            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE              FILED
                               MAY 1998 SESSION
                                                          October 29, 1998

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,             *    C.C.A. # 01C01-9703-CR-00083

              Appellee,         *    DAVIDSON COUNTY

VS.                             *    Honorable J. Randall Wyatt, Jr., Judge

RICHARD BRUCE HALFACRE          *    (First Degree Murder; Especially
                                     Aggravated Robbery)
and BLAKE EDWARD HALLUM, *

              Appellants.       *



For Appellant Halfacre:              For Appellee:

Terry J. Canady                      John Knox Walkup
211 Printer's Alley Building         Attorney General & Reporter
Suite 400
Nashville, TN 37201                  Karen M. Yacuzzo
                                     Assistant Attorney General
For Appellant Hallum:                423 Fifth Avenue North
                                     Cordell Hull Building, 2nd Floor
Michael D. Noel                      Nashville, TN 37243-0493
2400 Crestmoor Road
Suite 318                            Ron Miller
Nashville, TN 37215                  Assistant District Attorney General
                                     222 Second Avenue, North
                                     Washington Square, Suite 500
                                     Nashville, TN 37201-1649




OPINION FILED: _____________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendants, Blake Edward Hallum and Richard Bruce Halfacre,

were tried jointly and convicted of felony murder and especially aggravated robbery.

The trial court imposed life sentences for the murder and seventeen-year sentences

for the robbery on each defendant to be served consecutively.



              In this appeal of right, the defendants present the following issues for

review:

              (I)    whether the trial court erred by failing to charge
              lesser offenses of felony murder and especially
              aggravated robbery; and

              (II)  whether improper argument by the state requires
              reversal.

We affirm the judgment of the trial court.



              On July 20, 1994, Mary Villareal spent the evening watching television

with her son, the victim, Rick Villareal. The victim was in possession of a briefcase,

which contained about $1000 in cash which he had just received from the sale of a

washer, a dryer and a car. When he left the residence at approximately 10:30 p.m.,

he was also wearing several pieces of jewelry: two wedding bands, a ruby ring, a

diamond ring, a gold link bracelet, a watch, and a gold chain.



              About five hours later, Officer Jack Robert Campbell was dispatched to

investigate a report that a "man [was] down" at the park. Gary Honeycutt led Officer

Campbell to the victim, who was lying unconscious on the ground. Officer Campbell

originally believed the victim either had too much to drink or was suffering from

some type of seizure and arranged for the victim to be transported to the hospital.

Later, he learned the victim had sustained a fatal head injury and had died only

hours after his hospitalization.

                                             2
              Steven Huffines, who was serving time in the Sumner County Jail at

the time of trial, recalled that both defendants visited his residence during the early

morning hours after the assault of the victim. They were carrying a briefcase which

contained over $500, some jewelry and some papers. He testified that defendant

Halfacre claimed to have found the briefcase on the side of the road.



              The defendant Hallum is the great uncle of one of the children of

Sherry Hayes, who had been close friends to both defendants for about seven

years. On the afternoon after the shooting, the defendant Halfacre called Ms.

Hayes and asked her to meet the defendants at the Megamarket in Hermitage and

to provide them each transportation. When she arrived, the defendants, who were

in possession of a briefcase, indicated that they needed to get rid of the briefcase

and then leave Nashville. Hallum, who was in the back seat, cried and stated that

he never meant to hurt anyone. He told Ms. Hayes that he had waited in the woods

at the park while Halfacre sat on a picnic table and had observed Halfacre lead the

victim "into the woods." Hallum informed Ms. Hayes that the victim "was up on his

knees when they left."



              Ms. Hayes, who had prior convictions for theft and fraudulent use of a

credit card, drove to a location in LaVergne, where the defendants walked to the

woods and burned the briefcase. Later, the three went to a restaurant and the

defendants explained that they needed to leave the state to avoid spending the rest

of their lives in jail. The defendants spent that night at her apartment. While there,

defendant Hallum removed the telephone from the wall.



              James McGaugh, owner of Shipley Donuts, recalled that the defendant

Halfacre worked for him about one year before he was terminated in July of 1994.


