         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs October 1, 2002

             STATE OF TENNESSEE v. BRIAN ANTIONE STARKS

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 2000-A-253    Steve R. Dozier, Judge



                     No. M2002-00179-CCA-R3-CD - Filed April 15, 2003


The defendant, Brian Antione Starks, was convicted, by jury, of first degree felony murder and
attempted especially aggravated robbery. The defendant was sentenced to life imprisonment for the
murder conviction and eleven years as a Range I, standard offender for the robbery conviction, to
be served consecutively to the life sentence. The defendant timely appealed, alleging that the
evidence was insufficient to support his convictions and that the testimony of his accomplices was
not sufficiently corroborated. Based upon our review, we affirm the judgments of the trial court but
remand for entry of a corrected judgment in Count 2.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and
                      Remanded for Entry of Corrected Judgment

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Brian Antione Starks.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and James F. Todd and Gigi Braun, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                               FACTS

        On January 18, 1999, the defendant, armed with a pistol, and two codefendants attempted
to rob Julius Talley. After discovering that the victim did not have any money, the defendant shot
the victim four times, killing him, and then fled.

        At trial, Xavier Gray, a codefendant, testified that on January 18, 1999, he spent the day with
the defendant, Dewayne Hooten, and Andrew Jefferson, another codefendant. They drove to the
Rivergate Mall in a car the defendant had “pawned”1 earlier that day. Before going inside the mall,
Gray saw the defendant put a gun under the seat of the car. Subsequently, the four men returned to
their neighborhood on Settle Court in the Sam Levy Housing Development where they began
drinking gin and beer, smoking marijuana, and selling crack cocaine. The victim came to the
neighborhood to buy drugs, first approaching Hooten and then the defendant. Travis Lawless, whom
Gray identified as their “supplier,” drove up, and the victim and the defendant went inside Lawless’
residence with him, with Jefferson remaining outside.

        Gray and Hooten then walked down the street to buy marijuana; when they returned, the
defendant and the victim had come outside and Gray saw the defendant hand a gun to Jefferson.
Holding the victim’s shirt with his left hand and pointing a gun at the victim with his right hand,
Jefferson told the victim, “I just want the money or the dope.” The victim responded, “I ain’t got
no drugs. I don’t have no money.” Angered that the victim did not have any money or drugs, the
defendant took the gun from Jefferson and told Jefferson and Gray to take the victim ten to twelve
feet across the street to a dumpster. At the dumpster, the defendant repeatedly said, “I’m gonna kill
him,” as the victim begged for his life. The victim tried to run twice but was pushed back against
the dumpster, first by Jefferson and then by Gray. As Gray and Jefferson turned to walk away, Gray
heard a gunshot, turned back around, and saw the victim holding his hip and trying to run. The
defendant then fired three or four more shots at the victim who ran to Lawless’ yard where he
collapsed.

        Gray testified that he, the defendant, Hooten, and Jefferson then fled the scene, driving to the
home of Patrice Woodland, the defendant’s girlfriend. Jefferson asked the defendant why he had
shot the victim, and the defendant replied, “I wish I wouldn’t shot him.” At Woodland’s house, the
defendant wrapped the gun in a pillowcase and took it to the back of the house. After taking
Jefferson home, the defendant, Hooten, and Gray returned to Woodland’s house where they spent
the night.

         Approximately two weeks later, the defendant “got caught on a violation of probation” and
called Gray, instructing him, “Don’t say nothing. You gonna beat this with . . . lack of evidence.
So, if they come and ask for y’all, just be quiet. Don’t say nothing about it.” Gray admitted that he
was untruthful at first when he was questioned by police but later told the truth and was then locked
up at the Davidson County Juvenile Detention Facility. While confined there, he received a letter
on his dinner tray from the defendant. Although the letter was not signed by the defendant, Gray
knew it was from him because: it was addressed to “X-man,” Gray’s nickname; it mentioned
“Drew” (Andrew Jefferson) and “Wayne-Wayne” (Dewayne Hooten); it discussed the shooting,
referring to the victim as “Dude”; and it was signed “Your folks,” which is the way Gangster
Disciple members greeted each other. Gray said that both he and the defendant were members of
the Gangster Disciples. The letter also mentioned the name of the defendant’s attorney and told of
“a deal” this attorney could get for Gray if he remained silent about the defendant’s participation in


         1
             Gray defined “pawned” as when a crack addict says, “You can keep my car for so many days for this amount
of drugs.”

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the shooting. To explain why the defendant’s fingerprints were found on the gun, the letter
instructed Gray to say that the defendant bought the gun from Jefferson for $200 after the victim was
killed with it. After the letter was entered as an exhibit, Gray was permitted to read it aloud to the
jury.

        Patrice Woodland testified that the defendant, Gray, Jefferson, and Hooten came to her house
on January 18, 1999. The defendant gave her a gun and told her to “[h]old it till he came back.” She
said that she initially put the gun in a clothes hamper, but gave it to her mother the next day because
she had small children at home. When questioned by the police a few days later, she told Detective
Roy Dunaway that she had given the gun to her mother. Sara Woodland testified that her daughter,
Patrice Woodland, had given her the gun, but she traded it for a gram of crack cocaine. She later was
able to recover the gun from the person she traded with and turned it over to the police.

