         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 1, 2003

                 STATE OF TENNESSEE v. RAYMON HAYMON

                        Appeal from the Circuit Court for Dyer County
                            No. C99-175A      Lee Moore, Judge



                  No. W2001-02797-CCA-R3-CD - Filed September 5, 2003


The Appellant, Raymon Haymon, was convicted by a Dyer County jury of the premeditated first
degree murder of Jody McPherson and was sentenced to life imprisonment. In this appeal as of right,
Haymon, proceeding pro se, presents the following issues for our review: (1) whether the evidence
was insufficient (a) because the accomplice’s testimony was not independently corroborated, and
(b) due to conflicting and contradictory testimony from the State’s witnesses and his proof of alibi;
and (2) whether the State committed prosecutorial misconduct by (a) presenting perjured testimony
at trial, and (b) during closing argument. Finding no error, the judgment of the Dyer County Circuit
Court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODA LL, J., joined.

Raymon Haymon, Pro Se, Whiteville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Brent C.
Cherry, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the
Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        On July 19, 1997, the Appellant offered Wiled McMillin five hundred dollars to help him
kill Jody McPherson. According to McMillin, the Appellant stated he wanted McPherson killed
because “he didn’t wanna go back to prison.” The Appellant and McPherson had previously been
arrested for the aggravated robbery of Pete’s Liquor Store. McMillin refused the offer, and the
Appellant stated he would get Terry Cork to help him. McMillin also testified that, later on that
evening, he saw the Appellant, Terry Cork, and Jody McPherson riding in a red car in the Middle
City area.

         Terry Cork testified that, on the evening of July 19th, he left work at 9:00 p.m. and went to
his father’s house. Around 10:00 or 10:30 p.m., Cork walked to Erline Warren’s house to watch
television. During the evening, the Appellant drove to Warren’s house and, thereafter, he and Cork
left in a red vehicle driven by the Appellant. The Appellant dropped Cork off at his aunt’s house
and subsequently returned with Jody McPherson in the car. The three men drove toward Middle City
under the pretext of “hang[ing] out and talk[ing] to some women.” Once en route, the Appellant
stated that he needed Cork and McPherson to help him look for a discarded rifle in a field that would
"take care of some business concerning the Pete’s Liquor Store robbery.” Upon arrival at a field in
Middle City, the men lit newspaper torches and looked for the rifle. As they were searching, Cork
observed the Appellant shoot McPherson several times. Cork claimed that he began to run, but the
Appellant pulled a second gun on Cork and told him “that it was gonna be more than one person out
there dead if [Cork] didn’t listen to what [the Appellant] said.” The Appellant then ordered Cork
to also shoot McPherson. The Appellant instructed Cork to wipe the guns off and “throw the guns
off the side of a little bridge that was out there, like a little creek.”

        McPherson’s body was discovered the next morning with one visible wound to the chest and
two other wounds to the head and back. A cell phone was found at the scene, which was linked to
Cork. Cork and the Appellant were questioned by the police, and both men denied any involvement
in the murder. When the Appellant was interviewed on July 20, 1997, he stated that he knew
McPherson had been shot three times, “one from the head, one from the chest, and one from the
back.” At this point, no details of the murder had been disclosed to the public. After being taken
into custody on a bank robbery charge in 1999, Cork confessed to his involvement in McPherson’s
death and helped the police recover one of the discarded weapons used in the murder.

       On June 14, 1999, a Dyer County grand jury indicted the Appellant for the premeditated first
degree murder of Jody McPherson. On March 9, 2001, after a trial by jury, the Appellant was
convicted as charged and was sentenced to life imprisonment. The Appellant’s motion for new trial
was denied, and this appeal followed.

                                            ANALYSIS

                                  I. Sufficiency of the Evidence

       The Appellant first contends that the proof is not sufficient to support a verdict of
premeditated first degree murder. A jury conviction removes the presumption of innocence with
which a defendant is cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence, this court does not
reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).


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Likewise, it is not the duty of this court to revisit questions of witness credibility on appeal, that
function being within the province of the trier of fact. State v. Holder, 15 S.W.3d 905, 911 (Tenn.
1999); State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). Instead, the Appellant must
establish that the evidence presented at trial was so deficient that no reasonable trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994). Moreover, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d
54, 75 (Tenn. 1992). These rules are 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).

