         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE        FILED
                         MARCH 1999 SESSION
                                                     May 14, 1999

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 01C01-9802-CC-00083
      Appellee,                    )
                                   )    COFFEE COUNTY
VS.                                )
                                   )    HON. GERALD L. EWELL, SR.,
TANIESE ANNETTE WILSON,            )    JUDGE
                                   )
      Appellant.                   )    (First-Degree Murder)



FOR THE APPELLANT:                      FOR THE APPELLEE:

FOREST A. DURARD, JR.                   JOHN KNOX WALKUP
724 North Main St.                      Attorney General and Reporter
P.O. Box 967
Shelbyville, TN 37160-0967              TIMOTHY F. BEHAN
(At trial and on appeal)                Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
JEFFREY K. SECKLER                      425 Fifth Avenue North
101 West Side Public Square             Nashville, TN 37243-0493
P. O. Box 765
Shelbyville, TN 37162                   C. MICHAEL LAYNE
(At trial)                              District Attorney General

                                        KENNETH SHELTON
                                        Assistant District Attorney General
                                        P.O. Box 147
                                        Manchester, TN 37349-0147




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



        A Coffee County jury convicted defendant, Taniese Annette Wilson, of first-

degree premeditated murder. She was sentenced to life imprisonment. On this

appeal as of right, defendant raises the following issues:

              1.     whether the state committed prosecutorial
                     misconduct during closing argument;

              2.     whether the trial court erred in admitting
                     prior consistent    statements of two
                     witnesses;

              3.     whether the trial court erred in admitting
                     the statement of a severed co-defendant;
                     and

              4.     whether the evidence is sufficient to
                     sustain her conviction.

Upon our review of the record, we AFFIRM defendant's conviction.



                                       FACTS



        Defendant married the victim, Alan Charles Wilson, on September 28, 1996.

Defendant's son, Richard Daniel Clark, lived with them, as did Wilson's son,

Christopher. Wilson was killed by two gunshot wounds to the head on October 27,

1996.

        Clark was sixteen at the time of trial; he was fifteen on the date Wilson was

murdered. According to Clark, defendant had a romantic relationship with Tommy

Heflin while she was dating Wilson. He testified that defendant told him she had

married Wilson "to divorce him and get his kid." She later asked him to kill Wilson.

He agreed to do so "[b]ecause Mamma was going to buy me a new truck and we

was going to move." She told him that, in addition to the insurance policy Wilson

had through his employer, there was another policy that would pay $100,000, and

that she would get a new house by killing Wilson.

        Clark testified that he and Heflin got together on October 26, 1996, drove to

Normandy Lake, parked, and waited for defendant and Wilson. Clark testified that


                                          2
Heflin gave him a .22 semi-automatic pistol. After fifteen to twenty minutes, they

saw defendant and Wilson drive by, waited another ten to fifteen minutes, and then

drove to Normandy Dam. They found defendant's car parked at a loading dock.

Clark and Heflin exited the car; Clark had the pistol. They found defendant sitting

beside Wilson,1 who was "[p]assed out." Clark testified that he walked up and shot

Wilson twice in the head, and that Wilson never woke up. He testified that

defendant was sitting three feet beside Wilson when he shot him, and that "[s]he

didn't say anything."

       Clark testified that after he shot Wilson, Heflin and defendant told him to take

Wilson's jewelry "[t]o make it look real." He did so and gave the jewelry to Heflin.

Before Heflin and Clark left, Heflin took the gun and hit defendant on the head with

it. They then left, and Heflin threw the jewelry out the car window. Later, Clark

testified, Heflin threw the gun into the Duck River.

       Clark testified that the plan to kill Wilson at Normandy Dam was defendant's,

that she wanted to be hit in the head "[t]o make it look real," and that she was going

to blame the robbery and murder on "Mexicans." He also testified that he would not

have killed Wilson if it had not been for his mother.

       Christopher Wilson, the victim's son, testified that Heflin had slept with

defendant six or seven times after the wedding, while his father was working out of

town. He explained that his father and defendant argued about her sleeping with

Heflin on the Friday evening before he was shot. He also testified that after the

murder, defendant told him that "two Hispanic males had came out from the woods

and had demanded money and jewelry, and they had shot [his] father and beat him

up and hit her." He further testified that he had heard Clark say that he hated

Wilson and wanted to kill him.

       Earl Lentz, Wilson's supervisor, testified that Wilson's life insurance became

effective on October 20, 1996, a week prior to the murder. It was a $6,000 policy,



       1
           Apparently, defendant and Wilson were on a blanket on the ground in front of the
car.



                                              3
$12,000 if the death was accidental. The benefits were payable to defendant.

Lentz testified that he took the claim form to defendant who seemed surprised that

Wilson had this insurance.

       Eddie Murray, an insurance agent, testified that he took an application from

Wilson for a $50,000 life insurance policy on October 3, 1996. This policy also paid

double on accidental death, and murder is considered accidental. He said that

defendant called him on October 28 to see if the policy had been issued. He called

the company and determined that it had been issued on October 10, 1996.

