State of Tennessee v. Markese Alexander Brooks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 9, 2008
STATE OF TENNESSEE v. MARKESE ALEXANDER BROOKS
Direct Appeal from the Criminal Court for Shelby County
No. 05-05703 Chris B. Craft, Judge
No. W2007-02595-CCA-R3-CD - Filed October 21, 2008
The defendant, Markese Alexander Brooks, was convicted by a Shelby County Criminal Court jury
of first degree felony murder and attempted especially aggravated robbery and was sentenced by the
trial court to concurrent terms of life and ten years, respectively. In a timely appeal to this court, he
challenges the sufficiency of the convicting evidence and argues that the trial court erred in denying
his motion to suppress his statement to the police and in allowing inadmissible hearsay testimony
from a State’s witness. Following our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and CAMILLE
R. MCMULLEN , JJ., joined.
Paul K. Guibao and Matthew S. Lyons, Memphis, Tennessee, for the appellant, Markese Alexander
Brooks.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and David Pritchard and Dean DeCandia, Assistant
District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTS
On the evening of January 17, 2005, fifty-three-year-old Albert Covington was shot to death
as he struggled with a shotgun-wielding assailant who was attempting with two accomplices to rob
the Little Star Grocery at 547 Vance Avenue in Memphis, where the victim was employed as store
manager. The sixteen-year-old defendant, hospitalized that same evening for shotgun wounds,
admitted his involvement to police in an initial oral interview conducted at the hospital and in a
written statement given the next day at the homicide office. He and two codefendants, Clarence
Anthony Abernathy and Frank DeAngelo Taylor, were subsequently indicted for the first degree
felony murder and attempted especially aggravated robbery of the victim. The codefendants’ cases
were eventually severed, and the defendant was tried and convicted of the offenses in July 2007.
Suppression Hearing
Prior to trial, the defendant filed a motion to suppress his statements to police. At the
November 20, 2006, suppression hearing, Sergeant T.J. Helldorfer of the Memphis Police
Department’s Homicide Bureau testified that he and Sergeant Miller interviewed the defendant in
his hospital room on January 18, 2005. Kim Weiss, a guardian ad litem from juvenile court, was
present for the interview at his request because the officers had been unsuccessful in their attempts
to reach the defendant’s parents or guardian. After ascertaining from the attending nurse that the
defendant had suffered only a superficial wound and was not under the influence of any drugs, he
and Sergeant Miller went over the Miranda warning with him, having him first read a portion of it
aloud to ensure themselves of his ability to read. Weiss then went over the warning with the
defendant as well, reading each line “very slowly” and explaining the rights to the defendant as she
went through the document. The defendant exhibited no difficulty reading, indicated that he was
willing to talk to the officers, and signed the waiver of rights form. He then gave an oral statement
admitting his involvement in the shooting.
Sergeant Helldorfer testified that the defendant agreed to have his oral statement reduced to
writing in a follow-up interview that took place the next day at the homicide office. Before
beginning the interview, he went over the Miranda rights with the defendant again and the defendant
signed another waiver of rights form indicating that he was willing to talk to the officers about the
crimes. Neither the guardian ad litem nor the defendant’s parent or guardian was present for the
second interview. However, during the interim between the interviews, police officers had been in
contact by telephone with both the defendant’s mother, who lived in California, and with his aunt,
who was his Memphis guardian. Sergeant Helldorfer testified that each woman gave her consent for
the officers to speak further with the defendant on the basis that they did not “want him to take a
charge alone.”
Sergeant Helldorfer testified that the defendant reviewed his written statement and then
initialed each page and signed the end of the document at 2:03 p.m. on January 19, 2005. He said
the defendant gave no indication during either interview that he wished to stop talking or wanted to
have an attorney or parent present. The defendant appeared to understand what he was doing and
did not appear to be under the influence of any intoxicants. On cross-examination, Sergeant
Helldorfer acknowledged that the guardian ad litem was not an attorney and that he never spoke with
the defendant’s physician about the defendant’s medical condition.
