         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 8, 2002

                STATE OF TENNESSEE v. ALFONZO WILLIAMS

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 00-02093    Arthur T. Bennett, Judge



                    No. W2001-00452-CCA-R3-CD - Filed March 15, 2002


The defendant was indicted for one count of first degree murder during the perpetration of an
attempted robbery and one count of premeditated first degree murder. A Shelby County jury found
the defendant guilty of felony murder in count one and the lesser-included offense of second degree
murder in count two. The trial court merged the second degree murder conviction into the
conviction for felony murder, and the defendant was sentenced to life imprisonment. In this appeal,
the defendant alleges: (1) the evidence was insufficient to sustain his convictions; (2) the trial court
erroneously neglected to charge the jury on the offenses of second degree murder, voluntary
manslaughter, reckless homicide, and criminally negligent homicide as lesser-included offenses of
felony murder; and (3) the trial court failed to perform its duties as the “thirteenth juror.” After a
thorough review of the record, we conclude the trial court erred by failing to charge lesser-included
offenses of felony murder. We affirm the guilty verdict for second degree murder; we reverse the
conviction for felony murder and remand that count for a new trial with special instructions relating
to the second degree murder verdict.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN
E. GLENN, JJ., joined.

A.C. Wharton, Jr., Public Defender; and Robert L. Parris (at trial), Trent Hall (at trial), and Tony N.
Brayton (on appeal), Assistant Public Defenders, for the appellant, Alfonzo Williams.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and James M. Lammey, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.
                                            OPINION

                                              FACTS

        Mary Barksdale, the mother of the victim, was driving home from the grocery store on
August 6, 1999, when her son’s speeding vehicle passed her and crashed into a telephone pole. The
victim was taken to the hospital but was deceased when Barksdale arrived. It was determined that
the victim had suffered a gunshot wound prior to the car crash.

        Memphis Police Officer Danny Barnes testified he went to the hospital and retrieved the
following items taken from the victim: a bullet, which had been removed from the victim’s body;
a blunt cigar filled with marijuana; and approximately $400.

       James Harris testified he was the victim’s friend for many years and last saw him at the “In
and Out Grocery” at approximately 8:45 p.m. on August 6th, when the victim showed him his red
Cadillac automobile. Harris testified that he and the victim’s nephew, Minquel Smith, rode around
with the victim, and the victim dropped them off at different locations.

        Minquel Smith, the victim’s nephew, testified he saw the victim at the “In and Out Grocery”
on the night of his death. Smith requested the victim give him a ride in his burgundy Cadillac to his
residence, to which the victim agreed. James Harris rode with them, and Smith last saw the victim
drive away with Harris.

        Frederick Coleman, a butcher at Maxine’s Grocery, testified he knew the victim since junior
high school. Coleman last saw him on August 6th in the grocery’s parking lot where the victim was
selling “socks and car incense and stuff like that” out of his car. Coleman stated the grocery closed
about 10:00 p.m., and he last saw the victim backing out of the parking lot alone.

        Reginald Jackson, the defendant’s cousin, testified the defendant requested a ride to the
police station the day after the homicide because he had heard that officers were looking for him.
Jackson further testified the defendant stated he shot the victim in self-defense because the
“paranoid” victim pulled a gun, thinking the defendant was attempting to rob him.

       Memphis Police Officer Bryant Jennings testified he processed the scene of the car crash and
was unable to find a weapon. He further stated he performed a gunshot residue test on Minquel
Smith and James Harris; the Smith test results were inconclusive and the Harris test results showed
no indication of recent weapons fire.

       Bobbie Fisher, the defendant’s great aunt, testified the defendant told her on August 8th that
“he had did [sic] something, but it was self-defense.” On cross-examination, Fisher conceded the
defendant never specifically mentioned shooting at or killing anyone, and she had “a hard time
remembering things.”


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        Dr. O’Bryant Cleary Smith, the Medical Examiner, reviewed the autopsy records of the
victim and testified the victim died of a gunshot wound to the chest, which entered from the “right
back side” and caused massive injuries to the chest cavity. Dr. Smith stated this wound would cause
the victim to collapse within a matter of minutes.

