State v Ely
| Decision Date | 04 November 1999 |
| Docket Number | 9806-CC-00215 |
| Parties | STATE OF TENNESSEE, Appellee, VS. CURTIS J. ELY, Appellant. NO. 03C01-9806-IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE JULY 1999 SESSION OPINION FILED: |
| Court | Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee |
ANDERSON COUNTY
(Felony Murder - Life Sentence)
Defendant, Curtis J. Ely, was convicted by an Anderson County jury of first degree murder in perpetration of robbery and received a life sentence. In this appeal as of right, defendant presents the following issues for our review:
1. whether the evidence was sufficient to support the verdict;
2. whether evidence in violation of the rules of discovery was improperly admitted;
3. whether defendant's pre-trial statements were improperly admitted;
4. whether the state was improperly allowed to reopen its proof;
5. whether the trial court improperly commented upon the evidence;
6. whether gang affiliation testimony was improperly admitted;
7. whether the state's dismissal of the premeditated first degree murder count at the conclusion of its proof was improper;
8. whether the trial court's failure to charge lesser offenses was error;
9. whether the trial court's failure to instruct the jury that accomplices cannot corroborate each other was error; and
10. whether defendant was denied a fair trial due to cumulative errors.
Our review of the record reveals no reversible error; therefore, we AFFIRM the judgment of the trial court.
PAUL G. SUMMERS, Attorney General and Reporter, MARVIN S. BLAIR, JR., Assistant Attorney General, Cordell Hull Building, 2nd Floor, 425 Fifth Avenue North, Nashville, TN 37243-0493
JAMES N. RAMSEY, District Attorney General, JANICE G. HICKS, Assistant District Attorney General, 127 Anderson County Courthouse, Clinton, TN 37716
AFFIRMED
The seventy-year-old victim, William C. Bond, was robbed and brutally murdered in his home during the early morning hours of December 3, 1996. The cause of death was numerous blows to the head with a brick. The brick was found near the victim's body inside the residence. Among the items stolen from the residence were a television, VCR and CD player.
Trinidy Carden, the former step-grandson of the victim, was linked to the crime when he tried to sell some of the stolen property several days later. He eventually pled guilty to second degree murder pursuant to a plea agreement and received a sentence of 20 years.
Upon his arrest, Carden advised the authorities that the defendant participated in the crime and was the person who actually murdered the victim. Defendant was then arrested.
Upon being questioned by the authorities at the Clinton Police Department, defendant acknowledged that he spent the night with Carden; however, he did not confess his involvement in the crime. After formal interrogation, he was transported to the county jail. While en route, defendant asked the officers to stop the vehicle since he wanted to talk. The defendant then told the officers that
The state called Carden as its witness. To the surprise of the state, Carden denied that defendant was implicated in the crime. He testified that his prior statements to the authorities implicating defendant were untrue.
Martha Wine testified that the defendant, Carden and a third person named "Wes" came to her residence in Knoxville at approximately 5:00 a.m. on the morning of the homicide. They had a TV, VCR and CD player. Carden told Wine that he and the defendant had beaten the victim with a brick.
Wes Powers testified that around 3:00 a.m. on the night of the homicide, the defendant called him and asked Powers to carry Carden and him to Knoxville. Powers testified that defendant stated they had broken into a house and "knocked somebody unconscious." Powers declined to carry them to Knoxville at that time; however, he did take them to Wine's residence the next evening where he saw the TV and VCR. The defendant told Powers that he hit the victim with a brick.
Jason Johnson, Carden's cousin, testified that the defendant told him he hit the victim with a brick. Johnson denied any involvement in the crime.
The defense presented witnesses who testified that Carden admitted that he was the person who hit the victim with the brick. Two of the witnesses implicated Jason Johnson as Carden's accomplice.
The defendant did not testify at trial.