At the conclusion of the hearing, the trial court noted, among other things, that the defendant
was within two weeks of his seventeenth birthday at the time the statements were made, had
completed the tenth grade, had an I.Q. of 95, and was employed at the Family Dollar Store.
Applying the totality of the circumstances test as outlined in State v. Callahan, 979 S.W.2d 577-2-
(Tenn. 1998), the trial court concluded that the statements had been freely and voluntarily made and
accordingly denied the defendant’s motion to suppress.
Trial
Ella Neal, the victim’s half-sister, testified that she was working at the Little Star Grocery
with the victim on January 17, 2005. She said that the victim had been robbed in the past and
consequently carried a handgun in his back pocket when he worked. At about 7:30 p.m., three young
men entered the store at a time when there were no other customers present. Two stayed in the front
while the third walked all the way around the store before announcing that he did not have enough
money. The three men left but returned twice more. The third time they entered the store, one stood
in front of the drink box, one stood by the door, and the third approached the victim and said, “This
is a stick up, give me your money.” When the victim replied that he did not have any money, the
man pulled out a sawed-off shotgun. The victim grabbed it, and a struggle between the two men
ensued. During that time, Neal ran to the phone, dialed 9-1-1, dropped the phone, ran behind the
potato chip rack, and “hit the floor.”
Neal testified that she was “curled up in a knot” on the floor when she heard a series of
gunshots, followed by a moment of silence and two loud moans from the victim. She lay still, too
frightened to move, until she heard other customers coming into the store, at which point she got up
and called 9-1-1 again. Later, after the police had responded, she tried to open the cash register and
found that the drawer was jammed shut. On cross-examination, she acknowledged that she had
positively identified one of the robbers from a photographic spreadsheet but had been unable to
identify the defendant.
Nineteen-year-old Clarence Abernathy testified that the charges against him were still
pending and that he was currently housed in the jail awaiting trial. He said that on the morning of
January 17, 2005, he was playing basketball in the Foote Homes area of South Memphis with the
defendant and Frank Taylor, both of whom he knew from the neighborhood, when Taylor said that
he wanted to rob someone. Abernathy stated that he jokingly responded that they should rob a store,
immediately letting the others know that he was only kidding. Taylor, however, said that he was “for
real” and looked at the defendant, who “nodded his shoulders” in agreement. Two other young men
from the neighborhood, Elgie Busey and Deandre Crowder, were present and overheard the
conversation.
Abernathy testified that he told Taylor and the defendant that they were crazy and went home.
Later that same day, he met up with them again at “The Yellow Store,” a neighborhood grocery, and
accompanied them to Foote Homes, where they sat in the gazebo until early evening when the
defendant suggested that they go to the Little Star Grocery. According to Abernathy, neither the
defendant nor Taylor had said anything more about robbing anyone. He said that he, Busey, and
Crowder walked with the defendant and Taylor to the store and that Busey remained outside while
the rest of them went in. Once inside, Abernathy grabbed a drink from the drink box, carried it to
the counter, and was in the process of reaching for his money to pay when he heard the defendant,
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who had approached the victim in the back of the store, say, “This is a stick up.” He then heard Neal
say, “Don’t shoot.” When he looked over, he saw the defendant standing behind the victim with a
shotgun at the victim’s back.
Abernathy testified that the victim turned around and tried to grab the shotgun from the
defendant. As the two wrestled over the weapon, Taylor began shooting a .22 handgun at the victim.
Next, the victim grabbed the shotgun from the defendant, the defendant grabbed the victim’s gun
from his back pocket, the defendant shot the victim with the victim’s handgun, and the victim shot
the defendant in the chest with the defendant’s shotgun.
After the victim shot the defendant, Abernathy fled to a vacant apartment, a regular gathering
spot, followed closely by the others. When the defendant came in, he kept repeating that he had been
hit and that “it ain’t go right.” Abernathy stated that he went home at that point but did not call the
police because he was afraid someone would harm him or his family if he did. He claimed that he
had been unaware that the defendant and Taylor had their respective weapons with them when they
went to the store, although he had seen both of them with the weapons in the past. He said he was
arrested two days later and gave a statement to police that was consistent with his trial testimony.
