          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                      JANUARY SESSION, 1997                 FILED
                                                              April 23, 1997

STATE OF TENNESSEE,        )                                Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
                           )    No. 02C01-9606-CR-00188
      Appellee             )
                           )    SHELBY COUNTY
vs.                        )
                           )    Hon. Bernie W einman, Judge
JULIUS E. PARKER,          )
                           )    (First Degree Murder;
      Appellant            )    Agg. Robbery)



For the Appellant:              For the Appellee:

Benjamin F. Head                John Knox Walkup
Attorney at Law                 Attorney General and Reporter
147 Jefferson, Suite 408
Memphis, TN 38103               Deborah A. Tullis
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                John W. Pierotti
                                District Attorney General

                                Reginald Henderson
                                Asst. District Attorney General
                                Criminal Justice Complex
                                201 Poplar St., Suite 301
                                Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                             OPINION



        The appellant, Julius E. Parker, appeals his jury convictions for the crimes

of aggravated robbery and felony murder. The Shelby County Criminal Court

sentenced the appellant to life imprisonment for the felony murder conviction and

eight years incarceration for the aggravated robbery conviction, with the

sentences to run concurrently. In this appeal as of right, the appellant raises the

following issues:

        I. Whether the evidence is sufficient to sustain the appellant's
        convictions and sentences.

        II. Whether the trial court properly admitted into evidence a tape of
        the 911 call made by the robbery victim.

        III. Whether the trial court properly denied the appellant's motion to
        suppress the appellant's statements to the police.

        IV. Whether the trial court properly admitted photographs of the
        victim into evidence.

        V. Whether the trial court failed to instruct the jury on the lesser
        offense of facilitation of felony murder.


After a review of the record, we affirm the judgment of the trial court.




                                         I. Background



        On October 4, 1994, a Shelby County Grand Jury returned a multi-count

indictment charging the appellant with one count of first degree murder, one

count of murder in the perpetration of a felony, and one count of aggravated

robbery. 1




        1
          Jerome D. Moss and Anthony J. Colbert were also named as co-defendants in the
indictment. The record indicates that, prior to the appellant's trial, Moss pled guilty to second
degree murder and was sentenced to forty-five years in the Department of Correction. No
disposition is shown as to Co lbert.

                                                  2
        At the appellant’s trial, the State’s principal witness was the co-defendant,

Jerome Moss. Moss testified that, on March 17, 1994, he, the appellant,

Anthony Colbert, Amos Wilson, and Cecil Dotson, planned to "rob the dope

man." However, their criminal venture proved unsuccessful as they were unable

to find their intended victim. Moss stated that, as the group began the walk

"towards the house . . . [the appellant] said if we would go in the [Five Star

Grocery] with him he'd rob the store." The appellant, Moss, and Colbert entered

the store. The appellant and Colbert remained at the front of the store, while

Moss proceeded to the rear. Moss testified that, at this point, he was not armed

with a weapon, however, the appellant was in possession of "a chrome .380 with

a black handle," and Colbert had a ".32 automatic." The appellant and Colbert

"laid the [owner of the store] out on the floor." At the same time, William Bowles,

an employee, came toward Moss. Moss hit Bowles on the head with a bottle of

beer. The appellant took the pistol to the back of the store and handed it to

Moss. Bowles attempted to rise, but Moss ordered him remain on the floor.

Moss removed the safety from the pistol and one shot was fired fatally striking

Bowles in the head.2 The three men then ran out of the store.



        Moss stated that he, Colbert and the appellant were joined by Wilson and

Dotson, who had been waiting outside the store. All five then ran down Fourth

Street.3 Once the group reached an empty apartment, the appellant divided the

money taken during the robbery and distributed the proceeds accordingly:



the appellant, Moss and Colbert receiving forty-seven dollars each, and Wilson

and Dotson receiving forty-one dollars each.



        2
         In his statement to the police, Moss contended that "the gun was broke and if you cock
the gun w ithout it being o n safety, it will shoo t without pu lling the trigger."

        3
         Deangelo Small testified that, on March 17, 1994 around 9:45 p.m., he observed four
"guys" enter the Five Star Market. Shortly thereafter, he heard a "pop" and saw the four "guys"
come running out of the store. Anthony Flake also testified that, at 10:00 p.m. that same evening,
he saw four guys run past his security booth on Fourth Street heading toward the railroad tracks.

