State of Tennessee v. Jose Lemanuel Hall, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 14, 2014
STATE OF TENNESSEE v. JOSE LEMANUEL HALL, JR.
Direct Appeal from the Criminal Court for Davidson County
No. 2012-D-3088 J. Randall Wyatt, Jr., Judge
No. M2013-02090-CCA-R3-CD Filed - September 5, 2014
The defendant, Jose Lemanual Hall, Jr., was convicted of first degree murder and especially
aggravated robbery. He received an effective sentence of life imprisonment with the
possibility of parole. On appeal, he challenges the sufficiency of the convicting evidence.
Within that general challenge, he specifically contends that he was convicted solely on the
uncorroborated testimony of an accomplice and an uncorroborated confession he made to a
fellow inmate. Following review, we conclude that both were sufficiently corroborated and
properly considered in the sufficiency determination. We further conclude that the evidence
presented at trial was more than sufficient to support the conviction. As such, we affirm.
However, we remand for entry of corrected judgments of conviction reflecting the
appropriate merger of the two murder convictions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
and Remanded
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and R OGER A. P AGE, JJ., joined.
David A. Collins, Nashville, Tennessee, for the appellant, Jose Lemanuel Hall, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Katrin Miller,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Procedural History
The convictions against the defendant arose from the robbery and murder of the
victim, Jeremy Green. The defendant and co-defendant Victor Johnson were indicted for one
count of felony murder, one count of premeditated murder, and one count of especially
aggravated robbery. Additionally, co-defendant Maurice Hegman was indicted on the charge
of especially aggravated robbery in the same indictment.
On January 29, 2011, the victim, after working his shift at Wal-mart, returned to his
apartment via the bus. The victim enjoyed music and had even converted the closet in his
apartment to a small music studio. He wrote and sold “beats,” the musical tracks to which
rap lyrics were set. During the evening of January 29th, the victim spoke to several people
on the telephone. Bianca Parker had a lengthy conversation with the victim, which ended
around 10:00 p.m. when she received another call. Ms. Parker attempted to call the victim
back after she was finished, but he did not answer the telephone. She attempted to make
contact with the victim several more times during the evening and the following day;
however, she did not actually speak to the victim again.
Jalisha Gleaves, who was dating the victim at the time, had spoken with the victim
earlier in the evening, and they had plans for her to come to the victim’s apartment to watch
movies. She communicated to the victim that she was on her way when she left her home.
She proceeded towars the victim’s apartment, but she stopped at a Mapco gas station located
very near the victim’s apartment to purchase drinks. She attempted to call the victim while
there, but she received no answer.
Ms. Gleaves then drove to the apartment complex and parked her car. She knocked
on the victim’s door, and the door pushed open. Upon entering the apartment, Ms. Gleaves
witnessed the victim lying on the floor. She tried to roll the victim over, but when she
observed blood, she stopped her attempts to aid the victim and called 911. However, she did
not recall the actual address of the victim’s apartment to give to police. While still on the
phone with 911, she returned to the Mapco for assistance. No one there was aware of the
address, but, upon exiting the store, a police officer on patrol arrived. Ms. Gleaves
approached him, and the two returned to the apartment.
Upon re-entering the apartment, Ms. Gleaves noted that several of the victim’s
belongings, including an Xbox, a computer, audio equipment used in recording, and several
plastic totes were missing. Demarco Keeler, a childhood friend of the victim, also verified
that the Xbox 360, laptop computer, a microphone, and a music conversion box were missing
from the apartment. Keeler informed the police that the victim’s laptop user name was “Jay
Dot.”
Officer Gerry Hutcheson, the officer flagged down by Ms. Gleaves, entered the
apartment and saw the victim lying on the floor. At the time, the victim was not breathing
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and had no pulse. A crime scene investigator, Rhonda Evans, also responded to the scene
that evening. During her search of the apartment, she found an empty Xbox box, an empty
printer box, and an empty audio mixer box. However, none of the actual items were found
in the apartment, only the boxes. Additionally, Investigator Evans found a laptop cord but
found no laptop computer. She observed several pieces of black plastic near and under the
victim’s body. Outside in the dumpster area, she found a blue tote which contained items
specifically connected to the victim, such as his high school diploma. She also found a
damaged frying pan with a broken black plastic handle. Investigator Evans believed that the
black pieces of plastic found near the victim were the remnants of the handle of the frying
pan. The only usable prints found inside the apartment belonged to the victim and Demarco
Keeler.
Additionally, the victim's cell phone was not found in his apartment. However, Ms.
