        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                         APRIL SESSION, 1996                   FILED
                                                        December 10, 1998
STATE OF TENNESSEE,          )     C.C.A. NO. 02C01-9506-CR-00176
                             )                           Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
      Appellee,              )
                             )
                             )     SHELBY COUNTY
VS.                          )
                             )     HON. ARTHUR T. BENNETT
DARRYL J. BAILEY,            )     JUDGE
                             )
      Appe llant.            )     (Direct Appeal - Murder Committed
                             )     during the P erpe tratio n of a Rob bery)




FOR THE APPELLANT:                 FOR THE APPELLEE:

MAR VIN E. B ALLIN                 JOHN KNOX WALKUP
MARK E. MESLER                     Attorney General and Reporter
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103                  SARAH M. BRANCH
                                   Assistant Attorney General
                                   425 Fifth Avenue
                                   Nashville, TN 37243

                                   WILLIAM L. GIBBONS
                                   District Attorney General

                                   THOMAS D. HENDERSON
                                   Assistant District Attorney
                                   201 Poplar Avenue
                                   Memphis, TN 38103



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                  OPINION

      On Septem ber 23, 1 994, a Shelby Co unty jury convicted Ap pellant Darryl

J. Bailey of murder committed during the perpetration of a robbery and sentenced

him to life imprisonment.     Appellant challenges his conviction, raising the

following issues:

      1) whether the evidence was sufficient to support his conviction; and
      2) whether the trial court erred when it ruled that a statement of a co-
      defendant could not be introduced into evidence.

After a review of the record, we reverse the judgment of the trial court and

remand for a new trial



                                      FACTS




      Marcel Nugent testified that he spent the evening of October 9, 1992, with

Earnest Norman at the apartment of a friend. Nugent testified that after he and

Norman decided to leave the apartm ent, Nug ent wen t out into the parking lot and

got in Norm an’s car. W hen N orman came out of the apartm ent a few minutes

later, two me n out of a g roup of five said som ething to Nor man and trie d to hit

him. Nugent then saw Norman run away from the men and the men began

shooting at Norman. At this time, a Cadillac pulled into the parking lot and the

driver got out. Afte r the grou p of me n went o ver to the Cadillac, Nugent got out

of the car in order to escape, but his path was blocked and he got back into the

car. Nuge nt testified tha t some of the m en cam e back to the car, broke out the

window, and pulled him o ut of the car. Nugent ran away, but the men chased

him until he fell down. The men shot him three times and took his jack et, his




                                        -2-
watch, and eighty dollars.      After the men left, Nugent went back into the

apartm ent to wa it for an am bulanc e.



      Earnest Norman testified that when he left the a partm ent an d wen t to his

car, two men from a group in the parking lot approached him and asked for

money. Norman testified that he believed the men were trying to rob him. After

one of the men struck Norman on the back of the head, Norma n ran away.

Norm an hea rd severa l gunsho ts as he jumped a fence and ran to a gas station

to call police. Norman testified that he heard more gunshots after he reached the

pay phone at the gas station.



      Terrence Pollard testified that on October 9, 1992, he was at an apartment

at 1885 Winchester in Memphis.            Several of his friends were also at the

apartm ent, including Appellant, Andre Bland, Carlos Sanders, Charles Sanders,

Robert Daven port, and Steve D avis. Pollard te stified that this group left the

apartment at the s ame time that Norman and Nugent were leaving the other

apartm ent. Davis then hit Norman and Norman ran away. At this point, Po llard

saw a Cadillac pull into the parking lot and he sa w the d river ge t out an d beg in

walking toward th e apartm ents. Davis then said something to the driver, and the

driver began walking back to the Cadillac. Bland and Appellant then shot at the

driver and the driver beg an limpin g as he ran in bac k of the building. Pollard

testified that he could see that both Appellant and Bland had guns in their hands.

