         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                        July 1, 2008 Session

                      STATE OF TENNESSEE v. TONY WOLFE

                   Direct Appeal from the Criminal Court for Shelby County
                           No. 05-00559   John P. Colton, Jr., Judge



                      No. W2008-01243-CCA-R3-CD - Filed April 8, 2009


The defendant, Tony Wolfe, was convicted of first degree premeditated murder. On appeal, he
argues that: 1) the trial court was prejudiced against defense counsel during the course of the trial;
2) the trial court abused its discretion by conducting trial during the evening; 3) the assistant district
attorney general intentionally distracted trial counsel during the course of the trial; 4) the jury did not
see all the exhibits presented during trial; 5) the assistant district attorney general manipulated the
slide projector during trial; 6) the trial court erred by not allowing the defendant to remove his
clothing and show his scars from injuries sustained in a 1997 shooting; and 7) the trial court abused
its discretion in denying his motion for the jury to visit the crime scene. After careful review, we
conclude that no reversible error exists and affirm the judgment from the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

Charles R. Curbo and Michael McCullar, Memphis, Tennessee, for the appellant, Tony Wolfe.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                               OPINION

       The underlying crime occurred at a Memphis convenience store following an altercation
between the defendant, the victim, and several other men. The defendant shot and killed the victim
when the victim exited the store.

       At trial, the defendant asserted that the victim, Leondous Hawkins, and the two men with
Hawkins were members of a gang that shot him in 1997. He contended that the three men displayed
weapons to him inside the convenience store. He denied that he waited for the men to exit the store.
He said that the trio shot at him and that he then shot at them in self-defense.
         One member of the victim’s group, Brian Winbush, testified that they stopped at the Shell
convenience store after attending a concert on September 11, 2004. He testified that they were all
wearing t-shirts with “901 Lauderdale” printed on them, a reference to their address. He said that
they passed the defendant in the store and spoke to Jamilah Lloyd, the woman accompanying the
defendant. Winbush testified that the defendant and the third member of their group, Prenston
Moore, had a “private conversation” in the store and that, afterward, the defendant exited. He
testified that the victim and Moore walked to the door while he paid for his food. Winbush said he
heard gunshots and saw the victim fall to the ground. He testified that the defendant got into a car
and left the scene.

        Prenston Moore also testified that Winbush spoke to the defendant’s girlfriend when they
entered the store. He said that he noticed the defendant looking at Winbush “kind of funny.” He
asked if Winbush knew the defendant, and Winbush said that he knew Ms. Lloyd.

        Moore said that the defendant approached him when they were paying for their food and
called him by his nickname, “Twin.” The defendant then asked him, “[W]hy your nigger called me
a bitch?” He said that he told the defendant, “[W]hy you asking me, man, about somebody who’s
just standing behind me?” The defendant exited the store but was pacing outside. Moore said that
he took his food to the car and intended to ask the defendant what the problem was. When he turned
around, the defendant began to shoot at him. Moore said that he ran around the building and fled
over a fence. When he returned to the store, the victim had been shot. He testified that no one
possessed a gun that night except the defendant.

        Katerina Jones testified that she was with the victim, Moore, and Winbush and that she
remained in the car while they went inside the convenience store. She said that Moore exited the
store with his food, which he set on the car, and started talking to the defendant. Jones testified that
the defendant took a gun from his pocket and began to shoot. She said that Moore ran away, but the
victim was shot as he exited the store. She also testified that the defendant shot the victim a second
time and that the defendant shot a total of five or six times.

        A security guard at the convenience store testified that he saw the trio arrive and order food,
followed shortly thereafter by the defendant and his girlfriend. He said that the defendant and the
victim exchanged words about the defendant’s girlfriend and that the defendant then left. The
security guard testified that the defendant appeared to be waiting for the group to come outside.
After the victim left the store, he heard gunfire. He went to the front of the store where he saw the
victim on the pavement. The defendant shot the victim in the head and fled the scene. He did not
see the victim or the two men with him with weapons.