Parker, who had spoken with the victim earlier, was still trying to call the phone later that
evening and into the next day. During one of those calls, the phone was answered by an
unidentified male who stated that the victim had gone to a club the previous evening and
would return her call later. The same male answered a second call from Ms. Parker and
informed her that he was the victim’s cousin from Atlanta. She also received a text message
from the victim’s phone, following his death, which read “5H2.” Janae Grigsby, the victim’s
cousin, also began receiving telephone calls and coded text messages from the victim’s
phone at the same time. She reported this information to the police.
Police canvassed the area but could not find any witnesses who had seen or heard any
disturbance in the victim’s apartment. There was also no evidence of forced entry into the
apartment.
Following the autopsy of the victim, it was determined that he died from “asphyxia
by strangulation,” which occurs within a matter of minutes rather than seconds. The
examination also revealed hemorrhages in the victim’s eyes which were consistent with
asphyxiation. The victim’s body had several abrasions and bruises on the forehead, neck,
chest, and arms. Additionally, the victim’s scalp had two large bruises, which the medical
examiner opined could have been caused by a blow from the “bent up frying pan” found in
the dumpster.
Detective Chad High was the lead detective in the victim’s murder investigation. He
responded to the murder scene and discovered that “it was obvious things were missing.”
He entered the serial numbers from the empty boxes found in the apartment into a system
which allowed him to monitor if the items were ever pawned. The system would flag the
item with the pawn shop when the transaction was made, and police would be alerted.
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In the “early part of 2011,” Lachrisha Poynter drove the defendant and co-defendant
Hegman to a pawn shop. Ms. Poynter did not go inside the pawn shop with the two men.
Victoria Holt, an employee of a shop then named “Household Pawn,” identified a pawn
ticket where the defendant had come in and pawned an Xbox at the store on February 21,
2011. His driver’s license was recorded before the transaction was completed. Another
employee of a different pawn shop also reported that the defendant pawned a laptop
computer in that store on the same day. Videos were made of the transaction.
Based upon the investigation into the phone calls and texts officers learned were
coming from the victim’s phone following his death, police obtained the communication
records for his cell phone. The decision was based in part on the following: (1) co-defendant
Johnson’s ex-girlfriend received a photo message from the victim’s phone after his death
which depicted co-defendant Johnson, the defendant, and others making gang hand signals;
(2) the victim’s phone received a call from the defendant’s cell phone at 10:16 p.m. on the
night of the murder; and (3) the victim’s phone communicated with a cell phone tower in
LaVergne at 2:09 a.m. on January 30, 2011. After learning more through his investigation,
Detective High also obtained the communication records for co-defendant Hegman’s and the
defendant’s cell phones. Mr. Hegman’s phone made contact with a cell phone tower very
near the victim’s apartment three times just after 11:30 p.m. on the night of the murder. At
1:30 a.m., Mr. Hegman’s phone communicated with a cell phone tower in LaVergne. The
defendant’s phone reflected no activity between 11:08 p.m. and 11:46 p.m. on the night of
the murder. These “pings” were consistent with the path Mr. Hegman said the group
traveled.
The investigation led police to speak with Mr. Hegman, who was eventually indicted
along with co-defendant Johnson and the defendant, although only for especially aggravated
robbery. The three were admitted members of the “5 Deuce Hoover Crips.” Mr. Hegman
noted that he had grown up with the victim in the “projects” and that he had even helped him
move into his current apartment where the murder occurred. The two often played Xbox
together, and Mr. Hegman related that the victim’s user name was “Jay.Green.” According
to Mr. Hegman, he and his two co-defendants, along with two men named Antonio and
Dominique, went to the victim’s apartment around 11:00 p.m. or 12 a.m. on January 29-30,
2011, to “do music.” According to Mr. Hegman, there was no discussion of a robbery
occurring before they went to the apartment. He acknowledged a call was made to inform
the victim that they were coming over.
When the group arrived, Antonio and Dominique elected to remain in the car, but the
other three proceeded to the door of the victim’s apartment. However, Mr. Hegman was not
present at the door when it was actually opened, as he had returned to the car to find a CD
for Antonio. When he did return to the doorway of the victim’s apartment, it was open, and
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he saw co-defendant Johnson and the victim fighting. At the time, the defendant was just
standing there. Co-defendant Johnson told Mr. Hegman to take a blue tote from the
apartment, and Mr. Hegman complied. As he picked up the tote, Mr. Hegman observed the
defendant “reaching” towards the victim. He opined that the fighting might have been
because the victim was wearing red, the color worn by a rival gang, although he did not know
for certain.
Mr. Hegman returned to the car with the tote and waited. He observed co-defendant
Johnson exit the apartment and walk to a nearby dumpster before returning to the car. Mr.
