the conclusion of the State’s evidence and is not granted,
“the defendant may offer evidence without having reserved the right to do so.” Tenn. R.
Crim. P. 29(c). When the motion is made at the conclusion of all the evidence, the trial court
may render its decision on the motion before the jury returns a verdict, after the jury returns
a verdict, or after the jury is discharged without having returned a verdict. Tenn. R. Crim.
P. 29(d). “At the point the motion is made, the trial court must favor the opponent of the
5
Although the Defendant filed two motions for a judgment of acquittal or a new trial, neither motion
included as grounds for relief the trial court’s failure to provide a limiting instruction.
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motion with the strongest legitimate view of the evidence, including all reasonable
inferences, and discard any countervailing evidence.” James, 315 S.W.3d at 455 (citing Hill
v. State, 470 S.W.2d 853, 858 (Tenn. Crim. App. 1971)).
The standard by which the trial court determines a motion for a judgment of acquittal
is, in essence, the same standard that applies on appeal in determining the sufficiency of the
evidence after a conviction. State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998);
State v. Anderson, 880 S.W.2d 720, 726 (Tenn. Crim. App. 1994). That is, “whether, after
viewing 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.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e). A trial court’s
determination of a motion for a judgment of acquittal raises a question of law. State v. Hall,
656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). In resolving this question, the trial court’s only
concern is the legal sufficiency of the evidence. Id.
Evidence is insufficient to sustain a conviction if it is solely based upon the
uncorroborated testimony of accomplices. Sherrill v. State, 321 S.W.2d 811, 814-15 (Tenn.
1959); Prince v. State, 529 S.W.2d 729, 732 (Tenn. Crim. App. 1975). An accomplice is
defined as a person who knowingly, voluntarily, and with common intent with the principal
unites in the commission of a crime. Clapp v. State, 30 S.W. 214, 216 (Tenn. 1895); Letner
v. State, 512 S.W.2d 643, 647 (Tenn. Crim. App. 1974). The rule is that there must be some
fact testified to which is entirely independent of an accomplice’s testimony; that fact, taken
by itself, must lead to an inference that a crime has been committed and that the defendant
is responsible therefor. State v. Fowler, 373 S.W.2d 460, 463 (Tenn. 1963); see also
Hawkins v. State, 469 S.W.2d 515, 520 (Tenn. Crim. App. 1971) (“[I]ndependent
corroborative testimony must also include some fact establishing the defendant’s identity.”).
This requirement is met if the corroborative evidence fairly and legitimately tends to connect
the accused with the commission of the crime charged. Marshall v. State, 497 S.W.2d 761,
765-66 (Tenn. Crim. App. 1973). Only slight circumstances are required to furnish the
necessary corroboration. Garton v. State, 332 S.W.2d 169, 175 (Tenn. 1960). To be
corroborative, the evidence need not be adequate in and of itself to convict. See Conner v.
State, 531 S.W.2d 119, 125 (Tenn. Crim. App. 1975).
Because the proof established that Grayson was an accomplice in the 1998 robbery,
the State was required to introduce corroborative evidence of his testimony, as the two
victims of the robbery could not identify the Defendant. Because no other evidence
connected the Defendant to the 1998 robbery, the trial court properly granted the Defendant’s
motion for a judgment of acquittal as to the robbery charges. Afterward, the trial court
refused to permit any reference to the acquittals, instructing the jury to disregard the robbery
charges, but allowing the State to argue that Grayson’s flight from the scene of the robbery
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could be considered as the Defendant’s motive for the kidnapping.
The Defendant first argues that we should apply the holding in State v. Holman, 611
S.W.2d 411 (Tenn. 1981), to the circumstances of this case. In Holman, which involved theft
of a watch, the trial court permitted the State to introduce evidence that Holman had
previously stolen a watch from another victim under similar circumstances, but did not
permit Holman to introduce proof that he had been tried and acquitted of that crime. Id. at
412. This Court reversed, broadly holding that “evidence that [Holman] committed an
alleged crime other than that for which he is on trial should not be admitted when he has been
acquitted of such alleged other crime.” Id. at 413 (emphasis added) (“[I]f [a] defendant has
been acquitted of the alleged prior crime, proposed evidence that he committed such prior
crime should not be admitted.”). More recently, our Court of Criminal Appeals described
the Holman rule as follows: “[E]vidence of a crime for which the defendant was acquitted
can never be admissible as evidence of a prior crime in a trial, despite its relevance on issues
other than propensity.” State v. Shropshire, 45 S.W.3d 64, 75-76 (Tenn. Crim. App. 2000).