Bland and Appellant then followed the driver around the building and then P ollard

heard more gunshots. When Appellant came back into sight, he had a gun

“cocke d in his ha nds” an d he ha d blood on one hand.




                                          -3-
       Parame dic Kathleen Carson testified that she was called to the scene of

the shooting at approximately 12:00 a.m. on October 10, 1992. When Carson

arrived at the scene, sh e found O ntrain Sande rs lying on the grou nd und erneath

a pickup truck. Carson testified that Ontrain Sa nders had “a ve ry large wo und to

his right thigh” and he was “g oing in to seve re sho ck.” O ntrain S ande rs died while

he was being tran sported to the hos pital.




       Doctor Jerry F rancis co tes tified tha t an au topsy o f Ontra in Sanders

revealed that he ha d sustain ed mu ltiple gunsh ot wounds to the right thigh.

Doctor Francisco estimated that eith er four or five bu llets ha d hit O ntrain

Sanders’ leg and that he died as a result of a bullet tearing the femoral artery of

his right thigh .



       Officer Robert Moore of the Memphis Police Department testified that he

arrived at the crim e scen e at app roximate ly 12:30 a .m. on October 10, 1992.

Officer Moore testified that there was a trail of splattered blood leading from the

rear parking lot in back of 1885 Winchester to an area by a Ford Pickup behind

a building at 3570 Cazassa. Officer Moo re testifie d that h e foun d a do llar bill,

some loose change, and a check on the ground near the pickup. The money and

the check were covered with blood and the chec k was mad e out to Ontra in

Sand ers.



       Sergeant H. A. Ray of the Memphis Police Department testified that he

interviewed Appellant on October 11, 1992.             After Sergeant Ray advised

Appellant of his rights, Appellant admitted that he was present when the shooting

took place on October 10, 1992. Appellant stated that while he was waiting

                                          -4-
outside of the apartment, he heard Da vis and Dave nport say that they w ere

planning to rob No rman a nd Nu gent when they came back outside.                After

Norman and Nugent came outside, Davis approached Norman and Norman ran.

Davis then broke the car window and pulled Nugent out of the car. A t this point,

the Cadillac p ulled into the parking lo t and the d river got ou t. Appellan t stated

that the driver of the Cadilla c was shot b y Blan d as h e attem pted to get ba ck in

his car. After the driver limped around the corner of the building, Bland ran

around the corner an d shot the driver five or six times. Appellant stated that he

had tried to stop Bland from following the driver. Appellant stated that during this

incident, Bland, Davis, and Carlos Sanders were the only ones with guns.

Appellant also stated that Bland called him after the incident and said that he had

killed the victim and tha t he was going to ta lk to the po lice.



       Sergeant Ray testified that he took a second statement from Appellant on

October 17, 1992. After he was advised of his rights, Appellant stated that he

was with Bland on October 10, 1992, when Bland shot Ontrain Sanders as he

attempted to get bac k into h is Cad illac. Ap pellan t stated that wh en O ntrain

Sanders limped off, Appellant and Bland ran around the corner and s aw O ntrain

Sanders trying to hide under a truck. Appellant stated that at this point, he shot

Ontra in Sanders twice in each leg with a black nine millimeter handgun.

Imm ediate ly thereafter, Bland shot Ontrain Sanders once in the leg. Appellant

stated tha t he was not trying to k ill Ontrain S anders when h e shot him .



       Darlene Williams and Diane Arnold testified that they had seen Appellant

standing in the parking lot of the apartment building on October 9, 1992, and that

he was holding a silver automatic handgun. Williams also testified that Bland had

                                          -5-
tried to get Appellant to “take the charge for him because [Appellant] was a

juvenile at th e time.”



         Appellant testified that the first statement he gave to Sergeant Ray was a

true statem ent, except that Davenport was the only one who had said that he was

going to rob Norman and Nugent when they came outside. Appellant testified that

after he gave his first statement, he received a call from Pollard in w hich Pollard

told him that he would be killed if he did not “take the [murder] charge.” Appellant

testified that Bland also threatened to kill him if he did not confess to the murde r.

