             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                                JANUARY 1997 SESSION
                                                                  FILED
STATE OF TENNESSEE,               )                             October 7, 1997
                                  )       No. 02-C-01-9602-CR-00048
      Appellee,                   )                            Cecil Crowson, Jr.
                                  )       Shelby County        Appellate C ourt Clerk
v.                                )
                                  )       Chris B. Craft, Judge
HOLLIS G. WILLIAMS,               )
                                  )       (Murder First Degree)
      Appellant.                  )




FOR THE APPELLANT:                        FOR THE APPELLEE:

W. Mark Ward                              John Knox Walkup
Asst. Shelby County Public Defender       Attorney General & Reporter
147 Jefferson, Suite 900                  500 Charlotte Avenue
Memphis, TN 38103                         Nashville, TN 37243-0497
(On Appeal)
                                          Robin L. Harris
Ronald S. Johnson                         Assistant Attorney General
Asst. Shelby County Public Defender       450 James Robertson Parkway
201 Poplar Avenue, Suite 201              Nashville, TN 37243-0493
Memphis, TN 38103-1947
(At Trial)                                William L. Gibbons
                                          District Attorney General
Betty J. Thomas                           201 Poplar Avenue, Suite 301
Asst. Shelby County Public Defender       Memphis, TN 38103-1947
201 Poplar Avenue, Suite 201
Memphis, TN 38103-1947                    James C. Beasley, Jr.
(At Trial)                                Assistant District Attorney General
                                          201 Poplar Avenue, Suite 301
OF COUNSEL:                               Memphis, TN 38103-1947

A C Wharton, Jr.                          Amy J. Weirich
Shelby County Public Defender             Assistant District Attorney General
201 Poplar Avenue, Suite 201              201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947                    Memphis, TN 38103-1947




OPINION FILED: __________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                      OPINION
       The appellant, Hollis G. Williams (defendant), was convicted of first-degree felony

murder by a jury of his peers. The State of Tennessee sought the extreme penalty of

death. However, the jury set his punishment at life without the possibility of parole. The

defendant presents three issues for review. He contends (a) the evidence is insufficient,

as a matter of law, to support his conviction for a murder committed during an attempt to

commit robbery, (b) the trial court committed error of prejudicial dimensions by ruling his

two convictions for attempt to commit robbery could be used to impeach him if he opted

to testify in support of his defense, and (c) the trial court committed error of prejudicial

dimensions by permitting the state to introduce victim impact testimony during the

sentencing hearing. After a thorough review of the record, the briefs submitted by the

parties, and the law governing the issues presented for review, it is the opinion of this Court

the judgment of the trial court should be affirmed.

       The victim, Manop S. Thomas, was fifteen years of age and a sophomore in high

school when he was fatally wounded by the defendant. He lived at home with his mother

and three other siblings.

       On the afternoon of January 31, 1994, the victim was en route to a residence on

Redcliff Cove in the Frayser area of Memphis. While walking to his destination, he met

Wordies Tate, a friend and classmate. Tate was riding his bicycle. He asked Tate to go

with him to the Redcliff Cove residence. Tate agreed to accompany the victim. Tate rode

his bicycle slowly as he and the victim proceeded to the victim’s destination.

       As Tate and the victim were crossing the street, a car coming from the opposite

direction stopped. The defendant exited the vehicle and told the victim to come to the car.

The victim knew the driver of the vehicle, Clifford Sims. He entered the vehicle through the

back door on the passenger side of the car. A conversation ensued. Sims told the victim

he would see him later. The victim and the defendant exited the car simultaneously. The

defendant removed a .380 automatic pistol from his clothing. 1 He told the victim to “drop

it off,” meaning the victim should give him the Michigan starter jacket he was wearing.

When the defendant reached for the hood attached to the jacket, the victim broke loose




       1
           The defendant also was armed with a .38 caliber pistol.

                                              1
and ran away. The defendant followed the victim and began firing the .380 pistol at the

victim. He fired approximately four shots. One projectile struck the victim in the left lower

back. The projectile penetrated the left lung and struck the victim’s heart. A pathologist

testified the organs in the chest cavity were shifted to the right side of the victim. In

summary, the victim died as a result of the gunshot wound and the complications it

created.

