         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 September 26, 2007 Session

          STATE OF TENNESSEE v. JOEY DEWAYNE THOMPSON

                       Appeal from the Criminal Court for Knox County
                             No. 73384    Ray L. Jenkins, Judge



                   No. E2006-02093-CCA-R3-CD - Filed February 21, 2008


The defendant, Joey Dewayne Thompson, appeals from his Knox County Criminal Court jury
convictions of second degree murder and voluntary manslaughter. The trial court imposed an
effective sentence of 25 years to be served in the Department of Correction. On appeal, the
defendant claims that the conviction of second degree murder is unsupported by sufficient evidence,
that the verdicts are contradictory, that the prosecution for and conviction of second degree murder
violated principles of double jeopardy, and that the prosecution was barred by principles of collateral
estoppel. Following our review, we affirm the convictions.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and NORMA MCGEE OGLE, J., joined.

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Joey Dewayne Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                The petitioner’s case arises out of tragic events that occurred on June 23, 2001, near
the intersection of Texas and McPherson Streets in Knoxville. The case comes to this court for the
second time. The defendant was initially charged in a two-count indictment with the premeditated
killing of Latoya Robinson and the attempted premeditated murder of Travis Dewayne Burgins. The
State subsequently brought an additional charge: the first degree felony murder of Latoya Robinson
predicated upon the attempt to commit the premeditated first degree murder of Travis Burgins.
Following an April 2002 trial, the jury convicted the defendant of the lesser included offense of the
second degree murder of Latoya Robinson on the premeditated murder count, convicted him of an
attempt to commit the second degree murder of Travis Burgins on the attempted first degree murder
count, and was unable to reach a verdict on the first degree felony murder count. On appeal, this
court reversed the convictions because the trial court erred in instructing the jury. See State v. Joey
Dewayne Thompson, No. E2003-00569-CCA-R3-CD (Tenn. Crim. App., Knoxville, July 6, 2004).

                 On remand, the defendant moved to strike the felony murder count from the
indictment and ultimately moved to dismiss this count, arguing that the felony murder theory was
unsupported by any predicate felony in view of the jury’s acquittal of the defendant of the attempt
to commit the first degree murder of Burgins. The trial court rejected the defendant’s bid to bar the
retrial on the felony murder count.

                 On the eve of the second trial, the State obtained dismissal via a nolle prosequi of the
charge of attempt to commit the second degree murder of Burgins. Following the May 2006 trial,
the jury convicted the defendant of second degree murder, a lesser included offense of the count of
first degree felony murder, and of voluntary manslaughter, a lesser included offense of the count of
second degree murder (which itself had been charged originally as premeditated first degree murder).

               With this history now in mind, we summarize the evidence presented in the May 2006
trial now under review.

                The State first presented the testimony of two residents of the Texas and McPherson
Streets area of Knoxville. Julian Dixon testified that he was on his porch steps at about five o’clock
p.m. on June 23, 2001, when he noticed a small black car stopped on McPherson Street close to the
intersection with Texas Street. A second car stopped behind this black car, and the defendant, whom
Mr. Dixon had known all his life, stepped off the curb onto the street. Mr. Dixon saw the defendant
carrying a pistol at his thigh as the defendant trotted toward the second car. Mr. Dixon testified
“when [the defendant] got up to the passenger’s window, he started shooting.” Mr. Dixon neither
saw nor heard talking prior to the firing of shots. He testified that seven to ten shots were fired
before the car lurched off and that the defendant trotted along side it, continuing to fire. After the
car left Mr. Dixon’s range of view and the shooting stopped, the defendant came back into view and
trotted across the street.

               Ms. Shirley King testified that she lived at the corner of McPherson and Ohio Streets
and was on her porch with her husband and grandchildren on June 23, 2001, when she heard about
three shots being fired. She took the children into the house and called 9-1-1. Looking out her
window, she saw a car coasting toward her yard. Inside the car a man pushed a girl off the steering
wheel and then put the car in park to stop it. The man fell out of the car onto the ground. Ms. King
went out and asked the man who shot him, and she testified that he said, “Thug shot me.” She did
not see a gun with the man and did not see a gun in the car. The female remained in the driver’s seat
and apparently died there while Ms. King awaited the arrival of an ambulance.

