             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE                  FILED
                          AUGUST 1996 SESSION
                                                              July 30, 1997

                                                          Cecil W. Crowson
STATE OF TENNESSEE,           )                          Appellate Court Clerk
                              )
             Appellee,        )    No. 01C01-9505-CR-00155
                              )
                              )    Davidson County
v.                            )
                              )    Honorable Seth Norman, Judge
                              )
EDWARD M. THOMPSON,           )    (First Degree Murder and Especially
                              )     Aggravated Robbery)
                              )
             Appellant.       )


For the Appellant:                 For the Appellee:

Larry B. Hoover                    Charles W. Burson
500 Church Street                  Attorney General of Tennessee
Nashville, TN 37219                       and
                                   Clinton J. Morgan
                                   Counsel for the State
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Victor S. Johnson, III
                                   District Attorney General
                                           and
                                   Kymberly Hattaway-Haas
                                   Assistant District Attorney General
                                   Washington Square
                                   222 2nd Avenue North
                                   Nashville, TN 37201-1649




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION


             The defendant, Edward M. Thompson, appeals as of right from his

convictions by a jury in the Davidson County Criminal Court for first degree murder and

especially aggravated robbery, a class A felony. He received a life sentence for the

murder and as a Range I, standard offender a concurrent eighteen-year sentence for

the especially aggravated robbery conviction. The defendant presents the following

issues for our review:

             (1) whether the evidence is sufficient to support his felony
             murder conviction;

             (2) whether the court erred by excluding the victim’s prior
             convictions.

             (3) whether the prosecuting attorney committed prosecutorial
             misconduct by referring to inadmissible evidence during her
             closing argument.

We affirm the judgments of the trial court.



             The defendant was charged with the felony murder and especially

aggravated robbery of Maurice Jordan. At trial, Officer David Debout of the Nashville

Metropolitan Police Department testified that he found the victim lying on an interstate

ramp at 10:35 p.m. on June 11, 1993. He recalled that the victim’s body was half on

the ramp, across the white line, and half on the shoulder. He noticed small holes in the

victim’s back. He checked for other evidence at the scene but found nothing.



              Sean Jackson, a friend of the victim, testified that the victim house-sat for

him while he was out of town in June 1993. Jackson admitted that he was involved in

selling drugs during that time. He said that he had given the victim his pager in case

anyone called about a drug deal. He estimated that three ounces of cocaine would

have sold for $3,000 to $3,500 and said that he doubted that he would have been able

to obtain such a large amount of cocaine.




                                              2
              The victim’s mother testified that she last saw the victim four days before

his death, when she and the victim’s father had let the victim use their Chevrolet Blazer.

She said that the victim was respectful of their property and that he would not have

allowed anyone else to drive it. She said that she received the Blazer back after the

victim’s death and did not find any evidence that a weapon had been fired in it. She

also recalled that the victim’s wallet did not have any money in it when she received it

after the victim’s death. She testified that the victim had been in trouble for selling

drugs when he was nineteen-years old but that to her knowledge he did not continue to

sell drugs after that time.



              Michael Steel, a friend of the defendant’s, testified that he was living at

the defendant’s sister’s apartment in June 1993. He recalled that the defendant and

Michael Gordon came to the apartment between 11:00 p.m. and midnight on June 11,

1993. He said that they had a cellular phone and a white powdery substance that

appeared to be cocaine. He said that he saw the defendant use the phone and that the

defendant told him that he got the phone from a Blazer on an interstate exit. Steel

testified that he did not recall telling Detective Pridemore that the defendant told him

that the defendant had set up, robbed, and killed a man named Maurice. He said that

he remembered telling Detective Pridemore that both the defendant and Gordon had

guns at the time of the shooting. He also recalled that he saw the defendant driving a

Blazer three or four days after the shooting and that the defendant told him that he had

sold the cellular phone.



              On cross-examination, Steel testified that he only heard the defendant say

something about a robbery. He said that the defendant did not tell him that he set up,

robbed, and killed a man.




