Direct Appeal from the Criminal Court for Shelby County No. 96-11968, 97-05622 Chris Craft, Judge
The opinion of the court was delivered by: Jerry L. Smith, Judge
On October 31, 1996, a Shelby County Grand Jury indicted Charles Thompson and Verico Jackson for first-degree murder. Later, the defendants were also indicted for conspiracy to commit murder. Following a jury trial, the defendants were convicted on both counts. The trial court dismissed the conspiracy charges, and, following a sentencing hearing, sentenced Charles Thompson to life without parole and sentenced Verico Jackson to life. On appeal, both defendants claim (1) that the evidence was insufficient to sustain the verdicts; (2) that the trial court should have severed the defendants' trials; (3) that the trial court erred by shackling defense witnesses and/or providing extra security in the courtroom; (4) that the trial court erroneously excluded the victim's "dying declaration"; (5) that the trial court erroneously excluded evidence that people other than the defendants had recently threatened the victim; and (6) that the trial court erroneously overruled a motion for mistrial after a witness testified that Defendant Thompson had previously ordered other murders. Additionally, Defendant Thompson claims (1) that the trial court erroneously allowed the state to use exhibits that had been used in a previous trial of a co-defendant; (2) that the trial court erroneously overruled a motion for mistrial after an attorney mentioned the trial of a co-defendant in violation of a court order; (3) that Defendant Jackson's attorney had a conflict of interest that prejudiced Defendant Thompson; (4) that the trial court erroneously excluded the prior inconsistent statements of a witness; (5) that the trial court erroneously excluded evidence of a witness's reputation for truthfulness; (6) that the trial court erroneously denied Defendant Thompson's request for a special jury instruction; and (7) that, at sentencing, the trial court erroneously allowed the state to introduce prejudicial evidence of prior bad acts.
Finding no reversible error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
Jerry L. Smith, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Robert W. Wedemeyer, JJ, joined.
In 1996, Charles Thompson and Verico Jackson were both high-ranking members of a gang called the "Traveling Vice Lords." On April 19, 1996, Charles Thompson was incarcerated in the Shelby County Justice Center where he had a verbal altercation with a Sergeant Dedrick Taylor, a Justice Center employee. Following that altercation, Charles Thompson telephoned Verico Jackson at a local apartment and told Jackson that he wanted Sergeant Taylor killed and that he wanted to see news of the killing on television the next morning. Jackson then related that conversation to other members of the gang who were present in the apartment. Jackson and the other members of the gang armed themselves and left the apartment. They walked toward the street on which Sergeant Taylor and his wife lived. Jackson then told the other gang members to kill Sergeant Taylor. Shortly thereafter Sergeant Taylor pulled into his driveway where he was shot several times. His wife heard gunshots, but did not see who shot Sergeant Taylor. Sergeant Taylor died from the gunshot wounds.
Margaretta Dotson, a woman who was with the gang members earlier in the evening, heard gunshots coming from the area of Sergeant Taylor's house. Immediately after hearing the shots, she saw all of the gang members run and jump into a car and drive away. She then returned to the apartment that Charles Thompson had phoned earlier; there she found Jackson and the other gang members. They all watched the local news, and saw a report about the shooting of Sergeant Taylor. When the news report aired, Jackson and the other gang members celebrated and made "gang-signs" to one another.
The defendants were charged with first-degree murder and conspiracy to commit first-degree murder. Following a jury trial, both defendants were convicted on both counts. The court dismissed the conspiracy charges on double jeopardy grounds. After a sentencing hearing, Defendant Thompson was sentenced to life without the possibility of parole and Defendant Jackson was sentenced to life.
First, both appellants claim that the evidence was insufficient to support their convictions. When an appellant challenges the sufficiency of the evidence, this court is obliged to review that challenge according to certain well-settled principles. A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the State's witnesses and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused is originally cloaked with a presumption of innocence, a jury verdict removes this presumption and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the appellant to demonstrate the insufficiency of the convicting evidence. Id.
