        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   May 4, 2010 Session

                    STATE OF TENNESSEE v. JERRY TATE

              Direct Appeal from the Criminal Court for Shelby County
                       No. 07-03130     W. Otis Higgs, Judge


                 No. W2009-01474-CCA-R3-CD - Filed June 10, 2010


The defendant, Jerry Tate, was convicted by a Shelby County Criminal Court jury of second
degree murder and sentenced to twenty years in the Department of Correction. On appeal,
he challenges the sufficiency of the convicting evidence. After review, we affirm the
judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and J.C. M CL IN, JJ., joined.

Gerald S. Green, Memphis, Tennessee (on appeal); Robert C. Felkner and Kindle E. Nance,
Assistant Public Defenders (at trial), for the appellant, Jerry Tate.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William
L. Gibbons, District Attorney General; and Corliss Shaw and Muriel Malone, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       This case arises out of the shooting of the victim, Walter Nelson, on Dunlap Street
in Memphis in October 2006, as a result of which the defendant was indicted on one count
of second degree murder. At the defendant’s trial, Charlene Frierson testified that the victim
was her son and identified photographs of him for the record.

       Patrick Bolton testified that the victim was one of his best friends, and they were
together on October 20, 2006, when the victim was killed by the defendant. Bolton
explained that he and the victim were walking on Dunlap Street and saw the defendant run
inside a house and “c[o]me out real fast” with his arm behind his back. Bolton approached
the defendant, asking if he had any marijuana. The defendant did not respond, so Bolton
walked away and “tried to catch the dude down the street” who Bolton had just sent “to get
[them] some weed.” As Bolton turned away from the defendant, he heard the defendant tell
“another guy to come here. And the dude came to [the defendant] and when [Bolton] turned
back around [the defendant] just shot [the victim].” Bolton stated that the defendant shot
the victim with “a chrome .38” and that although it was dark outside, the street lights
illuminated the area.

       Bolton testified that when the defendant pulled the gun, Bolton ran toward a pay
phone to call 911. Bolton listened to the recording of the 911 call and recalled that he told
the “police that Jerry had just shot [his] partner.” Bolton said that he returned to the scene
and told the police what had happened. He also gave a description of the shooter to the
police because he did not know the defendant’s name at the time. Bolton went to the police
station that night and identified the defendant from a photographic array.

        Bolton testified that the night before the shooting, the victim and the defendant’s
girlfriend “got into a conflict” when he and the victim were walking past what he presumed
was the defendant’s house on Dunlap Street. After the argument, the defendant exited his
house, and he and the victim “stood there and looked at each other for a minute” before
Bolton and the victim left.

       On cross-examination, Bolton admitted that he only knew the defendant’s name
because the police told him the night of the shooting. Bolton also admitted that even though
the victim was his best friend and roommate, he had trouble remembering his last name.
Bolton said that he and the victim were on Dunlap Street that night looking for marijuana,
but he denied smoking any marijuana that night. Bolton stated that he currently took the
medication, Risperdal, for paranoid schizophrenia and had taken it the night of the shooting.
Asked if he smoked marijuana and took his medication, Bolton responded, “Like I said, I
didn’t smoke that much.”

        Bolton said that he never gave a physical description of the shooter to the police; the
police “had pictures of people who I thought could have been the shooter.” Bolton admitted
that on the photographic array in which he identified the defendant, he wrote, “I think this
is the guy that shot my friend.” He explained, “The picture and seeing him is two different
things, because I could see him and point him out, but the picture, it’s like kind of throwing
him off a little bit.” Bolton admitted that he pled guilty to robbery in 2003 and served
fifteen months in jail. He also admitted that he was currently in jail.


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       On redirect, Bolton testified that he functions normally when he takes his medication.
Bolton said that when he circled the photograph of the defendant on the array, he was certain
that he was the shooter, but the photograph made the defendant look a different age.

       Officer Billy Byrd with the Memphis Police Department testified that he responded
to a shooting call in the area of North Dunlap Street on October 20, 2006. Officer Byrd
arrived on the scene about thirty seconds after receiving the call and observed the victim
lying in front of a vehicle. The victim was crawling, trying to get under the front end of the
vehicle when Officer Byrd approached. The victim said, “I’ve been shot, I’ve been shot, it
was the mother fucker down the street that shot me.” Officer Byrd looked down the street
and saw two or three individuals standing on the porch of a house under a porch light.