                                             3
              The defendant’s girlfriend testified that she saw the defendant with a dark-

colored Blazer, a cellular phone and a lot of money after June 11, 1993. She recalled

that the defendant purchased clothes with the money and said that it was unusual for

the defendant to have a lot of money. She said that the defendant told her that the

Blazer belonged to a friend and that he had bought the cellular phone. She recalled

that the defendant gave her the cellular phone to use while he went vacationing in

Florida with his family for approximately a week. She said that the defendant took the

phone from her after he returned from his trip.



              Officer Greg Adams of the Nashville Metropolitan Police Department

testified that he was at the Litton Avenue Apartments between 11:20 and 11:30 p.m. on

June 11, 1993, when he saw Michael Gordon drive up in a dark blue Ford. He testified

that Gordon left the car when he began to approach. Officer Adams said that he tried

to arrest Gordon because he thought he saw drugs in the car. He said that he and

Gordon fought and that Gordon eventually got away from him. He searched the car

and found scales, a pillowcase with two fully loaded hand guns in it, and a small

amount of a substance that appeared to be crack cocaine. The guns, a thirty-eight

revolver and a twenty-five millimeter semi-automatic pistol, were introduced at trial.

Officer Adams testified that the substance he found later tested negative for cocaine.



              A T.B.I. Forensic Scientist testified that both the pistol and revolver were

functioning properly. He also identified three spent bullets that he determined had been

fired from the pistol.



              Detective Bill Pridemore testified about his investigation into the shooting.

He subpoenaed the victim’s phone records and learned that the victim’s phone had

been used hundreds of times since the victim’s death. He said that the last call the

victim placed on the phone was at 10:05 p.m. on the night of the shooting and that



                                             4
another call was made that night at 10:38 p.m. As a result of his review of the phone

records, Detective Pridemore interviewed Michael Steel on July 19, 1993. Steel gave

the detective the defendant’s and Michael Gordon’s names. Detective Pridemore said

that he left his card and beeper number with Steel and told him that he wanted to talk to

the defendant.



                 Detective Pridemore testified that the defendant contacted him on the

beeper later that day. When he returned the call, the defendant answered the phone

and identified himself. Detective Pridemore said that the defendant admitted to him

that he had shot a man and agreed to turn himself in the next morning. Detective

Pridemore said that the defendant did not claim that the shooting was in self-defense

during the phone conversation. When the detective met with the defendant the next

day, the defendant waived his Miranda rights and gave a video-taped statement. The

statement was played for the jury. In it, the defendant admitted that he shot the victim

but said that he did so in self-defense.



                 Dr. Charles Harlan, the Chief Medical Examiner of the State of

Tennessee, testified that the victim died as the result of three gunshot wounds he had

received. Dr. Harlan identified the three bullets he recovered from the body. He

explained that one of the victim’s wounds was caused by a gun being fired more than

twenty-four inches away from the victim. He said that the bullet entered the body

slightly inside the left shoulder blade, fifty-five and a half inches above the victim’s heel

and two inches left of his midline. According to Dr. Harlan, the bullet traveled through

the victim’s left lung and was recovered in the lateral left chest wall. He said that the

bullet had traveled downward two and a half inches to fifty-three inches above the

victim’s heel.




                                              5
              Dr. Harlan described another of the victim’s wounds as being caused by a

shot that was fired from a distance of four to eight inches away from the victim. He said

that the bullet from that shot entered the defendant’s back fifty-one and a half inches

above his heel and four and a half inches left of his midline. It traveled through the

defendant’s left lung, left ventricle of his heart, diaphragm and pericardial sac. The

bullet was recovered from the chest wall and had traveled upward two and a half inches

to fifty-four inches above the victim’s heel.



              The third wound Dr. Harlan described was caused by the gun being fired

from between twelve to twenty-four inches away from the victim’s body. The shot

entered the victim’s back forty-eight and a half inches above his heel and to the right of

his midline. According to Dr. Harlan, the bullet traveled from left to right and downward

three and a half inches, completing its travel at forty-five inches above the victim’s heel.