         The State also called Dewayne Hooten to testify, but, while on the stand, he became
uncooperative and was declared a hostile witness. During his testimony, his memory had to be
refreshed several times with the prior statement he had given to the police. He testified that he was
at the scene of the shooting but could not remember exactly what happened. He saw the defendant,
Jefferson, Gray, and others walk around the corner and heard shouting and gunshots. He also
testified that he drove them from the scene to the home of Patrice Woodland. When asked if he
remembered telling the police in his statement that the defendant had said, “I wish I hadn’t shot [the
victim],” Hooten replied that he did not remember who said it.

       Officer Johnny Ray Crumby, Jr., of the Nashville Metro Police Department testified that he
and another officer were dispatched to the shooting at 325 Settle Court. When he arrived, emergency
medical workers were already there, rendering medical assistance to the victim who was lying on the
ground. Crumby secured the crime scene and looked for physical evidence but did not find any. He
questioned people at the scene but “didn’t locate anybody that knew anything.”

         Officer Jeffrey P. Odom, a crime scene technician with the Metro Police Department,
testified that he was dispatched to the scene of the shooting at approximately 11:15 p.m. The only
physical evidence found at the scene was the victim’s clothing which had been cut off by emergency
medical workers. After making photographs of the scene, Odom returned to the field office but was
summoned by detectives at 3:30 a.m. to return to the scene. On his second visit to the crime scene,
he collected a zipper clasp found on the ground near the 325 Settle Court building and photographed
drug scales and a high-powered rifle found in one of the apartments. On cross-examination, Odom
said he did not remember looking for fingerprints on the rifle or scales because they had already been
handled by other persons. He testified that the surface area of the zipper clasp “was so small and so
porous, that we wouldn’t have had consistent ridge detail . . . to get a fingerprint that woulda [sic]
been identifiable.”

       Detective Roy Dunaway of the Metro Police Department testified that he investigated the
crime scene and found blood near the front porch of 325 Settle Court, a portion of a zipper, clothing
removed from the victim, and a set of drug scales from the residence at 325 Settle Court. By the


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following day, he had uncovered the nickname of “Little B” and the first name “Brian” from people
in the area. After speaking with Travis Lawless and Kimberly Williams who lived at 325 Settle
Court, Dunaway was given the defendant’s name. He subsequently interviewed and was involved
in the arrests of the defendant, Jefferson, and Gray. Dunaway also took statements from Dewayne
Hooten, Patrice Woodland, and Sara Woodland, from whom he recovered the murder weapon. He
was also present during the victim’s autopsy and testified that three bullets were recovered from the
victim’s body, as well as a small plastic bag containing several rocks of crack cocaine from the
victim’s rectum. The bullets and the gun were sent to the Tennessee Bureau of Investigation (“TBI”)
Crime Lab for examination.

       Dr. John E. Gerber, the medical examiner who performed the autopsy on the victim’s body
on January 19, 1999, testified that the victim sustained four gunshot wounds, one to the left lower
back, one to the left flank, and two to the left thigh. Three bullets were recovered from the wounds,
and blood tests revealed the presence of cocaine in the victim’s body. Dr. Gerber also found a plastic
bag containing a white substance in the victim’s rectum.

         TBI Special Agent Shelley Betts, a forensic scientist assigned to the firearms identification
unit, testified that she examined the revolver2 and the three bullets sent to her by the Metro Police
Department and determined that the bullets recovered from the victim’s body had been fired in the
revolver.

        Detective Dunaway further testified that he took Gray’s statement a few days after the
shooting and was present when Gray testified at the defendant’s transfer hearing approximately five
months later in June 1999. After being recalled to testify as a defense witness, Dunaway3 related
inconsistencies in Gray’s statement and his testimony at the transfer hearing. In his statement, Gray
had said he followed the defendant, Jefferson, and the victim across the street, but, at the transfer
hearing, he admitted that he took the victim by his sleeves and pulled him across the street. Gray
further admitted at the transfer hearing that he knew he was taking the victim across the street to be
robbed. At one point in his testimony at the hearing, Gray said he had heard what the defendant said
to Jefferson but later testified he had not heard their conversation. Despite these inconsistences,
however, Dunaway said that Gray’s testimony at the hearing about the defendant having the gun all
day and shooting the victim was consistent with what Gray had said in his statement.

        Following the testimony of Detective Dunaway, the defense rested its case in chief.




        2
            Agent Be tts’s report identified the revo lver as a Smith and W esson .38 sp ecial.

        3
         In the interim, Detective Du nawa y had reviewed Gray’s statement and apparently an audiotape of the
defendant’s transfer hearing.

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                                             ANALYSIS

                                         Standard of Review

         In Tennessee, the results reached by a jury in a criminal trial are afforded great weight. See
State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995). On appeal from a guilty verdict,
the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences that
may be drawn from the evidence. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This
means that we do not reweigh the evidence, but presume that the jury has resolved all conflicts in
the testimony in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). The
relevant question for an appellate 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 or crimes beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979).

