         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON              FILED
                         JULY 1998 SESSION          August 31, 1998

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )    NO. 02C01-9707-CR-00274
      Appellee,                  )
                                 )    SHELBY COUNTY
VS.                              )
                                 )    HON. L.T. LAFFERTY,
SAMUEL F. HOWARD, III,           )    JUDGE
                                 )
      Appellant.                 )    (Felony Murder, Especially
                                 )     Aggravated Robbery)



FOR THE APPELLANT:                    FOR THE APPELLEE:

CHRISTOPHER L. NEARN                  JOHN KNOX WALKUP
(Trial and Appeal)                    Attorney General and Reporter
243 Exchange Avenue
Memphis, TN 38105                     PETER M. COUGHLAN
                                      Assistant Attorney General
BILL ANDERSON, JR.                    Cordell Hull Building, 2nd Floor
(Trial Only)                          425 Fifth Avenue North
138 North Third Street                Nashville, TN 37243-0493
Memphis, TN 38103-2007
                                      WILLIAM L. GIBBONS
                                      District Attorney General

                                      J. ROBERT CARTER, JR.
                                      ROSEMARY ANDREWS
                                      Asst District Attorneys General
                                      201 Poplar Ave, Suite 301
                                      Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, Samuel F. Howard, III, appeals as of right his convictions

by a Shelby County jury of murder in the perpetration of a felony and especially

aggravated robbery. He received concurrent sentences of life and twenty (20)

years. The defendant raises the following issues for review:


              (1) whether the evidence was sufficient for a jury to
              convict the defendant of murder in the perpetration of
              a felony and especially aggravated robbery;

              (2) whether the defendant was deprived of a fair trial
              because the jury was not individually questioned in
              voir dire;

              (3) whether the trial court improperly dismissed a
              prospective juror;

              (4) whether the trial court erred by admitting a
              photograph of the victim; and

              (5) whether the trial court erred by failing to grant a
              mistrial after the state made improper remarks during
              closing argument.


After a thorough review of the record, the judgment of the trial court is

AFFIRMED.



                                       FACTS



       The victim, Roy Tate, was driving in Memphis with his friend, Rico King,

on the evening of July 24, 1995. He pulled into an Amoco station to use a pay

phone after his girlfriend paged him. As the victim spoke on the telephone, the

defendant and Cedric Solomon approached him from behind. Solomon drew a

nine (9) millimeter handgun and said, “don’t move.” King told the pair, “we’ll give

you whatever you want . . . just don’t kill us.”



       The victim turned to face the pair. King testified that at this point he ran

away. The victim attempted to run as well, but was shot twice from behind. The



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defendant and Solomon then got in the victim’s car and drove away. It is

uncontroverted that Solomon, not the defendant, shot the victim.



       Eric Denton testified at trial that the defendant and Solomon were riding in

Denton’s vehicle immediately prior to the killing. He stated that as they drove

around Solomon stated he and the defendant needed to rob someone in order to

pay the defendant’s lawyer. Denton testified that he stopped at a store near the

Amoco to purchase beer and use the restroom. Denton testified that as he

exited the store he heard two (2) gunshots and observed Solomon standing by

the Amoco pay phone with a pistol in his hand. Later that night, Denton saw the

defendant and Solomon in the victim’s car. Solomon asked Denton for help in

removing the car’s stereo components to sell them. The defendant and Solomon

asked Denton if he knew of anyone interested in buying the car or its contents.



       Anthony Evans testified that the defendant and Solomon approached him

the night of the murder and sold him a car speaker system known as a “kick

box.” Evans testified he gave the defendant $100 for the speakers. Evans

further testified that several days after the murder, he heard the defendant

saying that he beat a murder charge when the police released him after

questioning.



                        SUFFICIENCY OF THE EVIDENCE



       When an accused challenges the sufficiency of the evidence, this Court

must review the record to determine if the evidence adduced during the trial was

sufficient "to support the findings by the trier of fact of guilt beyond a reasonable

doubt." Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt

predicated upon direct evidence, circumstantial evidence or a combination of

direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,19 (Tenn.

Crim. App.1996).



                                          3
       In determining the sufficiency of the evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn.1978). Nor may this Court substitute its inferences for those drawn by the

trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305,

286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the

state the strongest legitimate view of the evidence contained in the record as

well as all reasonable and legitimate inferences which may be drawn from the

evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.1995).



       Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burden in this Court

of illustrating why the evidence is insufficient to support the verdict returned by

the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v.