As stated, the evidence of the Defendant’s participation in the robbery was presented
as part of the consolidated charges and, as such, was not evidence of “an alleged crime other
than that for which [the Defendant] [wa]s on trial.” According to the Defendant, however,
application of “[t]he Holman rule in this . . . situation would have prevented the State from
arguing the [Defendant] had committed the aggravated robberies, and acted as [an
appropriate safeguard] against the State using unfairly prejudicial prior bad acts.” We
disagree. We need not apply Holman to determine whether the trial court, in this instance,
erred by failing to inform the jury that the Defendant had been acquitted of the robbery
charges. In Holman, the prior crime evidence was offered at a subsequent trial on a separate
charge, under what today would be governed by Rule 404(b) of the Tennessee Rules of
Evidence. These circumstances are different. Here, the evidence was properly admitted in
a joint trial. After the Defendant was acquitted of the robbery charges, he did not move to
strike the evidence of the robbery pursuant to Tennessee Rule of Evidence 103(a)(1), nor did
he ask the trial court to apply the standards of Tennessee Rule of Evidence 404(b) to
determine whether the State would be allowed to argue the facts of the 1998 robbery to show
motive for the kidnapping. In consequence, our primary concern is whether the trial court
erred by failing to inform the jury that the Defendant was acquitted of the robbery charges
after the evidence of the robbery had already been admitted in a trial involving consolidated
charges.
As observed by the Court of Criminal Appeals, the rule established in Holman was
not designed to apply to “a partial acquittal in a joint trial.” See Little, 2012 WL 8718, at *9-
10. First, because the Defendant did not seek a severance of the charges in this instance, the
trial court did not have the opportunity to address Tennessee Rule of Evidence 404(b). As
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a result, we are not faced with prior crime evidence that could have been excluded prior to
the commencement of this trial based on the fact of a prior acquittal. Second, the Court in
Holman addressed the introduction of evidence of a prior crime for which a defendant had
been acquitted after the State failed to prove guilt beyond a reasonable doubt. Holman, 611
S.W.2d at 413; see Shropshire, 45 S.W.3d at 75 n.7 (questioning the applicability of the
Holman rule depending upon the reason for the acquittal).6 Finally, the issue of whether a
jury should be informed that a defendant has been acquitted of an offense for which he or she
is on trial, after the jury has already heard evidence of the offense as part of the consolidated
trial, is one of first impression in Tennessee.
As an alternative to Holman, the Defendant urges us to adopt the rule followed in
Rhode Island, which allows the introduction of evidence of a charge for which a defendant
was acquitted but requires the trial court to inform the jury of the acquittal. See State v.
Andujar, 899 A.2d 1209, 1219-22 (R.I. 2006); State v. Bernier, 491 A.2d 1000, 1005-06 (R.I.
1985). Like the holding in Holman, however, the Rhode Island rule has been applied in the
context of whether evidence of a prior crime for which the defendant has been acquitted is
admissible in a subsequent trial on other charges. Andujar, 899 A.2d at 1219; Bernier, 491
A.2d at 1005. Thus, the Rhode Island rule is simply a different approach to the same
problem that was considered in Holman. While we recognize that the holding in Holman
represents a minority rule among the states,7 we choose not to revisit Holman until the issue
6
In a recent opinion, the United States Supreme Court held that, for purposes of double jeopardy,
a mid-trial acquittal granted by the state trial court, based on a “misconstruction” of a statute, precluded
retrial of the defendant even though the trial court’s basis for the acquittal was erroneous. Evans v.
Michigan, No. 11-1327, 2013 WL 610197, at *3 (U.S. Feb. 20, 2013). In that case, while treating bench
acquittals the same as jury acquittals for double jeopardy purposes, the Court did not address the issue that
was presented in Holman—what effect a prior acquittal based on a jury verdict of not guilty may have on
the admission of the prior crime evidence in a subsequent trial of similar charges—or the issue that is now
before us—whether the fact of a partial, mid-trial acquittal by the trial court, based on the State’s failure to
corroborate accomplice testimony, should be communicated to the jury during the consolidated trial of the
remaining charges. Here we are not faced with the preclusive effect of acquittals in the context of a double
jeopardy analysis, and the question of whether different types of acquittals may have different effects on the
admission of prior crime evidence remains undecided. We simply note that neither the Holman rule nor the
Evans rule is applicable to the circumstances of this case.
