        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 3, 2011

               STATE OF TENNESSEE v. RODERICK MOORE

                  Appeal from the Criminal Court for Shelby County
                   No. 05-02464    Carolyn Wade Blackett, Judge




                No. W2010-01233-CCA-R3-CD - Filed August 18, 2011


A Davidson County jury convicted the Defendant, Roderick Moore, of first-degree murder
in the perpetration of a robbery, reckless homicide, and especially aggravated robbery. He
was sentenced to concurrent sentences of life imprisonment for the first-degree murder, two
years for the reckless homicide, and eighteen years for the especially aggravated robbery.
On appeal, the Defendant argues that the trial court erred by limiting the cross-examination
of the investigating police officer and that the evidence was insufficient to sustain his
conviction for first-degree murder in the perpetration of a robbery. Following our review, we
affirm the Defendant’s convictions for first degree murder and especially aggravated robbery.
We remand for entry of a judgment reflecting that the reckless homicide conviction merged
into the first-degree murder conviction.

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

D AVID H. W ELLES, S P. J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

Michael R. Working, Memphis, Tennessee for the appellant, Roderick Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Paul Goodman and Brooks
Yelverton, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

        This case arises out of the November 23, 2004 murder and robbery of sixty-three year-
old Robert Adams. A Shelby County Grand Jury indicted the Defendant for first-degree
premeditated murder, first-degree murder in the perpetration of a robbery, and especially
aggravated robbery. On March 5, 2010, a jury convicted the Defendant of reckless homicide,
first-degree murder in the perpetration of a robbery, and especially aggravated robbery. The
trial court sentenced him on May 7, 2010, to concurrent sentences of life imprisonment for
the felony murder conviction, two years for the reckless homicide conviction, and eighteen
years for the especially aggravated robbery conviction.

        On November 23, 2004, Jelahni Bridgefor was moving his belongings from one unit
to another at the Foxwood Apartments in Memphis. As he was putting items in his car, he
noticed a yellow cab drive through the apartment complex, which was unusual for the area.
Bridgefor went back upstairs to his apartment to retrieve his television and saw the yellow
cab still in the parking lot as he came back downstairs. As Bridgefor put the television in his
car, he heard someone yell for “help.” He looked over to the cab and saw the victim, Robert
Adams, get out of the driver’s seat of the cab and fall to the ground. Bridgefor saw the
Defendant exit the cab and stand over the victim. The victim then threw his wallet out, and
the Defendant picked it up, looked inside it, and put it in his pocket. The victim got up off
the ground and got back into his cab. Bridgefor did not see any blows struck, nor did he see
a weapon.

       The Defendant ran toward Bridgefor but then turned to run the other way, saying to
Bridgefor, “Don’t say nothing.” Bridgefor and a young woman went to the victim’s aid. The
young woman started to reach for the victim, but Bridgefor admonished her not to touch him.
Rather, he instructed her to call 9-1-1.

        Bridgefor spoke to the police after they arrived on the scene. Though the Defendant
was wearing a hat, Bridgefor got a good look at his face when the Defendant was running
toward him. Bridgefor was able to describe to police that the Defendant was a young man,
in his early twenties, and had his hair cut in a “ball fade” style. He also recalled that the
Defendant was taller than himself and estimated his weight between 160 and 170 pounds.

       Memphis Police Officer Timothy Rogers responded to the scene. Upon his arrival,
he found a taxi cab in the southwest corner of the Foxwood Apartment complex, with the
victim lying in the driver’s seat. He was dead upon Rogers’s arrival and was already turning

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blue. Officer Rogers noticed a large amount of blood at the feet of the victim and on the
ground near the driver’s side door of the cab.

        Memphis Police Officer William Merritt also responded to the scene. Officer
Williams was assigned to document evidence found at the scene. He collected a set of keys
to the cab from the front shirt pocket of the victim along with a five-dollar bill. A cellular
telephone belonging to the victim was found on the roof of the cab. Officer Merritt also
communicated with the Yellow Cab Company and learned that the victim had picked up a
fare around the 1700 block of North Germantown Parkway before this incident.

       Bridgefor met with police two days after the murder, on November 25, 2004, to view
a photographic line-up. At that time, Bridgefor identified a suspect that “looked like the
guy,” but he was not able to make a positive identification. Bridgefor again viewed a
photographic lineup on November 30, 2005. This time, he positively identified the
Defendant as the assailant.

