         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    June 18, 2002 Session

          STATE OF TENNESSEE v. TIMOTHY WAYNE HOLLAND

                Direct Appeal from the Criminal Court for Robertson County
                          No. 00-0188    Michael R. Jones, Judge



                  No. M2001-03129-CCA-R3-CD - Filed September 4, 2002


The defendant was convicted of facilitation of aggravated robbery and aggravated burglary for his
participation with a codefendant in robbing a resident of a Springfield motel and burglarizing his
room. The trial court sentenced him as a Range I, standard offender to an effective sentence of six
years. Following the denial of his motion for a new trial, he filed a timely appeal to this court,
raising the following issues: (1) whether the trial court properly denied his motion for a new trial
based on his claim of an improper closing by the State; and (2) whether the trial court properly
denied his request for a jury instruction on accessory after the fact. Based on our review, we affirm
the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.
WEDEMEYER, JJ., joined.

Lee Borthick, Springfield, Tennessee (on appeal); Roger Eric Nell, District Public Defender; and
Charles S. Bloodworth, Assistant Public Defender (at trial), for the appellant, Timothy Wayne
Holland.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

        The defendant, Timothy Wayne Holland, was charged by a Robertson County Grand Jury in
a five-count indictment with aggravated robbery, a Class B felony; aggravated burglary, a Class C
felony; theft of property over $1000, a Class D felony; evading arrest, a Class A misdemeanor; and
assault, a Class A misdemeanor. The State subsequently dismissed the latter three counts of the
indictment, electing at the defendant’s November 6-7, 2001, trial to proceed solely on the counts of
aggravated robbery and aggravated burglary, charges stemming from an incident that occurred in a
Springfield motel room on the afternoon of December 20, 1999.

        The State’s first witness was the victim, Jimmy Lee Wright, who testified that he was
temporarily living in a room at the Royal Inn in Springfield in December 1999, having just moved
back to the area from out-of-state. Although the motel was rundown, it was cheap, which enabled
him to save the money he made as a painting contractor to apply toward getting a permanent
residence. On December 20, 1999, he came home from work at approximately 4:00 p.m. to find a
note on his door addressed to “Melissa.” Knowing no one by that name, he took the note down, went
into his room, and took a shower. Soon thereafter, he heard a knock at his door. After throwing a
pillow over some cash he had lying on the bed, he opened the door to find two young African-
American men who said they were looking for Melissa. He told the men he did not know any
Melissa, and shut the door. The men immediately knocked again. When he opened the door the
second time, one of the men pressed a gun against his head, and both men pushed him against a wall
and entered the room, cursing and demanding his money. Inside the room, the men made him open
his mouth, and inserted the gun.

        The victim positively identified the defendant as the man who entered his room immediately
behind the gunman. Although the gunman did most of the talking, the defendant also “talked some,”
saying, “Where’s the money and you won’t get hurt.” When he pointed to the bed, the defendant
went over, moved the pillow, saw the money, and picked it up. The victim said he had about $900
in cash on his bed: $400 in a money clip and a little over $500 in a pay envelope he had just received
from his job. In addition, he had six $100 bills hidden inside the nightstand beside his bed, along
with a bowl full of loose change. After the defendant took the money that was on the bed, the
gunman ordered him to go into the bathroom and lie down in the bathtub. From there, he was able
to hear the men rummaging through his belongings in the bedroom.

        The victim testified that the two men came into the bathroom about three different times
during the ten to fifteen minutes they spent in his room. The first time they came into the bathroom,
the gunman accused him of lying to them. Calling him a “no good MF,” the men told the victim that
they were going to put “a cap” in his “ass,” threatening to kill him if he did not tell them where all
his money was. Both men talked at once, with some of the threats coming from the gunman and
some from the defendant. Next, the gunman came back into the bathroom with some rubbing
alcohol, holding a cigarette lighter and “laughing real crazy.” The defendant, who was with him, was
also laughing. The men first poured the alcohol all over him and then poured it all over the room,
saying, “[W]e going to torch you you no good white piece of trash.” As the victim prayed in the
bathroom, he heard the men talking in his room. It then got quiet, and the victim realized they had
left. Before they left, however, they told him that they knew where he worked, knew his car, and
would return the coming weekend, after he got paid, to get the rest of his money. Regarding these
threats, the victim testified that the defendant was “right in the middle of it just as deep as the other
guy.”