Finally, he stated that he was testifying against the defendant because the victim, whom he had
known as “Uncle Sonny,” had been kind to him. On cross-examination, he denied that he had been
promised anything in exchange for his testimony and reiterated that he had known nothing about the
plan to rob the store.
Officer Nathan Newman of the Memphis Police Department testified that, when he and his
partner responded to the scene, they found the victim lying on his stomach on top of a single-barrel
shotgun with blood seeping out from underneath his body.
Officer Randall Fuller of the Memphis Police Department, who was assigned to the crime
scene investigation unit in January 2005, identified the weapon recovered from the store as a twelve-
gauge shotgun and the casing recovered from it as a twelve-gauge “field-load, possibly some type
of bird-shot.” He also identified a weapon that was found on the ground outside the store as a six-
shot .357 Magnum revolver containing three live and three spent rounds.
Kelley Moore, a paramedic with the Memphis Fire Department, testified that the victim was
dead when she responded to the scene. She said that approximately twenty minutes later, her
dispatcher called for an ambulance to be sent to Fire Station 8 on Mississippi Boulevard in response
to a walk-in gunshot wound. When she and her partner responded to that scene, located one-half
mile from the Little Star Grocery, they found the defendant with what appeared to be a superficial
gunshot wound to the chest caused by “bird spray from shotgun pellets.”
Officer Vernon VanBuren of the Memphis Police Department, a crime scene investigation
officer, identified, among other things, a California identification card in the defendant’s name that
was given to him when he responded to the Mississippi Boulevard fire station on January 17, 2005.
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Lieutenant Mark Miller of the Memphis Police Department’s homicide bureau testified that
on the morning of January 18, 2005, Sergeant Luckett assigned him and Sergeant Helldorfer to
interview the defendant in his hospital room at the Regional Medical Center. He described the
interview process, including the role played by the guardian ad litem, and said that the defendant told
them that he was shot during the robbery, in which “Buck” and another person he did not know
participated. Because the officers did not have the equipment or personnel to transcribe the
statement at the hospital, they told the defendant that he would be brought to their office to give a
formal statement upon his release from the hospital.
The next day the defendant was released from the hospital, taken into custody, and brought
to the homicide office, where he was again advised of his rights and once again signed the waiver
of rights form before giving the second statement, which was transcribed. Lieutenant Miller said that
the defendant’s story changed slightly in the written statement, in that he identified his accomplices
as “Frank” and “Woo,” instead of “Buck” and an unknown individual. He stated that the defendant
told them that he, Frank, and Woo formulated the plan for robbing the grocery store after talking
about how they needed money, that Frank had a .22 pistol with him, and that they stopped and got
a shotgun, which the defendant had with him during the robbery.
The portion of the defendant’s statement in which he described the robbery itself reads as
follows:
Woo went in first, I went in behind Woo and Frank came in last behind me.
Me and Woo walked to the drink machine and Woo grabbed a drink. He walked
back up to the front. I up the gauge on the guy and he grabbed it. We were wrestling
for less than two minutes. The guy turned around and he was facing away from me
while both our hands were up in the air holding the gun. Frank was still standing by
the door. When me and the guy had our hands up in the air on the gun that is when
Frank shot. I am not sure how many times, maybe four or five. The guy was about
to reach for the .357, but I grabbed it and he took the shotgun from me. He shot me
with the shotgun in my chest. When he hit me with the shotgun, the .357 went off
but it missed him. Then we all took off and ran. I got outside and I dropped the .357,
jumped the gate, then I fell because I realized I had been hit. I looked up and
everybody was gone. From there I walked to the fire station.
Lieutenant Miller testified that, beginning with the first interview, the defendant was advised
of his rights a total of four times before the written statement was made. He said that the guardian
ad litem was not present for the second statement but that Sergeant Luckett had talked to the
defendant’s mother and obtained her permission for them to interview the defendant. On cross-
examination, he testified that an attempt was made to contact the defendant’s parents or guardian
before the first interview but that it was not done by himself.