       Officer Byrd testified that he stayed at the scene and helped secure possible witnesses.
A witness gave a description of the shooter and said “he was down the street at . . . the dope
house.” Officer Byrd said that the officers were aware of “the dope house” and that it was
about four houses down from the victim’s body.

       On cross-examination, asked if there was more than one drug house in that area,
Officer Byrd said, “To my knowledge on that street there were none other. I know there are
others in the area.” Officer Byrd said that he was not provided the name of a suspect by the
victim or the witness. He said that the individuals who had been standing on the porch at
the house down the street went inside and would not answer the door.

       Sergeant Christopher Kee with the Memphis Police Department testified that he
responded to the shooting call in the case on October 20, 2006. At the scene, Sergeant Kee
spoke with Bolton and got a description of the suspect from him. Bolton also pointed out
the house the suspect exited to Sergeant Kee. The address of that house was 688 North
Dunlap, and it was three or four houses down from the victim’s body. Sergeant Kee
received information that the house was occupied by Mamie Tate and “occasionally her . .
. adult son, who is [the defendant].” On cross-examination, Sergeant Kee testified that
Bolton did not inform him that he was on medication for a mental illness but said that he
“[s]eemed fine to [him].”

       Sergeant Ronald Collins with the Memphis Police Department testified that he
responded to the scene in this case as a member of the homicide department. Sergeant
Collins transported Bolton to the police station and took a statement from him. Bolton
related that the shooting stemmed from an incident that had occurred the night before at a
house down the street from where the shooting took place. The officers developed the
defendant as a suspect from researching the address of that previous incident.


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        Sergeant Collins testified that Bolton identified the defendant from a photographic
array, but he told the officers that “the photograph didn’t really look like the guy that he saw
the night before.” Sergeant Collins explained that “it may have been an old photograph that
[they] had in the spread,” and the witnesses were informed that the photographs might be
old and the subjects’ features may have changed. Sergeant Collins tried unsuccessfully for
a few days to locate the defendant before having a warrant issued based on Bolton’s
statement and identification. The defendant was arrested on that warrant sometime later.

        On cross-examination, Sergeant Collins testified that Bolton informed the officers
that he was disabled, but Sergeant Collins did not inquire further because Bolton seemed to
fully understand everything that was said.

        Dr. Lisa Funte, the Shelby County Medical Examiner, testified that she performed the
autopsy on the victim in this case and determined that the cause of death was multiple
gunshot wounds. Dr. Funte said that the gunshot wounds to the victim’s left buttocks and
right arm were potentially fatal, and the victim would have died within a few minutes from
the gunshot wound to the upper left side of his chest. The toxicology results reported the
presence of alcohol in the victim’s system but no drugs. The blood alcohol and vitreous
fluid levels indicated that the victim had consumed alcohol recently before his death but not
enough to be considered legally intoxicated. Dr. Funte stated that she recovered intact
bullets from the buttocks and chest wounds, bullet fragments from the arm wound, and an
additional intact bullet from the victim’s clothing. She determined that the victim had been
shot with a medium caliber weapon, which could be “[a]nything besides a .22, or .25, or a
.44.”

        Charlie Jackson, who was presently incarcerated for drug-related charges, testified
that he had been housed in the same area of the jail as the defendant. Jackson explained that
three weeks prior, he and the defendant were playing cards or dominoes when the defendant
“asked [Jackson] about a situation that he was in . . . and he was telling [Jackson] about the
case that he was involved in.” According to Jackson, the defendant told him that

       he was in front of his mother’s house and a guy pulled up and was talking to
       his girlfriend, Birdie Campbell[,] and him and [the] guy got to arguing . . . and
       the guy left and came back the next day and wanted to buy some weed from
       him. And he told the guy to hold on and he’ll be right back. He went in the
       house and got a hoodie and a .38 revolver and he shot the guy in the butt and
       he fell to the ground and he shot him in the chest and then turned around and
       shot him in the shoulder.



                                              -4-
       Jackson testified that the defendant told him that he “removed the hoodie and the
revolver” from his mother’s house after the police started canvassing the neighborhood.
Jackson stated that he had not heard anything about this incident prior to talking to the
defendant. Jackson said that he wrote a letter to his attorney after he learned this information
from the defendant. Jackson stated that he had not been promised anything for his
testimony, and he had already been sentenced on his convictions. On cross-examination,
Jackson acknowledged that he had a “lengthy” criminal record.