         Memphis Homicide Detective Clarence Cox testified he interviewed the defendant on August
8th at the police station. The defendant admitted getting a ride from the victim at Maxine’s Grocery
on August 6th around 10:00 p.m. The defendant stated he last saw the victim as he exited the
victim’s car, and the victim was talking to “a bum-looking person.” The defendant denied any
involvement in the homicide.

        Larry Wright was the defendant’s roommate. Wright testified that on August 6th shortly
before midnight, he received a phone call from the defendant. Wright stated the defendant informed
him that “[while] trying to rob [someone], . . . the dude pulled a gun up on him so he had to shoot
him;” and the shooting occurred in a “burgundy shorty Cadillac” at Maxine’s parking lot. Wright
further testified the defendant called him again the following night stating, “if you all don’t get [a
named female] quiet, I’m going to have to kill a bunch of mother f-----s.” On cross-examination,
Wright conceded that the defendant never mentioned the victim by name, but stated the victim drove
a burgundy/maroon “Cadillac Deville shorty.”

       Kathryn Byrd, the Public Defender’s Criminal Investigator, testified she interviewed
Reginald Jackson on September 8, 2000, and he stated he was “very drunk” during his interview
with officers where he implicated the defendant. She stated Jackson said “he couldn’t remember
what he actually said and what had actually happened.”

        The defendant testified that on the evening of August 6th, he walked to Maxine’s Grocery
to buy cigars; it was closed when he arrived. He saw the victim, whom he had known for several
years, and another person standing outside the store. The defendant stated he asked the victim to
drive him to another store so he could get cigars, and the victim offered him a cigar. The defendant
said he declined the cigar and told the victim, “I’m trying to get a box of them because I ha[ve] a
nice amount of marijuana.” The defendant stated the victim agreed to drive him to another store,
but since it was also closed, the victim dropped him off near Church’s Chicken. As the defendant
walked toward Church’s Chicken, he stated he saw the victim talking to “a junkie looking guy.” The
defendant further testified he proceeded to Church’s Chicken and did not see the victim thereafter.

        The defendant further testified he informed Larry Wright and Reginald Jackson that he had
ridden with the victim that evening. He further testified that Wright, Jackson, and Bobbie Fisher
were testifying falsely because Wright had a “run-in” with him over a “baseball cap” and was angry
because he would not join Wright’s gang; Jackson “had a grudge about . . . some money;” and Fisher
was attempting to get a reward from Crime Stoppers, because “my family on that side of the family,
they always been like that.” He further stated he talked with Wright in jail, and Wright informed
him that “the detectives scared him into saying what he said.”


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        The jury convicted the defendant under count one of first degree murder in perpetration of
an attempted robbery and under count two of second degree murder, the latter offense being a lesser-
included offense of premeditated first degree murder. The trial court merged the second degree
murder conviction into the felony murder conviction.


                             I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends the evidence is insufficient to support his convictions. We
respectfully disagree.

A. Standard of Review

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient "to support the finding
by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim.
App. 1996).

        This court does not reweigh or reevaluate the evidence, State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978), nor may this court substitute its inferences for those drawn by the trier of fact from
circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). This
court is required to afford the state the strongest legitimate view of the evidence contained in the
record as well as all reasonable and legitimate inferences which may be drawn from the evidence.
State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995).

        The trier of fact, not this court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated, "[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." 493 S.W.2d 474, 476 (Tenn. 1973).

B. Analysis

         First degree murder includes “[a] killing of another committed in the perpetration of or
attempt to perpetrate any . . . 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(a). Second degree murder is “a knowing killing of another.”
Tenn. Code Ann. § 39-13-210(a)(1).

        The testimony established the victim died as a result of a gunshot wound which entered from
the victim’s right back side, causing massive chest injuries. Reginald Jackson, the defendant’s

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cousin, testified the defendant said that he shot the victim in self-defense after the victim, thinking
he was being robbed, pulled a gun on him; however, no weapon was recovered from the victim’s
vehicle. Bobbie Fisher, the defendant’s great aunt, testified the defendant told her that “he had did
[sic] something, but it was self-defense.” Larry Wright testified the defendant stated he had shot
someone while trying to rob that person and threatened to kill anyone who did not remain quiet
about it.