Dr. Miguel Laboy, a medical examiner employed with the Shelby County Forensic Medical
Center, which performed the autopsy of the victim’s body, testified that the victim sustained three
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gunshot wounds: a gunshot wound to the left side of the chest that damaged his heart and lungs; a
gunshot wound to the right groin region that fractured his pelvis; and a gunshot wound to the back
of the left forearm. He said that the victim probably died within seconds of the gunshot wound to
the chest, which was consistent with a wound caused by a high velocity weapon such as a .357
handgun. He stated that the other two gunshot wounds were not consistent with ones fired by a high-
velocity weapon.
The defendant elected not to testify but presented two witnesses in his behalf: Leslie Bailey,
his mother; and Cathy McNamee Wilson, his aunt. Bailey testified that she spoke with the police
a couple of days after the incident but did not recall giving them permission to take a statement from
the defendant. Wilson testified that someone from the police department telephoned to ask her
questions about the defendant but that she did not give anyone permission to speak with or take a
statement from him.
In rebuttal, the State presented Lieutenant James Luckett of the Memphis Police Department,
who testified that in January 2005 he was a sergeant assigned to the homicide bureau and the case
coordinator for the Little Star Grocery murder investigation. He said that both the defendant’s
mother and aunt called him on the afternoon after the defendant’s initial interview at the hospital.
According to Lieutenant Luckett, both women gave him permission to talk with the defendant
“because they wanted him to tell [the police] who was with him, so he wasn’t doing this by himself.”
I. Denial of Motion to Suppress Statement
The defendant first contends that the trial court erred in denying his motion to suppress his
written statement, arguing that under the totality of the circumstances, which included his youth, lack
of a prior criminal record, recent gunshot wound with its attendant physical and mental stresses, and
absence of a parent or guardian, the trial court should have found that the statement was involuntary
and unknowing. The State argues that the evidence does not preponderate against the trial court’s
findings that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights. We
agree with the State.
When this court reviews a trial court’s ruling on a motion to suppress evidence, “[q]uestions
of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in
the evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). The party prevailing at the suppression hearing is afforded the “strongest
legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from
that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in
a suppression hearing are upheld unless the evidence preponderates against those findings. See id.
However, the application of the law to the facts found by the trial court is a question of law and is
reviewed de novo. See State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
Both the United States and Tennessee Constitutions protect a defendant from being
compelled to give evidence against himself. U.S. Const. amend. V; Tenn. Const. art. I, § 9. In
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Miranda v. Arizona, 384 U.S. 436, 471-75, 86 S. Ct. 1602, 1626-28 (1966), the United States
Supreme Court held that a defendant’s statements made during a custodial interrogation are
inadmissible at trial unless the State establishes that the defendant was informed of his right to
remain silent and his right to counsel and that he knowingly and voluntarily waived those rights.
Whether the defendant made a voluntary, knowing, and intelligent waiver of those rights depends
“‘upon the particular facts and circumstances surrounding that case, including the background,
experience, and conduct of the accused.’” Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880,
1884 (1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)).
Tennessee courts use the federal “totality-of-the-circumstances test” to determine whether
a defendant has knowingly, intelligently, and voluntarily waived his Miranda rights. State v.
Callahan, 979 S.W.2d 577, 581-82 (Tenn. 1998). When analyzing the waiver of a juvenile under
the totality-of-the-circumstances test, the following factors should be considered:
(1) consideration of all circumstances surrounding the interrogation including the
juvenile’s age, experience, education, and intelligence;
(2) the juvenile’s capacity to understand the Miranda warnings and the consequences
of the waiver;
(3) the juvenile’s familiarity with Miranda warnings or the ability to read and write
in the language used to give the warnings;
(4) any intoxication;
(5) any mental disease, disorder, or retardation; and
(6) the presence of a parent, guardian, or interested adult.
Id. at 583. While courts are required to use special care when scrutinizing a juvenile’s purported
waiver, “no single factor such as mental condition or education should by itself render a confession
unconstitutional absent coercive police activity.” Id. (citing Colorado v. Connelly, 479 U.S. 157,
167, 107 S. Ct. 515 (1986)).