        On December 5, 2004, after Bridgefor’s identification of the Defendant, Memphis
Police Lieutenant Nathan Berryman, then a sergeant in the homicide unit, interviewed the
Defendant in connection with the victim’s murder. The Defendant signed a waiver of rights
after being advised of his rights and after reading the advice of rights form out loud to Lt.
Berryman. The Defendant initially denied any involvement in the murder, but upon further
questioning, he changed his story. In a statement reduced to writing, the Defendant admitted
responsibility for the murder:

       I was working at Marshall about 9:00 and left and called a cab. The cab came
       and took me to my house. The cab fare was thirty two dollars and some
       change. I only had twenty dollars. The cab driver told me that he was going
       to beat my black ass if I didn’t give him his money. He tried to grab me. I hit
       him in his face. I grabbed my knife and he cut his self on his hand. He got out
       of the car and I got out behind him and told him to give me his wallet. He
       didn’t give it to me. I stabbed him in the lower part of his body. He still didn’t
       get it to me and I stabbed him again. He gave me his wallet and I ran home.

Lieutenant Berryman acknowledged that, when he interviewed the Defendant, the Defendant
orally stated that he first stabbed the victim and then demanded his wallet, as opposed to the
other way around, as memorialized in the written statement. However, the Defendant, after
reviewing the typed statement, initialed each page and signed the statement.

       The Defendant further told Lt. Berryman that he told a bystander not to say anything
as he fled the crime scene. He also admitted that he discarded the knife in some bushes in

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South Memphis and that he burned the clothes he was wearing – a beige jacket, black jeans,
a black t-shirt, and white sneakers – on a barbeque grill at his sister’s house in Whitehaven.
He stated that he removed over $200 from the victim’s wallet and discarded the wallet
outside in front of his mother’s apartment. At his mother’s apartment, he changed clothes
and recounted the incident to his cousin, Vincent Hale. He then left the apartment when
“Tanisha” picked him up. He further admitted using a false name when he called for the cab
from a Shell gas station.

      A still photograph taken from surveillance camera footage at the Shell gas station near
the 1700 block of North Germantown Parkway on November 23, 2004, shows a young
African-American man wearing a beige jacket, black jeans, and white sneakers. The
Defendant admitted to Lt. Berryman that he was the person in the photograph. Lieutenant
Berryman also retrieved surveillance footage from the Marshall’s store on Germantown
Parkway where the Defendant worked on November 23, 2004. A still photograph shows a
young African-American male, wearing a beige jacket and black jeans, pushing a clothing
rack.

       Dr. Karen Chancellor, the Chief Medical Examiner for Shelby County, testified at trial
about the victim’s autopsy, which was performed by former assistant medical examiner Dr.
Joy Carter. The autopsy revealed multiple cut wounds to the palm of the victim’s left hand,
consistent with a struggle, and a cut above his left eye. He also had stab wounds, made by
a similar instrument, on each leg and his right arm. The stab wound to the left leg severed
the popliteal artery and vein, which are major blood vessels in the leg. This wound would
have caused significant bleeding. Dr. Chancellor concurred with the autopsy results that the
victim died as a result of multiple stab wounds.

                                          Analysis

I. LIMITATION ON CROSS-EXAMINATION OF LIEUTENANT BERRYMAN

        The Defendant contends that the trial court erred by limiting his cross-examination
of Memphis Police Lieutenant Nathan Berryman. Specifically, he claims that two non-
testifying witnesses identified someone else as the assailant and that he should have been
allowed to cross-examine Lt. Berryman as to their out-of-court identifications. The State
counters that the evidence was irrelevant, hearsay, and otherwise inadmissible under
Tennessee Rule of Evidence 403. We agree with State.

      Trial courts have broad discretion in determining the admissibility of evidence. State
v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). “It is well-settled that the propriety, scope,
manner[,] and control of the examination of witnesses is a matter within the discretion of the

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trial judge, subject to review for abuse of discretion.” State v. Caughron, 855 S.W.2d 526,
540 (Tenn. 1993). The trial court’s exercise of discretion may not be reversed unless the
court “applied an incorrect legal standard, or reached a decision which is against logic or
reasoning that caused an injustice to the party complaining.” State v. Shuck, 953 S.W.2d
662, 669 (Tenn. 1997).

       For evidence to be admissible, it must be relevant. Tenn. R. Evid. 402. Relevant
evidence means “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Tenn. R. Evid. 401. Rule 403 of the Tennessee Rules of Evidence
provides in relevant part that, “[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury.”