At the conclusion of the proof, the state secured permission of the trial court to reopen its proof and allow Carden to testify again. When the state asked him whether he told the truth in the previous day's testimony, Carden stated he was under too much pressure and declined to answer the question. Upon continued questioning, he stated that he had told the truth in his testimony the previous day.
Based upon this proof, the jury convicted the defendant of murder in perpetration of robbery.
Defendant contends the evidence is insufficient to support felony murder on two primary grounds: (1) the jury was allowed to consider Carden's prior inconsistent statements as substantive evidence; and (2) the statements of
defendant's alleged accomplices were not sufficiently corroborated. We reject defendant's argument.
When Carden was called as a state witness, he testified that the defendant was not involved in the offense. This testimony was contrary to his pre-trial statements to the authorities. Surprised by this testimony, the prosecutor endeavored to impeach Carden by making detailed references to his prior inconsistent statements. In those prior statements, Carden implicated the defendant as his accomplice, and as the person who actually committed the murder. Defendant contends the jury was not adequately instructed that these statements could be considered only for impeachment purposes and not as substantive evidence.
Prior inconsistent statements are admissible to impeach a witness but are not admissible as substantive evidence. King v. State, 215 S.W.2d 813, 815 (Tenn. 1948). The credibility of a witness may be attacked even by the party calling the witness. Tenn. R. Evid. 607. However, such impeachment testimony can be highly prejudicial and improper. See State v. Roy L. Payne, C. C. A. No. 03C01-9202-CR-45, Washington County (Tenn. Crim. App. filed February 2, 1993, at Knoxville). Certainly, the prosecutor should not call a witness for the sole purpose of introducing prior inconsistent statements under the guise of impeachment. See N. Cohen et al., Tennessee Law of Evidence § 613.1 (3d ed. 1995). The failure to instruct the jury that prior inconsistent statements may be considered only for the purpose of impeachment, and not as substantive evidence, is error. State v. West, 767 S.W.2d 387, 396 (Tenn. 1989); State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982).
At a bench conference during Carden's testimony, defense counsel requested that the trial judge advise the jury that prior inconsistent statements could not be considered as substantive evidence. The trial court then advised the jury that it could consider prior statements for the purpose of weighing the witness's testimony in court. The trial court further advised the jury that prior statements are "for the purpose of testing his credibility here, that he's ask (sic) about - and if there is an explanation, it's up to you to weigh that explanation." No further objection or request was made by defense counsel. We conclude the jury was sufficiently advised as to how it should view prior inconsistent statements.
Defendant further contends the trial court compounded this error by not incorporating T.P.I. - CRIM. 42.06 (4th ed. 1995) into the final jury charge. We note there was no objection to the jury charge, nor was the failure to give this charge included in the motion for new trial. The issue is waived. See Tenn. R. App. P. 3(e). Although this Court has a right to consider whether this omission was "plain error," see Tenn. R. Crim. P. 52(b), we find no plain error in light of the contemporaneous instructions given the jury.
The testimony of Martha Wine, Wes Powers, and Jason Johnson implicated the defendant in the commission of this crime. Defendant contends these witnesses were accomplices as a matter of law, and their testimony was not sufficiently corroborated. The testimony of these witnesses does not indicate that they, in fact, were accomplices. An accomplice is one who "knowingly, voluntarily, and with common intent participates with the principal offender in the commission of the crime alleged in the charging instrument." State v. Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997). An accessory after the fact is not an accomplice to the
murder. See Monts v. State, 379 S.W.2d 34, 43 (Tenn. 1964); State v. Allen, 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997).
In this case the trial court charged the jury that it was for their determination as to whether or not these witnesses were accomplices. Under the proof, this was
the proper charge. Assuming the jury found they were not accomplices, which was the jury's prerogative, their testimony need not be corroborated.
When reviewing the trial court's judgment, this Court will not disturb a verdict of guilt unless the facts of the record and inferences which may be drawn from it are insufficient as a matter of law for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Tenn. R. App. P. 13(e); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In other words, this Court will not reevaluate or reweigh...
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