The juvenile defendant in this case was almost seventeen years old, had completed the tenth
grade, tested in the average range of intellectual functioning, and was employed. He had
demonstrated his ability to read and write and, within the space of two days, been advised of his
Miranda rights a total of four times, including by the guardian ad litem who carefully reviewed and
explained the warning and rights to him. His gunshot wound was superficial, the attending nurse
reported that he was not under the influence of any drugs during the interview at the hospital, and
he had already been released from the hospital by the time the written statement was made the
following day. Finally, although neither his mother nor aunt was present for the written statement,
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the officers’ testimony at the suppression hearing and trial was that the women had given their
consent for the officers to talk to the defendant at the second interview.
The defendant asserts that Lieutenant Luckett “could not offer convincing proof at trial that
he was the investigator who obtained parental permission to proceed with the [defendant’s] interview
on January 19, 2005.” In support, he cites the following cross-examination testimony:
Q. [I]f [Lieutenant Miller] stated that you were the one who made those calls, in
other words, initiated those calls, would he be incorrect?
A. I don’t remember making them, but I don’t remember that I didn’t.
Q. But you stated earlier - -
A. We both may have tried to make them.
Q. But, you did state earlier, at least the testimony that you gave to the representative
of the state, was that you delegated that responsibility to them; correct?
A. That’s true.
The defendant contends that “[i]n light of the combined inconsistent testimony of Officers
Miller, Helldorfer, and Luckett, it is apparent that nobody actually obtained permission to take a
statement from [the defendant] from either his [m]other or his aunt.” The transcript, however,
reveals that the portion of Lieutenant Luckett’s cross-examination testimony on which the defendant
relies was in reference to which officer had attempted to contact the defendant’s mother and aunt
prior to the first interview. Lieutenant Luckett was unequivocal in his testimony that the women had
given their consent, prior to the second interview, for the officers to speak further with the defendant.
Moreover, as the State points out, “the admissibility of a juvenile’s confession is not dependent upon
the presence of his parents at the interrogation.” State v. Carroll, 36 S.W.3d 854, 864 (Tenn. Crim.
App. 1999). Based on the totality of these circumstances, we conclude that the evidence does not
preponderate against the trial court’s findings that the defendant made his statement knowingly,
intelligently, and voluntarily. Accordingly, we affirm the denial of the defendant’s motion to
suppress.
II. State’s Rebuttal Proof
The defendant next contends that the trial court erred by allowing Lieutenant Luckett’s
rebuttal testimony as to why the defendant’s mother and aunt gave their consent for the officers to
talk to the defendant about the crimes, arguing that it constituted inadmissible and prejudicial
hearsay. The State argues that the evidence was not offered to prove the truth of the matter asserted
but instead to show the women’s motive for giving their consent and, as such, was properly admitted
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by the trial court as non-hearsay evidence relevant to the issue of witness credibility. We agree with
the State.
Hearsay is defined as “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). As a general rule, hearsay is not admissible at trial unless it falls under one of the exceptions
to the rule against hearsay. Tenn. R. Evid. 802. “The determination of whether a statement is
hearsay and whether it is admissible through an exception to the hearsay rule is left to the sound
discretion of the trial court.” State v. Stout, 46 S.W.3d 689, 697 (Tenn. 2001). Accordingly, we will
not reverse the trial court’s ruling on this issue absent a clear showing of an abuse of discretion.
During the State’s case-in-chief, the trial court sustained the defendant’s objection to
proposed similar testimony by Lieutenant Miller on the basis that it would constitute prejudicial and
non-probative opinion testimony by the defendant’s parent as to his guilt. However, by the time that
Lieutenant Luckett’s rebuttal testimony was proposed, the defendant’s mother and aunt had each
testified, denying that they had given their consent for officers to talk to the defendant. Furthermore,
it had become clear to the trial court that neither woman had spoken with the defendant about the
crimes prior to their conversations with Lieutenant Luckett. Based on this, the trial court ruled that
the evidence was admissible to impeach the witnesses’ credibility:
But since neither one of them spoke to him before they told the police they
wanted him to give a statement, then what I’ll do is, I’m going to allow the state to
put that evidence on and then I am going to give a curative instruction to the jury that
they are not to draw any opinion, if they believe that testimony, they’re not to draw
any opinion that any of the family members thought, or had any opinion about the
guilt of the defendant, because they had not discussed anything about this and they
were just merely talking to the police.