       Terry Holder testified that his sister was a friend of the defendant. After

defendant married Wilson, he saw defendant and Heflin at his sister's house and

asked defendant why she had married Wilson. Her response was, "for the kids and

the insurance money." During this same conversation "[s]he said they were going

to have him killed," and there was $100,000 of insurance.

       Don Massey, Wilson's co-worker, testified that defendant told him, "she was

going to hire two Mexicans to kill [Wilson]." He testified that she told him that she

and Wilson would be at the lake on a blanket in front of her car. Then, "two

Mexicans were supposed to come out and shoot him and put a bump on her head

and rob them." He further testified that she told him about two insurance policies

she was to get, as well as social security benefits for herself and Wilson's son. He

also testified that she asked him if he knew of anyone who would kill Wilson. After

the murder, she told him that Heflin had shot him. He also testified that she told him

it had been "her plan."

       Sherry Ghea, one of defendant's cellmates after the murder, testified that

defendant's first story about the murder was that "the Mexicans had come up and

had knocked her out and when she woke up, [Wilson] was dead." Later, Ghea

testified, defendant told her that she heard Heflin was going to testify against her,

and her explanation of the murder changed:

              She told me that her and [Wilson] had been out to the
              lake, and that [Clark] and [Heflin] had pulled up in the
              car and that [Clark] sat in the car and [Heflin] come out
              there to where they were laying and that [Heflin] said, 'If
              I can't have her, no one can' and knocked her out and
              when she woke up, [Wilson] was dead.


                                          4
Ghea testified that defendant went on to explain how she was going to try to

communicate with Clark so that they could "get their stories straight."

       Patricia Holder, who described her relationship with defendant as "like

sisters," testified that a few days before defendant married Wilson, defendant

referred to Heflin as "her boyfriend." Holder asked her why she was marrying

Wilson if she had a boyfriend and defendant responded, "that [Wilson's] son Chris

needed to be in a stable home and [Heflin] was going to give her a year to marry

[Wilson] and get everything stabilized where she could get custody of [Wilson's]

son," and that she was then going to divorce Wilson. Shortly after the wedding,

defendant told her, " '[Wilson] is going to die and when he does, I want you to sit by

me at the funeral and nudge me in the side with your elbow so I can play the part

of . . . the grieving widow.' " She further testified that defendant told her that she

and Heflin were to have Wilson killed, take the life insurance money, and build them

a log house.

       In her defense, defendant submitted a statement from Clark's friend, Mary

Kathy McKinney. According to her statement, Clark told her the night before

Wilson's murder that he was "going to buy a gun," and that he spoke of "killing his

step-dad" and what he would do with the money he would receive. The day after

the murder he told her his stepfather was dead, and his mother had been beaten.

Several days later, Clark told her he was going to get a truck and pay cash for it.



                        PROSECUTORIAL MISCONDUCT



       In his first issue defendant complains that the state committed prosecutorial

misconduct when the prosecutor made improper statements during closing

argument. Specifically, she points to the prosecutor's comments about defense

counsel: "They are going to stand up here in a few minutes and they are going to

ask you to violate your oath as a juror and disregard the law. That's what they are

hired to do."



                                          5
         Prosecutors should not tell juries that defense counsel will ask them to violate

their oaths and/or disregard the law. That is not what defense counsel is hired to

do. A prosecutor's comments during final argument should not reflect unfavorably

upon defense counsel. Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App.

1995). We must now determine whether this comment prejudiced defendant.

         This Court has set out five factors which must be considered in making the

determination whether a prosecutor's improper conduct could have affected the

verdict to the prejudice of the defendant. These factors are as follows:

         1. the conduct complained of in light of the facts and circumstances
            of the case;

         2. the curative measures undertaken;

         3. the intent of the prosecutor in making the improper remarks;

         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.

State v. Philpott, 882 S.W.2d 394, 408 (Tenn. Crim. App. 1994) (citing Judge v.

State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

         Additionally, we may consider whether the remarks were lengthy or repeated

or whether single or isolated. State v. Norris, 874 S.W.2d 590, 599 (Tenn. Crim.

App. 1993). Cases are reversed only when the remarks "so infected the trial with

unfairness as to make the resulting convictions a denial of due process." Id.

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

         The challenged remarks, although clearly improper, did not deny this

defendant due process and do not constitute reversible error. This issue is without

merit.



                        PRIOR CONSISTENT STATEMENTS



         In her next issue, defendant contends that the trial court erred in admitting

the prior written statements of two of the state's witnesses, Patricia Holder and

Sherry Ghea. In each case, the state introduced the statement during redirect



                                            6
examination, apparently to bolster the witness' credibility.     Defense counsel's

objection was overruled both times, and the statements were presented to the jury

without any limiting instructions. The written statements are basically consistent

with the witnesses' testimony on direct examination.

