        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                         Assigned on Briefs January 22, 2015

       STATE OF TENNESSEE v. JUSTIN ALLEN STRATTON

               Appeal from the Criminal Court for Washington County
                        No. 37485   Robert E. Cupp, Judge


                 No. E2014-00816-CCA-R3-CD – Filed April 17, 2015


D. Kelly Thomas, Jr., J., concurring.

       I write separately because I respectfully disagree with that portion of the
majority’s opinion which concludes that the facts relevant to the issue whether the three
co-defendants were accomplices are subject to only one interpretation. In my mind, the
following facts at least raise the inference that Ms. Holtsclaw was an accomplice.

       On the day in question, Ms. Holtsclaw was drinking heavily and “partying” with
the Defendant. Ms. Holtsclaw saw the Defendant leaving Numan’s as she was entering
the bar, and she noticed that the Defendant was angry. The victim was also at Numan’s
at the time and eventually left the bar with Ms. Holtsclaw and Ms. Harold. Ms.
Holtsclaw suggested that the Defendant and Mr. Phillips meet herself, the victim, and
Ms. Harold at Sunoco. However, after arriving at Sunoco, Ms. Holtsclaw saw the
Defendant, who was driving an SUV that she did not recognize, parked behind a car wash
near the gas station. She testified that the Defendant was “apparently following” them.

       Ms. Holtsclaw spoke with the Defendant on his cell phone, and when Ms.
Holtsclaw, the victim, and Ms. Harold left Sunoco, the Defendant continued to follow
them on back roads in a remote area of the county. The Defendant flashed his lights and
blew the SUV’s horn, apparently signaling Ms. Holtsclaw to pull the car over, which she
did. She knew the Defendant had a gun as well as “the kind of things the Defendant did.”
Ms. Holtsclaw said that she “had an idea” of what was going to happen when she pulled
over. After the Defendant shot the victim, Ms. Holtsclaw drove from the scene straight to
the Defendant’s mother’s house. She then traveled with the Defendant to a motel, where
she and the others stayed “off and on” for several days. Ms. Holtsclaw was originally a
co-defendant in the case and was charged with first degree murder, although she testified
that she had accepted a guilty plea for facilitating armed robbery in exchange for her
testimony against the Defendant.
       Because I believe that there were sufficient facts from which the jury could infer
that Ms. Holtsclaw was an accomplice, the jury should have been charged accordingly.
See Ripley v. State, 227 S.W.2d 26, 29 (Tenn. 1950). However, I do not believe that
plain error review is necessary in this particular case because, at least with respect to Ms.
Harold, there was no evidence that she was an accomplice, and her testimony
corroborated Ms. Holtsclaw’s testimony.

                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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