Appellant testified that Pollard and Bland told him what to say in his second

statem ent. Appellant testified that he did not own a gun or have a gun with him

on October 9 and 10, 1992.



                          SUFFICIENCY OF THE EVIDENCE




         Appellant contends th at the e videnc e was insuffic ient to s uppo rt his

conviction for murder committed during the perpetration of a ro bbery.             We

disagree. Wh en an appe llant ch allenges the su fficienc y of the e videnc e, this

Court is obliged to review th at challen ge acc ording to certain we ll-settled

principles. A verdict of guilty by the jury, approved by the trial judge, accredits the

testimony of the State’s witness es and re solves all co nflicts in th e testim ony in

favor of the Sta te. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v.

Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Although a n acc used is origin ally

cloaked with a presumption of innocence, a jury verdict removes this presumption

and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.

1982).      Hence, on appeal, the burden of proof rests with Appellant to

                                          -6-
demo nstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the

[S]tate is entitle d to the strong est leg itimate view of the evid ence as we ll as all

reaso nable and legitimate inference s that may be drawn therefro m.” Id. (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of

the evidence is contested on appea l, the relevant question for the reviewing cou rt

is wheth er any rationa l trier of fac t could have found the accused guilty of every

element of the offense beyond a reasonable doubt. Harris , 839 S.W.2d at 75;

Jackson v. Virgin ia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979). In condu cting our e valuation o f the conv icting evide nce, this C ourt is

precluded from reweigh ing or reco nsidering the evide nce. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own

inferences “for those drawn by the trier of fact from circum stantial evidence.” Id.

at 779.   The weight and credibilit y of the witnesses ’ testimony are m atters

entrusted exclusively to the jury as th e trier of fact.      State v. She ffield, 676

S.W.2d 542, 54 7 (Ten n. 1984 ); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim.

App. 1996 ).



        At the time of this offense, first degree murder was defined as             “[a]

reckless killing of anothe r comm itted in the pe rpetration of, or attem pt to

perpetrate any . . . robbery,” Tenn. Code Ann. § 39-13-202(a)(2) (1992), and

robbery was d efined as “the intentional or knowing theft of property from the

person of another by violence or putting the perso n in fear.” Ten n. Cod e Ann. §

39-13-401 (a) (1992). When viewed in the light most favorable to the State, the

evidence is sufficient for a reasona ble jury to convict App ellant of murder

committed during the perpetration of a robb ery. First, W illiams and Arnold b oth

                                          -7-
testified that the y saw A ppella nt with a silver gun standing in the apartment

parking lot with his friends on October 9, 1992. Second, Appellant told the police

in his first statement that he knew that Davis and Davenport were planning to rob

Norman and N ugent w hen the y came back ou tside. Although Appellant changed

his account slightly when he testified at trial, he still admitted that he knew that

Davenp ort was p lannin g to rob the two men. Pollard testified that Appellant

walked up to N orma n’s car after N ugen t got in it. P ollard a lso tes tified tha t shortly

thereafter, both Appellant and Bland shot at Ontrain Sanders when he attempted

to get in his car and that they both chased Ontrain Sanders when he went in back

of the building. Pollard testified that when Appellant came back into sight, he had

a gun “cocked in his hands”          and had blood on one hand.            Appellant later

confessed that he shot Ontrain Sanders four times. Next, Pollard testified that

Appellant pulled Nugent out of the car and began fighting with him. Nugent was

subs eque ntly shot and robbed of his mon ey, watch , and jack et. W e hold tha t a

reaso nable jury could conclude from this evidence that Appellant pulled Nugent

from the car, be at him, an d then ro bbed h im. A reas onab le jury could also have

concluded that Appellant was the one who sh ot and killed Ontrain Sanders.

