        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 3, 2015

                 STATE OF TENNESSEE v. MICHAEL BLAND

                 Appeal from the Criminal Court for Shelby County
                    No. 12-05597    James M. Lammey, Judge


                No. W2014-00991-CCA-R3-CD - Filed June 16, 2015



The defendant, Michael Bland, was convicted by a Shelby County jury of first degree
premeditated murder and sentenced to life imprisonment. On appeal, he challenges the
sufficiency of the evidence and argues that the trial court erred by not giving his
requested accomplice instruction to the jury, by instructing the jury on the law of criminal
responsibility, and by overruling his objection to the opinion testimony of a police officer
regarding his honesty. Following our review, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

James E. Thomas, Memphis, Tennessee, for the Appellant, Michael Bland.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Neal Oldham and Jessica Banti,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                         FACTS

       According to the State’s proof at trial, on July 12, 2012, the defendant, who had
been robbed by the victim, H.T. Alston, during a dice game, spotted the victim in his
South Memphis neighborhood, went home and retrieved his gun, lay in wait, and then
jumped out and shot the victim multiple times, killing him. The defendant was
subsequently indicted for the first degree premeditated murder of the victim and tried
before a Shelby County Criminal Court jury.
      The victim’s mother, Cleopatria Brown, testified at trial that she had just arrived
home from work on July 12, 2012, when she received a call informing her that her son
had been shot five times at the corner of Orleans and Williams. The victim was still alive
when she arrived at the scene but died later that day at the hospital.

        Christopher Williams, who acknowledged he was currently serving a sentence for
an aggravated assault conviction, testified that he was a friend and next-door neighbor of
the defendant, had seen the victim walking in the neighborhood a couple of times, and
had heard from the defendant that the victim had robbed him when he was in the
backyard shooting dice with friends. On the day before the shooting, he and the
defendant were hanging out together on the defendant’s front porch when they spotted
the victim in the passenger seat of a passing vehicle. The defendant said, “[D]amn, . . . I
left the strap in the house,” referring to his gun. The next day, Williams 1 accompanied
the defendant to a neighborhood house and waited on the street while the defendant went
up to the porch to buy some marijuana. When the defendant returned, he said, “[T]here’s
the negro right there that robbed me[,]” and “[L]et’s go and get the burner,” which,
according to Williams, was another slang term for a gun.

       Williams testified that he and the defendant went to the defendant’s home, where
the defendant retrieved his loaded .45 pistol and instructed his brother, David Bland, who
was armed with a .38, to “come on.” The three men went back outside and through a
shortcut between buildings to Williams Street. Williams said that he and David Bland
remained in the shortcut while the defendant hid himself behind a blue truck on the street
to wait for the victim. When the victim walked past, the defendant “hopped out” and
exchanged one or two words with him before firing one shot, causing the victim to fall.
The defendant then took a half step closer and fired three more shots at the victim. At
that point, Williams “took off running” through the “cut,” followed by the defendant and
David Bland. Williams stated that he ran inside his home and looked out the window to
see the defendant and his brother get into their sister’s truck and drive away. He testified
that the police came to his house later that day and took him to the police station, where
he gave a statement and identified from a photographic array the defendant as the man
who had shot the victim. Williams identified a photograph of five .40 caliber bullets,
which he said the police recovered from his room at the time they picked him up. He
insisted that he did not shoot the victim.

       On cross-examination, Williams testified that the defendant’s plan was to shoot
the victim in the legs and rob him. He said that, at the time, he did not have a problem

        1
          Judge John Everett Williams would prefer addressing all witnesses by Mr. or Ms. instead of
their surname only.
                                                  -2-
with robbing people and that he usually carried a gun but did not have one that day. On
redirect, he testified that he had gotten rid of his gun about a month before the shooting
because it frequently jammed.

        Decorrio Morgan, a neighborhood resident and a friend of the victim, testified that
on July 12, 2012, he was hanging out with the victim on the porch of a house on Williams
Street until he left to go to “the College Park.” When he was about halfway down the
street, he heard a gunshot, turned around, and saw the defendant and a second man
standing over the victim. The defendant had a gun in his hand, and Morgan saw the
defendant firing at the victim. Morgan testified that he heard a total of four or five
gunshots -- approximately two before he turned around and the rest after he turned to see
the defendant shooting the victim. He said that the defendant and his partner ran
“through the cut going towards Alston.”