              Dr. Harlan also identified pictures showing the gunshot wounds and other

scrapes and abrasions on the victim’s body. Harlan explained that the outside area of

the victim’s right elbow and the middle portion of his left forearm contained abrasions

that were consistent with the victim’s body being scraped across some firm surface

such as an asphalt road. The victim had similar areas of abrasions on his knees, right

shoulder, and on his left hand and wrist.



              The defendant testified consistently with the statement he had given

Detective Pridemore. He recalled that he paged the victim to buy four ounces of

cocaine. He said that the victim agreed to meet with him at a McDonald’s restaurant

and indicated that he had the cocaine. The defendant said that he and Michael Gordon

went to McDonald’s in his sister’s car and that the victim arrived driving a Blazer and

parked next to them. The defendant said that he and Gordon got into the Blazer and

that the victim told him that they needed to get the cocaine. The defendant recalled



                                                6
that he sat in the back seat of the Blazer and that Gordon sat in the front seat. He said

that Gordon had a pillowcase with a set of scales in it.



              The defendant testified that he, Gordon, and the victim left McDonald’s in

the Blazer with the victim driving. He said that the victim pulled out an old, rusty

revolver while he was driving and ordered Gordon and the defendant to empty their

pockets. The defendant said that he complied and placed his money on the Blazer’s

console. He recalled that the victim was pointing a gun at Gordon but was watching

him through the rear-view mirror. He said that the victim drove into a Krystal’s parking

lot and ordered Gordon to drive. The defendant said that the victim walked around the

Blazer and got in on the passenger side. The defendant testified that he pulled out an

automatic pistol he had with him and covered it with his hand while the victim walked

around the front of the Blazer. He said that the victim ordered Gordon to get on the

interstate.



              According to the defendant, the victim sat sideways in the passenger seat

and watched Gordon and him. The defendant said that the victim turned as they

approached the interstate and that the victim leaned forward when he turned back. The

defendant testified that he shot the victim around five times when the victim leaned

forward. He said that the victim opened the door when he started shooting and jumped

out of the Blazer.



              The defendant recalled that Gordon dropped him off after the shooting

and that he used the victim’s phone to call someone to get him. He said that he went

back to McDonald’s to get his sister’s car and then went to his sister’s apartment.

Gordon was at the apartment when he arrived. He said that Gordon told him that he

had found some cocaine in the Blazer. The defendant said that he and Gordon went to

the Blazer to split up the cocaine but discovered that it was not real. He testified that he



                                             7
saw Gordon again later that night, after Gordon had been chased by a police officer.

He said that Gordon informed him that the police had been after him and that he had

left the pistol in his car.



               The defendant testified that he shot the victim because he thought the

victim was going to kill him and Gordon. He said that he did not shoot the victim at

Krystal’s when he was getting into the Blazer because he was afraid that the victim

would shoot him back. The defendant explained that the twenty-five millimeter pistol he

used in the shooting belonged to Gordon. He said that he and Gordon both usually

carry a nine millimeter pistol but that he had borrowed Gordon’s smaller pistol that night

because he was wearing shorts. The defendant testified that he had not seen Gordon

carry a revolver since he was fifteen or sixteen years old.



               The defendant recalled that Gordon called him two or three days after the

shooting and drove the Blazer to get him. The defendant admitted that he drove the

Blazer some and eventually left it in West Nashville. He also admitted that he and his

girlfriend used the victim’s phone a lot.



               During cross-examination, the defendant testified that the revolver that

had been introduced into evidence may have been the one the victim used on the night

of the shooting. Although he had testified that the victim had used a rusty revolver, he

admitted that the revolver that was in evidence only had rust in its chamber and around

its barrel. He explained that he saw the rust on the victim’s gun when the victim got out

of the Blazer at Krystal’s. He recalled that the victim had the gun in his hand when he

was shot but testified that he did not know what happened to the gun when the victim

left the truck. He said that he did not tell the police, Michael Steel, or his girlfriend

immediately after the shooting that he had shot a man in self-defense.




                                              8
                                               I

                    The defendant contends that the evidence is insufficient to support

his conviction for first degree murder because the proof established that he acted in

self-defense. We disagree. Although the defendant claimed that he was forced to

shoot the victim after the victim, while driving the Blazer, robbed both him and Michael

Gordon at gunpoint, the jury obviously did not accredit this version of events.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal 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, 99 S. Ct.