        In Tennessee, “[a] confession may sustain a conviction where there is other evidence
sufficient to show the commission of the crime by someone.” Taylor v. State, 479 S.W.2d 659,
661-62 (Tenn. Crim. App. 1972). In other words, the state must establish the corpus delicti, which
necessarily consists of two elements in a homicide case: (1) that there has been a death of a human
being, and (2) that the death was produced by criminal agency. State v. Shepherd, 862 S.W.2d 557,
564 (Tenn. Crim. App. 1992). Only slight evidence of corpus delicti is necessary to corroborate a
confession. State v. Ervin, 731 S.W.2d 70, 71-72 (Tenn. Crim. App. 1986). In the instant case, it
is undisputed the victim was killed by a gunshot wound. The defendant’s inculpatory statements to
Wright, along with the other evidence at trial, sufficiently established that the victim’s death was
produced by the criminal agency of the defendant. Furthermore, Wright testified the defendant
threatened anyone who spoke of the incident. Any attempt by an accused to suppress the testimony
of a witness is relevant as a circumstance from which guilt of the accused may be inferred. State v.
Maddox, 957 S.W.2d 547, 552 (Tenn. Crim. App. 1997).

        The defendant’s contention that the state’s witnesses were simply not credible is likewise
without merit. The jury, not this court, resolves questions concerning the credibility of witnesses.
Tuttle, 914 S.W.2d at 932.

        Accordingly, the evidence, viewed in a light most favorable to the state, sufficiently
established that the killing occurred during an attempted robbery, thus establishing the elements of
first degree felony murder. See Tenn. Code Ann. § 39-13-202(a)(2). Likewise, the evidence
sufficiently established a knowing killing since the defendant was aware that his conduct was
reasonably certain to cause death, thereby establishing second degree murder. See Tenn. Code Ann.
§§ 39-11-106(a)(20), -13-210(a)(1). This issue is without merit.


                             II. LESSER-INCLUDED OFFENSES

        The defendant contends the trial court erroneously neglected to charge the jury on second
degree murder, voluntary manslaughter, reckless homicide, and criminally negligent homicide as
lesser-included offenses of felony murder. Our supreme court has recently held that “the offenses
of second degree murder, reckless homicide, and criminally negligent homicide are lesser-included
offenses of felony murder under part (b) of the Burns test.” State v. Ely, 48 S.W.3d 710, 721-22
(Tenn. 2001); see State v. Burns, 6 S.W.3d 453, 467 (Tenn. 1999). In fairness to the trial court, we
specifically note that Ely was decided after the trial of this case. The state concedes that the trial
court’s failure to charge second degree murder, reckless homicide, and criminally negligent homicide

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was error, but it asserts the error was harmless. The state does not address whether voluntary
manslaughter is a lesser-included offense of felony murder.

A. Lesser-Included Offenses - Generally

       The trial court has a duty to instruct the jury on any lesser-included offenses of the charged
offense when such instruction is supported by the evidence, regardless of whether the defendant has
requested such an instruction. State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2000); Burns, 6 S.W.3d at
464. The standard for an appellate court’s review of whether the trial court properly charged the jury
regarding lesser-included offenses is de novo with no presumption of correctness. Bowles, 52
S.W.3d at 74.

        If an offense is found to be a lesser-included offense, the court must next determine whether
the evidence justified a jury instruction on the lesser-included offense. Id. at 75. This second step
requires us to determine (1) whether there is evidence that “reasonable minds” could accept to
establish the lesser-included offense, and (2) whether the evidence is “legally sufficient” to support
a conviction for the lesser-included offense. Burns, 6 S.W.3d at 469. We must view the evidence
liberally in a light most favorable to the existence of the lesser-included offense without judging its
credibility. Id.