       Morgan estimated that he was approximately twenty or thirty yards from the
shooting. He said the defendant had a “low hair cut” and was wearing black pants and a
yellow shirt, while his companion wore his hair in “dreads.” He testified that he gave the
police a statement later that same day and identified from a photographic array the
defendant as the man who shot the victim. He said the defendant was the only one he
saw with a gun.

       On cross-examination, Morgan acknowledged having told the prosecutor in a later
statement that Christopher Williams was the one who shot the victim. He explained on
further cross-examination and redirect that he was certain he saw the defendant shoot the
victim but, at the time he made the statement to the prosecutor, was momentarily unable
to “believe what [he] had seen with [his] own eyes” due to all the talk he had been
hearing on the streets.

       Rosie Mae Fason, the victim’s aunt, testified that on July 12, 2012, she was
standing outside the door to her house, located near Orleans and Williams, when she
heard gunshots and reacted by running inside and “hit[ting] the floor.” When the
shooting stopped, she got up, looked out the door, and saw two African-American men
running through the alley. One of the men was wearing a yellow shirt and carrying a
black gun, and the other was wearing a white shirt.

       Francie Hunt, a neighborhood resident who acknowledged she had a misdemeanor
theft conviction, testified that on July 12, 2012, she was walking home from her
godfather’s house on Williams Street when the victim stopped her to ask for a light.
Afterwards, she was continuing on her way through “the cut” when she was passed by the
defendant, Williams, and “Day-Day,” who were armed with guns. She was familiar with
the men, who lived on her street, and when she saw them with the guns she “kn[e]w what
                                            -3-
was going on.” By the time she had her keys in the door of her house, she heard three or
four gunshots. When she turned around, she saw the same three men running back
through the short cut carrying their guns and overheard the defendant say, “We got that
b****.”

       After having her memory refreshed by her August 29, 2012 statement to police,
Hunt testified that when the men passed her in the shortcut, Williams was carrying a
small black gun and the defendant and “Day-Day . . . had something up under their shirt.”
When she saw them running back after the gunshots, the defendant was carrying a large
gun and she heard him say, “I shot that b****.” Hunt testified that she told the police
where to find the suspects immediately after the shooting but did not give a statement
until August 29 because her house was set on fire and she was threatened, which made
her reluctant to get further involved. She testified that she identified the defendant and
Michael Williams from photographic arrays she was shown by the police on August 29,
writing on the array with Williams’ picture, “This Chris he was with the brothers that
killed H.T.,” and on the array with the defendant’s picture, “This is Michael who’s the
one who killed H.T. I saw him with the big gun and I heard him say, I shot that b****.”

        Hunt testified that she saw the defendant and his brother run up the steps into their
home. Approximately five or ten minutes later, they came back outside, got into their
sister’s SUV, and drove away. She said that Williams initially tried to enter the
defendant’s home with the defendant and his brother but they would not let him in, so he
crossed the driveway headed toward his own home. On cross-examination, Hunt
acknowledged she did not witness the shooting.

       Officer Trey Norris of the Memphis Police Department, the first officer on the
scene, testified that when he arrived several people were standing on the corner and the
gunshot victim was lying in the middle of the street. After a description of the suspects
was broadcast, some of his fellow officers received information about the possible
location of one of the suspects and approximately ten or fifteen minutes later,
Christopher Williams was brought back to the scene.

       Officer Valerie Brady of the Memphis Police Department testified that she was
driving southbound on Mississippi Boulevard after the report of the shooting was
broadcast when she observed a weeping African-American male walking down the street
and stopped to ask if he was okay. After hesitating for a moment, the man, identified as
Decorrio Morgan, told her that his friend had just been shot. Another officer arrived at
that point and took custody of Morgan, while Officer Brady and her partner continued
driving around the area. When they reached Mississippi and Alston, a bystander
informed them of having seen two African-American males running and pointed out the
area in which they had fled. She and her partner followed the bystander’s instructions
                                             -4-
and located Christopher Williams sitting on the front porch of his home with his three-
year-old brother. Williams was angry about being approached by the police but did not
try to flee and did not resist when he was taken into custody.