                                                3
       During the robbery, the owner of the store placed two emergency 911

calls to the police reporting the robbery. The State introduced these tapes into

evidence, however, the tapes were neither transcribed nor included in the record

on appeal. Officers Terry Landrum and Cham N. Payne, Memphis Police

Department, responded to the robbery call at the Five Star Grocery. Upon his

arrival, Officer Landrum located the owner of the store who reported the robbery

and advised him that "somebody's been shot."



       Both officers described the interior of the store at the time of their arrival.

"On the floor in front of the counter, [there was] broken glass. On the counter

top, [there was] a brown paper bag." "There was a cash drawer laying on the

floor. There was change scattered behind the cash register." "There was also a

five dollar food coupon and an empty food coupon booklet." "There was a big

pool of beer in the hallway. There was a little aisle between the merchandise

with. . . glass from a beer bottle." "[There were] blood drippings [on the floor.]"

"And there was a male black subject in the back that had been shot in the head."

Testimony of the medical examiner established that the victim’s death was the

result of "a gun shot wound to the head, with a bullet passing inside the brain,

producing hemorrhage inside the skull and small cuts to the face."



       Sergeant Richard Roleson, one of the officer's investigating the case, took

the appellant's statement after his arrest. The appellant signed a waiver of rights

before giving the statement. See infra Section IV, Motion to Suppress. In this

statement, the appellant stated that, "in a way [he] knew, and in a way [he]

didn't" know about the robbery, however, he admitted that he was supposed to

"snatch the money." The appellant's statement corroborated Moss's testimony

regarding the facts leading up to and following the crimes. This concluded the

State's proof.




                                           4
       The defense called the co-defendant, Anthony Colbert. Colbert testified

that only he and Moss entered the Five Star Grocery. He maintained that the

appellant remained outside the store. Moreover, he testified that there were no

plans to rob the store. In explanation of his prior statement which implicated the

appellant, Colbert explained that he lied "[b]ecause he had told it on me, so I was

going to take him with me." However, Colbert's prior statement, introduced

during cross-examination for impeachment purposes, supported Moss's

testimony.



       Next, the appellant took the stand. He confirmed that he was in the store

with Moss and Colbert, however, he did not know about the robbery. Rather, he

maintained that he entered the store in order to purchase cigars. In this regard,

he testified that:

       . . . There was two of us had some money. Me and Colbert. And
       Moss come in, and for him not to have no money, he was
       searching around the store like he had some, you know. He went
       on to the back and picking up things, you know. . . . [S]omething's
       fixin' to go down, you know. I looked at him and I looked at Colbert
       beside me and Moss back there and I kind of figured, I said, "Man,
       something's fixin' to happen or something. . . . I heard a bottle
       burst. . . .Colbert looked at me real hard, and I knew what that sign
       was. And I broke. As I ran I saw . . . Wayne Dotson and Amos.
       And I said, "Man, those fools robbing this store."



       The defense also called Cecil Dotson. Dotson testified that there was no

plan to rob the store and that the appellant was not in the store when the shot

was fired. Despite this testimony, Dotson confirmed, on cross-examination, that

he had previously told the police that the appellant was inside the store and that

he had received forty-one dollars from the proceeds. Finally, Pamela Wiggins

testified that Moss and the appellant did not get along. She also stated that the

day after the crimes, she observed the appellant buying clothes and shoes.

Moreover, she heard the appellant tell "Cecil's brother that . . . 'I got bud's

money, we robbed somebody,' or something of that effect.'"



                                          5
                           II. Sufficiency of Evidence



       The appellant contends that the evidence at trial was insufficient to convict

him of felony murder and aggravated robbery. Specifically, he argues that the

only evidence of his knowledge and participation in the robbery of the Five Star

Grocery was the testimony of Jerome Moss. He asserts that Moss' testimony is

incredible because Moss received a deal from the State, he and the appellant

did not get along, and the appellant had implicated Moss in the crimes.



       A conviction by the trier of fact removes the presumption of innocence

and replaces it with one of guilt, so that on appeal a convicted defendant has the

burden of proving that the evidence is insufficient. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). On appeal, the State is entitled to the strongest

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

may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert.

denied, 507 U.S. 954, 113 S.Ct. 1368 (1993). It is the appellate court's duty to

affirm the conviction if the evidence viewed under these standards was sufficient

for any rational trier of fact to have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct.

2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert.

denied, -- U.S. --, 115 S.Ct. 743 (1995); Tenn. R. App. P. 13(e). This rule is

applicable to findings of guilt predicated upon direct evidence, circumstantial

evidence, or a combination of both direct and circumstantial evidence. State v.

Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).