Hegman began to drive away without the defendant, but the defendant managed to exit the
apartment and return to the car before they left. Mr. Hegman stated there was no discussion
of the events that had occurred in the apartment while they were in the car. At that point, Mr.
Hegman drove Antonio and Dominique to their home, and the remaining three then drove
to a friend’s home in LaVergne. Mr. Hegman left the blue tote he had taken at this address.
Mr. Hegman also acknowledged that he had Ms. Poyner take him and the defendant to some
pawn shops at a later date. He also acknowledged that, following his arrest, he did not
initially tell police the entire story. He also stated that he was not aware that the victim had
been killed until he was informed so by the detectives.
Detective Chad Gish was a digital forensics detective who worked in the Metro
Nashville Police Department. He analyzed the laptop recovered by police which had been
pawned by the defendant. He discovered that the laptop had an operating system which had
been installed on January 31, 2011, just two days after the victim’s murder. Further analysis
revealed that the previous operating system had utilized a user name of “Jay dot.”
Additionlly, a user name of “JeremyGreen” appeared under the old operating systems
installation folder.
Based upon the above information gathered, the defendant was arrested and charged
with felony murder, first degree premeditated murder, and especially aggravated robbery.
While the defendant was in jail, Detective High monitored the defendant’s letters and phone
calls that he received at the jail. Several of the communications were encoded in “gang”
terminology and script, which made interpreting the messages difficult. Apparently, when
the defendant was first incarcerated, he blamed co-defendant Johnson for speaking with the
police and getting them caught. However, as time progressed, he realized it was co-
defendant Hegman who had actually given the police a statement. One of the letters stated,
“they ain’t got shit on me or cuzz [Mr. Hegman] all they got is pictures of me cuzz and lady
in pawn shops pawning shit . . . . Baby tell cuzz that I’m putting everything on lil deuce [co-
defendant Johnson].” In a separate letter, the defendant wrote, “fuck lil deuce, if he wouldn’t
have use that phone none of this would have happened.” However, after receiving discovery,
the defendant became aware that it was Mr. Hegman talking and sent a letter of apology to
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co-defendant Johnson. In the letter, he noted that he had forwarded the information to other
gang members that Mr. Hegman was a snitch, an extreme violation of gang code. He later
wrote a letter to his girlfriend seemingly questioning why Mr. Hegman was still alive.
Following the severance of the defendants’ cases the defendant proceeded to trial. All
of the above information was testified to in the jury’s presence. Additionally, Ronald Jones
provided testimony. He was incarcerated with the defendant in March 2012. Mr. Jones
testified that the defendant gave the following version of events regarding the robbery and
murder of the victim:
[He] told me that him and his Big Homie named Reese and another dude had
went over there. They had been over there making raps, but this particular day
they went over there to rob him and when they runned over there and knocked
on the door, he, when dude opened up the door they rushed him and went in
the apartment and once they got him in the apartment they wrestled with him
and he said he put a choke hold on him and choked him out.
Mr. Jones also offered that the defendant had admitted taking “clothing and some
electronics” from the apartment. According to Mr. Jones, the defendant said that he learned
how to do the choke hold and to hide evidence in a forensics class he took at the University
of Tennessee.
The defendant also acknowledged his gang membership to Mr. Jones. In fact, the
defendant told Mr. Jones that he got his “status” after committing the murder of the victim.
Mr. Jones contacted the district attorney after the defendant told him this information. Mr.
Jones did acknowledge multiple prior convictions ranging from 1993 to 2011. He also
acknowledged that, as part of a plea agreement, he received a lesser release eligibility date
in exchange for his testimony.
Additionally, at trial, Mr. Hegman admitted on cross-examination that he had prior
convictions for facilitation of aggravated robbery and a conviction as a felon in possession
of a weapon. He acknowledged that he was not aware of what started the “tussling” between
co-defendant Johnson and the victim, and it was possible that the victim actually started the
fray. Mr. Hegman agreed that the defendant could have been reaching for the victim in order
to assist co-defendant Johnson. He stated he simply did not know the particulars of what
occurred. Moreover, Mr. Hegman made clear that part of the incentive to speak with the
police was that he would avoid being charged with murder. He readily acknowledged his
gang membership and admitted that he was the defendant’s “big homie,” a sort of mentor
who outranks you and determines any increase in rank to be awarded.
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The State also called Richard Littlehale as an expert in cell phone usage. He was
employed as the Special Agent in Charge of Technical Services with the Tennessee Bureau
of Investigation (“TBI”). He acknowledged that he did not know the exact mechanics of cell
phone tower operation and that he had not personally inspected any of the towers utilized in
the phone records for this case to see if they were functioning properly. In spite of the
defense objection, the trial court allowed Agent Littlehale to testify as an expert in the field
of cell phone analysis and criminal investigation. He proceeded to testify about the general
operation of cell phones and the way in which the phones pinged off various towers,
pinpointing a user’s general location. He offered no testimony whatsoever that was specific
to the facts of this case.