On appeal, the state is entitled to the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Where the sufficiency of the evidence is contested, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992); Tenn. R. App. P. 13(e). In conducting our evaluation of the convicting evidence, this Court is precluded from reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not substitute its own inferences "for those drawn by the trier of fact from circumstantial evidence." State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
In this case, the defendants were found guilty of being criminally responsible for the first-degree murder of Dedrick Taylor. "A person is criminally responsible for an offense committed by the conduct of another if . . . [a]cting 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." Tenn. Code Ann. § 39-11-402(2). First degree murder is "[a] premeditated and intentional killing of another." Tenn. Code. Ann. § 39-13-202(a)(1).
The evidence in this case was sufficient to support an inference that Charles Thompson ordered Verico Jackson to kill Sergeant Taylor and that Verico Jackson carried out that order through subordinate members of the Traveling Vice Lords. Charles Taylor, an inmate, testified that Sergeant Taylor and Charles Thompson had a verbal altercation. He further testified that he heard Thompson telephone someone and ask for Verico Jackson. Mr. Taylor overheard Charles Thompson say that he wanted Sergeant Taylor killed and that he (Charles Thompson) wanted to see evidence of the killing on the news the next morning. Margaretta Dotson testified that she was visiting an apartment where Verico Jackson was on April 19, 1996 and that Jackson got a phone call between 7:00 and 7:30 that evening. Jackson took the phone in another room to take the call. After Jackson got off the phone, he and several other gang members in the apartment began loading weapons. Robert Meyer, a specialist in charge of the inmate telephone system, testified that a phone call was made from prison "pod" 4-f to the apartment in question at 7:32 p.m. Charles Golden, a member of the Traveling Vice Lords, testified that he was at the apartment with Jackson the night of the crime. He said that Jackson told him (Golden) about the altercation between Thompson and the victim and that "no one could do that to his chief." Golden said that when the other gang members said that they should kill the victim, Jackson replied "[T]hat's what we gonna do." Golden, Jackson, and two other men walked to a local night club nearby. Jackson stayed in the club, while Golden and the two other men found and fatally shot Sergeant Taylor. Mr. Golden testified that he shot a .38 caliber that night. Alphonso Fleming testified that, approximately April 25th or 26th, Charles Golden asked him to hold a .38 caliber gun. Mr. Fleming hid the gun in a closet until police came and confiscated it. Tommy Heflin, a TBI firearms identification expert, testified that all nineteen shell casings recovered at the scene of the murder were fired from the weapon discovered in Mr. Fleming's closet and that several bullet fragments could have been fired from that gun. Finally, Marcus Daniels, another gang member, testified that Charles Thompson was a ruling member of the gang, and that others had to abide by his orders. The evidence was clearly sufficient to support the jury's verdict.
Jackson also claims, however, that the evidence was insufficient because all of the evidence against Jackson was uncorroborated accomplice testimony. Specifically, he claims that Charles Golden and Charles Taylor were both accomplices and that neither's testimony was corroborated in crucial respects. "In Tennessee, it is well-settled that a defendant cannot be convicted on the uncorroborated testimony of an accomplice." State v. Heflin, 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999)(citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). As the Tennessee Supreme Court has noted, however,
[t]his 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. The corroboration need not be conclusive, but it is sufficient if this evidence, of itself, tends to connect the defendant with the commission of the offense, although the evidence is slight and entitled, when standing alone, to but little consideration. Bigbee, 885 S.W.2d at 803.
Thus, "only slight circumstances are required to corroborate an accomplice's testimony." State v. Griffis, 964 S.W.2d 577, 589 (Tenn. Crim. App. 1997); see also Heflin, 15 S.W.3d at 524. Whether an accomplice's testimony has been sufficiently corroborated is a jury question. Bigbee, 885 S.W.2d at 803.