                                                  -2-
        The victim estimated that the total amount of money taken from him was $1500, which did
not include the value of the bowl of change taken from his nightstand. In addition to the cash, the
men also took business cards he had used for a painting business he had operated in South Carolina,
two watches, lottery tickets, his telephone, and a carton of cigarettes. After he was sure the men had
gone, he made a “mad dash” to the motel office, where the manager telephoned the police. The
following day, he saw some of his possessions in the office of Detective Terry Dorris of the
Springfield Police Department. The victim identified a photograph of the recovered items, which,
he said, showed his telephone, lottery tickets, and business cards. He said he had never seen either
man before they appeared at his door. He had had no difficulty in picking both men’s photographs
out of separate photographic lineups shown to him by the police.

        On cross-examination, the victim acknowledged that he had failed to mention, in the
statement he gave police immediately after the crimes, that the defendant had talked or that he had
been standing right behind the gunman inside the bathroom. He insisted, however, that the
defendant was a full participant with the gunman in the crimes, testifying, “I just know that [the
defendant] was there [in the bathroom] and he was right behind [the gunman]. And the exact words
he said, I did not record every word he said by memory, but I know he was talking.”

        The State’s next witness, Teresa Swinson, began her testimony by acknowledging that she
was currently in prison on a parole violation. She testified that she was classified as a career
criminal, and that her long history of “difficulties” with the law, including many prior convictions
for forgery, stemmed from her abuse of drugs, primarily cocaine. However, she was currently drug-
free and possessed a clear memory of the events of December 20, 1999. On that day she was in a
room at the Royal Inn when three people, with whom she had had an earlier association, came into
her room: a younger African-American man in his twenties; an older African-American man, whom
she positively identified as the defendant; and a young, blonde-headed Caucasian woman who was
“probably in her 20s also.” The defendant told the woman to stay in Swinson’s room, and left with
the younger man. When the men returned to her room approximately ten or fifteen minutes later,
they began “pulling stuff out of their pockets,” including change, cash, pocketknives, cigarettes that
were still in the carton, a cordless telephone, and some business cards.

       Swinson identified Exhibit 1, previously identified by the victim as a photograph of his
telephone, business cards, and lottery tickets, as items the men had brought into the room and which
she had later turned over to Detective Richard Head of the Robertson County Sheriff’s Department.
When asked which man had the property, she hesitantly answered “the younger gentleman,” but
immediately added, “They were just pulling out stuff so fast, you know. Everything just really
happened fast. And everything at that time was on the bed, you know. They were going through it.”
She saw the younger man lay a gun on the bed, but got only a brief look because both men were
“very nervous . . . [t]rying to hurry up and rumble through stuff.” After asking her to get rid of the
cordless telephone and business cards, the men took the rest of the property, including the cash, and
departed with the woman. Shortly after their departure, Detective Terry Dorris knocked on
Swinson’s door and asked to search her room, telling her that a robbery had just occurred and that
the suspects had been seen entering her room. Although she allowed him inside to search, she did


                                                 -3-
not inform him of what had transpired in her room and did not turn over to him the items she had
been given, opting instead to later telephone Detective Head, inform him of the situation, and turn
the items over to him. Swinson explained that she did not want to be seen talking to a police officer
at the motel, and that she knew and trusted Detective Head, having had dealings with him in the
recent past.

        Swinson claimed that she had had no knowledge of how the men obtained the property. She
said that she had not been involved in the crimes, and that her parole violation had nothing to do with
the instant case. She acknowledged on cross-examination that she had additional charges pending
against her, but said she had not been promised anything by the State in exchange for her testimony
in the case.

        The State’s last witness was Springfield Police Department Detective Terry Scott Dorris, who
conducted the investigation of the case. He testified that he interviewed the victim at the motel
immediately after the crimes, and later at the police department. At some point during his
investigation, he showed the victim a series of photographs of different individuals. The victim first
identified the gunman, Antonio Dowlen, and later, the defendant.1 The victim expressed no
hesitation or uncertainty when identifying the defendant. Detective Dorris confirmed that the
property he had recovered and returned to the victim had been turned over to him by Detective Head.
On cross-examination, he acknowledged that Antonio Dowlen fled to the Metropolitan Nashville
area after the crimes, where he was arrested approximately six months later, while the defendant,
who was arrested after fleeing from bicycle patrol officers who had spotted him on the street,
remained in the Springfield vicinity. Dorris testified that he had not seen or talked to the defendant
before his arrest.

