         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            OCTOBER 1997 SESSION
                                                       FILED
                                                       November 5, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
STATE OF TENNESSEE,                  )
                                     ) C.C.A. No. 02C01-9604-CR-00119
      Appellee,                      )
                                     ) Shelby County
V.                                   )
                                     ) Honorable W . Fred Axley, Judge
ANDREW R. EWING,                     )
                                     ) (Felony Murder)
      Appellant.                     )
                                     )




FOR THE APPELLANT:                   FOR THE APPELLEE:

A C Wharton                          John Knox Walkup
Shelby County Public Defender        Attorney General & Reporter

Edward G. Thompson                   Kenneth W. Rucker
Assistant Public Defender            Assistant Attorney General
616 Adams Avenue                     450 James Robertson Parkway
Memphis, TN 38103                    Nashville, TN 37243-4351

                                     William L. Gibbons
                                     District Attorney General

                                     Edgar A. Peterson, IV
                                     Assistant District Attorney General
                                     Criminal Justice Complex, Suite 301
                                     201 Poplar Avenue
                                     Memphis, TN 38103




OPINION FILED: _______________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                   OPINION



       The appellant, Andrew R. Ewing, and his co-defendant, Derrick C. Brooks,

were tried jointly by a jury for first degree murder. Ewing and Brooks were found

guilty of felony murder for committing a murder during the perpetration of an

aggravated burglary. Both men were sentenced to life in prison. Because

Derrick C. Brooks’ appeal has been severed from Andrew R. Ewing’s appeal, we

will address only the issues presented by Andrew Ewing in this opinion.



       Andrew Ewing raises the following three issues on appeal: (1) whether the

evidence is sufficient to support his conviction for murder in the perpetration of

an aggravated burglary; (2) whether the touching by the prosecutor of the

victim’s mother’s arm during her testimony rose to the level of prosecutorial

indiscretion; and (3) whether the prosecutor’s closing argument was improper.

After carefully reviewing the record, we affirm the trial court’s judgment.



       Approximately three or four weeks before March 20, 1994, the day of the

shooting, Andrew Ewing and Willie Fifer had an altercation at Fifer’s house on

3559 Clayphil in Memphis over Fifer’s sister, Yolanda. Yolanda and Andrew

Ewing had two children together. On this particular morning, Yolanda had

asked her brothers, Willie and James, to take her son to school in her car.

Unbeknownst to the two brothers, Andrew Ewing had hidden in the back seat of

the car. While riding around, the Fifer brothers had discussed the problems

between their sister and Andrew Ewing, and Ewing had overheard this

conversation. When the Fifer brothers returned to their home on 3559 Clayphil,

Ewing jumped out of the car, and he and Yolanda began to argue. Willie Fifer

tried to get the two to leave, but Ewing broke the back window of Yolanda Fifer’s

car.   Willie and his brother, James, chased Ewing until they caught him at a

grocery store. Willie and Marlo Terry tried to settle the argument, but James

Fifer grabbed Ewing by the throat. The altercation ended, and James and Willie



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Fifer, along with Marlo Terry, returned to their home at 3559 Clayphil.



       Within a few minutes of this altercation, Willie Fifer drove the car toward

Andrew Ewing’s father’s house. Fifer had planned to get Ewing’s father to repair

his car. As Willie Fifer was driving down a street, Ewing ran into the middle of

the street and pushed a garbage can into Fifer’s car. The Fifer brothers chased

Ewing into a store and began fighting him. Ewing ran out of the store to a

market, but the doors of the market were already locked. The altercation then

ended.



       On the night of the shooting, March 20, 1994, Andrew Ewing’s girlfriend,

Teresa Landers, and her two children arrived at Ewing’s place of employment,

an Exxon gas station, at approximately 10 p.m. She and her two children were

asleep on the floor when Joe Lurry, Ewing’s uncle, came into the gas station

around 2 a.m. Ewing told Landers that he needed to see about something and

then left Landers in charge of the gas station.



       Because Joe Lurry had been drinking, Ewing drove Lurry’s car, and after

driving around for awhile, Ewing stopped the car. In approximately two to three

minutes, Derrick Brooks got into the car. After an unsuccessful attempt to buy

beer, Ewing drove the car “onto a dead end street and stated, ‘there the house is

right there.’” Ewing parked the car about a block past the house. Ewing and

Brooks got out of the car and started walking toward the house. Lurry, who

decided to see what was happening, approached the house and saw Ewing,

holding a stick in his hand, kick the front door of the house three to five times.



