         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   February 1, 2005 Session

                     STATE OF TENNESSEE v. KORIE BATES

                  Direct Appeal from the Criminal Court for Shelby County
                   Nos. 00-12357, 02-07906   James C. Beasley, Jr., Judge



                     No. W2004-00686-CCA-R3-CD - Filed May 20, 2005


The defendant appeals his convictions for attempted second-degree murder and aggravated robbery.
Specifically, he avers that, (1) the evidence was insufficient to support the verdicts; (2) the State’s
failure to disclose the statement of an unindicted co-conspirator constitutes a Brady violation and
entitles him to a new trial; (3) the sentence was issued in error, in light of Blakely v. Washington;
and (4) the cumulative effect of all errors merits a new trial. Following our review, we affirm the
convictions and the sentences imposed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN , J., and
JOE H. WALKER, SP . J., joined.

C. Anne Tipton, Memphis, Tennessee (on appeal), and Robert Wilson Jones, District Public
Defender, and Phyllis Aluko and Kindle Nance, Assistant Public Defenders (at trial), for the
appellant, Korie Bates.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Goodman and Paul Hagerman, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                    Facts and Procedural History

        On October 17, 2000, the defendant, Korie Bates, was indicted on one count of criminal
attempt first degree murder (a Class A felony). On October 8, 2002, a second indictment was
returned, which charged the defendant with one count of especially aggravated robbery (a Class A
felony). A jury convicted the defendant of criminal attempt second degree murder (a Class B felony)
and aggravated robbery (a Class B felony), both lesser included offenses of those charged in the
indictments. Following a hearing, the defendant was sentenced, as a Range I, standard offender, to
nine and eleven years on the charges, respectively. The sentences were ordered to run consecutively
for a total effective sentence of twenty years. The defendant now appeals to this Court contending
that: (1) the evidence was insufficient to support the verdicts; (2) the State’s failure to disclose the
statement of an unindicted co-conspirator constitutes a Brady violation and entitles him to a new
trial; (3) the sentence was issued in error, in light of Blakely v. Washington; and (4) the cumulative
effect of all errors merits a new trial.

        Taken in a light most favorable to the State, the record reflects that Earnest Young (“Young”)
recruited the defendant and three other comrades to travel from Blytheville, Arkansas, to Memphis,
Tennessee, to collect a drug-related debt owed by John Kerr (“Kerr”) to Young. Specifically, Young
instructed the defendant, Tyrone Brown (“Brown”), and Byron Washington (“Washington”) to
follow him and Johnny Wright (“Wright”) as they traveled to Memphis.1

        After arriving in Memphis, Wright and Young pulled off of the road, and Brown guided
Washington to the street where Kerr’s apartment complex was located. Washington parked Young’s
truck at a nearby market, and the trio walked to Kerr’s apartment. Upon arriving, they found Kerr
outside drinking a beer and began a conversation with him.2 At some point, the subject turned to the
money owed by Kerr to Young and their intention of collecting the debt. Kerr then invited the men
inside to “talk about it.” After Kerr denied having the money, the defendant and Brown drew
weapons and began to search the apartment, without objection from Kerr.

        One of the three men walked into the master bedroom of the apartment where Kerr’s
girlfriend, Andrea Allen (“Allen”), was sleeping. She awakened to find the man going through
drawers and repeatedly asking, “Where is it?” The individual then forced her to get out of bed while
he “snatched the mattress” and searched under it. Allen described the first person who entered the
bedroom as wearing a camouflaged fishing hat, a t-shirt with “animation on the front,” and jeans.

        Several minutes later, a second man, later identified by Allen as Washington,3 entered the
bedroom. The second man picked up a box and asked Allen what it was, to which she replied that
it was “a tool box.” The second man left and re-entered the room, this time picking up a briefcase
and inquiring as to its contents. After Allen responded that the briefcase held Kerr’s military
discharge papers and some pictures, the man carried the briefcase out of the bedroom. Moments
later, Allen heard Kerr’s voice, and the first man left the bedroom. Shortly thereafter, Allen heard
a gunshot. A third man then came to the door of the bedroom and fired three shots at Allen, and all
three men left the apartment.

       After lying on the floor for a few minutes, Allen got up and instructed the babysitters, who
were sleeping in the second bedroom with her children, to call the police. However, when they
         1
           The record reflects that Young and W right led in W right’s car, while the defendant, Brown, and W ashington
followed in Young’s truck.
         2
           The record reflects that Kerr and the three men were acquainted with one another, as Kerr had recently moved
from Blytheville to Memphis.
         3
           The transcript reveals that Allen recognized W ashington “from around town” and from his attending school
with Allen’s brothers in Blytheville, Arkansas.