A. Corroboration of Accomplice Testimony

       The Appellant contends that the accomplice testimony of Terry Cork was not independently
corroborated. He asserts that Wiled McMilllin’s testimony that, on the night of the murder, he saw
the Appellant, Terry Cork, and Jody McPherson riding in a red car in the Middle City area is not
credible. Specifically, he argues that

       the corroboration of McMillin that Haymon drove by that night is contradicted by
       accomplice (Cork) in that they give different directions. They also contradict in time.
       Cork testified under direct-examination it was between 11:00 and 11:30 p.m. but on
       cross-examination he says 1:00 or 1:15 a.m. McMillin testified it was between 1:00
       and 1:15 a.m. However the store video contradicts both Cork and McMillin.

        It is well-settled that a conviction may not be based solely upon the uncorroborated testimony
of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). This "very salutary rule" is
designed to prevent the "obvious dangers" of allowing a defendant to be convicted solely on the basis
of an accomplice's testimony. Sherrill v. State, 321 S.W.2d 811, 814 (Tenn. 1959). However,
Tennessee law requires only a modicum of evidence in order to sufficiently corroborate the
testimony of an accomplice. State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim. App. 1984).
With respect to the nature, quality, and sufficiency of the evidence necessary to corroborate an
accomplice's testimony, this court has held:

        The rule of corroboration as applied and used in this State is that there must be some
        evidence independent of the testimony of the accomplice. The corroborating
        evidence must connect, or tend to connect the defendant with the commission of the
        crime charged; and, furthermore, the tendency of the corroborative evidence to
        connect the defendant must be independent of any testimony of the accomplice. The
        corroborative evidence must of its own force, independently of the accomplice's
        testimony, tend to connect the defendant with the commission of the crime. . . . The
        evidence corroborating the testimony of an accomplice may consist of direct
        evidence, circumstantial evidence, or a combination of direct and circumstantial


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       evidence. The quantum of evidence necessary to corroborate an accomplice's
       testimony is not required to be sufficient enough to support the accused's conviction
       independent of the accomplice's testimony nor is it required to extend to every
       portion of the accomplice's testimony. To the contrary, only slight circumstances are
       required to corroborate an accomplice's testimony. The corroborating evidence is
       sufficient if it connects the accused with the crime in question.

State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (citations omitted). Furthermore,
the jury is to determine the degree of evidence necessary to corroborate the testimony of an
accomplice. State v. Chris Billingsley, No. 01C01-9506-CC-00166 (Tenn. Crim. App. at Nashville,
May 16, 1996).

        From consideration of the proof in the record before us, we find the evidence sufficient to
corroborate the testimony of Terry Cork. Terry Cork testified that the Appellant picked him up in
a red car and that he, McPherson, and the Appellant went to a field in the Middle City area, where
the Appellant shot and killed McPherson. Wiled McMillin testified that the Appellant approached
him “with a plot to help him kill Jod[y].” According to McMillin, the Appellant stated he wanted
McPherson killed because “he didn’t want to go back to prison. They had committed a robbery of
Pete’s Liquor Store.” McMillin also testified that the Appellant offered him five hundred dollars if
he would assist in the murder; however, McMillin refused. The Appellant then stated that he would
get Terry Cork to help him. McMillin further corroborated the statements of Cork by testifying that
he saw the Appellant, Cork, and McPherson riding in a red car in the Middle City area. The
Appellant argues that this testimony is not credible because of time discrepancies between
McMillin’s testimony, Cork’s testimony, and his presence at the Short Stop Store at 1:23 a.m. On
redirect, McMillin stated that he didn’t know the exact time he saw the Appellant on the night of the
murder but that it “was around 1 to 3:00.” Furthermore, the State’s theory at trial was that the
Appellant went to the Short Stop Store, and he then went “over to McIver Apartments and pick[ed]
up Jodie McPherson and [took] him out and kill[ed] him.” These discrepancies in time to which the
Appellant refers would not preclude the jury from finding that he committed the murder. We
reiterate that the jury is the primary instrument of justice to determine the weight and credibility to
be given to the testimony of the witnesses and not this court. Cabbage, 571 S.W.2d at 835. Clearly
taken together, these facts give credence to Cork's statements; thus, the requirement of corroboration
has been satisfied.