Initially, we are not convinced that Charles Taylor was an accomplice. *fn1 In any event, we find that the testimony of Mr. Taylor and Mr. Golden was sufficiently corroborated by the testimony of Margaretta Dodson, Robert Meyer and Tom Maupin. Ms. Dodson testified that she was with Mr. Jackson, Charles Golden, Thomas Cummings, Rory Haywood and Hubert Bond on April 19, 1996. At approximately 7:00 p.m. or 7:30 p.m., Mr. Jackson received a phone call. He took the phone into a bedroom in the apartment and motioned for Mr. Golden, Mr. Cummings and Mr. Haywood to join him in the bedroom. Ms. Dodson testified that she and Mr. Bond stepped outside for a moment. When she stepped back inside, the four other men were loading weapons. After that, Ms. Dodson, Mr. Bonds, and the others left the apartment. Ms. Dodson told the jury that she overheard Mr. Jackson tell Mr. Golden that they were "fixing to go over here and take care of their business." Verico Jackson went into a local bar, but the others remained outside. At some point, Rory Haywood told Ms. Dodson to tell them when it was 10:00 p.m. Before Ms. Dodson could tell them it was 10:00, however, Mr. Golden, Mr. Cummings and Mr. Haywood left on foot toward the victim's house. Mr. Bonds also left, but he went in another direction. After that, Ms. Dodson started walking toward her friend's house when she heard several gunshots. Following the gunshots, Ms. Dodson saw Mr. Golden, Mr. Cummings and Mr. Haywood all running from the direction of the shots. They all jumped in Mr. Cummings car, and Verico Jackson jumped in with them. The four men drove back to the apartment, while Ms. Dodson and Mr. Bonds walked back to the apartment. Some time after they all returned to the apartment, the local television news reported that Sergeant Taylor had been shot. Ms. Dodson testified that when the men in the apartment heard the news, they all began to celebrate, and Mr. Jackson told Mr. Golden, Mr. Cummings and Mr. Haywood that they "took care of business."
Robert Meyer and Tom Maupin also corroborated the testimony of Charles Golden and Charles Taylor. Robert Meyer, a telecommunications consultant working for Shelby County, testified that several telephone calls were made from Charles Thompson's prison pod to a certain telephone number in Shelby County on the day of the murder, including a fifteen-minute call made at 7:32 p.m. Tom Maupin, a Bell South employee, verified that the telephone number that Mr. Maupin referred to was the apartment that Ms. Dodson and Mr. Golden had testified about, and where Verico Jackson took the call. In sum, the testimony of Charles Golden and Charles Taylor was well-corroborated by other testimony in this case.
This issue is without merit.
Next, both defendants claim that the trial court should have tried each defendant separately. Jackson has waived this issue, because he did not raise the issue prior to trial or base his motion on a ground not previously known. Rule 14 of the Tennessee Rules of Criminal Procedure provides, in pertinent part, "[A] defendant's motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all evidence if based upon a ground not previously known. Severance is waived if the motion is not made at the appropriate time." Tenn. R. Crim. P. 14(a)(emphasis added).
Because Thompson raised the issue at the appropriate time, we will address the merits of his claim. At a pre-trial hearing, Thompson claimed that severance was necessary because he anticipated that the two defendants' theories of the case were different and that a joint trial would force Thompson to defend against both the state's theory and Jackson's theory. Thompson also feared that if Jackson testified and Thompson did not, the jury would likely infer that Thompson was being evasive. Finally, Thompson was fearful that evidence presented by Jackson might incriminate Thompson.
Whether a severance should be granted is a matter entrusted to the sound discretion of the trial court, and a reviewing court may not disturb the trial court's ruling absent an abuse of discretion that resulted in clear prejudice to the defendant. See State v. Hutchison, 898 S.W.2d 161, 166 (Tenn. 1994). Indeed, the Tennessee Supreme Court recently reminded us that
[t]he state, as well as the persons accused, is entitled to have its rights protected, and when several persons are charged jointly with a single crime, we think the state is entitled to have the fact of guilt determined and the punishment assessed in a single trial, unless to do so would unfairly prejudice the rights of the defendants. State v. Carruthers, 35 S.W.3d 516, 552-53 (Tenn. 2000)(quoting Woodruff v. State, 164 Tenn. 530, 538-39, 51 S.W.2d 843, 845 (1932)).