                                                         -2-
attempted to place the call, they discovered that the phone receivers had been removed from the
apartment. They then ran to a neighboring apartment to contact authorities.

        In the meantime, the defendant, Brown, and Washington returned to the truck and headed
back to Blytheville. Washington testified at trial that the defendant took the phone receivers from
Kerr’s apartment and threw them out of the truck after they left the complex. He further stated that
the defendant disposed of both weapons by throwing them into the Mississippi River as they crossed
over the bridge from Memphis into Arkansas. Washington testified that Wright and Young
eventually caught up to the truck on the interstate, and the five caravanned back to Blytheville and
met at Washington’s apartment. Although Wright left shortly after they arrived, the others remained
at the apartment to discuss what had occurred in Memphis.

       As a result of the events of that evening, John Kerr was fatally injured and Allen was treated
for gunshot wounds to the left elbow, left leg, and lower left back. She was later released. The
defendant was indicted for attempted first degree murder as to Allen and especially aggravated
robbery as to Kerr. Following a jury trial, the defendant was convicted of the lesser included
offenses of attempted second degree murder and aggravated robbery.4 He was sentenced to nine and
eleven years on the charges, respectively.

                                                          Analysis

                                                       I. Sufficiency

               Initially, the defendant alleges that the corroborating evidence provided by
Washington, an indicted co-defendant, was insufficient to identify him as being connected with the
charged offense. In Tennessee, a conviction may not be based solely upon the uncorroborated
testimony of an accomplice. State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001); State v. Allen, 976
S.W.2d 661, 666 (Tenn. Crim. App. 1997). Furthermore, accomplices cannot corroborate each
other. State v. Boxley, 76 S.W.3d 381, 386 (Tenn. Crim. App. 2001). In order to qualify as
corroborative evidence:

       [t]here must be some fact testified to, entirely independent of the accomplice’s
       testimony, which, taken by itself, leads to the inference, not only that a crime has
       been committed, but also that the defendant is implicated in it; and this independent
       corroborative testimony must also include some fact establishing the defendant’s
       identity.

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994) (citations omitted).

         The corroborative evidence may be direct or circumstantial and is not required to be
sufficient, standing alone, to support a conviction. Id. The corroborative evidence is sufficient if
it fairly and legitimately tends to connect the defendant with the commission of the crime charged.
       4
           It appears that the defendant was convicted based on a theory of criminal responsibility.

                                                         -3-
State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). In addition, corroboration is sufficient even
though the evidence is slight and entitled, when standing alone, to but little consideration. State v.
Heflin, 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999). The corroboration need not extend to all
portions of the accomplice’s evidence. Bigbee, 885 S.W.2d at 803. The sufficiency of the
corroboration is a determination for the jury. Shaw, 37 S.W.3d at 903.

       Second degree murder is defined, in pertinent part, as “[a] knowing killing of another.”
Tenn. Code Ann. § 39-13-210(a)(1) (2004). Moreover, the inchoate offense of attempt is codified
at Tennessee Code Annotated section 39-12-101 and states:

        (a)     A person commits criminal attempt who, acting with the kind of culpability
                otherwise required for the offense:
                (1)    Intentionally engages in action or causes a result that would constitute
                an offense if the circumstances surrounding the conduct were as the person
                believes them to be;
                (2) Acts with intent to cause a result that is an element of the offense, and
                believes the conduct will cause the result without further conduct on the
                person’s part; or
                (3) Acts with intent to complete a course of action or cause a result that
                would constitute the offense, under the circumstances surrounding the
                conduct as the person believes them to be, and the conduct constitutes a
                substantial step toward the commission of the offense.

Tenn. Code Ann. § 39-12-101(a) (2004). Therefore, attempted second degree murder requires proof
of: (1) a knowing, (2) attempt, (3) to kill another. State v. Rush, 50 S.W.3d 424, 430 (Tenn. 2001)
(citations omitted).

       Further, aggravated robbery is defined as a robbery “accomplished with a deadly weapon or
by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly
weapon” or “where the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-402 (2004).