               The State presented medical evidence that showed that Burgins had sustained four
gunshot wounds to his right leg and one to his left leg. The bullets traveled from right to left, and
one bullet broke the thigh bone in Burgins’ left leg.


                                                  -2-
                As many as five bullets entered Ms. Robinson’s body, and she was killed by a shot
that went through her upper right arm into her chest, breaking ribs and entering the right lung, and
passing through the heart and left lung before exiting the left side of her body. A second shot entered
her right forearm between her wrist and elbow, and a third bullet traveled upward from her right
thigh and lodged in her lower spine. Two more bullets entered her lower right leg.

                Law enforcement officers testified that nine spent .9 mm cartridges, which had all
been fired from the same gun, were recovered from the street. After the car in which Burgins and
victim Robinson were riding was searched at the impound lot, the officers found a .380 semi-
automatic pistol under the passenger side of the front seat. They also found a magazine for this
pistol lying under a compact disk case in the front seat. The officers found no discernible
fingerprints on the gun or the clip. The officers also found bullet material inside the automobile and
opined that the material had been fired by a .9 mm gun and not the .380.

                Officer Todd Smith testified that he arrived on the scene of the shooting on June 23,
2001, and talked to the injured Burgins. He asked Burgins who had shot him, and Burgins said,
“Thug.” Officer Smith asked Burgins if he was referring to Joe or Joey, and Burgins said, “Yes . .
. Joe, Thug.” Officer Smith testified that he knew the defendant by this nickname. Officer Smith
further testified that the dispersal of the .9 mm cartridges in the street were consistent with the
shooter moving as he fired.

               Latoya Robinson’s mother testified that the victim was 18 years of age at the time of
her death.

                Travis Dewayne Burgins, who was called to testify by the defendant, testified that he
had known the defendant all his life and had had no problems with him prior to the shooting. He
testified that Latoya Robinson was his girlfriend and that she had previously dated the defendant’s
brother, Amos Wright. Burgins acknowledged that he had seen Wright on June 23, 2001,
approximately five minutes before encountering the defendant, but Burgins claimed he had had no
trouble with Wright. He testified that Ms. Robinson drove his Buick on June 23 and that he rode in
the passenger seat. They turned off Texas Street into McPherson Street, and Burgins saw the
defendant standing on the corner. Burgins made a peace sign, and the defendant returned the gesture.
Burgins thought “everything was cool.” The Buick stopped behind a car that was stopped in the
street, and Burgins turned around and saw the defendant jogging toward them. He heard a click at
the back of the car and saw half of a barrel sticking through the window. Burgins denied that he held
a weapon or even had a weapon anywhere in the car. He testified that the defendant said nothing
before opening fire. Before the shooting started, the car in front of the Buick moved away. The
defendant shot 10 times, and the Buick started rolling. Burgins denied having any drugs in the car
and claimed that the gun found under the seat must have been tossed into the car by someone else.

              The defendant testified that he had known Burgins all his life and had had no
problems with him. He testified that on June 23, 2001, while at his sister’s apartment, he received
a telephone call from his brother, Amos Wright, and during the call the defendant could hear


                                                 -3-
Wright’s young daughter screaming in the background. The defendant testified that as a result of
the call, he believed Burgins had threatened Wright with a gun. Wright was at his and the
defendant’s mother’s house, and the defendant told him to remain there. Wright told the defendant
to bring a gun. The defendant testified that he had previously acquired a .9 mm handgun but had
never fired it and did not know whether it was loaded or would even work. Although he usually
carried it for protection, he had placed the gun in his sister’s closet when he had arrived at her
apartment on June 23. After Wright called, the defendant retrieved the gun and told his sister to take
her child to their mother’s house. She left in her automobile. The defendant placed the gun in his
pocket, changed to a longer shirt that would conceal the gun handle, and began walking to his
mother’s house.

                 The defendant testified that Burgins always carried a gun and that he had seen the gun
on Burgins before. He saw Latoya Robinson drive the Buick into McPherson Street and saw Burgins
in the car. When they stopped behind another car,1 the defendant thought that he and Burgins would
discuss Wright’s telephone call. The defendant testified that he kept the gun in his pocket as he
approached the car, but when he got up to the car, Burgins pointed a gun at him, and the defendant
heard a click. He then pulled his gun and stuck it slightly in the window, telling Burgins, “[D]rop
it, n-----.” Burgins did not drop the gun, and the defendant began firing, aiming low so as not to kill
Burgins. The defendant testified that the car remained parked and that he did not intentionally aim
the gun at Latoya Robinson.