                                   I. Sufficiency of the Evidence

       The defendant asserts that the evidence presented at trial was insufficient to support his
convictions for first degree felony murder and attempted especially aggravated robbery.

        To obtain a conviction for first degree murder, the State must prove:

                (1) A premeditated and intentional killing of another;

                (2) A killing of another committed in the perpetration of or attempt
                to perpetrate any first degree murder, arson, rape, robbery, burglary,
                theft, kidnapping, aggravated child abuse, aggravated child neglect or
                aircraft piracy; or

                (3) A killing of another committed as the result of the unlawful
                throwing, placing or discharging of a destructive device or bomb.

Tenn. Code Ann. § 39-13-202(a) (1997). Proof at trial established that the victim, Julius Talley, was
shot multiple times during the commission of a robbery. Therefore, the crime of first degree felony
murder was established.

        The testimony of Xavier Gray and Dewayne Hooten placed the defendant at the scene of the
crime on January 18, 1999. Gray testified that the defendant was agitated after discovering that the
victim did not have any money. The defendant then ordered Gray and Jefferson to take the victim
across the street to a dumpster. The victim tried to run away twice but was unsuccessful. Hearing
a gunshot, Gray turned around and saw the victim grab his hip and run around the side of the
dumpster. The defendant ran to the other side of the dumpster, still firing his pistol. The victim ran
to Travis Lawless’ yard where he collapsed. Gray, Hooten, Jefferson, and the defendant got into a


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car and drove away. In the car, Jefferson questioned the defendant about the shooting and he
responded that he wished he had not shot the victim.

        Patrice Woodland, the defendant’s former girlfriend, testified that the defendant, Gray,
Jefferson, and Hooten came to her residence on January 18, 1999, the night of the shooting, and the
defendant gave her a pistol to “hold” for him. In turn, she gave this pistol to her mother, Sara
Woodland, who recovered the weapon and gave it to police officers. TBI Special Agent Shelley
Betts testified that the bullets recovered from the victim’s body had been fired from the pistol.

       Based on the evidence presented at trial, a rational jury could have concluded beyond a
reasonable doubt that the defendant attempted to rob the victim with a pistol and, finding the victim
with no money, shot and killed him. Accordingly, the evidence was sufficient to support the
defendant’s convictions for first degree felony murder and attempted especially aggravated robbery.

                          II. Corroboration of Accomplice Testimony

      The defendant argues on appeal that both Xavier Gray and Patrice Woodland were
accomplices, and there was insufficient corroboration of their testimony inculpating the defendant.
We will review this claim.

       In Tennessee, it is well established that a defendant cannot be convicted of a felony on the
uncorroborated testimony of an accomplice. See State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.
1994); Sherrill v. State, 321 S.W.2d 811, 815 (Tenn. 1959); State v. Allen, 10 S.W.3d 286, 289
(Tenn. Crim. App.), perm. to appeal denied (Tenn. 1999); State v. Anderson, 985 S.W.2d 9, 15
(Tenn. Crim. App. 1997). Whether an accomplice's testimony has been sufficiently corroborated to
allow a guilty verdict is a question for the jury. Bigbee, 885 S.W.2d at 803. The court in Bigbee
explained the nature of the evidence necessary to corroborate inculpatory testimony of a codefendant:

               [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. This
               corroborative evidence may be direct or entirely circumstantial, and
               it need not be adequate, in and of itself, to support a conviction; it is
               sufficient to meet the requirements of the rule if it fairly and
               legitimately tends to connect the defendant with the commission of
               the crime charged. It is not necessary that the corroboration extend
               to every part of the accomplice's evidence. The corroboration need
               not be conclusive, but it is sufficient if this evidence, of itself, tends
               to connect the defendant with the commission of the offense,
               although the evidence is slight and entitled, when standing alone, to
               but little consideration.


                                                  -6-
Id. (citations omitted).

        We next will consider the definition of an accomplice, which is “an individual who
knowingly, voluntarily and with common intent participates with the principal offender in the
commission of an offense.” State v. Lewis, 36 S.W.3d 88, 94 (Tenn. Crim. App.), perm. to appeal
denied (Tenn. 2000). While the codefendant, Xavier Gray, fits within this definition, it is clear that
Patrice Woodland does not. The evidence showed only that Woodland was asked by the defendant,
her boyfriend, to “hold” a pistol. There is no proof she was told why he was giving her the weapon
or what earlier use he had put it to.

       As to Xavier Gray, there was evidence which the jury reasonably could have found
corroborated his testimony, the evidence consisting of the letter, which the jury could have
concluded the defendant sent to Gray, instructing Gray how to testify and exculpate the defendant,
as well as Patrice Woodland’s testimony that the defendant gave her the pistol identified as the
murder weapon.

       Accordingly, as to this issue, we conclude that the jury reasonably could have determined that
Xavier Gray’s testimony was corroborated by other evidence, and we conclude, as well, that Patrice
Woodland was not an accomplice.

                                          CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the judgments of the trial
court but remand for entry of a corrected judgment in Count 2 to reflect that the defendant was found
guilty.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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