The State also called Detective Mark Anderson of the Metro Police Department as an
expert in gang activity. He testified regarding the history of the 5 Deuce Hoover Crips and
explained the “code” that the various gangs use. Detective Anderson explained the ranking
system within the gang and possible ways to advance. He explained that he had explained
this information to Detective High, the lead detective in the defendant’s case.
At trial, the following stipulations were entered by the State and the defendant: (1) the
only latent fingerprints found in the apartment belonged to the victim and Demarco Keeler;
(2) no latent fingerprints were found belonging to Jalisha Gleaves, the defendant, co-
defendant Johnson, or co-defendant Hegman; (3) the clothing of the victim was subjected to
DNA analysis, and no DNA profile could be found other than that of the victim; (4) the
accompanying letters were lawfully copied by a law enforcement agency that had a legitimate
reason to do so and that the defendant was aware that his correspondence was subject to
being monitored and/or copied by law enforcement; (5) the accompanying phone calls were
lawfully recorded by a law enforcement agency and that the agency had a legitimate reason
to do so and that the defendant was aware that his calls were being recorded and possibly
monitored by law enforcement; and (6) the parties all agree that the defendant never attended
college.
After hearing all the evidence presented, the jury convicted the defendant as charged
in the indictment. The trial court merged the murder counts and set the case for sentencing.
Following a hearing, the defendant was sentenced to life imprisonment for the murder and
to twenty years for the robbery conviction. The court ordered that the sentences be served
concurrently for an effective sentence of life imprisonment. Following the denial of his
motion for new trial, the defendant filed the instant timely appeal with this court.
Analysis
On appeal, the defendant asserts that the evidence is insufficient to support his
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convictions for murder and especially aggravated robbery. Within that general challenge, he
alleges specifically that his convictions are based solely on the uncorroborated testimony of
an accomplice, Mr. Hegman, coupled with the uncorroborated testimony relative to his
alleged confession to Mr. Jones. He further contends that the testimony of Mr. Hegman
cannot be used to corroborate the testimony of Mr. Jones and vice-versa. He asserts that
because the testimony of the two is not corroborated, it cannot be considered in the
sufficiency review, and that, without the evidence, there is simply no evidence to support his
convictions. We conclude that the defendant’s claims are wholly misplaced.
A. Corroboration
Again, other than a generally asserted sufficiency challenge, the defendant’s two
specific challenges center around his assertions that he was convicted on the uncorroborated
testimony of co-defendant Hegman and that there was insufficient corroboration of the alleged
confession made by the defendant to Mr. Jones. While the defendant is correct that
corroboration is required, his arguments are not meritorious in this case.
It is well-settled law in Tennessee that a criminal defendant cannot be convicted solely
on the uncorroborated testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803
(Tenn. 1994), superseded by statute on other grounds as stated in State v. Odom, 137 S.W.3d
572, 580-81 (Tenn. 2004). The determination as to whether a witness is an accomplice may
be a matter of law for the trial court’s determinatiomn or it may be a question of fact for the
jury’s determination. State v. Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992). When
the facts are clear and undisputed concerning a witness’s participation in the crime, whether
he is an accomplice is a question of law for the court to decide. When the facts are in dispute
or susceptible to different inferences, it becomes a question of fact for the jury. Conner v.
State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975).
“An accomplice is one who knowingly, voluntarily, and with common intent unites
with the principal offender in the commission of a crime.” State v. Allen, 976 S.W.2d 661,
666 (Tenn. Crim. App. 1997). To satisfy the definition of an accomplice, it is not enough that
the witness merely possessed guilty knowledge, is morally delinquent, or even participated
in a distinct but related offense. State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App.
1990). The general test is whether the accomplice could be indicted for the offense charged
against the defendant. Id.
The law in Tennessee regarding the corroboration required for accomplice testimony
has been described as follows:
The rule simply stated, is that there must be some fact testified to, entirely
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independent of the accomplice’s testimony, which, taken by itself, leads to the
inference, not only that a crime has been committed, but also that the defendant
is implicated in it; and this independent corroborative testimony must also
include some fact establishing the defendant’s identity. This corroborative
evidence may be direct or entirely circumstantial, and it need not be adequate,
in and of itself, to support a conviction; it is sufficient to meet the requirements
of the rule if it fairly and legitimately tends to connect the defendant with the
commission of the crime charged. It is not necessary that the corroboration
extend to every part of the accomplice’s evidence.