        The defendant began his defense proof by recalling Detective Dorris to the stand, whose
memory defense counsel had refreshed during the break. Detective Dorris testified he now recalled
that the defendant, accompanied by another individual he had been seeking in connection with a
different robbery, had voluntarily come to his office to talk with him on January 4, 2000. He had
taken the defendant’s photograph at that time, and it was that photograph he had used in the January
6 photographic lineup in which the victim had identified the defendant.

        The twenty-five-year-old defendant also elected to testify in his own defense. He said that
he and Antonio Dowlen, who was about 20 or 21, had basically grown up together, having lived
across the street from each other as children. On December 20, 1999, he was at the Royal Inn when
he ran into Dowlen, who owed him $25. He asked Dowlen for his money. Dowlen responded by
telling him that a man at the motel owed him some money, leading the defendant to believe that
Dowlen knew the victim. The defendant said that he went with Dowlen to the victim’s room, and
described what next ensued:




       1
           The victim identified Do wlen on De cember 2 2, 19 99, and the defendant on January 6 , 200 0.

                                                          -4-
                        He knocked on the door. [The victim] opened the door.
               Antonio asked him where is the money and pulled out a gun. [The
               victim] said I don’t have your money. We go into the room. Antonio
               still got the gun on [the victim] and he asked him about the money.
               Then he tell him to go to the bathroom. When they go to the
               bathroom I heard [the victim] holler.

        The defendant testified that when he heard the victim yell, he left the room and headed
toward the motel breezeway. Dowlen caught up with him about halfway between the breezeway and
the other side of the motel, told him he had gotten $50, and gave him the $25 he was owed. At that
point, he did not know that Dowlen had robbed the victim, believing instead the story that Dowlen
told him, which was that the victim had owed Dowlen money for drugs. The defendant said that he
did not have a gun, and did not threaten the victim or pour rubbing alcohol on him. The only money
he took was the $25 Dowlen owed him.

       The defendant claimed that the first time he learned of the robbery was about a week later,
when he heard from Teresa Swinson that the police wanted to question him and Dowlen about a
robbery. He said he also got a telephone call sometime around Christmas from a man named
Antonio Jones, who informed him that Dowlen had robbed the victim. When he confronted Dowlen,
Dowlen told him, “[D]on’t worry about it. I’ll take my charge.” On January 4, he went to see
Detective Dorris, who took his photograph. On January 10, six days after he had turned himself in,
he was arrested. Approximately six months later, Dowlen was arrested. He did not know Dowlen’s
whereabouts during the months that transpired between his arrest and Dowlen’s arrest.

       On cross-examination, the defendant testified that he had just been released from prison after
serving time for an aggravated assault conviction, and, therefore, would not have had anything to do
with Dowlen had he known that Dowlen had a gun. He denied taking the victim’s money off the
bed, but admitted that he was in the victim’s room with Dowlen. He did not know the victim and
had no explanation for the victim’s testimony against him, other than to speculate that the victim
may have been coached to lie. He was unable to offer an explanation as to why someone would have
coached the victim to lie.

        In rebuttal, the State recalled the victim to the stand, who testified that he had not owed
anyone any money for drugs. The victim also affirmed his earlier testimony that the defendant had
participated with Dowlen in the crimes.

        After deliberating, the jury convicted the defendant of aggravated burglary and facilitation
of aggravated robbery, a lesser-included offense of aggravated robbery. In his motion for a new trial,
the defendant asserted, inter alia, that the State made improper comments during closing argument
and that the trial court erred by failing to provide jury instructions on accessory after the fact. The
trial court overruled the motion, and the defendant filed a timely appeal to this court.




                                                 -5-
                                            ANALYSIS

                                       I. Closing Argument

        As his first issue, the defendant contends that the State made improper comments regarding
his credibility in its closing argument, thereby depriving him of a fair trial. He argues that the
prosecutor’s comment that he had an interest in the outcome of the case because he was the
defendant, “crossed the line of proper argument and insinuated that any defendant’s testimony should
be per se less believable than that of any other witness.” The State responds by arguing that the
defendant has waived the issue by his failure to raise a timely objection at trial. The State further
argues that, even if not waived, the prosecutor’s comments were proper under the facts, law, and
circumstances of this case. We agree with the State.