                                           3
In August of 1994, McGaugh received a claim from Halfacre for unemployment

benefits. The claim was mailed from Los Angeles, California.



              Detective Alfred Gray, who was assigned to investigate the murder,

eventually learned both defendants were in California. Halfacre returned to

Nashville and was arrested. Defendant Hallum was arrested in California almost

eleven months after the murder.



              Dr. Mona Harlan, who performed an autopsy on the victim, testified

that the victim had suffered a large subgaleal hematoma between his scalp and

skull. The victim also suffered bruises to his left eye, cuts inside his lip, a bruise and

scrape on his right wrist, and a scrape on his cheek. Dr. Harlan stated that the

hematoma to the skull, the cause of death, was caused by "one big blow" with a

blunt object, such as a bat.



                                            I

              Both defendants contend the trial court committed reversible error by

failing to instruct the jury on the lesser offenses raised by the evidence. In count

one, each defendant was charged with felony murder. Reckless homicide was the

only lesser offense charged to the jury. Both defendants now argue the trial court

should also have charged criminally negligent homicide and facilitation of felony

murder. In count two, each defendant was charged with especially aggravated

robbery; no lesser offenses were charged. Each defendant now argues the trial

court should also have charged facilitation of especially aggravated robbery.



              The trial judge has a duty to give a complete charge of the law

applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.


                                            4
1986). There is an obligation "to charge the jury as to all of the law of each offense

included in the indictment, without any request on the part of the defendant to do

so." Tenn. Code Ann. § 40-18-110(a). "Pursuant to our statute, rule, and case law

interpretations, defendants are entitled to jury instructions on all [lesser offenses], if

the evidence would support a conviction for the offense." State v. Trusty, 919

S.W.2d 305, 311 (Tenn. 1996). Such a charge "allows the jury to consider all

relevant offenses in determining the appropriate offense, if any, for conviction" and

"more evenly balances the rights of the defendant and the prosecution and serves

the interests of justice." Id. Trial courts, however, are not required to charge the

jury on a lesser included offense when the record is devoid of evidence to support

an inference of guilt of the lesser offense. State v. Stephenson, 878 S.W.2d 530,

549-50 (Tenn. 1994); State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990).



              In State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996), our supreme

court ruled as follows:

              Tennessee law recognizes two types of lesser offenses
              that may be included in the offense charged in the
              indictment: offenses necessarily included in the
              indictment and offenses that are lesser grades of the
              charged offense. An offense is "necessarily included in
              the indictment ... only if the elements of the included
              offense are a subset of the elements of the charged
              offense and only if the greater offense cannot be
              committed without also committing the lesser offense."

Id.



              Our supreme court also provided guidance on how to determine

whether an offense is a lesser grade or class of the offense charged: "[o]ne need

only look to the statutes to determine whether a given offense is a lesser grade or

class of the crime charged." Id. at 310. The court observed that the legislature has

divided criminal homicide into the grades of first-degree murder, second-degree


                                             5
murder, voluntary manslaughter, criminally negligent homicide, and vehicular

homicide. Id.



                We first address the court's failure to charge facilitation of felony

murder. The trial court did instruct the jury on the criminal responsibility for the

conduct of another statute, which provides, that "a person is criminally responsible

for an offense committed by the conduct of another if: (2) [a]cting with the 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).



                The defendants argue that because the criminal responsibility statute

was charged, facilitation should also have been charged. Facilitation of a felony

occurs where a person "knowing that another intends to commit a specific felony,

but without the intent required for criminal responsibility under 39-11-402(2), ...

knowingly furnishes substantial assistance in the commission of the felony." Tenn.

Code Ann. § 39-11-403.



                Case law confirms that facilitation is a lesser offense. State v. Utley,

928 S.W.2d 448, 952 (Tenn. Crim. App. 1995). In Utley, the court explained that the

crime of facilitation should only be charged "where the facts could cause reasonable

minds to conclude that the defendant lacked the intent to promote or assist in or

benefit from the felony's commission." Utley, 928 S.W.2d at 452.