              On rebuttal, the State showed that, in addition to finding the .380 pistol, officers
recovered marijuana and four rocks of cocaine from the Buick after it had been moved to the
impound lot.

                On the second degree murder count, which originated as a charge of first degree
premeditated murder and which resulted in a conviction of second degree murder in the first trial,
the jury found the defendant guilty of the lesser included offense of voluntary manslaughter. On the
first degree felony murder count, which resulted in no verdict in the first trial, the jury found the
defendant guilty of the lesser included offense of second degree murder. The trial court sentenced
the defendant to terms of 25 years and six years, respectively, on the second degree murder and
voluntary manslaughter counts. The court then merged the two verdicts into a conviction of second
degree murder.

                                           I. Sufficiency of the Evidence

               In his first issue, the defendant claims that the evidence was insufficient to support
his conviction of second degree murder. He argues in his brief that the evidence showed that the
defendant shot Ms. Robinson in self-defense or in a heat of passion provoked by Burgins. He



         1
         Some evidence indicated that it was the defendant’s sister’s black car that was stopped in the street in front
of Burgins’ Buick.

                                                         -4-
buttresses his arguments with claims that the physical facts, especially the presence of a gun in
Burgins’ car, demand a rejection of the second degree murder verdict. We disagree.

               When an accused challenges the sufficiency of the evidence, an appellate court’s
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781,
2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of
guilt based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003).

                Moreover, a criminal offense may be established exclusively by circumstantial
evidence, Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); Winters, 137 S.W.3d at 654; however,
before an accused may be convicted of a criminal offense based upon circumstantial evidence alone,
the facts and circumstances “must be so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant.” State v. Crawford, 225 Tenn. 478, 482, 470 S.W.2d 610,
612 (1971). “In other words, ‘[a] web of guilt must be woven around the defendant from which he
cannot escape and from which facts and circumstances the jury could draw no other reasonable
inference save the guilt of the defendant beyond a reasonable doubt.’” State v. McAfee, 737 S.W.2d
304, 306 (Tenn. Crim. App. 1987) (quoting Crawford, 470 S.W.2d at 613).

                Of critical importance in the present case, this court, in determining the sufficiency
of the evidence, should not reweigh or reevaluate the evidence, State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990), and questions concerning the credibility of the witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier
of fact, not the appellate court, State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Also, this
court may not substitute its inferences for those drawn by the trier of fact from the evidence. Liakas
v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51
(Tenn. Crim. App. 1978). On the contrary, this court must afford the State of Tennessee 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. Cabbage, 571 S.W.2d at 835.

              As it pertains to the present case, second degree murder is the knowing killing of
another. T.C.A. § 39-13-210(a)(1) (2003).

                Affording the State the strongest legitimate view of the evidence and deferring to the
jury’s credibility determinations and inferences drawn from the evidence, we conclude that the
evidence strongly supports a conclusion that the defendant knowingly killed Ms. Robinson by firing
as many as ten point-blank shots into the front seat area of a vehicle she was driving. Accordingly,
we hold that the evidence was sufficient to support the conviction of second degree murder.




                                                  -5-
                            II. Inconsistent or Contradictory Verdicts

              The defendant claims that the second degree murder conviction should not stand
because the underlying verdict is inconsistent with the jury’s verdict of voluntary manslaughter.

               We need not tarry long over the claim. Tennessee courts do not generally disturb
verdicts because they seem to be inconsistent. See, e.g., Wiggins v. State, 498 S.W.2d 92, 94 (Tenn.
1973). We see no reason to depart from the general rule and accordingly deny relief based upon the
claim of inconsistent verdicts.

      III. Bar of the Felony Murder Prosecution and the Second Degree Murder Conviction

                The defendant claims that a retrial on the felony murder charge was barred by
principles of (1) double jeopardy and/or (2) collateral estoppel. Before analyzing these claims, we
pause to schematically summarize the progression of the original three charges.