We find no such prejudice here. According to Thompson's brief, his theory was that he never intended to convey to Jackson that he wanted the victim killed, while Jackson's theory was that he only intended to frighten the victim to impress Thompson. Although the defendants' respective theories of the case were different, Thompson has not shown how this resulted in a vitiation of his rights. See State v. Ensley, 956 S.W.2d 502, 509 (Tenn. Crim. App. 1996). Furthermore, a severance need not be granted where the evidence which was introduced could have been admitted against him in a separate trial. State v. Little, 854 S.W.2d 643, 648 (Tenn. Crim. App. 1992). In this case, the state's theory was that Thompson and Jackson engaged in a conspiracy to murder the victim, so the evidence would have been essentially the same whether the defendants were tried separately or together. *fn2 See Carruthers, 35 S.W.3d at 554 n.39 (Tenn. 2000).
Thompson also complains that he was prejudiced by Jackson's attorney during trial. In a pre-trial order, the trial court prohibited any inquiries about Charles Golden's trial. When Charles Taylor testified, Jackson's attorney asked him about his testimony at Charles Golden's trial. Because this was in violation of a court order, Thompson claims that the trial court erred when it refused to sever the trials or grant a mistrial.
Again, we find no prejudice to Mr. Thompson. As Jackson's attorney was cross-examining Charles Taylor, the following colloquy occurred:
MR. BALL (Jackson's Attorney): Okay. Now you testified on March 18, 1997 in the trial of Charles Golden in this very courtroom, didn't you?
CHARLES TAYLOR: Yes, I did.
THE COURT: We had a hearing, Mr. Ball, about Mr. Golden. He's testified before, but we don't need to get into what all that was about.
Thompson then moved for severance or a mistrial, and the trial court denied the request:
THE COURT: All right. Mr. Ball has not asked anything as far as what's happened with your client that the state didn't or couldn't ask. As far as Mr. Golden's trial, the fact that he was tried or not has nothing - is not prejudicial in the least. We haven't talked about any verdicts or conclusions. And so I'm going to overrule your motion for a mistrial at this time. Also overrule your motion for severance.
We agree with the trial court that no prejudice resulted from the mention of Mr. Golden's trial, and that a severance was unnecessary. For the same reasons, we find that the question did not create a "manifest necessity" requiring a mistrial. See State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim. App. 1999)(citations omitted).
This issue is without merit.
Next, defendant Thompson complains that he was denied a fair trial because the trial court employed extraordinary security measures during the trial. Those measures apparently included posting a metal detector outside the courtroom, posting signs that stated that certain items would not be allowed in the courtroom, and marking the entrance to the courtroom with "police tape." Thompson argues that these extraordinary measures must have created an unfair impression in the jurors' minds that the defendant was dangerous. Additionally, both defendants complain that the trial court erred by allowing several defense witnesses to appear before the jury in shackles, while the state's witnesses appeared without shackles. Finally, Thompson argues that the trial court erred by forcing the defense witnesses to enter the courtroom through a door that led to the jail, while the state's witnesses were allowed to enter the courtroom through the public entrance.
It is well settled that the trial court has broad discretion in controlling the course and conduct of the trial. See Pique v. State, 480 S.W.2d 546, 550-551 (Tenn. Crim. App. 1971). The trial court did not abuse its discretion by providing extraordinary security measures in this case, because it was a reasonable response to the situation that did not prejudice the defendant. The jury knew that several of the witnesses were prison inmates, and several of the witnesses admitted to having been in gangs. See State v. Sutton, 761 S.W.2d 763, 769 (Tenn. 1988)(holding that guard's reaction in reaching for weapons in response to placement of suspected murder weapon, a homemade knife, on defense table within reach of defendant did not deprive defendant of physical ...