        The manner and conduct of closing argument is left to the discretion of the trial court. State
v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994). Generally, both the State and the defense are afforded
wide latitude in the scope of their closing argument to the jury. Id. The trial court, in turn, is
afforded wide discretion in its determination of the propriety of closing argument, and its decision
in these matters will not be reversed on appeal absent a showing of an abuse of discretion. See State
v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999); Coker v. State, 911 S.W.2d 357, 368 (Tenn.
Crim. App. 1995); State v. Zirkle 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). A party’s closing
argument “must be temperate, predicated on evidence introduced during the trial, relevant to the
issues being tried, and not otherwise improper under the facts or law.” Middlebrooks, 995 S.W.2d
at 557. For a defendant to be granted a new trial based on the prosecutor’s improper comments
during closing, the complained-of conduct must have affected the verdict to the prejudice of the
defendant. See Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965).

        We first agree with the State that the defendant has waived this issue by his failure to raise
a contemporaneous objection at trial. See Tenn. R. App. P. 36(a); State v. Little, 854 S.W.2d 643,
651 (Tenn. Crim. App. 1992) (stating that failure to object to prosecutor’s alleged misconduct in
closing argument waives any later complaint). However, even if not waived, we conclude that this
issue is without merit. The defendant objects to the following statements made by the prosecutor
in closing:

                        In this case the Defendant has admitted that he was previously
               convicted of the crime of aggravated assault. Went to the penitentiary
               for it. He was very candid. Told you all about that. It would be
               wrong to say well, he did that crime so he must of done this one. And
               that is not the way that you use that evidence. That’s impermissible.
               That’s some kind of proof that would be like a character trait or
               something, and that’s not the way you’re permitted to consider it.

                       The Court will tell you that the point is the person committed
               the crime of aggravated assault previously, prior to this case ever


                                                 -6-
               happened, goes to the penitentiary for it, would that person lie? In
               other words, if a person commits a felony of aggravated assault,
               would that person come into a courtroom and have any compulsion
               about raising their hand and swearing that they would tell the truth
               and then lie about it? Particularly when it’s his hide in this case that
               he’s trying to safe [sic].

                        So, Ladies and Gentlemen, as the Defendant tells you all the
               reasons why you should maybe think about that this is just conduct
               that he just kind of sort of fell into, remember when [the victim] came
               back to the witness stand he told you no, [the defendant] didn’t leave.
               [The defendant] did not leave. Who’s the person with an interest in
               the outcome of this case?

                        Naturally, I would submit [the victim] would like justice done.
               I would submit that all participants in the trial process would like to
               see the process work, and would like to see us get to that word called
               truth. But there’s one person here who has a reason, I submit to you,
               an interest, or bias for the outcome of the case, and a prior felony
               conviction, which is interesting to consider on the issue of his truth
               telling, his credibility.

        The defendant concedes that the comments regarding his prior conviction were proper, but
contends that the mention of his interest in the outcome of the case was an improper comment upon
his credibility, based not on the evidence at trial, but instead on the mere fact of his status as a
defendant. We respectfully disagree. The defendant cites State v. Beasley, 536 S.W.2d 328, 330
(Tenn. 1976), as support for his contention that the prosecutor’s comment regarding his interest in
the outcome of the case was improper. In Beasley, our supreme court held that closing argument
should be supported by the evidence and the reasonable inferences to be drawn from it, and that a
prosecutor’s personal opinion as to the credibility of witnesses should not be interjected into
argument. Id. In the case at bar, the prosecutor did not interject his personal opinion as to the
defendant’s credibility into closing argument, but instead merely asked that the jury consider, when
evaluating the different accounts presented by the victim and the defendant, which party had an
interest in the outcome of the case. There was nothing improper in this request. We agree with the
State that the defendant made his credibility a key issue by taking the stand to deny that he
participated in the crimes, and by suggesting that the victim was lying when he testified that the
defendant was involved in the crimes. Since a resolution of conflicting testimony was key to the
determination of the defendant’s guilt, it was permissible for the prosecutor to argue that the jury
consider the bias of the defendant versus the bias of the victim when evaluating the credibility of
each witness’s testimony. We, therefore, conclude that the trial court did not err in overruling the
defendant’s motion for a new trial based on the State’s allegedly improper closing argument.