       "Ordinarily, prior consistent statements of a witness are not admissible to

bolster the witness' credibility." State v. Tizard, 897 S.W.2d 732, 746 (Tenn. Crim.

App. 1994). Exceptions to this general rule include an attack on the witness

designed to show that the witness "was motivated to lie or slant testimony," in which

event a prior consistent statement may be admitted when it was made before the

witness was motivated to lie. Id. See also N. Cohen et al., Tennessee Law of

Evidence, § 803 (1.1).3 at 509-10 (3d ed. 1995).

       Defendant attempted to impeach Ghea's credibility by inferring that she

implicated defendant in her prior statement in order to gain trusty status. This did

not "open the door" for the state to introduce the entire statement under the prior

consistent statement rule. The alleged motivation to secure trusty status, hence the

motivation to lie, existed at the time of the prior statement and not before.

       As to both Ghea and Patricia Holder, the prior statements were first

mentioned by defense counsel on cross-examination. Defense counsel sought to

establish that the prior statements did not contain certain additional facts mentioned

by Ghea and Holder in their trial testimony. The state then secured admission of

the prior statements to show the prior statements were consistent with the trial

testimony of the witnesses.

       The blanket introduction of the prior statements in their entirety appears

improper. Even if proper, there should have been an instruction that the prior

consistent statements could be considered for corroborative purposes only. See

State v. Robinson, 971 S.W.2d 30, 43 (Tenn. Crim. App. 1997) (holding the failure

of defense counsel to request such a limiting instruction waives the issue on

appeal). Nevertheless, defendant has suffered no prejudice as a result of the

admission of the prior statements. Given the remainder of the evidence against the




                                          7
defendant, the introduction of the prior statements was clearly harmless. Tenn. R.

App. P. 36(b).



                          CO-DEFENDANT'S STATEMENT



       Terry Holder testified about a conversation he had with defendant and Heflin,

a severed co-defendant. During this conversation, defendant stated her intention

to have Wilson killed and collect life insurance benefits. Upon hearing this, Heflin

responded that defendant would then get the log house she wanted. The trial court

ruled that the statement was non-hearsay. Defendant contends that Holder's

testimony about Heflin's statement was improperly admitted hearsay. 2

       The state contends the testimony was not hearsay since it was not offered

to prove the truth of the matter asserted. See Tenn. R. Evid. 801 (c). The state

also contends the testimony qualifies under the co-conspirator hearsay exception.

See Tenn. R. Evid. 803 (1.2)(E).

       We need not determine whether the statement was hearsay or whether it

qualified as a hearsay exception. The witness also testified that as a part of this

same conversation, defendant stated her intention to have Wilson killed and collect

life insurance proceeds. Furthermore, Clark and Patricia Holder testified the

defendant stated she would get a new house if Wilson were killed. Thus, even if the

admission of the questioned testimony was improper, it was clearly harmless error.

Tenn. R. App. P. 36(b).



                         SUFFICIENCY OF THE EVIDENCE



       Finally, defendant contends that the evidence is insufficient to sustain her

conviction. In Tennessee, great weight is given to the result reached by the jury in

a criminal trial. A jury verdict accredits the state's witnesses and resolves all



       2
         Defendant contends in her brief that Patricia Holder also testified that Heflin made
this statement. The record does not support this allegation.

                                             8
conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);

State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled

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

may be drawn therefrom. Bigbee, 885 S.W.2d at 803; State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption

of innocence which the defendant enjoyed at trial and raises a presumption of guilt

on appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The defendant has

the burden of overcoming this presumption of guilt. Id.

       Where sufficiency of the evidence is challenged, the relevant question for an

appellate 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 or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson

v. Virginia, 443 U.S. 307, 319 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn.

1996). The weight and credibility of the witnesses' testimony are matters entrusted

exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

       First-degree premeditated murder is an intentional and premeditated killing.

Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1996).             The proof in this case

established overwhelmingly that defendant plotted to have Wilson killed and

knowingly and intentionally delivered him to his place of execution. That she did not

pull the trigger is irrelevant.

           A person is criminally responsible for an offense committed by
           the conduct of another if: [a]cting with intent to promote or
           assist the commission of the offense, or to benefit in the
           proceeds or results of the offense, the person solicits, directs,
           aids, or attempts to aid another person to commit the offense.

Tenn. Code Ann. § 39-11-402(2). Moreover, the testimony of Clark, defendant's

accomplice, was substantially corroborated by the state's remaining proof. See

State v. Bigbee, 885 S.W.2d at 803 ("in Tennessee a conviction may not be based

upon the uncorroborated testimony of an accomplice."). In short, the evidence in



this case is more than sufficient to sustain defendant's conviction. This issue is



                                          9
without merit.

      The judgment below is affirmed.




                                             ____________________________
                                              JOE G. RILEY, JUDGE




CONCUR:


____________________________
DAVID H. WELLES, JUDGE



____________________________
JOHN EVERETT WILLIAMS, JUDGE




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