       The defendant left the situs of the killing in Sims’s vehicle. He told Sims the victim

should have “dropped it off” when he told him to do so. The defendant related to Sims he

was going to either Chicago, Illinois or Detroit, Michigan. The defendant also expressed

concern about Sims because he thought Sims was the only witness to the killing. The

defendant did not know Tate also saw most of what occurred, and Tate could identify

Sims’s vehicle and the defendant. Tate witnessed most of what occurred on the date in

question.

                                              I.



       The defendant contends the evidence contained in the record is insufficient, as a

matter of law, to support a finding by a rational trier of fact that he was guilty of felony

murder beyond a reasonable doubt. He argues the record is devoid of evidence that he

was attempting to commit the crime of robbery when the killing occurred.



                                             A.



       When an accused challenges the sufficiency of the convicting evidence, this Court

must review the record to determine if the evidence adduced at trial is 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 based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

       In determining the sufficiency of the convicting evidence, this Court does not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.



                                              2
App.), per. app. denied (Tenn. 1990). 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, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956).

To the contrary, this Court is required to 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. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978).

       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 are resolved by the

trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973), our Supreme Court said: "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."

       Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this Court of

illustrating why the evidence is insufficient to support the verdict returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.



                                               B.



       The record establishes beyond a reasonable doubt the defendant was in the

process of attempting to commit aggravated robbery when the killing occurred. Sims, a

lifelong friend of the defendant, testified the defendant removed a .380 pistol from his

clothing and attempted to take the starter jacket the victim was wearing. When the victim

broke away and ran, the defendant followed the victim. He fired four or five projectiles as

he pursued the victim. One of these projectiles struck the victim. The victim died as a

result of the projectile striking him. In summary, the evidence is clearly sufficient to support



                                                  3
a finding by a rational trier of fact the defendant was attempting to commit aggravated

robbery beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       This issue is without merit.



                                             II.



       The defendant moved the trial court to rule upon the admissibility of two prior

aggravated robbery convictions to impeach him if he testified in support of his defense.

The trial court found the probative value of these felonies for impeachment outweighed the

prejudicial effect the admission of these convictions may have upon the trier of fact. The

defendant argues the similarity of his prior convictions to the offense for which he was

being tried, killing the victim during an attempt to commit aggravated robbery, would be

highly prejudicial.

       The State of Tennessee may use a prior conviction to impeach an accused if the

conviction meets the criteria established by Rule 609, Tennessee Rules of Evidence.

According to this rule, a conviction may be used to impeach the accused if (a) the

conviction was for a crime that is punishable by death or imprisonment in excess of one

(1) year or a misdemeanor involving dishonesty or a false statement, (b) less than ten (10)

years elapsed between the date the accused was released from confinement for the prior

conviction and the commencement of the prosecution for the present offense, (c) the State

of Tennessee gave reasonable written notice of the particular conviction it intends to use

to impeach him, and (d) the trial court determines the probative value of the felony or

misdemeanor on the issue of credibility outweighs its prejudicial effect on the trier of fact.

State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App.), per. app. dismissed (Tenn.

1992). In this case, the first three requisites, (a) through (c), have been satisfied. Thus,

the only issue is whether the probative value of the aggravated robbery convictions

outweighs the unfair prejudicial effect due to the similarity between the convictions and the

offense alleged in the indictment.

       In determining whether the probative value of the felony sought to be used to



                                              4
impeach an accused outweighs its unfair prejudicial effect on the issue to be resolved by

the jury, a trial court should (a) “assess the similarity between the crime on trial and the

crime underlying the impeaching conviction,” and (b) “analyze the relevance the

impeaching conviction has to the issue of credibility.” N. Cohen, D. Paine, and S.