       Officer Wayne Colson of the Memphis Police Department identified photographs
he had taken of the crime scene, including ones that showed four .45 caliber shell casings
located in a pattern to indicate that one had been “shot a little further off and then three
clustered together,” as well as several partial bullet projectiles located in a similar pattern.
He also identified five .40 caliber bullets that he collected from a room at 551 Alston
Street. According to Officer Colson, a .45 caliber gun cannot fire a .40 caliber bullet. In
addition, the bullets he found in the room were “round nose lead,” which was different
from the bullet fragments found at the crime scene that were composed of “partial lead
and partial bullet jacket material.”

       The defendant’s sister, Jessica Bland, testified that on the day of the shooting, she
drove the defendant and her other brothers, David and Vertis Bland, to their sister’s house
in Raleigh. She noticed nothing unusual about the defendant, and he said nothing special
to her before or after getting in the car. She acknowledged that her testimony did not
match the statement she gave the police on the day after the shooting and claimed that the
police coerced her into giving the statement by threatening that she would receive a ten-
year sentence for each of her five children, for a total of fifty-one years in prison.

       When questioned in detail about each portion of the statement, she testified that
some parts were true and reflected what she had said during the interview but that other
portions had been fabricated by the police. She acknowledged having told police that the
victim had robbed all of her brothers during a dice game in their backyard and that her
brothers believed they had been set up by the victim and his fellow “Crips.” She denied,
however, having told the police that the defendant said after the robbery that “he was
going to get [the victim’s] a**.” Instead, she said she told police the defendant said he
was going “to beat that boy.” She also denied having told police that the defendant said
in the car after the shooting, “[T]hat boy, that boy, I got his a**.” According to her
testimony, the police left out all of her statements that implicated Christopher Williams
and fabricated statements that implicated the defendant.

       Sergeant Jerry Chatman of the Memphis Police Department testified that he
advised Jessica Bland of her rights and obtained her written waiver before taking her July
13, 2012 statement. He said she was brought into the interview under arrest for having
driven the shooting suspect from the scene and that he advised her she could be charged
as a participant in the murder based on her actions, but he never threatened to take away
her children or told her that she would serve ten years in prison for each of her five

                                              -5-
children. On cross-examination, he acknowledged that she was handcuffed to a chair
during the six-hour interview, which was probably an intimidating experience.

        Sergeant Marcus Berryman of the Memphis Police Department testified that he
interviewed the defendant about the incident at 201 Poplar after informing him of his
rights and obtaining his written waiver. He said the defendant denied any involvement in
the shooting, claiming to have been at his sister’s home in Bartlett at the time. The
defendant did, however, inform him that the victim had robbed him a couple of weeks or
a month earlier. On cross-examination, Sergeant Berryman acknowledged that the
defendant turned himself in to the police.

        Dr. Marco Ross, the Chief Deputy Medical Examiner for Shelby County, testified
that the victim died of multiple gunshot wounds, with a bullet entering the underside of
the chin and lodging in the mandible, another bullet entering the abdomen, passing
through the large intestine and iliac arteries and exiting at the left lower back, and a third
bullet entering the right buttock and exiting at the front part of the right thigh.

       Tennessee Bureau of Investigation Special Agent Forensic Scientist Cervinia
Braswell, an expert in firearms identification, testified that all four of the .45 cartridge
cases submitted in the case were fired from the same unknown .45 firearm, with the
markings “most common to firearms manufactured by High Point.” She determined that
the two .45 bullet jackets submitted in the case had also been fired from the same
unknown firearm. She was unable, however, to make any conclusions regarding the three
core fragments submitted.

       The defendant elected not to testify and rested his case without putting on any
proof. Following deliberations, the jury found him guilty of the first degree premeditated
murder of the victim and the trial court sentenced him to life imprisonment.