       After reviewing the evidence and the arguments of counsel on this issue, we conclude
that the trial court properly limited the cross-examination of Lt. Berryman. First, the
evidence the Defendant sought through cross-examination of Lt. Berryman is irrelevant
under Tennessee Rule of Evidence 401. The Defendant conceded at trial and admitted to
police in a written statement that he was the perpetrator of the crimes against the victim.
Therefore, evidence that two other witnesses identified another individual as the assailant
does not make the existence of any fact of consequence to the jury’s determination any more
or less probable. The only issue for the jury was one of the degree of the Defendant’s
culpability. Identity of the assailant was not. The Defendant claimed at trial, and now again
on appeal, that the evidence reflected on the integrity of the police interrogation and was
relevant to that issue. That was not an issue at trial either because the Defendant conceded
that he was the perpetrator. When addressing this issue in the trial court, the Defendant’s
attorney stated, “We would stipulate he’s the person. . . . I mean, we’ve stipulated that he’s
the right person.” Moreover, the fact that witnesses identified someone other than the
Defendant bears no reflection on the integrity of the police investigation.

        Second, even if the evidence was somehow relevant, we agree with the trial court that
its probative value was substantially outweighed by the danger of confusion of the issues or
misleading the jury under Tennessee Rule of Evidence 403. The Defendant twice sought
to cross-examine Lt. Berryman about these other out-of-court identifications, and the trial
court twice sustained the State’s objection, claiming “I’m confused.” The jury was likely to
be as confused as the trial court as to the relevance of this evidence, and the probative value
of an issue not before the jury was substantially outweighed by the danger of confusing the
jury on the issue before it – the degree of the Defendant’s culpability. Therefore, the trial
court properly exercised its discretion to prevent this confusion.



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       Finally, we conclude that evidence of the two other out-of-court identifications made
by unavailable witnesses was inadmissible hearsay. “Hearsay” is a statement, other than one
by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted. Tenn. R. Evid. 801(c). Hearsay is not admissible except as provided
by the rules of evidence or otherwise by law.

        Tennessee Rule of Evidence 803(1.1) provides an exception to the hearsay rule for
prior statements of identification by a witness made after perceiving the person if the
declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement. (Emphasis added). A party seeking to admit evidence under the prior
identification exception must establish four elements: (1) that the declarant made an
identification of a person; (2) that the identification was made after perceiving the person;
(3) that the declarant testified at the hearing or trial in which the prior identification was
introduced; and (4) that the declarant was subject to cross examination about the statement.
State v. Stout, 46 S.W.3d 689, 698 (Tenn. 2001) (citing Neil P. Cohen et al., Tennessee Law
of Evidence, § 803(1.1).2, at 507-08 (3d ed. 1995)).

        The out-of-court identifications the Defendant sought to admit through the testimony
of Lt. Berryman are hearsay and not admissible under any exception to the hearsay rule. The
Defendant insisted at trial that he was not seeking admission of these other identifications
for the truth of the matter asserted – that the witnesses had identified the wrong assailant –
but to attack the integrity of the police investigation. As the State notes in its argument on
appeal, the failing of this argument is that if the misidentifications are not offered for their
truth, then they do nothing to impeach the integrity of the investigation. Moreover,
Tennessee Rule of Evidence 803(1.1) provides no vehicle to admit this evidence. The
hearsay declarants did not testify at trial and were not subject to cross-examination.
Therefore, the misidentifications are not admissible under the hearsay exception provided by
Rule 803(1.1). This issue is without merit.

II. SUFFICIENCY OF THE EVIDENCE FOR FELONY MURDER

       The Defendant next contends that the evidence was insufficient to support his
conviction for murder in the perpetration of a robbery. Specifically, he argues that the proof
demonstrated that the killing of the victim was separate and distinct from the robbery. Our
review of the record reveals that the murder and the robbery occurred in an unbroken chain
of events and therefore, supports the jury’s verdict that the Defendant was guilty beyond a
reasonable doubt of murder during the perpetration of a robbery.

      Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is

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insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

       First-degree felony murder is the killing of another committed in the perpetration of
or attempt to perpetrate, among other things a robbery. Tenn. Code Ann. § 39-13-202(a)(2).
Robbery is the intentional or knowing theft of property from the person of another by
violence or putting the person in fear. Tenn. Code Ann. § 39-13-401. In considering
whether the evidence is sufficient to support a conviction of first-degree felony murder, this
Court must determine whether the killing is closely connected to the felony in time, place,
causation, and continuity of action. State v. Pierce, 23 S.W.3d 289, 295 (Tenn. 2000). The
felony does not have to be committed contemporaneously with the murder. State v. Morris,
24 S.W.3d 788, 799 (Tenn. 2000).