State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (quoting Bigbee, 885 S.W.2d at 803
(citations omitted)). Ultimately, it is a question for the jury to determine whether an
accomplice’s testimony has been sufficiently corroborated. Pennington v. State, 478 S.W.2d
892 (Tenn. Crim. App. 1971).
In this case, the trial court charged the jury as follows:
An accomplice is a person who joins another person in committing a
crime. The accomplice must do so knowingly, voluntarily and sharing the
intent of the other person in doing the crime.
In this case the Court charges you that the witness Maurice Hegman was
an accomplice in the alleged crime. The testimony of an accomplice by itself
cannot convict the defendant. The accomplice’s testimony must be supported
by other evidence. This other evidence must independently lead to the
conclusion that a crime was committed and that the defendant was involved in
it. This other supporting evidence must connect the defendant to the crime.
The supporting evidence may be direct or circumstantial and it need not
be sufficient by itself to justify a conviction. The supporting evidence is
enough if it fairly and legitimately tends to connect the defendant with the
crime charged.
It is for you, the jury, to decide whether an accomplice’s testimony has
been sufficiently supported by the evidence.
We do agree with the defendant and the trial court that the record establishes that Mr.
Hegman was in fact an accomplice in the commission of the crimes. He was charged with the
other two defendants within the same indictment. The defendant contends that Mr. Hegman’s
testimony was not sufficiently corroborated because it is the only evidence which places the
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defendant at the scene of the crime. In support of his argument, he points to the lack of any
forensic evidence which places him at the scene. He also asserts that the testimony regarding
the pinging of the defendant’s phone is insufficient corroboration because there was no
investigation to see if the towers were actually operational or had became overloaded on the
evening on the murder. The defendant contends that the fact that he later pawned goods taken
from the victim’s apartment is sufficient only to establish that he was in possession of stolen
property at a later date; a fact which he asserts does not corroborate Mr. Hegman’s testimony.
Finally, the defendant argues that the State cannot rely upon Mr. Jones’’ testimony regarding
the defendant’s confession to him in order to corroboate Mr. Hegman’s testimony because of
Mr. Jones’ lack of credibility based upon his extensive criminal past and because the
confession is itself not corroborated.
With regard to the testimony of Mr. Jones, we do agree with the defendant that it in
effect did amount to a confession by the defendant. The statement that “he put a choke hold
on [the victim] and choked him out” does appear to be an acknowledgment of guilt, as is the
admission of taking the property. We likewise agree that “[i]t is a well-established principle
of law . . . that a conviction cannot be founded solely upon a defendant’s confession . . . .”
State v. Bough, 152 S.W.3d 453, 465 (Tenn. 2004). Rather, some corroborating evidence is
required to establish the corpus delicti of the crime. Id. The defendant contends that the
“record lacks any credible evidence corroborating what [Mr. Jones] states was ‘confessed’ to
him. That coupled with the fact that it is entirely incredible that someone who was basically
a perfect stranger . . . would confess an act of murder to another perfect stranger” does not
support a finding of corroboration.
Our supreme court again recently addressed the issue of corroboration of a confession
and the accompanying requirements. In State v. Courtney Bishop, 431 S.W.2d 22, ??, No.
W2010-01207-SC-R11-CD, 2010 Tenn. LEXIS 189, **82-86, 88 (Tenn. Mar. 6, 2014), after
a recitation of the historical significance and various rules, our supreme court affirmed
Tennessee’s adherence to a modified version of the “trustworthiness” standard. Id. at *82.
The court stated that
the modified trustworthiness standard strikes the proper balance. It combines
the traditional corpus delicti rule’s focus on avoiding prosecutions for
nonexistent crimes with the trustworthiness standard’s focus on avoiding
prosecutions based on false confessions to actual crimes. Under the modified
trustworthiness standard, a defendant’s extrajudicial confession is sufficient to
support a conviction only if the State introduces “independent proof of facts
and circumstances which strengthen or bolster the confession and tend to
generate a belief in its trustworthiness, plus independent proof of loss or injury.
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Id. (citations omitted). The court then summarized the standard “in a nutshell:”
When a defendant challenges the admission of his extrajudicial confession on
lack-of corroboration grounds, the trial court should begin by asking whether
the charged offense is one that involved a tangible injury. If the answer is yes,
then the State must provide substantial independent evidence tending to show
that the defendant’s statement is trustworty, plus independent prima facie
evidence that the injury actually occurred. If the answer is no, then the State
must provide substantial independent evidence tending to show that the
defendant’s statement is trustworthy, and the evidence must link the defendant
to the crime.
Id. at **83-84 (footnotes omitted).
In order to establish trustworthiness, the State must introduce independent evidence
which corroborates the essential facts contained in the defendant’s statement. Id. at **85-86.