2781, 2789 (1979). This means that we may not reweigh the evidence, but must

presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).



              When viewed in this light, the proof at trial showed that the defendant and

Michael Gordon met with the victim. The defendant shot the victim three times in the

back, and he and Gordon took the Blazer that the victim had been driving. The

defendant then used the victim’s phone to make arrangements to pick up the car he

had driven to meet the victim. Once he reached the car, he drove to his sister’s

apartment where he reunited with Michael Gordon to share any drugs that were found

in the Blazer. After the shooting, the defendant possessed an unusually large amount

of money, used the victim’s phone extensively, and drove the Blazer. Under these

facts, the jury was justified in finding that the defendant killed the victim during a

robbery and not in self-defense. We hold that sufficient evidence supports his first

degree murder conviction.



                                              9
                                                II

                 The defendant also contests the trial court’s failure to admit the victim’s

prior drug convictions. The trial court excluded the convictions because it concluded

that they were irrelevant because their probative value was too speculative. We agree

with the trial court’s assessment.



                 The defendant contends that the victim’s convictions were relevant to

show that the victim was a drug dealer who was capable of selling a large amount of

cocaine. He argues that the victim’s ability to obtain large quantities of cocaine

supports his theory of the case that the victim decided to rob him and Michael Gordon

because he did not have enough cocaine to fulfill the transaction.



                 Evidence is relevant if it has “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. In our view, the

victim’s prior drug convictions do not meet this test. We disagree with the defendant’s

assertion that the victim’s prior drug convictions have any tendency to show that the

victim was unable to obtain drugs on the night of the shooting or that the victim tried to

rob the defendant and Gordon. The trial court properly excluded the convictions.



                                                III

                 Next, the defendant contends that the prosecuting attorney committed

prosecutorial misconduct during her closing argument by referring to excluded

evidence. The trial court sustained the defendant’s objection to Detective Pridemore

testifying about what Michael Steel had told him regarding the defendant’s statements

on the night of the shooting. During closing argument, the prosecuting attorney stated

the following:




                                               10
                Now, Michael Steel refused to admit to you, he said he didn’t
                remember that he had told Detective Pridemore within days of
                the murder that Mr. Thompson told him that he had “set up,
                robbed and killed a man” at this exact area. He said “I don’t
                remember telling him that.” He did say, “I remember telling
                Detective Pridemore that Mr. Thompson told me that Mr.
                Gordon and Mr. Thompson each had a weapon.”


The defendant asserts that these comments were designed to convey to the jury that,

had the trial court not stopped him from doing so, Detective Pridemore would have

testified that Steel told him that the defendant admitted that he had set up, robbed and

killed a man.



                Initially, we note that the defendant failed to object to the closing

argument at trial and has thus waived the issue. See T.R.A.P. 36(a). In any event, the

defendant also failed to object when the prosecuting attorney asked Steel whether he

told Detective Pridemore that the defendant admitted that he had set up, robbed, and

killed a man. In this respect, the prosecutor’s reference to Steel’s inability to recall

making such statements was a permissible comment on the evidence that did not

constitute misconduct. To the extent the state was summarizing the testimony at trial,

the argument was entirely proper.



                On the other hand, we recognize that the prosecutor’s statement that

Steel “refused to admit” that he told Detective Pridemore that the defendant confessed

could be interpreted as an attempt to tell the jury that Steel did tell Detective Pridemore

that the defendant made such statements. However, the ultimate issue is not whether

the argument may be viewed as improper, but whether the jury could consider the

defendant's case with impartiality despite the allegedly improper remark by the

prosecutor. See Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). In

considering the evidence presented, and the relatively innocuous statements in

question in relation to the remainder of the argument, we conclude that the defendant

did not suffer improper prejudice.


                                               11
             In consideration of the foregoing, and the record as a whole, the

judgments of conviction are affirmed.




                                               Joseph M. Tipton, Judge



CONCUR:




John H. Peay, Judge




David H. Welles, Judge




                                          12