Grace, 493 S.W.2d at 476.



       Further, a defendant who aids and abets a co-defendant in the

commission of a crime, such as aggravated robbery, is liable for any crime

committed by the co-defendant as a natural and probable consequence of the

originally intended crime. State v. Carson, 950 S.W.2d 951, 956 (Tenn. 1997).



       The defendant contends that a legitimate interpretation of the evidence

would be that the defendant was forced by Solomon to participate in this criminal

adventure. Further, the defendant contends that he never had the intent to harm

the victim.



       Testimony at trial revealed that the defendant and Solomon were looking

for a person to rob the evening the victim was killed. Solomon stated they

needed to steal in order to pay for the defendant’s lawyer in an unrelated case.

Further testimony showed the defendant was actively involved in selling stereo

components from the victim’s car. The defendant also bragged that he beat a



                                          4
murder charge when the police initially released him after questioning.



       Taking the evidence in a light most favorable to the state, the jury clearly

could have concluded the defendant was a willing participant in the offenses

charged.



       This issue is without merit.



                                      VOIR DIRE



       The defendant contends the trial court erred in denying his pre-trial motion

for individual voir dire. The record is devoid of any motion or request for

individual voir dire. Nor does the trial transcript reflect any discussion of this

issue prior to voir dire. The issue is, therefore, waived. Tenn. R. App. P. 36(a).



       Regardless, the control of voir dire rests within the sound discretion of the

trial judge. State v. Stephenson, 878 S.W.2d 530, 540 (Tenn. 1994). In

Tennessee, the prevailing practice is to voir dire prospective jurors collectively,

rather than individually. State v. Oody, 823 S.W.2d 554, 563 (Tenn. Crim. App.

1991). While Tenn. R. Crim. P. 24(a) gives the trial court the right to individually

question prospective jurors, it is only necessary to do so when there is a

significant possibility that the juror has been exposed to “potentially prejudicial

material.” State v. Claybrook, 736 S.W.2d 95, 100 (Tenn. 1987) (quoting

Sommerville v. State, 521 S.W.2d 792, 797 (Tenn. 1975)). The trial court’s

exercise of its discretion will not be disturbed unless there is an abuse of that

discretion. State v. Irick, 762 S.W.2d 121, 125 (Tenn. 1988).



       The defendant does not suggest that any juror had been exposed to

prejudicial information. As such, we find no error in the use of a collective voir

dire. This issue is without merit.


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                       DISMISSAL OF JUROR FOR CAUSE



       The defendant alleges he was prejudiced by the trial court’s dismissal of a

potential juror. The juror expressed doubt regarding his ability to follow the law

of criminal responsibility. At one point the juror stated he could not be fair to

both sides. At another point he said, “I guess so” when asked if he could follow

the law. Over the defendant’s objection, the trial court dismissed the juror.



       The decision of a trial court excusing a juror for cause is subject to an

abuse of discretion standard. State v. Kilburn, 782 S.W.2d 199, 203 (Tenn.

Crim. App. 1989). The trial court excused the prospective juror because he was

equivocal in his answer regarding his ability to follow the law. The trial court was

well within its discretion to dismiss the juror.



       This issue is without merit.



                                 PHOTO OF VICTIM



       The defendant contends the trial court improperly admitted a photograph

of the victim taken at the crime scene. The defendant argues the photograph is

inflammatory, and its probative value was far outweighed by its prejudicial effect.



       The admissibility of photographs lies within the sound discretion of the trial

court whose ruling will not be overturned on appeal except upon a clear showing

of an abuse of discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978);

see also State v. Stephenson, 878 S.W.2d at 542; State v. Bordis, 905 S.W.2d

214, 226 (Tenn. Crim. App. 1995). Nevertheless, the photographs must be

relevant to an issue at trial with its probative value outweighing any prejudicial

effect that it may have upon the trier of fact. State v. Braden, 867 S.W.2d 750,

758 (Tenn. Crim. App. 1993); State v. Jennifer Collins, C.C.A. No. 03C01-9704-


                                           6
CR-00143, Hamilton County (Tenn. Crim. App. filed March 3, 1998, at Knoxville).



       We must, therefore, first determine whether the photograph was relevant.

Relevant evidence is evidence “having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Tenn. R. Evid. 401.