       Inside the house at 3559 Clayphil were Marlo Terry; Keisha Taylor, his

girlfriend; and Willie Fifer. Marlo Terry and Keisha Taylor were in the back

bedroom, and Willie Fifer was on the couch in the living room. Fifer had begun

to fall asleep when he heard someone kicking the front door of the duplex. He



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ran down the hallway, beat on Terry’s bedroom door, and begged Terry to let

him in the room. Someone hit Fifer from behind in the head, and he fell to the

ground. When he rolled over he made eye contact with Andrew Ewing.

Although Fifer saw another man in his house, he could not identify the other

man.   Ewing hit Fifer three to four times, as Fifer continued begging Terry to let

him into the bedroom. Terry finally let Fifer into the bedroom, and Terry stood

with his back against the door trying to keep the men from entering the bedroom.

Meanwhile, Fifer, who crawled under the bed, told Keisha Taylor that one of the

men was Andrew Ewing. Taylor heard loud shots, and Terry fell to the floor.



       Because the house did not have a telephone, Taylor had to go next door

for help. Fifer stayed at the house with Terry until he died, and then he went

next door as well. The next door neighbor finally answered the door and called

the police. After the shots were fired, Ewing, Brooks, and Lurry left. Lurry asked

Ewing what happened, and Ewing answered, “That’s all right, man. We got this.”

Ewing drove Brooks to his house and then drove Lurry back to the Exxon station,

arriving there around 4 a.m. Lurry told Teresa Landers, Ewing’s girlfriend, that

someone had been shot and then he left. Ewing told her that he had kicked the

door down and had started fighting with Peanut, the nickname for Willie Fifer.

Ewing also told Landers that he followed Fifer toward the bedroom and that

Derrick Brooks shot into the bedroom through the door. Ewing further stated that

he heard someone in the bedroom say that they had been hit.



       The next day Ewing called his girlfriend, Teresa Landers, and asked her

to lie about the times that she visited the gas station. He wanted her to say that

she had left the gas station between 12:00 and 1:00 a.m.




       On March 22, 1994, Derrick Brooks, after having been advised of his

rights, stated that he entered the residence at 3559 Clayphil with Andrew Ewing



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and Joe Lurry. He further stated that they entered the house by knocking down

the door. He also stated that he shot a gun four times inside the house because

he thought that somebody was going to get a gun and shoot him. Dr. Jerry

Francisco, the Shelby County medical examiner, testified that the cause of Marlo

Terry’s death was a gunshot wound to the back.



       In his first issue, the appellant argues that the evidence is insufficient to

support his felony murder conviction. He contends that there is no evidence that

he knew his co-defendant had a pistol and there is no evidence of where he was

when his co-defendant fired the gun. Furthermore, he maintains that there is no

evidence that he knew the victim or had any animosity toward him.



       The state argues that the evidence is sufficient to support Ewing’s felony

murder conviction. The state contends that Ewing called Derrick Brooks and told

him to go with him. Ewing, who then left his place of employment, drove the car,

with Derrick Brooks and Joe Lurry as passengers, to the address of Marlo Terry,

the victim. Ewing along with Brooks got out of the car and walked to the front of

the duplex. After grabbing a stick to use as a weapon, Ewing kicked the front

door several times until it opened. Ewing then entered the house, chased W illie

Fifer, and repeatedly hit Fifer in the head with a stick. The state maintains that

although Ewing did not fire the gun that killed Marlo Terry, Ewing is criminally

responsible for the conduct of Derrick Brooks.



       Great weight is accorded jury verdicts in criminal trials. Jury verdicts

accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s

favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874

S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both

the strongest legitimate view of the evidence and all reasonable inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).

Moreover, guilty verdicts remove the presumption of innocence, enjoyed by



                                         -5-
defendants at trial, and replace it with a presumption of guilt. State v. Grace,

493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of

overcoming a presumption of guilt when appealing jury convictions. Id.



       When appellants challenge the sufficiency of the evidence, this Court

must determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The

weight and credibility of a witness’ testimony are matters entrusted exclusively to

the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);

Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).