       The appellant contends that, although Moss' testimony implicated the

appellant in both the preparation and execution of the robbery, at trial, the

testimony of Colbert, Dotson, and the appellant provided evidence to the

contrary. The record does not support this allegation. Indeed, the prior


                                         6
statement by the appellant introduced by the State at trial not only placed the

appellant at the scene of the crime, but also confirmed his knowledge,

preparation, and participation in the robbery. Moreover, matters concerning the

credibility of witnesses are determined by the trier of fact and not this court.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A guilty verdict, approved

by the trial court, accredits the testimony of the State's witnesses and resolves all

conflicts in favor of the theory of the State. State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973).



       Tenn. Code Ann. § 39-13-402(1991) defines aggravated robbery as "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) (1991), and the

robbery is "accomplished with a deadly weapon. . ." or "where the victim suffers

serious bodily injury." The evidence presented at trial clearly demonstrates that

the appellant actively participated in, if not initiated, the aggravated robbery of

the Five Star Grocery, that the appellant was in possession of a .380 automatic

weapon, that the appellant took the money from the store, and that the appellant

divided the proceeds between all participants.




       Felony murder is "[a] reckless killing of another committed in the

perpetration of, or attempt to perpetrate any . . . robbery . . . ." Tenn. Code Ann.

§ 39-13-202(a)(2) (1994 Supp.). In the present case, Moss admitted that he was

holding the weapon when Bowles was killed. Nonetheless, "[w]hen one enters

into a scheme with another to commit one of the felonies enumerated in Tenn.

Code Ann. § 39-13-202, in this case [robbery], and death ensues, both

defendants are responsible for the death, regardless of who actually committed

the murder and whether the killing was specifically contemplated by the other."

State v. Brown, 756 S.W.2d 700, 704 (Tenn. Crim. App. 1988). The evidence


                                          7
clearly establishes that the appellant actively participated in the robbery, and, as

such, he became accountable for all consequences flowing from the robbery.

See Brown, 756 S.W.2d at 703. Accordingly, we conclude that his convictions

for felony murder and aggravated robbery are amply supported by the evidence

and that a rational trier of fact could have found the essential elements of both

offenses beyond a reasonable doubt. This issue is without merit.




                      III. Tape of the 911 Emergency Call



       Next, the appellant argues that the trial court erred in permitting the

introduction of the audio tape of the 911 emergency call made by the robbery

victim. Specifically, he contends that the tape was not properly authenticated

and that "the statements by the dispatcher are inaccurate and prejudicial."



       The audio tape recording of the 911 emergency call was introduced into

evidence as a public record. Tenn. R. Evid. 803(8). The tape was introduced

through the testimony of the supervisor and custodian of the records. The

custodian testified that he was an employee of the Communications Bureau of

the Memphis Police Department. He explained the procedure by which records

of incoming calls are retained. Thus, the introduction of the tape recording to

support the fact that a 911 emergency call was recorded on the time and date

specified, the address the call was placed from, and other relevant “data” was

admissible. However, the content of the tape recording, in order to be

admissible, must also satisfy an exception to the hearsay rule, because the

citizens who place 911 emergency calls are not under a “duty to report.”



       Under certain circumstances, such a statement may qualify as an "excited

utterance." See Tenn. R. Evid. 803(2). To qualify as an "excited utterance," the


                                         8
statement must be "relating to a startling event or condition . . . while the

declarant was under the stress of excitement caused by the event or condition."

Tenn. R. Evid. 803(2). Yet, even if the statement satisfies this hearsay

exception, as in the present case, the statement must still be authenticated prior

to its admission.4 For the purpose of authentication, the voices on a 911 tape

recording must be identified "by opinion based upon hearing the voice at any

time under circumstances connecting it with the alleged speaker." Tenn. R. Evid.

901(b)(5). At trial, the appellant objected to the admissibility of the tape

because the alleged caller on the tape was never identified as being the robbery

victim in this case. In this case, the custodian of the record was unable to

identify the voice on the tape as being the speaker, i.e., the robbery victim.

Accordingly, the statements on the tape of the 911 call were not properly

authenticated, and, therefore, were improperly admitted. Cf. State v. Smith, 868

S.W.2d 561, 577 (Tenn. 1993) (statements on tape of emergency 911 call

properly admitted as "excited utterance" after voice identification of the caller by

911 operator who received the call).



        As previously indicated, neither the tape nor a transcription of the tape

recording was included in the record.5 Thus, we are precluded from reviewing

the appellant’s allegations of the prejudicial impact of the tape. It is incumbent

upon the complaining party to prepare a full and adequate account of the record

for our review. State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993); Tenn. R.

App. P.24. Absent the necessary relevant material in the record an appellate

court cannot consider the merits of an issue. See Tenn. R. App. P. 24(b).