7
See Shropshire, 45 S.W.3d at 76 n.8 (citing Holman, 611 S.W.2d at 413 (Fones, J., dissenting)).
Many jurisdictions have considered whether evidence of a prior crime is admissible at a subsequent trial even
though the defendant was acquitted of the prior crime, and, if such evidence is admissible, whether the
defendant is permitted to inform the jury of the prior acquittal. Our research indicates that three states and
some federal circuit courts have held that the prosecution may introduce evidence of other crimes, but the
defendant is not permitted to offer proof of his acquittal of such crimes. Three states and most federal circuit
courts have held that while evidence of a prior crime is admissible, the defendant may or may not be allowed
(continued...)
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is squarely before us.
The only question that must be resolved in this instance is whether, in a trial involving
multiple charges, a jury should be informed that a defendant has been acquitted of some but
not all of the charges, after the proof of a dismissed charge or charges has already been
presented to the jury. Our reasoning in State v. Turner, 352 S.W.3d 425 (Tenn. 2011), is
instructive. Turner, who had been indicted for first degree murder, argued at his trial that
two other men, who previously had been tried and acquitted of the same murder, had actually
committed the crime. Id. at 426. Turner filed a motion in limine to prevent the State from
introducing evidence of the prior acquittals of the other men, arguing that the acquittal
evidence “was irrelevant because a finding of ‘not guilty’ indicates only that the State did not
meet its burden of proof, not that [the other two men] were innocent of the charges.” Id. at
427. After the trial court denied the motion, thereby permitting the State to present evidence
that the previous defendants had been acquitted, the jury convicted Turner of facilitation of
murder. Id. On appeal, the Court of Criminal Appeals reversed, holding that the evidence
of the acquittals was irrelevant. Id. at 428. After concluding that the acquittals did not make
it more or less probable that the other men committed the murder, we affirmed, explaining
that “[a]n acquittal is not evidence of innocence but rather evidence of the failure of the State
to prove guilt of a defendant beyond a reasonable doubt.” Id. at 430 (citing Tenn. R. Evid.
401).
After granting the Defendant’s motion for a judgment of acquittal, the trial court
rejected the Defendant’s request to explain to the jury the legal basis for the dismissal of the
robbery charges. During a jury-out hearing, the following exchange took place:
THE COURT: I don’t explain to them my rulings on evidence. . . . I don’t
explain my legal rulings to the jury.
7
(...continued)
to prove his acquittal of the prior crime. Five states have adopted a rule similar to that in Holman, which,
if read broadly, would never allow the introduction of evidence of a prior crime for which the defendant was
acquitted. Sixteen states, such as Rhode Island, have held that when evidence of other crimes for which the
defendant was acquitted is admissible in a trial, the defendant must be allowed to introduce evidence of his
acquittals. See Christopher Bello, Annotation, Admissibility of Evidence as to Other Offense as Affected
by Defendant’s Acquittal of That Offense, 25 A.L.R. 4th 934 (1983).
Of course, Tennessee is different from most state and federal jurisdictions that evaluate the
admissibility of prior crime evidence by a preponderance of the evidence standard, while our Rule of
Evidence 404(b) employs a clear and convincing standard. Again, however, these issues are best left for
another day when the viability of the Holman rule and the admissibility of evidence of a prior crime for
which the defendant was acquitted are properly presented for review.
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[DEFENSE COUNSEL]: But the fact is, . . . he’s been acquitted on these
charges.
THE COURT: So. They’re not supposed to have anything to do with that.
[DEFENSE COUNSEL]: But the problem is that the motive, the motive for
the alleged kidnapping is this alleged robbery.
THE COURT: Yes. But he’s been acquitted not because he didn’t do it.
In our view, the trial court considered the acquittals as irrelevant, just as we ruled in Turner.
While not mentioning Turner, the Court of Criminal Appeals distinguished Holman
and found that the trial court erred by failing to inform the jury of the acquittals, but as
indicated, concluded that the error was harmless. Little, 2012 WL 8718, at *7; see Tenn. R.
App. P. 36(b). Although we have also distinguished the Holman decision, we find that the
trial court’s refusal to inform the jury that the Defendant had been acquitted of the
aggravated robbery charges for lack of corroboration of accomplice testimony was not
erroneous.
While declining to explain the basis of its ruling, the trial court did inform the jury that
the robbery charges had been removed from the indictment and directed the jury not to
speculate as to the reasons for their removal. The State is entitled to the presumption that the
jury followed the instructions of the trial court. State v. Odom, 336 S.W.3d 541, 562 (Tenn.