       Evidence of the appellant’s guilt is overwhelming. Apparently it was the

appellant’s idea to go to Willie Fifer’s house that night, and he recruited Derrick

Brooks’ help. The appellant drove the car to the house, and once there, he

kicked the door down and began beating Willie Fifer. At trial, Fifer identified the

appellant as the person who attacked him the night of the shooting. Although

the appellant did not shoot the gun that killed Marlo Terry, he is criminally

responsible for the conduct of Derrick Brooks under Tenn. Code Ann. § 39-11-

402 (1991). The evidence is sufficient to support the appellant’s conviction for

felony murder. This issue is without merit.



       In his second issue, the appellant argues that the touching by the

prosecutor of the victim’s mother’s arm during her testimony was prosecutorial

indiscretion. The prosecutor showed Eddie Mae Parker, the victim’s mother, a

picture of her son taken by the Shelby County Medical Examiner. During the

testimony of Ms. Parker, the prosecutor touched Ms. Parker’s arm to steady her.

The appellant maintains that the prosecutor was only trying “to elicit sympathy

from the jury” and that this act by the prosecutor prejudiced his case.



                                         -6-
       The state, however, argues that the prosecutor’s actions were not

improper. The state asserts that the prosecutor approached the witness with the

permission of the court and showed her a picture of her dead son for

identification. The witness became upset, so the prosecutor touched the

witness “in an attempt to calm her and to prevent her from falling out of the

chair.” The appellant’s attorney did not request a mistrial or a curative

instruction, but requested only a bench conference to express disapproval of the

prosecutor’s actions. After this bench conference, the prosecutor did not have

any further physical contact with the witness. The state maintains that if there

was error, it was harmless.



       The appellant’s attorney expressed only disapproval of the prosecutor’s

action in a bench conference, but now argues that this act by the prosecutor

prejudiced his case. However, as the state notes, the appellant did not request a

mistrial or a curative instruction in response to the prosecutor’s action. Because

the appellant did not take action “to prevent or nullify the harmful effect of an

error” pursuant to Rule 36(a) of the Tennessee Rules of Appellate Procedure, he

is not entitled to relief now. This issue is without merit.



       In his third issue, the appellant asserts that the prosecutor made improper

remarks during his closing argument that inflamed the jury. First, the appellant

argues that the prosecutor’s description of the autopsy of the victim as “slic[ing]

him open like the piece of meat that these guys made him” was prejudicial

because it encouraged “sympathy for the deceased and prejudice against the

defendant.” The appellant also contends that the prosecutor injected

extraneous issues into the case by quoting from a 1992 speech by Memphis

Mayor W. W. Herenton, “regarding the need to stop homicide among the

minority populations.”



       Regarding the prosecutor’s statement about the autopsy of the victim, the


                                         -7-
state argues that the statement only “focused the jury on the reality of this man’s

death and was a fair comment of the evidence presented at trial.” Also, the

state contends that the issue of the prosecutor quoting from a 1992 speech of

Mayor Herenton is waived because the appellant failed to cite to the record,

failed to make a contemporaneous objection at trial, and failed to raise this

incident as prosecutorial misconduct in his motion for new trial.



       First, it is necessary to determine whether the statements made by the

prosecutor were improper, and if so, “whether the improper conduct could have

affected the verdict to the prejudice of the defendant.” Harrington v. State, 385

S.W.2d 758 (Tenn. 1965). Five factors are considered in determining whether

the improper conduct could have affected the verdict: (1) the conduct viewed in

context and in light of the facts and circumstances of the case; (2) the curative

measures undertaken by the court and the prosecution; (3) the intent of the

prosecutor in making the improper statement; (4) the cumulative effect of the

improper conduct and any other errors in the record; and (5) the relative strength

or weakness of the case. Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim.

App. 1976).



       The victim was a young, twenty-one-year-old man who was shot in his

home by intruders in the middle of the night. We agree with the state that the

prosecutor’s statement about the autopsy of the victim emphasized to the jurors

the finality of this young person’s death, albeit in graphic terms. However, the

prosecutor’s statement was not improper. The appellant’s issue regarding the

prosecutor’s quote from a speech by Mayor Herenton is waived.

       We have discovered that the court entered the felony murder judgment as

murder during the perpetration of a robbery, not aggravated burglary. Therefore,

we respectfully remand to the trial court for entry of the proper judgment

reflecting the offense returned by the jury’s verdict.



       The judgment of felony murder is affirmed, and the case is remanded with


                                         -8-
instructions consistent with this opinion.




                                               ________________________
                                               PAUL G. SUMMERS, Judge



CONCUR:



____________________________
JOHN H. PEAY, Judge



____________________________
DAVID G. HAYES, Judge




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