        In the present case, Washington testified that he went to Memphis in June of 1999, to collect
a debt from John Kerr on behalf of Earnest Young. Upon arriving in Memphis, Washington stated
that he, Brown, and the defendant parked at a nearby fish market and walked to Kerr’s apartment.
Washington further testified that Brown and the defendant searched the apartment and that Brown
opened Kerr’s briefcase with a knife and spoon. He stated that when Brown shook the briefcase,
Kerr “lunged at” Brown and the defendant, and it appeared that both men fired shots at Kerr. As
Washington fled the apartment, he heard two to three more shots but was unable to determine their
source.

        Washington testified that, after returning to the truck, the three began to travel in the direction
of Blytheville and that the defendant threw from the truck window two phone receivers he had taken



                                                   -4-
from the apartment. Washington also stated that the defendant disposed of the weapons, throwing
them into the Mississippi River as they traveled over the bridge from Memphis into Arkansas.

        At trial, Washington refreshed his recollection with a statement given to police shortly after
the incident. After reviewing the statement, he testified that, on the night of the subject incident, the
defendant wore “[a] black t-shirt, a pair of blue jeans and a camouflage fishing hat or hunting hat.”
He further described the hat as “a fishing hat but the visor comes all the way around the head, makes
a complete circle around with a drawstring. You can tie it up if you want to.”

         Washington’s testimony was corroborated by Allen, who stated that the first person to come
into the bedroom “[had] on a fisherman’s hat and it was like a wide brim but it was camouflage[d]
and it was pulled down to right up in here. And a t-shirt of some sort with something, animation on
the front, and some jeans or something.” She further testified that when she told the babysitters to
call the police, they informed her that the phone receivers were missing. Latrice Golden, one of the
babysitters that night, corroborated the testimony that the phone receivers had been removed from
the apartment.

        We conclude that the corroboration evidence was sufficient to fairly and legitimately connect
the defendant to the conviction offenses. Both Washington and Allen testified as to the unique hat
worn by defendant that night. Further, although Allen was unable to positively identify the
defendant following the incident, she indicated at trial that the defendant’s physical characteristics
matched those of the first intruder. Moreover, Washington, Allen, and Golden testified to the fact
that the phone receivers were removed from the house. Finally, Washington indicated that these
receivers were taken from the apartment and disposed of by the defendant. Therefore, we conclude
that the evidence presented was sufficient to support the convictions.

                                         II. Brady Violation

          Next, the defendant alleges that the State violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194 (1963), when it failed to disclose the statement given to police by Wright, an unindicted co-
conspirator. In Brady, the Supreme Court held that “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of good faith or bad faith of the prosecution.” Brady, 373 U.S.
at 87, 83 S. Ct. at 1196-97; see also Sample v. State, 82 S.W.3d 267, 270 (Tenn. 2002). The duty
to disclose extends to all “favorable information,” regardless of whether the evidence is admissible
at trial. Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001). In United States v. Bagley, 473 U.S. 667,
676, 105 S. Ct. 3375, 3380 (1985), the Supreme Court held that both exculpatory and impeachment
evidence fall under the Brady rule.

        However, the State is not required to disclose information the defendant already possesses
or is able to obtain. State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). Nor is the
State required to disclose information that is not possessed by or under the control of the prosecution
or other governmental agency. Id.


                                                  -5-
       Before an accused is entitled to relief under this theory, he must establish several
prerequisites: (a) the prosecution must have suppressed the evidence; (b) the evidence suppressed
must have been favorable to the accused; and (c) the evidence must have been material. See Bagley,
473 U.S. at 674-75, 105 S. Ct. at 3379-80; Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; State v.
Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidence is considered material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the results of the
proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed.
2d 490 (1995); Edgin, 902 S.W.2d at 389.

        In order to prove a Brady violation, a defendant must show that “the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Kyles, 514 U.S. at 435, 115 S. Ct. at 1566; see also Strickler v. Greene, 527 U.S. 263, 119
S. Ct. 1936, 1952, 144 L. Ed. 2d 286 (1999). The Court in Kyles urged that the cumulative effect
of the suppressed evidence be considered to determine materiality. Kyles, 514 U.S. at 436, 115 S.
Ct. at 1567.

         Upon review of the statement in question, we conclude that its nondisclosure does not violate
Brady because it is neither favorable to the defendant nor material. Taking the issues in order, we
first note that our supreme court has held that “the Brady obligation comprehends evidence which
provides some significant aid to the defendant’s case, whether it furnishes corroboration of the
defendant’s story, calls into question a material, although not indispensable, element of the
prosecution’s version of the events, or challenges the credibility of a key prosecution witness.”
Johnson v. State, 38 S.W.3d 52, 56-57 (Tenn. 2001) (quoting Commonwealth v. Ellison, 379 N.E.2d
560, 571 (Mass. 1978)) (emphasis added). At the motion for new trial, the trial court found that:

       [T]here’s nothing in [the statement] that’s inconsistent with anything that I have seen
       or heard in the trial.