2011). While an appropriate instruction limiting consideration of evidence of the robbery
to possible motive for the kidnapping may have been preferable, the Defendant did not make
any such request and the trial court is under no obligation to issue a limiting instruction sua
sponte. See State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000).8
In summary, the trial court did not err by failing to inform the jury that the Defendant
had been acquitted of the robbery charges after those charges were dismissed at the
conclusion of all the proof. When presented with a procedural posture such as this, it is
sufficient for the trial court to inform the jury that the dismissed charges have been removed
from the indictment, that no instruction concerning the dismissed charges will be provided,
and that the jury should not speculate as to the removal of the dismissed charges or the
absence of instructions on the dismissed charges. The trial court, if requested to do so,
should also provide an appropriate limiting instruction as to the purpose of the evidence
8
Limiting instructions are encouraged to prevent prejudice and the misuse of testimony regarding
a defendant’s prior bad acts. Howell, 868 S.W.2d at 255.
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related to the dismissed charges.
C. Corroboration of Accomplice Testimony
The Defendant next argues that he was denied a fair trial by the trial court’s failure
to instruct the jury on the level of corroboration required for accomplice testimony.
According to the Defendant, “The trial court’s error prevented the jury from properly
deliberating and applying the correct standard in considering [Grayson’s] testimony about
the aggravated robberies, which the [S]tate used as motive evidence to suggest that the
[Defendant] had committed the especially aggravated kidnapping.” Initially, we again
observe that the Defendant, after he was acquitted of the robbery charges, failed to request
an instruction limiting consideration of the robbery to a possible motive for the kidnapping.
Moreover, the Defendant has cited no authority for the proposition that accomplice testimony
as to motive must be corroborated in order to be admissible.9 As the Court of Criminal
Appeals stated, “The accomplice corroboration requirement has functionally served as a
safeguard against the obvious dangers of convicting a defendant of an offense based solely
upon the testimony of an accomplice to that offense.” Little, 2012 WL 8718, at *10 (citation
and internal quotation marks omitted).
While Grayson was an accomplice to the 1998 robbery, he was not an accomplice to
his own kidnapping. As to the kidnapping, Grayson testified as the victim, not an
accomplice, in that crime. In consequence, his testimony about the kidnapping did not
require corroboration. Further, Ellison, who was not an accomplice to the kidnapping,
testified that the Defendant was the perpetrator. Several defense witnesses acknowledged
that Grayson had been kidnapped and beaten, even though they claimed the Defendant was
not the perpetrator. While a jury instruction as to accomplice testimony would have been
necessary if the robbery charges had been submitted to the jury, that instruction was not
applicable to the kidnapping charge. In any event, we agree with the Court of Criminal
Appeals’ assessment that “the [D]efendant was not convicted of especially aggravated
kidnapping because the jury heard or believed [Grayson’s] testimony about the [D]efendant’s
motive . . . but because the proof established that the [D]efendant committed the especially
aggravated kidnapping.” Id. at *8.
9
In State v. Rodriguez, No. M2005-00951-CCA-R3-CD, 2006 WL 2310666, at *12 (Tenn. Crim.
App. Aug. 7, 2006), perm. app. denied (Tenn. 2006), the defendants argued that certain prior bad acts
evidence did not meet the “clear and convincing” requirement of Tennessee Rule of Evidence 404(b) because
that evidence was based solely on the testimony of an accomplice. While citing the well-established rule that
an accused may not be convicted solely upon the uncorroborated testimony of an accomplice, the Court of
Criminal Appeals “found no authority suggesting that corroborating testimony is necessary in [the context
of Rule 404(b) evidence].” Id. In any event, the Defendant did not ask the trial court to apply the standards
of Rule 404(b) to determine whether the State would be allowed to argue the facts of the 1998 robbery to
show motive for the kidnapping.
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D. Criminal Responsibility
The Defendant further argues that he was denied a fair trial because the trial court
provided a jury instruction on criminal responsibility for conduct of another. Tennessee
Code Annotated section 39-11-402 provides that a person may be held liable for the criminal
acts of another when:
(1) Acting with the culpability required for the offense, the person causes or
aids an innocent or irresponsible person to engage in conduct prohibited by the
definition of the offense;
(2) Acting with intent to promote or assist the commission of the offense, or
to benefit in the proceeds or results of the offense, the person solicits, directs,
aids, or attempts to aid another person to commit the offense; or
(3) Having a duty imposed by law or voluntarily undertaken to prevent
commission of the offense and acting with intent to benefit in the proceeds or
results of the offense, or to promote or assist its commission, the person fails
to make a reasonable effort to prevent commission of the offense.