Sheppeard, Tennessee Law of Evidence, § 609. 9 at p. 288 (2nd ed. 1990); see Farmer,

841 S.W.2d 839. W hen this analysis is applied to the conviction in this case, the trial court

did not abuse its discretion by ruling the two aggravated robbery convictions could be used

to impeach the defendant if he opted to testify in support of his defense.2

       The mere fact a prior conviction of the accused is identical, or similar in nature, to

the offense for which the accused is being tried does not, as a matter of law, bar the use

of the conviction to impeach an accused as a witness. See State v. Miller, 737 S.W.2d

556, 560 (Tenn. Crim. App.), per. app. denied (Tenn. 1987). The appellate courts of this

state have held the offense of robbery is “highly probative on the credibility question,”

State v. Crank, 721 S.W.2d 264, 266 (Tenn. Crim. App.), per. app. denied (Tenn. 1986),

because this crime involves dishonesty. See State v. Stafford, 670 S.W.2d 243, 245

(Tenn. Crim. App.), per. app. denied (Tenn. 1984). Thus, the appellate courts have held

a conviction for robbery may be used to impeach an accused being tried for an offense

involving robbery absent circumstances which require a different result. See State v.

Goad, 692 S.W.2d 32, 37 (Tenn. Crim. App.), per. app. denied (Tenn. 1985); State v.

Norris, 684 S.W.2d 650, 654 (Tenn. Crim. App. 1984), per. app. denied (Tenn. 1985);

State v. Davis, 649 S.W.2d 12, 13 (Tenn. Crim. App. 1982), per. app. denied (Tenn. 1983);

State v. Fluellen, 626 S.W.2d 299, 300 (Tenn. Crim. App.),per. app. denied (Tenn. 1981).

       The consideration of this issue is strictly academic. The defendant testified at a

jury-out hearing that he had no intention of testifying in support of his defense regardless

of the trial court’s ruling on the admissibility of his prior convictions.

       This issue is without merit.


       2
        It is a well-established rule of law that questions concerning the admissibility of
evidence rest within the sound discretion of the trial court; and an appellate court will not
interfere with the exercise of this discretion absent a clear abuse appearing on the face of
the record. State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993), cert. denied, 511 U.S.
1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994); State v. Harris, 839 S.W.2d 54, 73 (Tenn.
1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993); State v. Baker,
751 S.W.2d 154, 163 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).

                                                5
                                            III.



       The defendant contends the trial court committed error of prejudicial dimensions by

permitting the State of Tennessee to “prejudice the jury with inflammatory victim impact

evidence which was not relevant to any aggravating circumstance.” He argues the jury

may have sentenced the defendant to life rather than life without the possibility of parole.

The State of Tennessee contends this evidence was properly admitted. The state argues

the supreme court has adopted the rationale of Payne v. Tennessee, 501 U.S. 808, 111

S.Ct. 2597, 115 L.Ed.2d 720 (1991).

       The state was permitted to elicit from the victim’s aunt, Mary L. Teal, the following

testimony over the objection of the defendant:



              Q. How many children did Ms. Thomas (the victim’s mother)
              have?

              A. Six.

              Q. How many of them were living there at the home with her?

              A. With “Nopie” (the victim) it was four.

                                           ****

              Q. Of the four that were in the home with her, who was the
              oldest?

              A. Nopie.

              Q. And what were the ages of the other children?

              A. Oh, at the time, I think, eight, one year, and nine.

              Q. What type of relationship did Manop have with his younger
              brothers and sisters?

              A. Oh, very close.

              Q. Specifically, I believe the youngest?

              A. The baby.

                                          ****

              Q. Ms. Teal, you were describing this relationship that Manop
              Thomas had with his youngest sibling.



                                             6
             A. They were very close. A lot of people thought that he was
             the father of his brother, because they had that bound [sic] and
             he treated him that way. And when you would see them out
             they would come in and say, is that your son? And he would
             say, yeah. And that’s the way they were.

             Q. What type of effect has the death of Manop had on,
             specifically, this young child?

             A. Uh, he misses him and he knows he’s not there anymore.
             He picks up his pictures, goes to them. He won’t allow anyone
             else to touch his pictures. He calls his name often, and he’s
             even picked up a lot of his characteristics.

             Q. What about the other brothers and sisters left at home,
             how has it affected them?

             A. John, he was under Nopie, he’s -- in dealing with it -- he’s
             more to himself, he’s kind of like shut in. And he’s slowly
             starting to come out.

             Neesy, she’s the only girl. Her and Nopie were close and she
             went through a lot of -- I guess of what you’d see in an adult,
             the stress that she went through, it completely took all of her
             hair out. And her nerves were just shot, and she had a lot of
             physical ailments behind it.