       And, so, this Court would find that it does not contain anything exculpatory as to [the
       defendant], and that there’s not anything, in this court’s opinion, that would have –
       had Mr. Wright been brought in to testify based on this statement, that would have
       exculpated [the defendant’s] role in this case. In fact, if I’m not mistaken, I believe
       I read in here where it was the – that [Wright] even indicated that [Washington] was
       not supposed to have gone inside, that [the defendant] and the other guy was the ones
       that were supposed to have gone inside and roughed up [Kerr].

We agree with the findings of the trial court. Contrary to the defendant’s argument that the statement
provides a “significantly different version of the facts” than that given by Washington at trial, it
appears that the two agree on all pertinent points. The statement confirms that Young recruited
Wright to drive him to Memphis, accompanied by Washington, Brown, and the defendant. The
statement further corroborates Washington’s testimony that, once in Memphis, Wright waited in his
vehicle with Young and had no knowledge of what transpired in Kerr’s apartment. Finally, the



                                                 -6-
statement indicates that, after seeing Washington, Brown, and the defendant traveling in the truck
approximately thirty minutes later, Wright and Young followed them back to Blytheville.

        We initially note that Wright’s statement provides no information to support the assertion
that the defendant did not enter Kerr’s apartment on the night in question. Rather, it corroborates
the State’s proof that, after separating from Brown, Washington, and the defendant, Wright and
Young did not see the others again until they left Kerr’s apartment on their way back to Blytheville.
Moreover, the statement indicates that the defendant’s presence and his role in the incident were
intended and planned by Young. Specifically, the statement reveals that Young intended for
Washington to remain in the truck while Brown and the defendant “[got] what [Kerr] had left and
beat him up.” Washington corroborated this statement at trial when he acknowledged that he was
supposed to drive to Kerr’s apartment and stay in the truck while Brown and the defendant went
inside.

        Finally, the statement would not be a significant aid to impeach Washington. As previously
mentioned, the statement corroborates the pertinent points of Washington’s trial testimony; therefore,
any discrepancies would be minor and would aid the defendant only marginally, if at all. We see no
possible way in which this statement could render significant aid to the defendant, either to exculpate
his role in the offense or to impeach Washington.

        We further conclude that the materiality requirement has not been fulfilled. Evidence is
material when “there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” State v. Edgin, 902 S.W.2d 387, 390 (Tenn.
1995). Although the State’s cases reference the term “probability,” the true determination to be
made is whether “the defendant has shown that ‘the favorable evidence could reasonably be taken
to put the whole case in such a different light as to undermine the confidence of the verdict.’”
Johnson, 38 S.W.3d at 58 (quoting Irick v. State, 973 S.W.2d 643, 657 (Tenn. Crim. App. 1998)
(internal citations omitted)).

       As we have previously noted, the statement given by Wright merely confirmed and
corroborated the State’s proof of the pertinent facts. Therefore, if disclosed, it would not have
presented any previously unknown or novel fact that would have changed the complexion of the
case. As such, we conclude that its disclosure certainly would not have altered the case in such a
way as to undermine the verdict as it stands. Therefore, the requisite element of materiality has not
been proven.

                                           III. Sentencing

       The defendant also challenges the sentences imposed in light of the Supreme Court’s recent
holding in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). However, in a recent
opinion, our supreme court held that Blakely does not apply to our sentencing act. See State v.
Edwin Gomez and Jonathan S. Londono, No. M2002-01209-SC-R11-CD, 2005 Tenn. LEXIS 350
(Tenn., at Knoxville, April 15, 2005). Therefore, this argument is without merit.