Further, the jury could have inferred from the fact that Ontrain Sanders’ blood

covered check and small change were found next to the pickup truck and that

Appellant had blood o n his hand w hen he ca me bac k from chasing O ntrain

Sanders that Appellant had searched and robbed Ontrain Sanders after he shot

him.



       Appellant basica lly conte nds th at this e videnc e is insu fficient becaus e it

contains some inconsistencies. Specifically, Appellant notes that: 1) he stated

in his confession that he shot Ontrain Sanders in both legs while the autopsy

                                             -8-
revealed woun ds to th e right le g, 2) he claim ed in his confession that he used a

black gun while the witnesses testified that he had a silver gun, 3) Appellant and

two witnesses stated that he had an autom atic ha ndgu n while Pollard said that

Appellant had a gun “cocked in his hand,” and 4) Appellant stated in his

confession that Davis pulled Nugent out of the car while Pollard testified that

Appellant had pu lled Nug ent out. H oweve r, the fact that Ap pellant aim ed at a

particular spot on the victim’s body while the victim was shot only in anoth er part

of his body does not indicate that Appellant did not inflict the wounds, the fact that

there was confusion over the color or type of gun does not overcome the

overwhelming evidence that Appellant had a gun on the night of the shooting,

and the fact that Pollard and Appellant stated that different people had pulled

Nugent out of the car does not automatically mean that Pollard was lying. At any

rate, the credibility of the witnesses, the weight to be given their testimony, and

the reconciliation of conflicts are matters entruste d exclusive ly to the trier of fac t.

Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). Thus, Appe llant’s

claim that the evidence is insufficient merely because it contains some

contrad ictions ha s no m erit.



          ADMISSIBILITY OF THE CO-DEFENDANT’S STATEMENT




       Appellant contends tha t the trial court comm itted reversible error when it

ruled that a s tatem ent pre viously given b y Blan d cou ld not b e adm itted into

evidence. The sta temen t that App ellant refers to contains the following colloquy

between B land and a p olice investigator:

       Q: Andre are yo u responsible for shooting Ontrain Sanders on Saturday

       10-10-92 at approximately 12:15 a.m. in the Southbrook Apartments?

                                           -9-
        A: Yes.

        Q: What did you shoot Ontrain Sanders with?

        A: A silver chrome 9mm.

        Q: How many times did you shoot Ontrain Sanders?

        A: About four or five times in the leg.

                ....

        Q: Did anyone else do any shooting besides you?

        A: No, sir.

Appe llant cla ims th at bec ause Bland could have asserted his Fifth Amendment

privilege against self-incrimination 1 and re fused to testify a t Appe llant’s tria l,

Bland was unavailable and his statement shou ld have b een a dmitte d und er Ru le

804 of the Tennessee Rules o f Evidenc e. Rule 8 04(a) sta tes, in releva nt part,

that “‘[u]nav ailability o f a witne ss’ inclu des s ituation s in wh ich the decla rant is

exempted by ruling of the court on the grounds of privilege from testifying

concerning the subject matter of the declarant’s statement.” Tenn. R. Evid.

804(a)(1). This Court has stated that before a witness who refuses to testify

pursuant to the Fif th Amendment can be declared unavailable under this rule,

“the witness must appear in open court and invoke his or her privilege against

self-incrimination and the trial court must rule that the testimony of the w itness is

in fact privileged.” State v. James Roy McCoy, No. 01-C-019103-CR-00090,

1991 WL 24 2932, at *2 (Tenn. Crim. App., Nashville, Nov. 21, 1991) (citations

omitted).




        1
         The Fifth Amendment provides, in relevant part, that “[n]o person shall . . . be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend V.