       The photograph showed the victim lying on the pavement of the Amoco

lot. The photograph was used by the state to corroborate the testimony of its

witnesses. In light of the evidence previously introduced, the admission of the

photograph of the victim presents a close question. Arguably, this information

could have been properly relayed to the jury with testimony rather than the

photograph. Although the photograph did show the victim’s blood on the

pavement, the trial court found that the photograph was not inflammatory. We

conclude there was no abuse of discretion by the trial court in admitting this

evidence.



       Furthermore, even if the photograph was improperly admitted, its

admission constituted harmless error. Tenn. R. App. P. 36(b). It certainly was

not of the prejudicial magnitude of those utilized in State v. Jennifer Collins,

supra (numerous photographs of “bruised, bloodied, nude, infant victim”).



                       IMPROPER CLOSING ARGUMENT



       The defendant’s final issue relates to alleged improper statements made

by the prosecutor in closing argument. The defendant claims the cumulative

effect of these arguments rendered his trial unfair.




                                         A.



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       The first argument said to have prejudiced the defendant concerned

alleged gang activity. The prosecutor stated:


              Ladies and Gentlemen, Roy Tate died on July 24,
              1995, because Samuel Howard is a wannabe. He’s a
              gangster wannabe . . . He wanted to be a gang
              member . . . Samuel Howard was more than glad,
              that’s his possible initiation into a gang membership . .
              .


The defense objected to this statement, and the trial court ruled there was no

indication that the murder was part of a gang initiation. The trial court then gave

the jury an instruction to disregard any comments about gang activities.



       Although the prosecutor's remarks were improper, we must determine

whether the defendant was prejudiced. This Court has set out five factors which

must be considered in making the determination whether a prosecutor's

improper conduct could have affected the verdict to the prejudice of the

defendant. These factors are as follows:

       1. the conduct complained of in light of the facts and
       circumstances of the case;

       2. the curative measures undertaken;

       3. the intent of the prosecutor in making the improper remarks;

       4. the cumulative effect of the improper conduct and any other
       errors in the record; and

       5. the relative strength or weakness of the case.

State v. Philpott, 882 S.W.2d 394, 408 (Tenn. Crim. App. 1994) (citing Judge v.

State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).



       The trial court admonished the jury to disregard any comments about

gang activities. Jurors are presumed to follow the court’s instructions. Henley v.

State, 960 S.W.2d 572, 581 (Tenn. 1997); State v. Blackmon, 701 S.W.2d 228,

233 (Tenn. Crim. App. 1985).




                                         8
       Based upon the above principles, we conclude the prosecutor’s remarks

did not affect the verdict to the prejudice of the defendant. Certainly, the

prosecutor’s reference to gang activities did not rise to the level condemned in

State v. William Charles Jones, C.C.A. No. 01C01-9512-CC-00402, Maury

County (Tenn. Crim. App. filed June 30, 1997, at Nashville) (numerous “gang”

references along with other inflammatory arguments).



       This issue is without merit.



                                         B.



       The second prosecution argument alleged to have been improper

concerned the defendant’s partner, Cedric Solomon.


              Ladies and Gentlemen, Mr. Anderson wants to know
              why the state did not call Cedric Solomon. Why didn’t
              they?


The prosecution made this rebuttal argument in response to the following closing

argument of the defendant’s counsel:



              I submit to you that the state did not prove any intent
              to rob on the part of Samuel Howard through a
              witness that they could have put up there and who
              might have cleared this entire thing up. Cedric
              Solomon. Why didn’t they? Why didn’t they?


The defendant claims the prosecutor’s statement requires a reversal of his

conviction because it implied the defendant had a burden to put on proof. We

respectfully disagree.



       The witness, Cedric Solomon, was equally available to testify for either

side. See generally State v. Middlebrooks, 840 S.W.2d 317, 334 (Tenn. 1992);

State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984). Defense counsel first raised

the issue of Solomon’s failure to testify in his closing argument, insinuating the

                                         9
state was hiding something by failing to call Solomon. The prosecutor countered

by stating the defense could have called Solomon.



       Counsel for the defendant made an allegation that the state was

attempting to keep exculpatory information from the jury. Both sides had the

ability to procure Solomon’s testimony. We agree with the trial court’s ruling that

it was appropriate for the state to apprise the jury of that fact in light of the

defendant’s argument.



       This issue is without merit.



                                    CONCLUSION



       After a review of the record and the briefs, we find no reversible error and

AFFIRM the judgment of the trial court.




                                                   _________________________
                                                   JOE G. RILEY, JUDGE



CONCUR:




________________________
CURWOOD WITT, JUDGE




________________________
ROBERT W. WEDEMEYER,
SPECIAL JUDGE




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