B. Alibi

        As we have determined that the accomplice testimony is sufficiently corroborated, we further
find the proof sufficient to support a conviction for premeditated first degree murder. The Appellant
does not dispute that the elements of the crime were established at trial. Rather, he argues that the
inconsistencies in the proof, specifically the five different statements given by co-defendant Terry
Cork, in addition to the alibi testimony, excludes the Appellant as the perpetrator of the murder. We
conclude otherwise.



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        In the light most favorable to the State, the proof at trial revealed that, during the late evening
hours of July 19th, the Appellant picked up Terry Cork, and the two went “riding.” The Appellant
dropped Cork off at his aunt’s house and later returned with Jody McPherson in the vehicle. The
three men then drove to a field in Middle City, where the Appellant shot and killed McPherson. The
motive for the murder was that the Appellant feared McPherson would speak with the police about
the prior liquor store robbery the two men had committed. While the Appellant testified in his own
defense at trial and presented several alibi witnesses in his defense, the proof is uncontroverted that
the Appellant was at the Short Stop Store at 1:23 a.m. on the morning of the murder. Most of the
witnesses providing an alibi testified only as to the Appellant's whereabouts prior to visiting the
Short Stop Store. The only witness that testified that the Appellant returned home after visiting the
Short Stop Store was his brother, Jamaal Haymon. As previously noted, the State’s theory was that
the Appellant went to the Short Stop Store, and then picked up Jody McPherson from McIver
Apartments. Moreover, the record reflects that the alibi witnesses were family members of the
Appellant. The determination of the weight and credibility of the testimony of witnesses and
reconciliation of conflicts in that testimony are matters entrusted exclusively to the trier of fact and
not this court. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); Byrge v. State, 575 S.W.2d
292, 295 (Tenn. Crim. App. 1978). Like any other fact at trial, an alibi defense presents an issue of
fact determinable by the jury. Cole v. State, 215 S.W.2d 824, 825 (Tenn. 1949); Smith v. State, 566
S.W.2d 553, 556 (Tenn. Crim. App. 1978). The jury chose to accredit the testimony of the State's
witnesses and reject the contentions of the Appellant. The scope of our examination of the evidence
is not equivalent to that of the jury's. In a challenge to the sufficiency of the evidence, this court does
not retry the Appellant. We emphasize that our examination in a sufficiency review is not to revisit
inconsistent, contradicting, implausible, or non credible proof, as these issues are resolved solely by
the jury. Rather, we look to the record to determine whether there was substantive probative
evidence to support the verdict. State v. David Remus, No. W1999-01448-CCA-R3-CD (Tenn.
Crim. App. at Jackson, Mar. 8, 2000). The Appellant has had his day in court. Because we find the
proof legally sufficient, this issue is without merit.

                                    II. Prosecutorial Misconduct

         Next, the Appellant argues that the State committed prosecutorial misconduct by (1)
"knowingly us[ing] perjured testimony of an accomplice, and even argu[ing] the truthfulness of his
testimony to the jury[,]” and (2) “arguing facts to the jury not based on trial testimony.” The test to
be applied by the appellate courts in reviewing instances of prosecutorial misconduct is whether the
conduct was so improper or the argument so inflammatory that it affected the verdict to the
Appellant's detriment. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). In measuring the
prejudicial impact of any misconduct, this court should consider: (1) the facts and circumstances of
the case; (2) any curative measures undertaken by the court and the prosecutor; (3) the intent of the
prosecution; (4) the cumulative effect of the improper conduct and any other errors in the record; and
(5) the relative strength or weakness of the case. Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim.
App. 1976); see also State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984).