                                                 -10-
        In this cas e, App ellant’s trial cou nsel d id not sub poena or even ta lk to

Bland before trial to determine whether Bland would agree to testify. Instead,

Appe llant’s counsel sought to have Bland’s counsel testify that if Bland was

called as a witne ss, he wo uld advise Bland to assert his privilege ag ainst self-

incrimination. Appellant’s counsel also sought to have Davenport’s counsel

testify that she had called Bland as a witness in Davenport’s trial and he had

refused to testify.2        The trial court correctly ruled that this evidence was

insufficient and if Appellant wanted Bland to be declared unavailable, Bland had

to be pre sent in co urt to asse rt his privilege a gainst se lf-incrimina tion.



        Appe llant’s counsel then proposed that he be allowed to call Bland on the

telephone and a sk him wheth er he w ould assert his p rivilege aga inst self-

incrimination if he was called to testify. The trial court correc tly explained at least

three times that Bland’s unavailability could not be established over the

telephone. Appe llant’s counsel then proposed that Bland be allowed to ass ert his

privilege during a confere nce ca ll. The court e xplaine d onc e aga in that th is wou ld

be insufficie nt to estab lish unava ilability.



        At this point, Appellant’s counsel asked the court to issue an instanter

subpoena to have Bland transported from prison to the courthouse and the trial

court complied with this request.            After the subpoena was issued, Appellant’s

counsel contacted Bland by telephone and asked him wheth er he would te stify.

Bland apparently indicated that he would not testify under any circumstances.

Appe llant’s counsel then asked the court whether Bland’s statement would be



        2
        The record indicates that, in fact, Davenport’s counsel did not call Bland as a witness because
Daven port told he r that Bland had state d that he w ould not tes tify in Davenp ort’s trial.

                                                -11-
admitted after Bland asserted his privilege against self-incrimination in court. The

trial court then ruled, witho ut explan ation, that it wo uld not ad mit the statement

under Rule 804 even if Bland asserted his privilege in court. Appellant’s counsel

then stated that he did not see any reason to have Bland brought to court if the

trial court would not admit the statement when Bland refused to testify. The trial

court then stated, “I don’t see any reason to bring him down here.” Appe llant’s

counsel then withdrew the subpoena and Bland was not transported to the

courtho use.



       The trial court clearly e rred w hen it ru led tha t it would not ad mit Bla nd’s

statement even if Bland appe ared in court an d asse rted his privileg e again st self-

incrimination. The trial court had already ruled that if called as a witness, Bland

could validly invoke his Fifth Amendment rights and refuse to testify. T hus, if

Bland had in fact asserted his privilege against self-incrimination in court, he

would clearly have been unavailable under Rule 804(a)(1). Bland’s statement

that he shot Ontrain Sanders and that in fact, he was the only one who fired any

shots, was obviously a sta teme nt aga inst his in terest b ecau se it sub jected him

to criminal liability. Therefore, Bland’s statement would have been admissible.

See Tenn. R. Evid. 804(b)(3). Although the general rule is that a witness must

appear in court an d asse rt his or her p rivilege in ord er to be declared unavailable,

Appellant cannot be faulted for withdrawing the subpoena to have Bland appear

in cou rt so tha t he co uld assert his privilege against self-incrimination when the

trial court had essentially stated that it would be po intless to do so. It appe ars

that ultimately, the reason why Appellant failed to comply with the ge neral rule

was because of the trial court’s erroneous ruling.




                                          -12-
       We cannot say that the trial court’s error in this case was harmless. The

only evidence in this case about who a ctually s hot O ntrain Sanders when he was

hiding unde r the Fo rd pick up ca me fro m Ap pellant’s testimony and his pre-trial

statem ents to the police. Indeed, it appears that Bland was the only other person

who c ould have testified about what really happened. If Bland’s statement had

been admitted, it would have corroborated Appellant’s claim that Bland was the

one who sh ot Ontra in Sand ers and that Appellant had only confessed to the

crime because he had been threatened. Under these circumstances, we hold

that the trial court’s error more probably than not affected the judgment of

conviction. See Tenn. R. App. P. 36(b). We therefore reverse Appellant’s

convic tion an d rem and th is case for a ne w trial.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




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