                                                 -7-
                            II. Instruction on Accessory After the Fact

        The defendant next contends that the trial court erred by failing to instruct the jury on
accessory after the fact as a lesser-included offense to the crimes, arguing that there was sufficient
evidence at trial to warrant an instruction on the offense. The State contends that the trial court
properly denied the defendant’s request for an instruction on accessory after the fact because it is a
separate and distinct offense, rather than a lesser-included offense of the crimes with which the
defendant was charged. The State points out that the defendant was not indicted with accessory after
the fact, and asserts that there was no evidence to charge the defendant with the offense. We agree
with the State.

        Accessory after the fact is defined as follows:

                (a) A person is an accessory after the fact who, after the commission
                of a felony, with knowledge or reasonable ground to believe that the
                offender has committed the felony, and with the intent to hinder the
                arrest, trial, conviction or punishment of the offender:
                     (1) Harbors or conceals the offender;
                     (2) Provides or aids in providing the offender with any
                     means of avoiding arrest, trial, conviction or punishment; or
                     (3) Warns the offender of impending apprehension or
                     discovery.

                ....

                 (c) Accessory after the fact is a Class E felony.

Tenn. Code Ann. § 39-11-411 (1997).

        The defendant asserts that accessory after the fact is a lesser-included offense, and argues that
subsections (1) and (2) of the statute are applicable in his case based on the fact that there was no
evidence that he revealed Dowlen’s name to Detective Dorris when he spoke with him on January
4. This court has consistently held, however, that accessory after the fact is a separate and distinct
offense, rather than a lesser-included offense of a felony committed by the perpetrator of a crime.
See State v. Hodgkinson, 778 S.W.2d 54, 63 (Tenn. Crim. App. 1989) (stating that accessory after
the fact “is a separate and distinct offense and is not a lesser included offense”); State v. Hoosier,
631 S.W.2d 474, 476 (Tenn. Crim. App. 1982) (“The offense of accessory after the fact is a separate
and distinct crime from that of a principal.”); State v. Reginald Merriweather, No. W2001-02206-
CCA-RM-CD, 2002 Tenn. Crim. App. LEXIS 123, at *34-*35 (Tenn. Crim. App. Feb. 11, 2002)
(holding that trial court did not err in failing to instruct jury on accessory after the fact because it is
not a lesser-included offense of attempted second degree murder, aggravated assault, or especially
aggravated robbery, and the defendant was not charged separately with the offense of accessory after
the fact); State v. Joel M. Puentes, No. M2001-01115-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS


                                                   -8-
92, at *11-*12 (Tenn. Crim. App. Feb. 1, 2002) (concluding that a review of the issue under analysis
dictated by State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999), does not change the traditional view
that accessory after the fact is a separate and distinct offense from the substantive offense); State v.
James E. (Junebug) Ligon, No. M1999-02461-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 29, at
*19 (Tenn. Crim. App. Jan. 12, 2001), perm. to appeal granted and remanded on other grounds
(Tenn. May 29, 2001) (“Accessory after the fact fails to meet the definition of a lesser-included
offense of either aggravated burglary or theft according to the Burns analysis.”).

        Moreover, we agree with the State that there was no evidence to warrant that the defendant
be charged with the offense of accessory after the fact. No proof was presented to show that the
defendant harbored or concealed Dowlen, or provided or aided in providing him any means of
avoiding arrest or detection. By the defendant’s own testimony, he had no knowledge of Dowlen’s
whereabouts. He was also aware that the police already had Dowlen’s name as a suspect, since
Teresa Swinson had informed him that they were seeking both him and Dowlen for questioning
about the crimes. We conclude, therefore, that the trial court did not err in refusing the defendant’s
request to have the jury instructed on accessory after the fact as a lesser-included offense.

                                           CONCLUSION

        Having reviewed the entire record in this case, we conclude that the trial court did not err in
overruling the defendant’s motion for a new trial based on his claim of an improper closing argument
by the State and the trial court’s failure to instruct the jury on accessory after the fact. Accordingly,
we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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