                                                 -7-
        The defendant also challenges the imposition of consecutive sentences. Generally, it is
within the discretion of the trial court to impose consecutive sentences if it finds by a preponderance
of the evidence that at least one of the following statutory criteria applies:

       (1)     [t]he defendant is a professional criminal who has knowingly devoted such
               defendant’s life to criminal acts as a major source of livelihood;
       (2)     [t]he defendant is an offender whose record of criminal activity is extensive;
       (3)     [t]he defendant is a dangerous mentally abnormal person so declared by a
               competent psychiatrist who concludes as a result of an investigation prior to
               sentencing that the defendant’s criminal conduct has been characterized by
               a pattern of repetitive or compulsive behavior with heedless indifference to
               consequences;
       (4)     [t]he defendant is a dangerous offender whose behavior indicates little or no
               regard for human life, and no hesitation about committing a crime in which
               the risk to human life is high;
       (5)     [t]he defendant is convicted of two (2) or more statutory offenses involving
               sexual abuse of a minor with consideration of the aggravating circumstances
               arising from the relationship between the defendant and victim or victims, the
               time span of defendant’s undetected sexual activity, the nature and scope of
               the sexual acts and the extent of the residual, physical and mental damage to
               the victim or victims;
       (6) [t]he defendant is sentenced for an offense committed while on probation; or
       (7) [t]he defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

        If the court concludes the defendant is a dangerous offender under Tennessee Code
Annotated section 40-35-115(b)(4), it must make two further determinations in addition to applying
general sentencing principles. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). First, it must find
an extended sentence is necessary to protect the public from further criminal conduct by the
defendant, and, second, it must find consecutive sentencing to be reasonably related to the severity
of the offenses. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). However, such specific
factual findings are unnecessary for the other categories of Tennessee Code Annotated section 40-35-
115(b). State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

       In the present case, the defendant contends that imposing a consecutive sentence based upon
subsection (b)(4) violates the holding of Blakely. We first note that both our supreme court and this
Court have previously addressed the applicability of Blakely and Apprendi to consecutive
sentencing. In so doing, our courts have held, in harmony with other jurisdictions, that these cases


                                                 -8-
do not affect the trial court’s ability to order consecutive sentencing. See State v. Robinson, 146
S.W.3d 469, 499 n. 14 (Tenn. 2004) (citations omitted) (noting that “several courts” have rejected
the contention that Blakely and Apprendi apply to the decision to impose consecutive sentencing);
State v. Howard Walter Thomas, No. E2003-02090-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS
300, at *98-99 (Tenn. Crim. App., at Knoxville, Mar. 30, 2005) (rejecting Blakely contention as
applied to consecutive sentencing based on subsection (b)(4)). Therefore, we repeat the holdings of
the previous decisions and reject this contention.

       Next, we address whether the trial court properly found that the defendant was an appropriate
candidate for consecutive sentences under subsection (b)(4). In determining the propriety of
consecutive sentences, the trial court opined:

       The Court has reviewed the statute with regard to those particular factors, and the
       Court again in reviewing not only the statute but the case law. Cases tell us that:

               “The defendant may not to [sic] be required to serve multiple
               sentences consecutively on the ground he is a dangerous offender
               unless the record establishes that the defendant’s behavior indicated
               little or no regard for human life and that he did not hesitate about
               committing a crime in which the risk to human life was high.

               “The circumstances surrounding the commission of the offense were
               aggravated. The confinement for an extended period of time is
               necessary to protect society and that the aggregate length of the
               sentence in consecutive sentencing is ordered, reasonably relates to
               the offenses for which the defendant stands convicted.”

       In this case, again, as I would state, I have one man who is dead, one woman who
       was mortally wounded, all to recover drugs and drug money. That’s the whole
       purpose of this. They felt that Mr. Kerr had stolen their drugs and stolen their
       money, and they sent them over here a little bit of self-help repossession I guess is
       what you’d call it, and in the course of that, they took a man’s life and mortally
       wounded his wife.

       This Court find that those actions meet the criteria set out in the case law and meet
       the criteria set out in the statute for consecutive sentencing. I do find that [the
       defendant] is a dangerous offender whose behavior indicates little or no regard for
       human life and that had no hesitation about committing this crime in which the risk
       to human life was high, and I’ll order that the sentences be served consecutively.

Upon reviewing the trial court’s findings at the sentencing hearing, we conclude that the court
properly found that the defendant met the requirements of (b)(4) and was an appropriate candidate
for consecutive sentencing. The record reflects that the trial court recited the requisite factors,


                                                -9-
expounded on the details of the offense, and found that the defendant met the necessary criteria to
be sentenced consecutively.

                                        IV. Cumulative Error

         Finally, the defendant contends that the cumulative effect of all errors merits a new trial.
Initially, we note that the defendant has waived this argument for failure to raise it in his motion for
new trial. Tenn. R. App. P. 3(e). Further, as we have found no individual error as to the convictions,
this argument is without merit.

                                             Conclusion

       The defendant’s convictions and sentences are affirmed.




                                                        ____________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




                                                 -10-