        The defendant’s girlfriend testified that she saw Brian Winbush and chatted with him for a
minute. She could see that Winbush and the defendant looked at each other in a “funny way.” She
said that she exited the store, followed by the defendant. She said that the defendant was arguing
with Moore, and that the defendant then pulled out a gun and started shooting. She said that Moore
ran away and that she ducked down in the car. She said that when she raised her head, she saw the


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victim on the ground. The defendant ran back to the car, and they left. She recalled that the
defendant threw the gun out the window and that he never said anything about what happened,
except that he said a prayer hoping that no one was hurt.

        A witness to the shooting testified that she was parked at the gas pump and observed two men
arguing. She said that one man began to shoot. She recalled that he shot three times, then walked
over to the victim, who was seated on the ground with his back against the store glass, and shot him
in the head. She did not see the victim make any kind of gesture with his hand prior to being shot.
She did not see the shooter’s face during the incident.

       Another witness testified that she was asleep in a car at the convenience store and was
awakened by the first shot. She looked out of the car and saw the victim fall down. She said that
a man with a gun walked over and shot the victim “one last time.” She did not see the face of the
shooter.

        The chief medical examiner for the State of Tennessee testified that he reviewed the autopsy
of the victim. He said that the victim sustained two gunshot wounds to his body, one to the head and
one to a leg. He indicated that the gunshot wound to the leg would not have caused his death. He
further testified that the gunshot wound to the head was the fatal wound.

       Officer Marcus Berryman documented the crime scene and recovered four shell casings and
two bullets. He said that a spilled food tray and soft drink were found near the victim’s body.

       A firearms expert with the Tennessee Bureau of Investigation testified that he was provided
with four empty shell casings, two lead bullets, and bullet fragments taken from the crime scene.
He said that the four spent casings were all fired from the same 9mm pistol. He said that the two
spent bullets were also fired from the same 9mm pistol.

        Officer T. J. Helldorfer testified that he was familiar with gang-related shootings but had no
indication that this shooting was gang-related. He did not think that “901 Lauderdale” was a
Memphis gang but agreed that wearing similar items of clothing was characteristic of gangs.

       An investigator with the District Attorney’s office testified that he had specialized training
in gangs and that he had never heard of any gang related to “901 Lauderdale.” He said that none of
the men in the victim’s trio that night had any known gang affiliation.

        The defendant testified that he had been shot six times in 1997 by someone wearing a shirt
with “901” on it. He testified that he must have dialysis three days a week as a result of these
injuries. He recalled that on the night of the incident, he and his girlfriend were leaving the store as
the victim and his friends entered. He said that Winbush said hello to his girlfriend and that he did
not think anything of it until he heard Moore say something to Winbush about it. He said that Moore
said, “[W]hy that bitch ass nigger looking at you because you looked at his girl?” The defendant



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then bought cigarettes at the cash register. More words were exchanged with the group before the
defendant left the store with his girlfriend.

         The defendant testified that he decided to go back inside to get some snacks and passed
Winbush, who was holding a Styrofoam tray. He said that he saw Winbush take his hand off the tray
and put it in his pocket where he appeared to have the handle of a weapon. The defendant testified
that he heard the victim threaten to “blow his ass off” when they were inside the store. He said he
left the store, and Moore came outside with his food. He recalled that Moore began walking toward
him and pulled out a gun. As he fled, the defendant drew his gun and began to fire at Moore. The
defendant said he was going to flee but saw someone in a white shirt crouched down beside another
car. The defendant said that when the person began to stand up, he shot at the person, retreated to
his car, and left the scene. He said that two shots were fired at him as he drove away.

        During cross-examination, the defendant said that he was afraid for his life but went back to
the store to look for his cellular telephone. The defendant denied that the security tape showed him
waiting outside the store for someone. He acknowledged that he could have gotten in his car and
driven away but did not do so.

                                              Analysis

        The defendant raises seven issues on appeal. Of these seven issues, he has only supported
one claim with any authority. His arguments are merely conclusions without the benefit of any
support. The defendant supports only his second issue with legal authority: the trial court abused
its discretion by holding trial during unreasonable hours. All other issues are waived for the
defendant’s failure to cite authority to support his argument. See Tenn. Ct. Crim. App. R. 10(b);
State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997).

       The defendant argues that the trial court erred by conducting the trial under unreasonable
hours “for no good reason.” He contends that the trial judge was in a rush to conclude the trial
because he had just returned from a vacation. Specifically, the defendant argues that the trial was
conducted late into the night, which rendered him tired and unable to concentrate.