Moreover, even in the absence of the tape recording of the emergency 911 call,

we conclude that any error in its admittance is harmless. Tenn. R. Crim. P.



        4
        The trial co urt prope rly found the tape rec ording to b e adm issible hea rsay purs uant to
Tenn. R. Evid. 803(2), excited utterance.

        5
         Although the record reflects the tape was played for the jury, the court reporter
appare ntly did not trans cribe the s tatem ents be ing played fo r inclusion in th e record .

                                                    9
52(a). The evidence overwhelmingly supports the jury's finding that the appellant

participated in the robbery of the Five Star Grocery. This issue is without merit.




                                       IV. Motion to Suppress



         The appellant contends that the trial court erred in failing to suppress his

statements given to the police. Specifically, the appellant contends that,

because his rights were not "explained" and because he was "coerced, brow

beatened [sic], threatened of not ever getting out of jail, the death penalty and

with promises that he would be able to go home," his statements were not

voluntary.



         At the suppression hearing, Sergeant Roleson testified that the appellant

gave two statements to the police, one on April 15, 1994 at 9:40 a.m., and the

second on April 18, 1994 at 1:27 p.m.6 Both statements were taken at the police

station. He added that, on April 15, the appellant was advised of his rights in the

presence of his mother and waived those rights prior to making any statement.

In this statement, the appellant denied any participation in the crimes. Roleson

further testified that, on April 18, 1994, the appellant contacted him from the jail

and informed him that he wished to make another statement. Again, the

appellant was advised of his rights and signed another waiver. In this second

statement, the appellant admitted knowledge of the robbery, his presence in the

store, and his role in "snatch[ing] the money."



         The appellant, however, testified that his statements were not voluntary

and were the result of coercion and threats by the interviewing officers.


         6
           At the time of his initial st atem ent, th e app ellant was not u nde r arre st. Ho weve r, on A pril
16, a fter h is two co-d efen dan ts im plicat ed him in the c rim es, th e app ellant was arres ted a nd in
cus tody.

                                                      10
Specifically, the appellant contends that the officers did not explain his rights to

him, that the officers accused him of lying, that the officers threatened that the

appellant would never see his children again, that the officers threatened to kill

his two co-defendants, and that the officers threatened to "send him to a

penitentiary." To explain his attested untruthfulness in his statements, the

appellant stated "they lied to me so I lied to them."



       At the suppression hearing, the trial court found that "from the totality of all

the proof that the defendant did freely and voluntarily give these statements and

[was] advised of [his] rights and understood [his] rights and that [he] gave these

statements without any coercion, and [that] they would be admissible in proof in

the case."




       The appellant is correct in his assertion that, to be admissible, a

defendant's statement must have been made voluntarily. Jackson v. Denno, 378

U.S. 368, 376, 84 S.Ct. 1774, 1780 (1964); see also Oregon v. Elstad, 470 U.S.

298, 304-305, 105 S.Ct. 1285, 1290-91 (1985). A trial court's determination, with

regard to the voluntariness of statements made by the defendant during

custodial interrogation and the compliance by the police with the Miranda

mandate, is presumptively correct on appeal, unless the reviewing court finds

that the evidence touching those matters preponderates against the trial court's

findings. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994); State v.

Nakdimen, 735 S.W.2d 799, 802 (Tenn. Crim. App. 1987) (citations omitted).

Nothing in the record preponderates against the trial court's determination that

the appellant's statements were voluntary and not the result of coercion, threats,

or lack of knowledge of his constitutional rights. This issue is without merit.




                                          11
                           V. Photographs of Victim



      The appellant argues that it was reversible error for the trial court to admit

into evidence a color photograph of the victim as he appeared at the crime

scene. He asserts that "[t]he fact that the victim was deceased was shown by a

[previously introduced photograph]," depicting the victim at the morgue.

Continuing, he maintains that "[the photograph] was not necessary because

identification and death was established by the medical examiner." Accordingly,

the appellant concludes that the photograph is "unnecessary and inflammatory,"

and, therefore, "should not have been admitted because its prejudicial value

outweighed its probative value and its relevance."




      "The admissibility of photographs lies within the discretion of the trial

court." State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). The court's "ruling,

in this respect, will not be overturned on appeal except upon a clear showing of

an abuse of discretion." Id. (citations omitted); see also Stephenson, 878

S.W.2d at 542; State v. Bordis, 905 S.W.2d 214, 226 (Tenn. Crim. App.), perm.

to appeal denied. (Tenn. 1995). However, before a photograph may be admitted

into evidence, it must be relevant to an issue that the jury must decide and the

probative value of the photograph must outweigh any prejudicial effect that it

may have upon the trier of fact. State v. Braden, 867 S.W.2d 750, 758 (Tenn.