The court noted, for example, that independent corroboration of one key part of an
extrajudicial confession or admission may serve to corroborate the entire statements. Id. at
*86 (citations omitted). However, independent evidence which corroborates only collateral
circumstances surrounding the confession will not suffice to establish trustworthiness. Id. at
*87 (citations omitted).
The court continued by noting that one way to effectively bolster the defendant’s
admission or confession is to present independent evidence that “parallel[s] the defendant’s
confession” or corroborates the defendant’s account of what happened immediately before
or after the crime. Id. at * 88 (citations omitted). Another way for the State to bolster the
confession is by presenting evidence showing that the statement reveals “specific personal
knowledge about the crime.” Id. at *89 (citations omitted).
Our supreme court noted that, once the State has presented independent evidence
establishing the prima facie trustworthiness of the confession, the existence of contradictory
evidence does not necessarily render the confession untrustworthy. Rather, the contradictory
evidence instead raises a credibility issue to be determined by the factfinder. Id. at *90
(citations omitted). Further, additional extrajudicial confessions by the defendant are not
sufficient by themselves to establish trustworthiness. Id. (citations omitted). However, a
statement made under oath in open court requires no independent corroboration and may serve
as corroboration of the extrajudicial statement. Id. at *91 (citations omitted).
The defendant’s arguments with regard to Mr. Hegman’s accomplice testimony and
Mr. Jones’s testimony regarding the defendant’s confession specifically ignore that our
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supreme court has recognized that accomplice testimony and a defendant’s confession may
corroborate one another. Witham v. State, 191 Tenn. 115, 121 (Tenn. 1950) (“The
confessions were admissible in evidence to corroborate the testimony of the accomplice
which, in turn and to the same extent, corroborates the confessions.”). Although there are
some discrepancies between the two men’s testimony, that does not preclude a finding of
corroboration. On the key issues, the two testimonies are consistent with each other. It is for
the jury to weigh the credibility of the witnesses in making their determination if the
corroboration is sufficient. That occurred in this case.
We are simply unable to conclude that the accomplice testimony by Mr. Hegman or the
testimony by Mr. Jones regarding the defendant’s confession was not corroborated. Both
men’s testimony placed the defendant inside the victim’s apartment during the time of the
murder and referenced an altercation taking place between the two, as well as Victor Johnson.
Both reference a robbery of the victim of goods which the defendant was later found in
possession of. Even were we to assume that the separate testimonies could not serve to
corroborate the other, other copious evidence in the record leads to the conclusion that the
standard was met in this case.
Mr. Hegman’s testimony was further corroborated by the cell phone records placing
the group in the area at the time of the murder and robbery. Moreover, the defendant’s
possession of the stolen electronics and subsequent pawning of them corroborate his
involvement, as does the testimony of Ms. Poynter and the pawn shop employees. Mr.
Hegman also testified that after he left the apartment, Mr. Johnson went to the dumpster area.
Investigators found several of the victim’s personal items in the dumpster.
The same corroboration also serves to corroborate the statements made by the
defendant to Mr. Jones. In the statement, the defendant indicated that electronics had been
taken and that he later pawned them locally. The cell phone records again corroborate that
a call was made to the victim prior to the group’s arrival and that the group was in the area
at the time, verifying the statements made by the defendant. Moreover, the autopsy report and
subsequent finding that the cause of death was “asphyxia by strangulation” is corroborated
by the defendant’s statement that he “choked [the victim] out.” In essence, the defendant has
knowledge of the details of the murder, i.e., the cause of death. Plus, the defendant’s own
letters written and calls made to his wife or other gang members contained statements which
would serve to corroborate portions of the testimony. Clearly, the statement that they would
never have gotten caught had Mr. Johnson not taken the cell phone indicates guilt and a
knowledge of the crime. Other statements made in the letters do as well.
Based upon this, we can give no credence to the defendant’s argument. His
convictions did not rest solely on the uncorroborated testimony of accomplice Hegman or the
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testimony by Mr. Jones. While the defendant asserts their lack of credibility, that argument
ignores that the witnesses were placed before the jury and offered their testimony. They were
subject to vigorous cross-examination. The jury was responsible for making any necessary
credibility determinations. No relief is warranted.
B. Sufficiency of the Evidence
As noted, the defendant’s main argument focuses upon the corroboration requirements
of the accomplice testimony and the confession. He asks us to review the sufficiency of the
evidence ignoring the testimony of Mr. Hegman and Mr. Jones. However, as previously
noted, both were sufficiently corroborated and warrant inclusion in our consideration of the
evidence. The defendant makes no other argument with regard to sufficiency which is
separate from the corroboration requirements. Nonetheless, we will perform a general
sufficiency review of the convictions.