                                            ANALYSIS

                                 A. Sufficiency of the Evidence

        The defendant first contends that the evidence is insufficient to sustain his
conviction. Specifically, he argues that Christopher Williams was an accomplice as a
matter of law whose testimony was uncorroborated because the testimony of the only
other eyewitness to the shooting, Decorrio Morgan, “was inconsistent and unreliable
given his prior statements.” The State argues that the trial court properly found that the
issue of whether Williams was an accomplice was a question of fact to be determined by
the jury and that the proof was more than sufficient for the jury to find that the defendant
killed the victim. We agree with the State.
                                             -6-
       When the sufficiency of the convicting evidence is challenged, the relevant
question of the reviewing court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v.
Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604
(Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the weight
and value to be given the evidence, and all factual issues are resolved by the trier of fact.
See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by
the jury, approved by the trial judge, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so
that on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Viewed in the light most favorable to the State, the evidence is sufficient to sustain
the jury’s finding that the defendant committed a premeditated killing of the victim. In
addition to the eyewitness testimony of Christopher Williams, the jury also heard from
Decorrio Morgan, who unequivocally identified the defendant at trial as the man he saw
shooting the victim. Morgan testified that he was certain that the defendant was the
shooter when he gave his statement to police on the day the shooting occurred and
explained his later inconsistent statement as the result of his having been temporarily
influenced by the talk he had been hearing “around the streets.” Assessing the credibility
of witnesses is within the province of the jury. See Pappas, 754 S.W.2d at 623.



                                             -7-
        The jury also heard from neighborhood resident Francie Hunt that the defendant,
Williams, and a third man, all of whom appeared to be armed, passed her in the shortcut a
short time before the gunshots sounded and then came running back with the defendant
saying that he “shot that b****.” Finally, the jury also heard that the defendant admitted
to police that the victim had robbed him and that his sister, in her statement to police,
reported that the defendant had announced his intention to exact revenge on the victim for
the robbery and had said in the car immediately after the shooting that he had gotten “[the
victim’s] a**.” From all this evidence, the jury could reasonably conclude that the
defendant shot and killed the victim in retaliation for the victim’s having robbed him in
the earlier dice game. We conclude, therefore, that the evidence is sufficient to sustain
the defendant’s conviction for first degree premeditated murder.

                   II. Jury Instruction on Williams as an Accomplice

       The defendant next contends that the trial court erred by denying his request to
instruct the jury that Christopher Williams was an accomplice as a matter of law. The
State responds that the trial court properly applied the law in denying the request. We
agree with the State.

        “It is well-settled in Tennessee that a defendant has a right to a correct and
complete charge of the law so that each issue of fact raised by the evidence will be
submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn.
2001) (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990)). Accordingly, trial courts have the duty to give “a
complete charge of the law applicable to the facts of the case.” State v. Davenport, 973
S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314,
319 (Tenn. 1986)). An instruction will be considered prejudicially erroneous only if it
fails to submit the legal issues fairly or misleads the jury as to the applicable law. State v.
Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101
(Tenn. 1998)).

       An accomplice is defined as 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). The test for determining whether a witness is an accomplice is whether the witness
could be indicted for the same offense as the defendant. See State v. Green, 915 S.W.2d
827, 831 (Tenn. Crim. App. 1995); State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim.
App. 1990). When the evidence is clear and undisputed that a witness participated in the
crime, then the trial court must declare the witness to be an accomplice as a matter of law
and instruct the jury that the witness’s testimony must be corroborated. Lawson, 794
S.W. 2d at 369. On the other hand, when the evidence is unclear, it becomes a question
                                              -8-
of fact for the jury to determine whether the witness is an accomplice and, if so, whether
there is corroborating evidence to support the witness’s testimony. Id.; see Green, 915
S.W.2d at 831-32.

        The evidence at trial was not clear and undisputed that Christopher Williams
participated in the crime. Williams testified that he was not armed, that he remained in
the alley, and that he did not know that the defendant was going to kill the victim, as the
plan had been for the defendant to just shoot the victim in the legs and rob him. We
conclude, therefore, that the trial court properly found that whether Williams was an
accomplice was a question of fact to be determined by the jury. The defendant is not
entitled to relief on the basis of this issue.