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A. Perjured Testimony

       The Appellant bases his first contention on a statement made by Attorney General Bivens to
Terry Cork, during the investigation of the case, in which Bivens encourages Cork to give the State
information regarding the murder:

         You know, the law provides that if you provide information[,] that’s considered a
         mitigating factor on any sentence. I’m not going to make any deal with you that I’m
         not going to charge you with this – I’m not going to charge you . . . with that. Uh,
         . . . first-degree murder carries anywhere from the death penalty to life in prison.
         Second degree murder carries twenty-five (25) to forty (40) years. . . . I mean, if you
         want to help yourself . . . you can, you know, at this point there’s not been anything
         that can help us.1

The Appellant contends that the statement made by Bivens constituted an implied deal that the State
would allow Cork to enter a guilty plea to second degree murder in return for his testimony against
the Appellant.2 Furthermore, he argues that the State committed misconduct by soliciting testimony
from Cork to the effect that no deal was offered when Cork made this statement. The State asserts
that, while “[i]t is clear that the State desired Terry Cork’s statement in its case against Appellant
and there was an explicit encouragement that Cork’s provision of information would be considered
a mitigating factor on his sentence, . . . there is no indication of an agreement or promise by the
State.” We agree. Accordingly, we conclude that, based upon the facts and circumstances of this
case, the State did not commit misconduct by offering perjured testimony.

      Within this section of the Appellant’s brief, he also asserts that the State again committed
misconduct when it solicited the following false testimony from Cork:

         Q. Okay. When did you come to the knowledge of Mr. McPherson working for the
         Tennessee Bureau of Investigation?

         A. After I was picked up in ’99.

         Q. Okay. When you say picked up in ’99, do you mean on the bank robbery?

         A. Yes, ma’am.

         Q. Okay. That was in May, is that correct?


         1
         The exhibits introduced at trial are not includ ed in the record. It is the duty of the Appellant to prepare a
complete and accurate record on app eal. Tenn. R. App. P. 23(b).

         2
           Ultimately, Cork did plead guilty to second degree murder with an agreed sentenc e range of fifteen to twenty-
five years to be served conc urrently with a prio r federal charge.

                                                          -6-
       A. Yes, ma’am.

The Appellant contends that, in an interview conducted on March 30, 1999, Cork stated he was
aware of McPherson’s involvement with the T.B.I., and that the State was aware of this information.
However, this testimony was solicited by defense counsel not the State. Furthermore, as argued by
the State, the Appellant never establishes the relevance of Cork’s knowledge of this fact and why
this discrepancy is relevant to his defense. The Appellant’s argument is without merit.

B. Arguing Facts not in Evidence

         Finally, the Appellant argues that the attorney general committed prosecutorial misconduct
during closing argument. Our supreme court has long recognized that closing argument is a valuable
privilege for both the State and the defense and has allowed wide latitude to counsel in arguing their
cases to the jury. State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1994). Trial judges in turn are
accorded wide discretion in their control of those arguments, State v. Zirkle, 910 S.W.2d 874, 888
(Tenn. Crim. App. 1995), and this discretion will not be interfered with on appeal in the absence of
abuse thereof. Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). Notwithstanding such, arguments
must be temperate, based upon the evidence introduced at trial, relevant to the issues being tried, and
not otherwise improper under the facts or law. Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim.
App. 1995). We are mindful of the oft quoted principle that a prosecutor must be free to present his
arguments with logical force and vigor, "[b]ut, while he may strike hard blows, he is not at liberty
to strike foul ones." Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935).

        It is impossible to set out in detail what can and cannot be said in closing argument. Various
factors are involved in this determination including the facts of the particular case and oftentimes
responses to argument of opposing counsel. Within the closing argument, five general areas of
prosecutorial misconduct are recognized:

       1. It is unprofessional conduct for the prosecutor intentionally to misstate the
       evidence or mislead the jury as to the inferences it may draw.

       2. It is unprofessional conduct for the prosecutor to express his personal belief or
       opinion as to the truth or falsity of any testimony or evidence or the guilt of the
       defendant. See State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999);
       Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978); TENN. CODE OF
       PROF’L RESPONSIBILITY DR 7-106(C)(4).

       3. The prosecutor should not use arguments calculated to inflame the passions or
       prejudices of the jury. See Cauthern, 967 S.W.2d at 737; State v. Stephenson, 878
       S.W.2d 530, 541 (Tenn. 1994).