When the sufficiency of the evidence is challenged, the relevant question is whether,
after reviewing the evidence in the light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. State v.
Dorantes, 331 S.W.3d 370, 379 (2011); see also Jackson v. Virginia, 443 U.S. 307, 319
(1979). “[O]n appeal, the State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” Dorantes, 331 S.W.3d at 379
(internal quotation omitted). It is the trier of fact who resolves all questions of witness
credibility, the weight and value of the evidence, as well as all factual issues raised by the
evidence. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Reviewing courts
should neither re-weigh the evidence nor substitute their own inferences for those drawn by
the jury. State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003).
The trial court’s approval of the jury’s verdict accredits the State’s witnesses and
resolves all conflicts in the evidence in the State's favor. State v. Moats, 906 S.W.2d 431,
433-34 (Tenn. 1995). “Because a guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt, on appeal a defendant bears the burden of showing
why the evidence is insufficient to support the conviction.” State v. Thacker, 164 S.W.3d 208,
221 (Tenn. 2005). These rules apply whether the verdict is predicated upon direct evidence,
circumstantial evidence, or a combination of both. Dorantes, 331 S.W.3d at 379. In weighing
the sufficiency of the evidence, circumstantial and direct evidence are treated the same, and
the State is not required to exclude every reasonable hypothesis other than that of guilt. Id.
at 381.
The defendant was convicted in the alternative of first degree premeditated murder and
first degree felony murder. As required by law, after conviction, the trial court merged the
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multiple murder convictions involving a single victim. See State v. Kiser, 284 S.W.3d 227.
234 (Tenn. 2009). However, it is unclear from the judgments how the counts were merged.
A notation on judgment of conviction for Count 2, first degree premeditated murder, states:
“Counts 1 and 2 merge into one count of 1st degree murder.” From that it is unclear what the
trial court’s intent was as to the merger, i.e., which conviction was merged into the other. As
such, we remand for entry of corrected judgments reflecting the appropriate information.
Regardless, as pointed out by the State, despite merger neither conviction was
extinguished. See State v. Adam Clyde Braseel, No. M2009-00839-CCA-R3-CD, 2010 Tenn.
Crim. App. LEXIS 784, *23 (Tenn. Crim. App. Sept. 17, 2010). The convictions simply
merged into a single judgment of conviction. In this situation, review of all convictions is
appropriate.
1. Premeditated Murder
First degree murder is the premeditated and intentional killing of another person.
T.C.A. § 39-13-202(a)(1) (2010). A premeditated killing is one “done after the exercise of
reflection and judgment.” T.C.A. § 39-13-202(d). The element of premeditation is a question
of fact for the jury. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Although the jury
may not engage in speculation, it may infer premeditation from the manner and circumstances
surrounding the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). In State v.
Nichols, 24 S.W.3d 297, 302 (Tenn. 2000), our supreme court delineated the following
circumstances from which a jury may infer premeditation:
Declarations by the defendant of an intent to kill, evidence of procurement of
a weapon, the use of a deadly weapon upon an unarmed victim, the particular
cruelty of the killing, infliction of multiple wounds, preparation before the
killing for concealment of the crime, destruction or secretion of evidence of the
murder, and calmness immediately after the killing.
Additional factors from which a jury may infer premeditation include lack a provocation by
the victim and the defendant’s failure to render aid to the victim. State v. Lewis, 36 S.W.3d
88, 96 (Tenn. Crim. App. 2000). The jury may also infer premeditation from the
establishment of a motive for the killing and the use of multiple weapons in succession. State
v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004).
Viewing the evidence in the light most favorable to the State, we conclude that the
evidence is sufficient to support the conviction. According to Mr. Jones, the defendant told
him that the group traveled to the victim’s apartment in order to rob him. During the course
of that robbery, the victim was killed. According to the defendant’s statements to Mr. Jones,
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the group rushed the front door, wrestled with the victim, and the defendant “choked him
out.” The group, at least the defendant and Mr. Johnson, barreled their way through the door
and immediately began attacking the unarmed victim, who had been expecting them to work
on music. The group then left in stages, taking time to take many of the defendant’s personal
items to the trash can. The defendant later pawned multiple items which had been taken from
the victim’s apartment.
Although not conclusive, the jury was entitled to infer that, because of the preplanned
robbery and the manner in which the group entered the apartment, the acts which took place
were premeditated. The medical examine was clear that it took minutes, not seconds, for
death to result under these circumstances. This action was taken after the victim had already
been beaten with a frying pan by Mr. Johnson. Testimony was also given that a possible
motive for the attack and murder was because the defendant and Mr. Johnson were offended
because the victim was wearing rival gang colors, although no testimony was ever introduced
that the victim was actually in a gang. Testimony was elicited at trial that one way to increase
rank within the gang was to commit certain crimes. Again, the jury was free to infer from
these circumstances, as well as the defendant’s later statement to Mr. Jones that he earned his
“status” after these events, that the course of events was planned.