                While facilitation is a lesser offense of felony murder, it was not, in our

view, raised by the evidence in this case. "[R]easonable minds" could not conclude

from the proof that either defendant merely facilitated the felony murder. The


                                              6
defendants, longtime friends, went to the park. W hile Hallum waited in the woods,

Halfacre sat on a picnic table looking for a robbery victim. When the victim

approached, Halfacre led him to Hallum's location. The victim suffered a severe

blow to the head with a blunt object. The defendants took the briefcase and the

victim's jewelry and money, traveled to Huffines' residence, and looked through the

contents of the victim's briefcase. On the next day, the defendants arranged for

transportation to a remote area, where they both burned the victim's briefcase.

They took precautions to remain undetected before fleeing to California. Neither

defendant chose to submit any proof of a more limited participation in the crimes,

electing instead to rely on the possibility of the state failing to meet its evidentiary

burden. The jury was left with the choice of convicting or acquitting on the primary

charges. Whether one defendant merely facilitated the other in the crimes would

have been entirely speculative.



              The trial court's failure to charge criminally negligent homicide was not

reversible. Criminally negligent homicide is a lesser grade offense of felony murder.

State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994). It is defined as "[c]riminally

negligent conduct which results in death." Tenn. Code Ann. § 39-13-212(a). The

degree of negligence required to prove the offense is as follows:

              Criminal negligence refers to a person who acts with
              criminal negligence with respect to the circumstances
              surrounding that person's conduct or the result of that
              conduct when the person ought to be aware of a
              substantial and unjustifiable risk that the circumstances
              exist or the result will occur. The risk must be of such a
              nature and degree that the failure to perceive it
              constitutes a gross deviation from the standard of care
              that an ordinary person would exercise under all the
              circumstances as viewed from the accused person's
              standpoint.

Tenn. Code Ann. § 39-11-106(4). The facts support an inference that the

defendants were lying in wait for the victim. Dr. Harmon testified that a tremendous


                                             7
amount of force would be required to cause the head injury which ultimately led to

the victim's death. Absent other proof, these facts would hardly suggest a criminally

negligent homicide. Thus, there was no error in failing to charge this as a lesser

grade offense.



              The defendants also argue facilitation of especially aggravated robbery

should have been charged. Again, there is no proof in this record which would

support a jury's conclusion that either defendant merely facilitated the other in the

robbery. The defendants acted in concert in robbing a victim and taking his

briefcase and jewelry. On the next day, they burned the briefcase and fled the

jurisdiction. These facts suggest equal culpability. In our view, the trial court did not

err by failing to charge facilitation of especially aggravated robbery.



                                            II

              The defendants next argue that improper argument by the state

requires reversal. They complain that the prosecutor inappropriately commented on

previously suppressed statements and on their right to remain silent.



              The defendants were indicted together but had filed motions to sever,

based on the fact that each defendant gave a statement which implicated the other.

Apparently, the trial judge denied the motion to sever but ruled that the statements

would not be admissible at trial. See Tenn. R. Crim. P. 14(c)(1). The record

contains an order denying the severance. It does not, however, contain an order

suppressing the statements.



              During cross-examination of Detective Gray, defense counsel for

Hallum elicited the following testimony:


                                            8
             Defense attorney: Did you ever have an occasion at
             any time to go to Smyrna and look for where the
             briefcase might have been burned in LaVergne?

             Detective Gray:      No, sir; I did not.

             Defense attorney: Were you given information by Mrs.
             Hayes that one was burned in Smyrna or LaVergne?

             Detective Gray:      No, sir; I was not.

             Defense attorney: And so you've never had an
             occasion to go down there to look and see if you could
             find this place where this brief case was burned?

             Detective Gray:     The defendant never gave me the
             exact location where I could find that briefcase.

             Defense attorney:    Ms. Hayes?

             Detective Gray:      No, the defendant. That's where I
             got the information from.

             Defense attorney: If it please the court, the question
             was did Ms. Hayes tell you where the briefcase was
             burned?

             Detective Gray:      Mrs. Hayes never ... mentioned the
             briefcase, sir.