B. Application

        It is now established that second degree murder, reckless homicide, and criminally negligent
homicide are lesser-included offenses of felony murder. Ely, 48 S.W.3d at 721-22. Although Ely
did not address whether voluntary manslaughter is a lesser-included offense of felony murder, this
court has previously held that it is. See State v. Daniel Wade Wilson, No. E2000-01885-CCA-R3-
CD, 2001 WL 872442, at *14 (Tenn. Crim. App. Aug. 2, 2001, at Knoxville), perm. to app. pending.
We see no reason to deviate from this holding. Thus, we must only determine if “reasonable minds”
could accept the lesser-included offenses, and whether the evidence is “legally sufficient” to support
a conviction for the lesser-included offenses. Burns, 6 S.W.3d at 469.

         Viewing the unique evidence in this case in a light favoring existence of the lesser-included
offenses without judging credibility, we conclude “reasonable minds” could have accepted guilt on
second degree murder, voluntary manslaughter, reckless homicide, and criminally negligent
homicide. We further conclude the evidence was “legally sufficient” to support each of these
offenses. The trial court charged each of these offenses as lesser-included offenses of premeditated
first degree murder; however, the structure of the jury charge did not allow the jury to consider them
as lesser-included offenses of felony murder. The failure to charge these lesser-included offenses
of felony murder was, therefore, error.




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C. Harmless Error Analysis

        The state contends the failure to charge lesser-included offenses was harmless error. Such
harmless error must be established beyond a reasonable doubt. Ely, 48 S.W.3d at 727. Our supreme
court has applied the harmless error doctrine where the jury was instructed on at least one higher
lesser-included offense and the jury, nevertheless, convicted on the greater offense. State v.
Williams, 977 S.W.2d 101, 105 (Tenn. 1998). Here, no lesser offenses were charged. Nevertheless,
harmless error is not limited to the Williams rejection of an intermediate lesser offense; the proper
inquiry is “whether it appears beyond a reasonable doubt that the error did not affect the outcome
of the trial.” State v. Allen, ___ S.W.3d ___, ___, No. E1998-00416-SC-R11-CD, slip op. at 9
(Tenn. Feb. 22, 2002, at Knoxville).

        In making the determination regarding harmless error, this court must examine the entire
record, including the evidence at trial, the theory of the defense and the verdict. Id. The jury
convicted the defendant of felony murder in count one of the indictment; there were no lesser-
included offenses charged as to count one. Furthermore, the jury rejected premeditated first degree
murder in count two and convicted the defendant of second degree murder. We respectfully reject
the state’s argument that the evidence of felony murder was “so overwhelming that a conviction [for
that offense] was assured.” Accordingly, we are unable to conclude the failure to charge the lesser-
included offenses was harmless beyond a reasonable doubt.

D. Double Jeopardy

         We reject the defendant’s argument that affirming second degree murder bars a retrial of the
felony murder count due to double jeopardy. The two-count indictment charged the single offense
of first degree murder by alternative theories; namely, felony murder and premeditated murder.
See State v. Cribbs, 967 S.W.2d 773, 788 (Tenn. 1998). The trial court should, as the trial court did
in this case, instruct the jury to return a verdict as to each count. Id. Upon convictions under both
counts, the convictions are merged by the trial court. See State v. Price, 46 S.W.3d 785, 825 (Tenn.
Crim. App. 2000). Thus, if the trial court enters only one “judgment of conviction,” there is no
double jeopardy violation. See State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997).
There is no legal bar to verdicts being returned on both counts; there is no need to vacate one of the
convictions since “conviction” in this context means the jury’s verdict of guilt; the verdicts stand as
a “legitimate finding of fact which the trial court should preserve by merging . . . into one judgment
of conviction.” Id.

         In the case at bar the only “judgment of conviction” that has been entered is for felony
murder. No “judgment of conviction” for second degree murder has been entered as second degree
murder was merged into felony murder. By affirming the second degree murder guilty verdict, a
“judgment of conviction” has not, and should not, be entered at this time. The indictment is still
pending due to our reversal of the felony murder conviction, and the charge of first degree murder
is still pending via felony murder. Clearly, double jeopardy bars a retrial upon the offense of
premeditated first degree murder; however, double jeopardy does not bar the retrial of felony murder.