2. Felony Murder
A person commits first degree felony murder when he recklessly kills another in the
perpetration or attempt to perpetrate several enumerated felonies, one of which is robbery.
T.C.A. § 39-13-202(a)(2). “Robbery is the intentional or knowing theft of property from the
person of another by violence or putting the victim in fear.” T.C.A. § 39-13-401(a). A person
is criminally responsible for an offense committed by the conduct of another if, 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. T.C.A. § 39-11-402(2).
After review of the record in the light most favorable to the State, we must conclude
that the evidence is sufficient to allow a rational trier of fact to conclude that the defendant,
while engaged in a robbery, did strangle the victim to death. By the defendant’s own
statement, testified to by Mr. Jones, he “choked” the victim out, a fact which was established
by the medical examiner’s report as well. Mr. Hegman testified that while he was present in
the apartment, he saw the defendant “reaching” for the victim. While the record indicates that
it was Mr. Johnson who hit the defendant with the frying pan, the cause of death was asphyxia
by strangulation, and choking someone would be consistent with that cause of death, as well
as the bruising on the victim’s neck and the hemorrhages in his eyes. Regardless, under a
theory of criminal responsibility, each would be responsible for the actions of the other.
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The evidence in the record established that the men went to the victim’s apartment and
proceeded to rob and kill the victim. The defendant told Mr. Jones that the group had gone
there to rob the victim, although Mr. Hegman testified that he was not aware of that plan.
However, he did witness both the defendant and Mr. Johnson in an altercation with the victim
and later learned that the victim had died. Mr. Hegman himself admitted that he removed a
plastic tub of the victim’s belongings from the apartment at Mr. Johnson’s direction. He also
testified that he was with the defendant later when the defendant pawned some of the victim’s
electronics which had been taken from the apartment. Other testimony established that the
electronics were in fact the victim’s and that the defendant was the one who took them to the
pawn shop.
Taken together as a whole, the evidence is more than sufficient to establish that the
defendant was guilty of felony murder during the perpetration of a robbery. He is entitled to
no relief.
3. Especially Aggravated Robbery
As an initial issue with regard to the conviction for especially aggravated robbery, the
State contends that the defendant has waived review. The State points out that, within his
appellate brief, the defendant mentions this conviction “passingly and only within the
statement of the case.” The State also points out that the defendant failed to include any
citation to relevant statutes for murder or robbery, but argues that the focus of the brief is
clearly on the murder conviction. In support of its waiver argument, the State points our
attention to a line of cases in which this court has repeatedly declined to review the
sufficiency of the evidence for convictions which were not clearly contested in the appellate
brief. See e.g. State v. Keither A. Whited, No. M2010-001340CCA-R3-CD , 2010 Tenn.
Crim. App. LEXIS 981, *16-17 n.6 (Tenn. Crim. App. Nov. 19, 2010).
While we do agree with the State that the defendant is very ambiguous in his brief with
regard to the actual convictions he is challenging, there is, nonetheless, some reference made
to both the robbery and murder convictions. As such, in the interest of finality and
completeness, we elect to review all convictions for the sufficiency of the evidence.
A person is guilty of especially aggravated robbery when he accomplishes a robbery
with a deadly weapon and when the victim suffers serious bodily injury. T.C.A. § 39-13-403.
A person is guilty of robbery when he commits an intentional or knowing theft of property
from the person of another by violence or putting the person in fear. T.C.A. § 39-13-4010.
A deadly weapon is any weapon or instrument which, from the manner in which it is used or
attempted to be used, is likely to produce death or cause great bodily injury. T.C.A. § 39-11-
106(5). A person is criminally responsible for an offense committed by the conduct of
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another if, 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. T.C.A. § 39-11-402(2).
Again, review of the record establishes that the men went to the apartment in order to
rob the victim and did in fact do so. In the process, the victim was killed. The evidence
establishes that the men burst through the door and began an assault upon the victim.
Eventually he was beat on the head multiple times with a frying pan, a deadly weapon, before
being choked to death by the defendant. Multiple pieces of evidence establish that items
belonging to the victim were taken from the apartment and later pawned for cash by the
defendant. This, in the light most favorable to the State, is sufficient to establish the crime
of especially aggravated robbery.
CONCLUSION
Based upon the foregoing, the judgments of conviction are affirmed. However, the
case is remanded to the trial court for entry of corrected judgments reflecting which murder
conviction the court intended to merge.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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