             Q. And Mrs. Thomas, what effect has this had on her?

             A. Emotional, physical -- to [sic] much to describe. It comes
             and goes. She has good days. She has bad days. Good
             physical days, bad physical days. Good emotional days, bad
             emotional days. Some days might be a good and a bad day.
             You just never know. The baby call his name, and everybody
             could be having a good day at the time and it just turns it
             upside down and all around. You just never know. It’s really
             just hour to hour instead of a day to day.

             Q. As a result of Ms. Thomas’ testimony here in court the
             other day, was she physically able, or emotionally able to be
             here to testify as to what you’re testifying to today?

             A. No, she wasn’t.



       Since Payne the supreme court has not addressed the admissibility of victim impact

testimony pursuant to Tenn. Code Ann. § 39-13-204(c). However, the supreme court has

alluded to victim impact testimony. See State v. Shepard, 902 S.W.2d 895, 902 (Tenn.

1995)(victim impact argument by state during rebuttal summation proper); State v. Bigbee,

885 S.W.2d 797, 811-12 (Tenn. 1994)(victim impact testimony is not precluded by either

the federal or state constitution); State v. Hurley, 876 S.W.2d 57, 67 (Tenn. 1993), cert.

denied, 513 U.S. 933, 115 S.Ct. 328, 130 L.Ed.2d 287 (1994)(victim impact evidence that



                                            7
the victim “was the mother of five children and her father was a retired sergeant major who

had served 26 years in the special forces as a Green Beret” held proper testimony); see

also State v. Brimmer, 876 S.W.2d 75, 86 (Tenn. 1994), cert. denied 513 U.S. 1020, 115

S.Ct. 585, 130 L.Ed.2d 499 (1994); State v. Smith, 857 S.W.2d 1, 14 (Tenn. 1993), cert.

denied, 510 U.S. 996, 114 S.Ct. 561, 126 L.Ed.2d 461 (1993); Edward Jerome Harbison

v. State, Hamilton County No. 03-C-01-9204-CR-00125 (Tenn. Crim. App., Knoxville, May

21, 1996), per. app. denied (Tenn. November 12, 1996).

       In State v. Clarence C. Nesbit, Shelby County No. 02-C-01-9510-CR-00293 (Tenn.

Crim. App., Jackson, April 22, 1997), a panel of this Court concluded that victim impact

testimony is not admissible pursuant to Tenn. Code Ann. § 39-13-204(c). In Nesbit this

Court said:


              Under Tennessee’s capital sentencing scheme, “[t]he only
              evidence which is relevant during sentencing phase. . . is that
              evidence which is relevant to establish or disprove the
              existence of aggravating circumstances or mitigating factors.”
              State v. Black, 815 S.W.2d 166, 179 (Tenn. 1991)(citing
              Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn.
              1979)(emphasis added); Tenn. Code Ann. § 39-13-204(c).
              Any evidence that does not go to the proof of one or the other
              of those issues is irrelevant to the jury’s deliberation.
              Cozzolino, 584 S.W.2d at 768. (Footnotes omitted).


Slip op. at 31-32.


       Judge David G. Hayes, the author of Nesbit, set forth a scholarly dissertation on

how victim impact testimony may affect the sentencing process to support the conclusion

this testimony was not relevant to the sentencing process in death penalty sentencing

hearings. However, a majority of the panel concluded the error was harmless beyond a

reasonable doubt.

       This Court concludes, as it did in Nesbit, the admission of this evidence constituted

error. Judge Paul G. Summers and Judge Hayes are of the opinion the victim impact

testimony introduced by the state constituted harmless error. Judge Joe B. Jones is of the

opinion that while the jury spared the defendant a death sentence, the extensive nature of

this testimony could have been the difference between a life sentence and the sentence

imposed, life without the possibility of parole. Tenn. R. App. P. 36(b). Therefore, Judge



                                             8
Jones believes the conviction should be affirmed, but this case should be remanded to the

trial court for a new sentencing hearing.




                                            _____________________________________
                                               JOE B. JONES, PRESIDING JUDGE

CONCUR:



(see separate concurring opinion)
      PAUL G. SUMMERS, JUDGE



_______________________________________
     DAVID G. HAYES, JUDGE




                                            9