             After Detective Gray had completed his testimony, a jury-out

conference was held. Defense counsel explained that he left that portion of

Detective Gray's testimony "alone because [he] didn't want to create a bigger

problem." The trial court found the witness's reference to the suppressed statement

inadvertent and offered to give a curative instruction; defense counsel declined.



             Noting that Ms. Hayes spoke with the police several times, defense

counsel argued in closing:

             I asked her, did you ever tell about ... burning the brief
             case. Well, that's just insignificant. She didn't say that,
             but that's the way they would have you believe. ... Well,
             did it happen near your brother's? Well, you know, I
             guess. It's just somewhere out in the woods. But then
             pin her down on it, well, it's three or four hundred feet

                                           9
              from my brother's business, so to speak. Al Gray never
              went down there and looked to see if all that was true,
              from the best I could tell.

              She either lied when she testified here or she lied when
              she gave the statement to the police. There's no two
              ways about it. One of those two times is a lie.



              The state responded to the attack on Ms. Hayes' credibility:

              Mr. Noel talked to you about Sherry Hayes going to burn
              the briefcase. The first thing that we heard about where
              she went, other than in LaVergne, a specific location,
              was did you go to your brother's business, or how close
              to your brother's business... That's the first we'd heard
              about that.

              She didn't tell Officer Gray anything about the briefcase.
              She didn't tell the police officers about the briefcase. ...
              So ask yourself the question, where did Mr. Noel find out
              about that question in order to ask her. How did he know
              about that location?

              Oftentimes, the ... defense lawyers attack the witnesses
              in this case, they want to make it seem that we're the
              ones who pick the witnesses. Well, I didn't pick the
              witnesses. ... The people who picked the witnesses who
              testified here today, Mr. Huffines and Sherry Hayes, are
              Blake Hallum and Richard Halfacre. They're the ones
              who caused them to come in this Courtroom to testify
              and tell you what happened, what they saw, and what
              they told them. The lawyers now want to distance
              themselves and their clients from Sherry Hayes and
              Steven Huffines. But at the time that this happened, they
              were friends ... [A]s the saying goes, they were thick as
              thieves.



              The defendants complain that the emphasized portions of the

exchange improperly referred to the previously suppressed statements and the

defendants' right to remain silent.



              The test to be applied in reviewing a claim of prosecutorial misconduct

is "whether the improper conduct could have affected the verdict to the prejudice of

the defendant." Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). The

                                          10
factors, set out in Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976),

and adopted by the Tennessee Supreme Court in State v. Buck, 670 S.W.2d 600,

609 (Tenn. 1984), are as follows:

              (1) the conduct complained of, viewed in light of the facts
              and circumstances of the case;

              (2) the curative measures undertaken by the court and
              the prosecution;

              (3) the intent of the prosecutor in making the improper
              statement;

              (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.



              The law clearly prohibits any prosecutorial comment upon the

accused's election not to testify. Griffin v. California, 380 U.S. 609 (1965). To do so

constitutes misconduct. Id. at 615. The ultimate test of whether that misconduct is

reversible error depends on whether it had a prejudicial effect upon the verdict. In

our view, the prosecutor's statements do not qualify as comments on the

defendants' decision not to testify.



              We do find, however, that the comments about how the defense

attorney learned about the briefcase were an inappropriate reference to the

defendants' prior suppressed statements. Without the benefit of reviewing the order

suppressing the statements or the statements themselves, however, it is difficult to

assess how egregious the comments were. When viewed in context, the

prosecutor's intent appears to have been to argue that while Ms. Hayes may not be

the most credible witness, she was a close friend to both defendants and the only

person with evidence of how the crime was committed. There were no instructions

given by the court nor curative measures taken by the prosecutor. The comment


                                          11
was an isolated incident and did not, in our assessment, affect the verdict. On

balance, the defendants have failed to establish that the comment qualified as

reversible error.



              Accordingly, the judgment of the trial court is affirmed.



                                          __________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



_______________________________
David G. Hayes, Judge



_______________________________
Jerry L. Smith, Judge




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