       4. The prosecutor should refrain from argument which would divert the jury from its


                                                 -7-
       duty to decide the case on the evidence, by injecting issues broader than the guilt or
       innocence of the accused under the controlling law, or by making predictions of the
       consequences of the jury's verdict. See Cauthern, 967 S.W.2d at 737; State v. Keen,
       926 S.W.2d 727, 736 (Tenn. 1994).

       5. It is unprofessional conduct for a prosecutor to intentionally refer to or argue facts
       outside the record unless the facts are matters of common public knowledge.

State v. Dennis R. Goltz, No. M2001-02019-CCA-R3-CD (Tenn. Crim. App. at Nashville, Jan. 15,
2003) (for publication) (citing STANDA RDS RELATING TO THE PROSECUTION FUNCTION AND THE
DEFENSE FUNCTION §§ 5.8-5.9 Commentary (ABA Project on Standards for Criminal Justice,
Approved Draft 1971)).

      The Appellant challenges the following statements made by the prosecutor during closing
argument:

       (1) Kimberly Williams says Raymon Haymon called her and wants her to take him
       over to see Stephanie McPherson, because Jody has been found dead down at Middle
       City near a hog pen.

                Raymon Haymon tells you that he didn’t go down there. He went straight to
       Stephanie McPherson’s. And Kimberly Williams tells you that he talks about he was
       shot in the chest, in the head, and in the back. He hadn’t seen the body. It’s just a
       few hours after the body is discovered. All the officers tell you, including Tim
       Isabell, that the body is laying there face up, nobody’s bothered the body, and you can
       see that he’s been shot in the chest. You can’t see that he’s been shot in the back or
       in the head. You can see he’s been shot in the chest, is the only one you can see.
       Stephanie McPherson told you nobody called her and told her how her husband was
       killed.

Kimberly Williams only testified that the Appellant stated that Jody McPherson “was shot three
times,” and the State concedes that Stephanie McPherson did not testify who called her and who told
her how her husband was killed. However, Officer Terry McCreight testified that the Appellant told
him that Jody McPherson was shot in the head, back, and chest. The Appellant relayed that he
learned this information from Desmon Bryant, who was a relative of Stephanie McPherson. Officer
McCreight testified that, to his knowledge, Bryant was not privy to this information. The State
argues that, while Attorney General Bivens may have confused the persons who testified to certain
facts in the case, the facts were evidence. We agree and conclude that General Bivens did not
intentionally misstate the evidence.

       (2) And why, at 1:23 in the morning, does he go from the east side of town, passed
       Dodge store, all the way to the west side of town to Short Stop to spend a quarter to
       buy a bag of chips? . . . Because you can see McIver Apartments from there. You


                                                 -8-
       can go over to McIver Apartments and pick up Jody McPherson and take him out and
       kill him.

The Appellant argues that this statement is inaccurate because Stephanie McPherson testified that
she and Jody lived at 1216 Tucker Circle at the time he was murdered. The State’s theory is based
upon the testimony of the Appellant that he dropped Jody McPherson off at McIver Apartments
between 11:00 and 11:30 on the night of the murder, the videotape placing the Appellant at the Short
Stop Store at 1:23 a.m., and McMillin’s testimony that he saw the Appellant, Cork, and McPherson
together in a red car between the hours of 1:00 and 3:00 a.m. We conclude that the State did not
intentionally mislead the jury as to the inferences it may have drawn.

       (3) There’s not any physical evidence against Mr. Cork at the scene.

A cell phone linked to Cork was found at the scene. Defense counsel objected to this statement and
asked for a curative instruction, which was refused. While this statement is incorrect, we again
conclude that the State did not intentionally misstate the evidence. Furthermore, the jury was
instructed, “you should disregard any argument made by the attorneys which you find is not
supported by the evidence.” An appellate court must presume that the jury followed the instruction
given by the trial court. State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000).

                                         CONCLUSION

        Based upon the foregoing, we conclude the evidence is more than sufficient to support the
Appellant's conviction for premeditated first degree murder. In addition, we conclude that the State
did not commit prosecutorial misconduct. Accordingly, the judgment of the trial court is affirmed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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