Tenn. Code Ann. § 39-11-402 (2010). This statute codified the common law, which
provided for “equal criminal liability for principals, accessories before the fact, and aiders
and abettors.” State v. Howard, 30 S.W.3d 271, 276 (Tenn. 2000) (citing Tenn. Code Ann.
§§ 39-11-401, -402 sentencing commission’s cmts.). Section 39-11-402(2) does not
prescribe a separate and distinct crime; instead, it works in synergy with the charged offense
to establish a defendant’s guilt through the actions of another. State v. Lemacks, 996 S.W.2d
166, 170 (Tenn. 1999). The justification for criminal liability is that aiders and abettors
should be held accountable for the criminal harms they intentionally facilitated or helped set
in motion. Howard, 30 S.W.3d at 276; Key v. State, 563 S.W.2d 184, 186 (Tenn. 1978);
State v. Grooms, 653 S.W.2d 271, 275 (Tenn. Crim. App. 1983).
To prove guilt through a theory of criminal responsibility, the State must establish that
the defendant “‘knowingly, voluntarily and with common intent unite[d] with the principal
offender[ ] in the commission of the crime.’” State v. Maxey, 898 S.W.2d 756, 757 (Tenn.
Crim. App. 1994) (quoting State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)).
Trial courts should provide a jury instruction on criminal responsibility if the “issue is fairly
raised by the evidence.” State v. Collins, No. M2005-01685-CCA-R3-CD, 2006 WL
2380610, at *4 (Tenn. Crim. App. Aug. 15, 2006). Mere presence during the commission
of a crime is insufficient to support a conviction. See Flippen v. State, 365 S.W.2d 895, 899
(Tenn. 1963). It is not, however, necessary for one to take a physical part in the crime;
encouragement of the principal is sufficient. State v. McBee, 644 S.W.2d 425, 428 (Tenn.
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Crim. App. 1982). Formerly under our common law and now by statute, defendants
convicted under a theory of criminal responsibility are considered to be principal offenders,
just as if they had committed the crime themselves. See State v. Carson, 950 S.W.2d 951,
954 (Tenn. 1997). A separate indictment for criminal responsibility is unnecessary when a
defendant has been indicted for the primary offense. Lemacks, 996 S.W.2d at 170; State v.
Barnes, 954 S.W.2d 760, 763 (Tenn. Crim. App. 1997).
Here, the Defendant was indicted for the primary offense of especially aggravated
kidnapping. The trial court instructed the jury as to that charge, its lesser-included offenses,
and criminal responsibility for conduct of another. Although the Defendant testified that he
had never been to the Davenport house, Grayson testified that the Defendant drove him there,
tied him to a chair, “pistol whipped” him, and held him at gunpoint while forcing him to
smoke crack cocaine and eat dog feces. While Grayson testified that the Buchanan brothers
and other people were present during his kidnapping, Grayson and Ellison were consistent
in their testimony that the Defendant was primarily responsible for the crime. Ellison further
testified that he saw the Defendant in the room where Grayson was tied to a chair, heard the
Defendant raising his voice toward Grayson, and understood the Defendant to be primarily
responsible for his kidnapping. In consequence, even if the jury determined that the
Defendant did not physically participate in the kidnapping, this testimony was sufficient to
establish that the Defendant was not only present at the Davenport house during the
kidnapping, but that he had encouraged the Buchanan brothers or some other participant in
the commission of the offense. The trial court did not err by providing an instruction on
criminal responsibility for conduct of another.
E. Cumulative Error
Finally, the Defendant argues that he was denied a fair trial because of an
accumulation of errors by the trial court. Because we discern no error by the trial court, the
Defendant’s argument is without merit.
III. Conclusion
The trial court did not err by providing a curative instruction rather than directly
informing the jury that the Defendant had been acquitted of the two counts of aggravated
robbery. Further, the trial court did not err by failing to instruct the jury on accomplice
testimony or by instructing the jury on criminal responsibility. The judgment of the Court
of Criminal Appeals is, therefore, affirmed. It appearing that the Defendant is indigent, costs
are adjudged against the State.
_________________________________
GARY R. WADE, CHIEF JUSTICE
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