....
I also will put in the jury charge that I read to the jury that prior inconsistent
statements are not to be considered substantive evidence, but only to evaluate the
credibility of the witnesses.
We conclude that there was no error in the trial court’s admission of the evidence. The
evidence was properly admitted to impeach the witnesses’ credibility and the trial court issued an
appropriate limiting instruction to the jury to that effect.
III. Sufficiency of the Evidence
As his final issue, the defendant contends that the evidence was insufficient to sustain his
convictions for first degree felony murder and attempted especially aggravated robbery. He asserts
that Abernathy’s testimony was not only biased but also uncorroborated by any evidence other than
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the defendant’s erroneously admitted statement to police, as the victim’s sister, Neal, was unable to
identify him as a perpetrator of the crimes. The State argues that Abernathy’s credibility was an
issue for the jury to determine and points out that his testimony was corroborated by the defendant’s
shotgun wound, for which the defendant offered no other explanation. The State further argues that
even if the second statement should have been suppressed, the defendant’s first oral statement
established his presence and participation in the crimes. The State contends, therefore, that the
evidence was more than sufficient to sustain the defendant’s convictions. Once again, we agree with
the State.
When the sufficiency of the convicting evidence is challenged on appeal, the relevant
question of the reviewing court 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, 99 S. Ct. 2781, 2789 (1979);
see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.
Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict
by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of justice
to determine the weight and credibility to be given to the testimony of witnesses. In
the trial forum alone is there human atmosphere and the totality of the evidence
cannot be reproduced with a written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
First degree felony murder is “[a] killing of another committed in the perpetration of or
attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft,
kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy.” Tenn. Code Ann.
§ 39-13-202(a)(2) (2006). The mental state required for conviction of felony murder is the intent
to commit the underlying offense. Id. § 39-13-202(b).
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Especially aggravated robbery is robbery that is accomplished with a deadly weapon and
where the victim suffers serious bodily injury. Id. § 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).
A person commits criminal attempt when the person, acting with the kind of culpability
otherwise required for the offense:
(1) Intentionally engages in action or causes a result that would constitute an
offense, if the circumstances surrounding the conduct were as the person believes
them to be;
(2) Acts with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the person’s
part; or
(3) Acts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the person
believes them to be, and the conduct constitutes a substantial step toward the
commission of the offense.
Id. § 39-12-101(a).
Viewed in the light most favorable to the State, the evidence established that the defendant,
Taylor, and Abernathy discussed their need for money and then formed and implemented a plan to
rob the Little Star Grocery, with Taylor arming himself with a .22 pistol and the defendant with the
sawed-off, .12-gauge shotgun he used when demanding the victim’s money. When the victim
grabbed the weapon, the defendant struggled with him over its control until Taylor fired his .22
handgun at the victim. The defendant then grabbed the victim’s .357 and shot him in the chest,
causing his eventual death, just before being shot in turn by the victim, who had succeeded in
wrestling the defendant’s shotgun from him. A short time later, the defendant showed up at a nearby
fire station with a shotgun wound to his chest and was transported to the hospital, where he gave an
oral statement admitting his role in the crimes, which was followed by a substantially similar written
statement made the next day at the homicide office. This evidence was more than sufficient for the
jury to find the defendant guilty of first degree felony murder and attempted especially aggravated
robbery beyond a reasonable doubt. We conclude, therefore, that the evidence was sufficient to
sustain the defendant’s convictions.
CONCLUSION
Based on our review, we conclude that the evidence was sufficient to sustain the defendant’s
convictions and that the trial court did not err in allowing into evidence the defendant’s statement
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to police and Lieutenant Luckett’s rebuttal testimony. Accordingly, we affirm the judgments of the
trial court.
___________________________________
ALAN E. GLENN, JUDGE
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