       Bradley Humes, who was presently incarcerated, testified that he and the defendant
were cell mates for about five months. Humes recalled that the defendant told him that he
was in jail because of a murder that happened outside of his mother’s house on Dunlap
Street. The defendant told Humes

       that the guy that got killed was arguing with his girlfriend and he came out
       and started arguing with him, too. And he said that after the argument, the
       guy that was with the one that got killed was trying to calm the situation down
       and stop everything and they left and came back the next day trying to buy
       marijuana. And after they was trying to buy marijuana he said, [the
       defendant] said he said, I got some weed and he went in the house and put on
       a fleece, or hoodie and came back out with a .38 revolver and shot him three
       times.

        Humes recalled that at first the defendant did not say whether he had committed the
murder or was just charged with the murder, but after they “bonded,” the defendant admitted
that he was responsible. The defendant told him that the name of the person he shot was
“Walter,” the person with “Walter” was “Patrick,” and “Patrick” ran after the first shot was
fired. According to Humes, the defendant told him that after the shooting, “[the defendant]
went in the house and wrapped the gun up and took the hood off and . . . left.” Humes said
that he contacted an officer in the homicide department with this information. Humes stated
that he was not promised anything in exchange for his testimony.

       On cross-examination, Humes testified that he was presently in jail because he had
been charged with two aggravated burglaries, aggravated robbery, burglary of an
automobile, and failure to appear in a felony case. Humes said that he and the defendant
talked about the defendant’s case “a lot,” the first time being “a couple of months ago.”
Humes stated that he did not tell anyone this information initially because he and the
defendant were cell mates and “it would have brought conflict to [their] cell.”

      After the conclusion of the proof, the jury convicted the defendant as charged of
second degree murder.

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                                         ANALYSIS

       The defendant challenges the sufficiency of the convicting evidence, arguing that “the
convicting testimony consisted of a drunken or high on marijuana paranoid schizophrenic
‘eyewitness’ who later identified the [defendant] from a photo spread and the testimony of
two jailhouse snitches.” He asserts that the eyewitness identification was unreliable and
jailhouse informants untrustworthy.

        In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing 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 beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,
604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the
weight and value to be given the evidence, and all factual issues are resolved by the trier of
fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict
by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        The defendant cites to studies dealing with the unreliability of eyewitness
identifications and argues that Bolton’s identification of him was unreliable because Bolton
was on medication for paranoid schizophrenia, smoked marijuana, and said, “I think this is

                                              -6-
the guy that shot my friend” when he made the identification from the photographic spread.
However, Bolton testified that he had not smoked marijuana the night of the murder and that
he functions normally when he takes his medication. Sergeant Kee testified that he was not
informed that Bolton was on medication but noted that he “[s]eemed fine” when he spoke
to him. Likewise, Sergeant Collins said that Bolton seemed to fully understand everything
that was said. Bolton testified that he was certain that the defendant was the shooter but
explained that he was confused by his photograph. Sergeant Collins testified that Bolton
was informed that the photographs in the array may be old and the subjects’ features
changed. All the testimony was heard and assessed by the jury, and the jury determined that
Bolton was credible and reliable in his identification of the defendant.

        As another attack on Bolton’s credibility, the defendant points out that Bolton initially
testified that he called 911 and reported that “Jerry had just shot [his] partner,” and then later
testified that he did not know the defendant’s name when he made the 911 call. This
discrepancy was also assessed by the jury. Moreover, it is conceivable that Bolton, now
knowing the defendant’s name, had simply become accustomed to utilizing his name instead
of a vague reference when recalling the events.

       The defendant also challenges the trustworthiness of Charlie Jackson’s and Bradley
Humes’s testimony, both of whom testified that the defendant confessed to them, because
they are jailhouse informants. However, it was fully brought to the jury’s attention that both
men were presently incarcerated, their criminal records, and why they came forward with this
information. The jury assessed this testimony and found them credible, as was its province.
The defendant further insinuates that Jackson, Humes, and Bolton may have conspired
together because “[a]ll three men had been housed at the Shelby County Jail.” The defendant
provided no proof to support this allegation.

       The defendant’s entire argument is essentially an attempt to have this court reassess
the credibility of the witnesses and substitute that finding for that of the jury’s. However, as
previously stated, all questions involving the credibility of witnesses and the weight and
value to be given the evidence were resolved by the jury as the trier of fact. See Pappas, 754
S.W.2d at 623.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.

                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE

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