                       (1)               (2)                (3)
                   First degree      First degree       Attempt –
                   premeditated      felony murder      first degree
                   murder of         of Ms. Robinson*   murder of
                   Ms. Robinson                         Mr. Burgins
       __________________________________________________________________

       Trial I         Second degree          Hung jury/mistrial       Attempt – second
                       murder                                          degree murder

       Appeal          Reversed                                        Reversed

       Post                                                            Nolle prosequi
       Remand

       Trial II        Voluntary              Second degree
                       manslaughter           murder

       *The charge of the felony murder of Latoya Robinson was predicated upon the
       homicide being committed during the attempt to perpetrate the premeditated
       first degree murder of Travis Dewayne Burgins.

               In his brief, the defendant points to his acquittal on the charge of attempt to commit
the premeditated first degree murder of Burgins and claims that, because the jury “must find [the
defendant] committed the attempted first degree murder of . . . Burgins” to support a conviction of
the felony murder of Latoya Robinson, the “felony murder count thus violates the double jeopardy



                                                -6-
clause of both the United States and Tennessee Constitutions.” The defendant further claims that
the principles of double jeopardy and/or collateral estoppel bar the prosecution.

                The state and federal constitutions protect against multiple convictions or
punishments for a single offense. U.S. Const. amend. V; Tenn. Const. art. 1, § 10. Double jeopardy
typically and essentially protects (1) against a second prosecution after an acquittal; (2) against a
second prosecution after conviction; and (3) against multiple punishments for the same offense.
State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996) (citations omitted). In the present case, the
defendant was acquitted of attempt to commit the first degree murder of Burgins. He was not retried
for this offense. We fail to see how his retrial on the charge of the first degree felony murder of
Latoya Robinson implicates the first rubric of typical double jeopardy scenarios. The second
scenario does not apply. Also, we see no possibility that the “multiple punishment” rubric was
violated. Double jeopardy principles do not bar a defendant’s convictions both of felony murder and
of the predicate felony offense. State v. Ralph, 6 S.W.3d 251, 256 (Tenn. 1999) (“This Court has
consistently held that when legislative intent is clear, a defendant may be separately convicted of two
offenses which arise from one criminal transaction.”) (citing Denton, 938 S.W.2d at 379 n. 14; State
v. Blackburn, 694 S.W.2d 934, 936-37 (Tenn. 1985)).

                 To be sure, a trial proceeding that is terminated without an acquittal or conviction
may bar a subsequent prosecution for the same offense. For instance, when a mistrial is declared
without the consent of the accused and without the manifest necessity of a mistrial, retrial is barred
by double jeopardy principles. State v. Skelton, 77 S.W.3d 791, 798-99 (Tenn. Crim. App. 2001).
One example of “manifest necessity” long recognized as a sufficient reason for declaring a mistrial
is the inability of a jury to reach a unanimous verdict. State v. Mounce, 859 S.W.2d 319, 322 (Tenn.
1993); State v. Witt, 572 S.W.2d 913, 915 (Tenn. 1978); State v. Freeman, 669 S.W.2d 688 (Tenn.
Crim. App. 1983). However, “[i]t is only when there is no feasible and just alternative to halting the
proceedings that a manifest necessity is shown.” Mounce, 859 S .W.2d at 322 (citing State v. Knight,
616 S.W.2d 593, 596 (Tenn. 1981)). In the present case, the defendant has made no claim that retrial
of the felony murder charge violated principles of double jeopardy on the basis that the mistrial was
not manifestly necessary.

               That said, consider now that the more atypical “collateral estoppel” rubric of double
jeopardy bars the second degree murder conviction.

               In Massengill v. Scott, our supreme court summarized the related doctrines of res
judicata and collateral estoppel:

               “The doctrine of collateral estoppel or estoppel by judgment is an
               extension of the principle of res judicata, and is generally held to be
               applicable only when it affirmatively appears that the issue involved
               in the case under consideration has already been litigated in a prior
               suit between the same parties, even though based upon a different
               cause of action, if the determination of such issue in the former action
               was necessary to the judgment . . . .

                                                 -7-
                Res judicata bars a second suit between the same parties and their
                privies on the same cause of action as to all issues which were or
                could have been litigated in the former suit. Collateral estoppel
                operates to bar a second suit between the same parties and their
                privies on a different cause of action only as to issues which were
                actually litigated and determined in the former suit. . . . To sustain a
                plea of collateral estoppel it must be shown, inter alia, that the issue
                sought to be concluded not only was litigated in the prior suit but was
                necessary to the judgment in that suit.”