        The record reflects that jury voir dire began on Monday, January 22, 2007. The record does
not show the time the proceedings ended that day. The trial resumed on January 23, 2007, at 9:25
a.m. The record reflects that counsel for the defendant was forty-five minutes late for the
proceedings. The record also does not establish when court was adjourned on that date. The State
submits that the record contains an exchange between the trial court and trial counsel regarding
review of evidence. The trial court told trial counsel that he could review the evidence either that
evening or the following morning because they would start late due to the defendant’s dialysis. The
State argues that this exchange infers that the proceedings did not carry on into the evening that date
because the court suggested that there would be time for trial counsel to review the evidence.




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       The proceedings resumed at 1:25 p.m. on Wednesday, January, 24, 2007. The court
adjourned at 10:30 p.m., following the testimony of one of the police officers. The third day of
testimony was Thursday, January 25, 2007. The trial court stated, out of the jury’s presence, that
they would try to go as long as possible that day, possibly until 9:00 or 10:00 p.m. Trial counsel
informed the court that he was taking medicine that might affect his ability to work longer hours and
might render him ineffective. The trial court asked counsel if he wanted a mistrial, and he declined.
He said he felt fine but surmised that he could only work until 8:30 p.m. that day. The record reflects
that the court adjourned sometime after 10:00 p.m., after trial counsel concluded his direct
examination of the defendant. The State objected that trial counsel had deliberately engaged in time-
consuming irrelevant questioning to circumvent the State from conducting an immediate cross-
examination.

        Trial counsel did not complain that the late hour was affecting his ability to represent his
client. The record reflects that trial counsel stated that he was being “thorough” in his direct
examination. The record further reflects that the trial court took a long dinner break and several
additional breaks throughout the day.

       The trial resumed at 1:30 p.m. on Friday, January 26, 2007. The trial adjourned at
approximately 10:00 p.m., following closing arguments. The jury returned on Saturday morning at
9:00 a.m. for deliberations and rendered a verdict at 10:45 a.m.

       The trial court entered the following memorandum into the record:

                No motion was made prior to trial concerning lawyers not being able to work
       a full day. Nothing was mentioned until the third day of trial that Mr. Curbo, defense
       attorney was on medication.

               The court was not informed before trial that the defendant was on dialysis
       requiring defendant to spend 4 hours from 8:00 a.m. to 1:00 p.m. every Monday,
       Wednesday and Friday.

             Since proof could not be presented unless defendant was present it has
       became (sic) necessary to work nights to complete the trial which is sequestered.

                The court has observed defense counsel during the trial and it did not appear
       to this court that the lawyer was impaired or tired or unable to do his job during this
       trail (sic). The court notes defense attorney asked many questions. Questions were
       asked and answered on many occasions causing the trial to proceed very slowly. This
       was done by the defense attorney. Mr. Curbo, the defense attorney stated many times
       he had to “turn every stone in representing his client.” This seemed to be his
       response when he asked the same questions more than once. Mr. Curbo, the defense
       lawyer also off the record said he would need at least 5 hours to cross examine one
       witness.


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       This court addressed the issue of late night court sessions in State v. Parton, 817 S.W.2d 28,
33 (Tenn. Crim. App. 1991), and concluded that late night court sessions should be scheduled “only
when unusual circumstances require it.” 817 S.W.2d at 33 (quoting State v. McMullin, 801 S.W.2d
826, 832 (Tenn. Crim. App. 1990). The court also stated that late night sessions should be avoided
and must be justified because of unusual circumstances. Id.

        Our review of the record reflects that unusual circumstances were present here. The jury was
sequestered, and the defendant’s dialysis precluded morning sessions three times a week. Under
these circumstances, it was reasonable for the trial court to conduct later sessions. The trial court
was faced with holding short sessions on the days the defendant underwent dialysis. The decision
was made to conduct extended sessions that were, in essence, a normal working day. Thursday was
the only day, based on the record, that the trial court went beyond standard workday hours. The
longer Thursday session was conducted with liberal recesses and breaks. The defendant is not
entitled to any relief on this issue.

                                          CONCLUSION

         Based on the foregoing and the record as a whole, we affirm the judgment from the trial
court.




                                                      ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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