Crim. App.), perm. to appeal denied, (Tenn. 1993) (citation omitted); see also

Tenn.R.Evid. 401 and 403.



      The contested photograph establishes the location of the victim's body

when discovered at the crime scene. Photographs of a victim's body taken at

the scene of the incident are admissible. State v. Van Tran, 864 S.W.2d 465,

477 (Tenn. 1993), cert. denied, -- U.S.--, 114 S.Ct. 1577 (1994). Moreover, a


                                        12
photograph used to supplement and clarify oral testimony describing the crime

scene is likewise admissible. State v. Duncan, 698 S.W.2d 63, 69 (Tenn.), cert.

denied, 475 U.S. 1031, 106 S.Ct. 1240 (1985). The photograph at issue is

neither gruesome nor bloody. Nothing in the record demonstrates that the trial

court abused its discretion in admitting this photograph. Accordingly, we find this

issue to be without merit.




                                    VI. Jury Instructions



       In his final issue, the appellant argues that the trial court should have

charged the jury on the lesser offense of facilitation of felony murder. We

disagree.



       The appellant relies upon State v. Lewis, 919 S.W.2d 62 (Tenn. Crim.

App. 1995), as authority. In Lewis, 919 S.W.2d at 67, a panel of this court held

that "virtually every time one is charged with a felony by way of criminal

responsibility for the conduct of another, facilitation of the felony would be a

lesser included offense." 7 (Emphasis in original). "[O]ne can be guilty of felony

murder based on that person's criminal responsibility for the conduct of another

person." Id. Thus, if a person can be guilty of felony murder because that

person is responsible for the conduct of another, then that person could be guilty

of facilitation of felony murder because the two statutes deal with criminal

responsibility. Id.

       7
        Tenn. Code Ann. §39-11-402 (1991) provides:
       A person is criminally responsible for an offense com mitted by another if:
       (2) Acting with intent to pr omo te or ass ist the com miss ion of the o ffense , 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. § 39-11-403 (1991), provides:
       (a) A person is criminally responsible for the facilitation of a felony if, knowing that
       another intends to commit a specific felony, but without the intent required for
       criminal responsibility under § 39-11-402[(2)], the person knowingly furnishes
       sub stan tial as sista nce in the c om mis sion of the felon y.

                                                 13
       However, the holding in Lewis "is not a blanket rule to be applied in every

felony murder case where the defendant is not the party who commits the

murder during the felony." State v. Utley, 928 S.W.2d 448, 452 (Tenn. Crim.

App. 1995), perm. to appeal denied, (Tenn. 1996). Rather, a trial court should

instruct the jury as to facilitation of felony murder only where the facts could

cause reasonable minds to conclude that the defendant lacked the intent to

promote or assist in, or benefit from, the underlying felony's commission. Id.

(citation omitted) (emphasis added).



       In the case before us, the State’s proof established that it was the

appellant who initiated the robbery, who furnished the murder weapon, who

benefited in the proceeds, and who was present when the murder occurred. The

appellant’s proof at trial denied any participation or planning in the robbery. In

fact, the appellant testified that his sole purpose for entering the store was to

purchase cigars. Thus, the appellant denied that he “knowingly furnish[ed]

substantial assistance in the commission of the felony” of first degree murder.

We conclude that these facts clearly distinguish this case from the facts in Lewis,

919 S.W.2d at 62.



       While it is generally error in a homicide case for the trial court not to

instruct the jury on all lesser included offenses, see Johnson v. State, 531

S.W.2d 558, 559 (Tenn.1975), where the record clearly shows that the

defendant was guilty of the greater offense and is devoid of any evidence

permitting an inference of guilt of the lesser offense, it is not error to fail to

charge on a lesser offense. State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990)

(citing State v. King, 718 S.W.2d 241, 245 (Tenn.1986)). We conclude that the

trial court was correct in not instructing the jury on the lesser included offense of

facilitation of felony murder. This issue is without merit.




                                           14
                                VII. Conclusion



      After a review of the record and the applicable law, we find no reversible

error in the judgment of the trial court. Accordingly, the judgments of conviction

and sentences imposed are affirmed.




                                  ____________________________________
                                  DAVID G. HAYES, Judge


CONCUR:



_________________________________
PAUL G. SUMMERS, Judge



_________________________________
THOMAS T. W OODALL, Judge




                                        15