      The Defendant contends no evidence was introduced to show that he intended to
commit a robbery prior to or concurrent with the murder. We disagree. Considering the
evidence in the light most favorable to the State, the killing and the robbery occurred as an
unbroken chain of events and is sufficient to support his conviction for felony murder.

       On November 23, 2004, the Defendant called for a cab using a false name and was
carrying a five-inch blade butcher knife with him at the time. After he could not pay the cab

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fare, a struggle ensued in the cab, in which the Defendant brandished his concealed weapon.
The victim was cut with the knife during the struggle. Jelahni Bridgefor heard the victim
scream for “help”, and, when he looked in the direction of the cab, he saw the victim jump
out of his seat and fall to the ground. He then saw the Defendant standing over the victim
and witnessed the victim throw his wallet away from himself. The Defendant retrieved the
wallet, looked inside it, and ran away from the scene. The victim then got up and got back
into his cab before he died from his wounds.

       In the Defendant’s signed written statement, he stated that it was not until after he
demanded the wallet of the victim that the fatal stabbing occurred. He argues that his written
statement does not accurately reflect the sequence of events or what he told Lt. Berryman.
Rather, he contends that he did not demand the wallet from the victim until after he stabbed
him. This argument elevates form over substance. It is irrelevant when the fatal stabbing
occurred in relation to the demand for the wallet.

        By any account, the Defendant had formed sufficient intent to rob the victim either
before or concurrent with the killing. As the trial court instructed the jury, “[t]he intent to
commit the underlying felony must exist prior to or concurrent with the commission of the
act causing the death of the victim. Proof that such intent to commit the underlying felony
existed before, or concurrent with, the act of killing is a question of fact to be decided by the
jury after consideration of all the facts and circumstances.” See also 7 Tennessee Practice,
Tennessee Pattern Jury Instructions - Criminal 7.03(a). The elements of a criminal offense
may, of course, be established exclusively by circumstantial evidence. See Duchac v. State,
505 S.W.2d 237, 241 (Tenn. 1973). Ultimately, however, the jury must decide the
significance of the circumstantial evidence, as well as “‘[t]he inferences to be drawn from
such evidence, and the extent to which the circumstances are consistent with guilt and
inconsistent with innocence.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006); see also
State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

        Here, the fact that the Defendant called for the cab using a false name and carrying
a five-inch butcher knife is certainly circumstantial evidence from which the jury could have
reasonably inferred he intended to rob the cab driver before he ever got into the cab.
Moreover, the evidence shows that the Defendant stabbed the victim multiple times, during
which he demanded the victim’s wallet. This indicates a concurrent intent to rob the victim
during the murder.

       Therefore, after reviewing the evidence in the light most favorable to the State, we
conclude that there was sufficient evidence of an inextricable intertwining of time, place,
causation, and continuity of action in the theft of the victim’s wallet and the killing of the
victim. See State v. Michael Lynn Stanton, No. E2003-02675-CCA-R3-CD, 2005 WL

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876873, at *11 (Tenn. Crim. App., Knoxville, Apr. 15, 2005), perm. to appeal denied (Oct.
23, 2005) (the evidence was sufficient to support a conviction of first-degree murder in the
perpetration of an aggravated burglary where chain of events occurred at victim’s residence
within ten to fifteen minutes). This issue is without merit.

        However, we note that the trial court entered separate judgments for the two homicide
convictions even though only one person was killed. The constitutional double jeopardy
protections of the Fifth Amendment to the United States Constitution and article I, section
ten of the Tennessee Constitution prohibit multiple judgments for the same offense. Here,
the trial court should have merged the judgments in the two homicide counts because they
were alternate theories for the killing of Robert Adams. See State v. Hurley, 876 S.W.2d 57,
70 (Tenn. 1993); State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997).
Therefore, we remand this case to the Shelby County Criminal Court for entry of corrected
judgments to reflect that the reckless homicide conviction merged into the felony murder
conviction.

                                        Conclusion

        For the reasons articulated above, we affirm the Defendant’s convictions for first-
degree felony murder and especially aggravated robbery. Consistent with this opinion, we
remand this case to the Shelby County Criminal Court for the entry of corrected judgments
to reflect the merger of the Defendant’s reckless homicide conviction into that of the felony
murder conviction.




                                                   _________________________________
                                                   DAVID H. WELLES, SPECIAL JUDGE




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