                                                 -7-
E. Remand

        The defendant is entitled to a new trial on his conviction for felony murder. This court has
held the proper remedy for reversal due to the failure to charge all applicable lesser-included offenses
on a felony murder conviction, originally merged with a second degree murder conviction, is to
reinstate the second degree murder conviction, remand it for sentencing, remand the felony murder
charge and its lesser-included offenses for retrial, and merge any new conviction following the new
trial. See State v. Daniel Wade Wilson, supra at *19. We respectfully depart from Wilson to the
extent it might suggest entry of a “judgment of conviction” for second degree murder prior to
disposition of the felony murder count.

        Accordingly, the conviction for felony murder in count one is reversed; count one is
remanded for a new trial for the indicted offense of felony murder and all lesser-included offenses;
the guilty verdict for second degree murder in count two is affirmed; no judgment of conviction
under count two for second degree murder shall be entered pending disposition of count one; if the
defendant is convicted upon remand of felony murder in count one, the second degree murder
conviction shall be merged with the felony murder conviction; if the defendant is convicted under
count one of the lesser-included offense of second degree murder or any other lesser-included
offense of felony murder, that conviction shall merge into the single offense of second degree
murder; and if the defendant is acquitted under count one, the trial court will sentence the defendant
for second degree murder under count two.


                       III. THIRTEENTH JUROR RESPONSIBILITY

       The defendant contends the trial court failed in its duty as thirteenth juror. We respectfully
disagree.

         A trial judge has a mandatory duty to act as a thirteenth juror by independently weighing the
evidence, passing upon the issues, and deciding whether the verdict is supported by the evidence.
State v. Moats, 906 S.W.2d 431, 433 (Tenn. 1995). The trial judge should grant a new trial if the
trial judge disagrees with the jury about the weight of the evidence. State v. Carter, 896 S.W.2d 119,
122 (Tenn. 1995); Tenn. R. Crim. P. 33(f). Reversal is required if the record indicates the trial court
absolved itself of the responsibility of acting as the thirteenth juror. Carter, 896 S.W.2d at 122.

       The issue of whether the trial judge properly functioned under the thirteenth juror rule
presents a very close question. During the motion for new trial hearing, the trial judge, in response
to defense counsel’s specific request to invoke the thirteenth juror rule, stated:

                Of course, the Court can’t second guess the jury in terms of whether they
        believe someone, if they may believe somebody’s testimony and the Court may have
        some questions about it. But I can’t second guess twelve members of the jury in
        regards to, you know, the credibility of the witnesses.

                                                      -8-
Thereafter, the trial judge queried defense counsel as to whether “it [is] automatic that I exercise that
in every case.”

         After a lengthy discussion concerning the mandatory requirements of Tenn. R. Crim. P. 33(f)
in which the state also agreed to the trial judge’s obligation to independently weigh the evidence as
the thirteenth juror, the trial judge stated he “ha[d] to give the credibility to these [state] witnesses.”
He further stated on two separate occasions that “as the 13th juror,” the verdict should not be set
aside.

        The trial judge also filed a Report of Trial Judge in First Degree Murder Case as required by
our supreme court rules. See Tenn. Sup. Ct. R. 12. In response to the question of whether “you as
‘thirteenth juror’ find the defendant guilty beyond a reasonable doubt,” the trial judge indicated
“[y]es, [b]ut it was a very close case.”

       Under these circumstances, we conclude that the trial judge properly exercised his
responsibility as the thirteenth juror. This issue is without merit.


                                            CONCLUSION

        In summary, we affirm the guilty verdict for second degree murder, reverse the judgment for
felony murder, and remand for a new trial on the count of felony murder and all lesser-included
offenses. The retrial of the felony murder count and its relationship to the outstanding guilty verdict
for second degree murder shall be governed by the principles previously set forth in this opinion.




                                                         ___________________________________
                                                         JOE G. RILEY, JUDGE




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