                   III. Jury Instruction on Criminal Responsibility

       The defendant next contends that the trial court erred by granting the State’s
request to instruct the jury on criminal responsibility, arguing that “[i]n the manner in
which the instruction was given,” the jury “had to find [the defendant] . . . criminally
responsible for the crime” if it found that Christopher Williams was an accomplice. The
State argues that the trial court’s charge was not misleading and accurately apprised the
jury of the applicable law. We, again, agree with the State.

         The record reflects that after the trial court denied defense counsel’s request to
instruct the jury that Williams was an accomplice as a matter of law, the State requested
that, if the court was going to issue any kind of accomplice instruction, it also instruct the
jury on criminal responsibility. When the court acknowledged that made sense, defense
counsel sought to withdraw his request for an accomplice instruction. The court,
however, denied that request, finding that the issue of whether Williams was an
accomplice had been fairly raised by the proof. At the conclusion of the trial, the court
issued the following instruction to the jury on criminal responsibility:

            Only if the jury finds that Christopher Williams was an accomplice
     does the following apply.

            The defendant is criminally responsible as a party to the offense
       charged and included in this indictment if the offense was committed by the
       defendant’s own conduct, by the conduct of another for which the
       defendant is criminally responsible, or by both. Each party to the offense
       may be charged with the commission of the offense.

            The defendant is criminally responsible for an offense committed by
       the conduct of another if, acting with the intent to promote or assist the
                                             -9-
       commission of the offense, or to benefit in the proceeds or results of the
       offense, that defendant solicits, directs[,] aids or attempts to aid another
       person to commit the offense. A defendant who is criminally responsible
       for an offense may be found guilty not only of that offense but also for any
       other offense committed by another, if you find beyond a reasonable doubt
       that the other offense committed was a natural and probable consequence of
       the original offense for which the defendant is found criminally responsible
       and that the elements of the other offense or offenses that accompanied the
       original offense have been proven beyond a reasonable doubt.

             Before you find the defendant guilty of being criminally responsible
       for said offense committed by the conduct of another, you must find that all
       the essential elements of said offense have been proven by the State beyond
       a reasonable doubt.

       We disagree with the defendant’s contention that the manner in which the trial
court issued the instruction forced the jury to find him guilty for Williams’ actions under
a theory of criminal responsibility if it found that Williams was an accomplice to the
crime. The trial court’s instruction to the jury, which essentially tracked the language of
the pattern jury instructions, see T.P.I. 3.01 (17th ed.), contained an accurate and complete
statement of the law. We conclude, therefore, that the defendant is not entitled to relief
on the basis of this issue.

                                IV. Opinion Testimony

       Lastly, the defendant contends that the trial court erred by overruling his objection
to Sergeant Berryman’s expert opinion testimony regarding his truthfulness. The
defendant argues that the sergeant’s “characterization that [the defendant] lied” when
denying any involvement in the crime invaded the purview of the jury to determine issues
of witness credibility, thereby violating his due process rights to a fair trial.

       The following exchange occurred between the prosecutor and Sergeant Berryman
during direct examination:

       Q. Why wouldn’t you do a supplement, I mean a statement in this
       circumstance?

       A. Because he denied any knowledge, any knowledge any incident took
       place.

       Q. Did you have information to the otherwise?
                                            -10-
       A. I did.

       Q. So why wouldn’t you write down that?

       A. We just don’t write down lies, I mean, just we thought it was a lie so we
       didn’t put it in writing.

       Defense counsel moved to strike the answer, arguing that it was
“characterization,” but the trial court overruled the objection, stating that it thought it was
“for the jury to decide.”

       We find no abuse of discretion in the trial court’s ruling. We agree with the State
that Sergeant Berryman’s response was not an expert opinion but “simply lay opinion . . .
provided solely to explain why he did not reduce to writing the defendant’s denial.” We
further agree that, even if error, it could not have changed the jury’s verdict, as there was
substantial evidence of the defendant’s guilt, including the testimony of two eyewitnesses
to the shooting. Accordingly, we conclude that the defendant is not entitled to relief on
the basis of this issue.

                                  CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




                                             -11-