Massengill v. Scott, 738 S.W.2d 629, 631-32 (Tenn. 1987) (quoting 22 Tenn. Jur. pp. 111-12)
(emphasis added). “Once an issue has been actually or necessarily determined by a court of
competent jurisdiction, the doctrine of collateral estoppel renders that determination conclusive on
the parties and their privies in subsequent litigation, even when the claims or causes of action are
different.” Gibson v. Trant, 58 S.W.3d 103, 113 (Tenn. 2001) (emphasis added). As our emphases
show, “[t]he doctrine of collateral estoppel . . . applies only when ‘the issue involved in the case
under consideration has already been litigated in a prior suit between the same parties . . . if the
determination of such issue in the former action was necessary to the judgment.” State v.
Scarbrough, 181 S.W.3d 650, 654-55 (Tenn. 2005) (emphasis added).

                Although, in Tennessee, the principle of collateral estoppel may not be used
offensively against a criminal defendant, see id. at 658, the United States Supreme Court has upheld
the use of “defensive” collateral estoppel in a criminal case. In Ashe v. Swenson, 397 U.S. 436,
443-47, 90 S. Ct. 1189, 1193-94 (1970), the Court said that a defendant in a criminal case may assert
collateral estoppel by relying on an acquittal in a first prosecution to bar the litigation of those facts
in a later prosecution for a different offense, and the Court reasoned that a defendant’s reliance on
the collateral estoppel doctrine in such circumstances “is embodied in the Fifth Amendment
guarantee against double jeopardy.” Id. at 445, 90 S. Ct. at 1195; see Scarbrough, 181 S.W.3d at
655.

                The State argues in its brief that the prosecution of the defendant has yet to be
concluded and that, essentially, the not-guilty verdict in the first trial on the attempt count did not
occur in a prior proceeding. The defendant posits that the prosecution on the charge of attempt to
commit the first degree murder of Burgins ended for all meaningful purposes when the jury returned
its verdict of not guilty.

                We acknowledge that the State had no right of appeal from that verdict, see Tenn. R.
App. P. 3(c), and pursuant to double jeopardy principles, the State may not again prosecute or try the
defendant for the attempt to commit the first degree murder of Burgins, see Denton, 938 S.W.2d at
378. Moreover, an attempt to commit second degree murder is not a qualified predicate offense for
a prosecution of first degree felony murder. See T.C.A. § 39-13-202(a)(2) (2003) (providing that,
for purposes of felony murder, first degree murder is “[a] killing of another committed in the
perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery,


                                                   -8-
burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy.”).
Nevertheless, for the reasons explained below, we agree with the State.

                The precise issue is one of first impression. In an endeavor to resolve the issue
consistently with other, related legal doctrine, we have pondered the results of the following
hypothesis: In the defendant’s first trial, the jury convicts him of second degree murder on the
premeditated murder count, of attempt to commit the second degree murder of Mr. Burgins, but
instead of deadlocking on the first degree felony murder count, it convicts him of that charged
offense. We have already explained in segment II of this opinion that contradictory jury verdicts do
not compel reversal of either conviction. Thus, in our hypothesis, the verdicts would not be
assailable on the ground that the felony murder predicated upon attempted first degree murder was
compromised by the verdict of not guilty on the attempted first degree murder. In other words, we
have not applied principles of collateral estoppel in this manner.

                 That said, we are unpersuaded that the resulting hypothetical effect on the felony
murder charge should be different because the first trial on that count culminated in a deadlocked
jury and was mistried. A mistrial does not signal the end of a prosecution; it merely prolongs the
prosecution through another trial. See Richardson v. United States, 468 U.S. 317, 325-26, 104 S.
Ct. 3081, 3086 (1984). We are unwilling to say that the mere prolonging of the prosecution for
felony murder transforms it into a “subsequent” prosecution. The three counts were launched
together in the stream of this prosecution, and we do not deem the acquittal on the attempt to commit
first degree murder as a “prior suit” for collateral estoppel purposes. Thus, we hold that continued
prosecution on the felony murder count in the second trial was not barred.

                                         IV. Conclusion

              The result in the case is that the convictions of second degree murder and voluntary
manslaughter are affirmed.


                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




                                                -9-
