         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs December 4, 2001

                   STATE OF TENNESSEE v. JAVON WEBSTER

                      Appeal from the Criminal Court for Shelby County
                          Nos. 99-03924, 25    Chris Craft, Judge



                   No. W2000-01912-CCA-R3-CD - Filed February 7, 2002


The Defendant, Javon Webster, was convicted of felony murder and attempted especially aggravated
robbery. The trial court sentenced the Defendant to life in the Department of Correction for the
felony murder conviction. The trial court merged the Defendant’s attempted especially aggravated
robbery conviction with the felony murder conviction. On appeal, the Defendant contends that (1)
the evidence is insufficient to support the convictions, (2) the trial court erred by admitting
photographs of the deceased, (3) the trial court erred by denying the Defendant’s request for a special
jury instruction on duress, and (4) the trial court erred by denying the Defendant’s motion to suppress
his statement to police. The State also raises an issue on appeal, arguing that the trial court erred by
merging the Defendant’s conviction for attempted especially aggravated robbery into his felony
murder conviction. We affirm the felony murder conviction and reinstate and remand for sentencing
the especially aggravated robbery conviction.


Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part;
                              Reversed in Part; Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID
G. HAYES, J., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Javon Webster.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jerry Kitchen, Assistant District Attorney
General, for the appellee, State of Tennessee.




                                              OPINION
        About seven o’clock in the evening on December 2, 1997, Cecil Goldman, the victim, was
shot and killed as he left his job at the Ace Check Cashing business on Getwell Street in Memphis.
Prior to his death, the victim locked the building and armed the security system, thereby preventing
his assailants from robbing the business.

        At the time of the shooting, Karen Lewis was traveling on Getwell and observed two men
wearing hoods and a white man wearing blue jeans outside of Ace Check Cashing. As she passed,
Ms. Lewis heard gunshots and saw the white man fall to the ground. By the time Ms. Lewis was
able to turn around and return to the scene, the two men in hoods were gone.

       Shirley Smith was at a Wendy’s restaurant on Getwell near Ace Check Cashing when the
shooting occurred. She heard three men arguing at Ace Check Cashing when she arrived at
Wendy’s. As she entered the restaurant, she heard three shots and saw two young black men, one
wearing blue and carrying a gun, run into the nearby woods.

       On December 5, after receiving a tip from an anonymous “Crimestopper’s” call, Sergeant
Sammy Ballard of the Memphis Police Department Homicide Squad went to the Defendant’s
residence to question him concerning both an unrelated burglary and the murder of the victim in this
case. When Sergeant Ballard first arrived, the Defendant was working on his car and identified
himself as Carl. Eventually, the Defendant revealed his true identity and agreed to accompany
Sergeant Ballard to the police station for questioning. Upon arrival at the police station, the
Defendant was advised of his constitutional rights and signed a waiver of rights form at 4:43 p.m.
The initial questioning involved the Defendant’s possible involvement in the burglary; however,
when the Defendant mentioned his friend “Pookey,” also known as Darius Bowles, and who also
was mentioned in the anonymous Crimestopper’s call, the interview focused on the murder at Ace
Check Cashing. The Defendant denied any involvement in the shooting.

         Investigators then located Darius Bowles who implicated the Defendant in the shooting. In
light of this new information, Lieutenants Charles Logan and A.J. Christian advised the Defendant
of his constitutional rights for a second time and conducted another interview. The Defendant gave
the officers another statement in which he admitted involvement in the attempted robbery, but denied
shooting the victim. The Defendant’s second statement implicated a man named “Cous” and a man
named “L.A.,” who the Defendant said supplied the two guns for the robbery. The Defendant stated
that the plan was for the Defendant to approach the victim before he locked the store in order to gain
access to and rob the check cashing business. The Defendant, however, froze when approaching the
victim and “Cous” and “L.A.” attempted to force the victim back into the building. When the victim
struggled, “Cous” shot him. The interview was completed at 1:55 a.m. on December 6. The
Defendant was formally charged on December 9.

        Pursuant to the Crimestopper’s tip, investigators also discovered a .380 Loreson pistol in a
trash can at a bus stop on Poplar Street in Memphis and another .380 caliber pistol at the home of


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Montea Wilson, who is also known as “L.A.” Special Agent Don Carman of the Tennessee Bureau
of Investigation examined the recovered pistols and determined that a bullet found at the scene of
the murder matched bullets test fired from the Loreson pistol.

        Assistant Medical Examiner Dr. Thomas Deering testified at trial that the victim died from
a gunshot wound to the abdomen. Dr. Deering stated that the victim was also shot in the left leg and
right arm.

         Jasper Temple testified at trial that he, the Defendant, Montea Wilson, Darius Bowles, and
Vincent Broadie were all involved in the attempted robbery and murder of the victim. Mr. Temple
stated that Mr. Wilson, a/k/a “L.A.,” planned the robbery and that the Defendant and Darius Bowles
were each armed with a pistol. Mr. Temple and Mr. Broadie were to be the look-outs for the crime.
According to the plan, the Defendant was to approach the victim and demand money and Mr. Bowles
was to take the money. Mr. Wilson gave the order to approach the victim and the Defendant ran up
to the victim, brandished the pistol and demanded money. The victim began screaming and throwing
papers. The Defendant then shot the victim. Mr. Temple testified that after shots were fired,
everyone scattered. Mr. Temple denied threatening the Defendant in order to convince him to
participate in the robbery.

        The Defendant testified at trial that on the night of the murder he and Darius Bowles went
to the home of a mutual friend for dinner. Also present were Mr. Broadie, Mr. Wilson, and Mr.
Temple. The Defendant had met neither Mr. Wilson nor Mr. Temple before. The Defendant
claimed that Mr. Broadie suggested robbing a nearby Texaco. The Defendant further claimed that
when the conversation turned to crime he and Mr. Bowles attempted to leave, but Mr. Temple
threatened them with a pistol. As the group approached the Texaco, Mr. Broadie and Mr. Temple
changed the plan and decided to rob Ace Check Cashing. The Defendant stated that, although he
was armed, he was still frightened of Mr. Broadie and Mr. Temple. The Defendant was ordered to
rob the victim. During the robbery, the victim began to scream and throw things. The Defendant
stated that he began to wrestle with the victim and heard Mr. Temple telling him to kill the victim
or Mr. Temple would kill the Defendant. The Defendant suddenly realized he was firing the gun.
After the shooting, the Defendant ran. Mr. Broadie and Mr. Temple again threatened the Defendant
and Mr. Bowles after the robbery.

        Darius Bowles testified as a rebuttal witness for the State. Mr. Bowles testified that he
participated in the attempted robbery because he needed money and that no one threatened him or
the Defendant in order to convince them to participate. Mr. Bowles further stated that he had spoken
with the Defendant since the crime and the Defendant informed him that he was going to tell the jury
that he was forced to participate in the crime and encouraged Mr. Bowles to say the same.



                                         SUFFICIENCY



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        First, the Defendant contends that the evidence is insufficient for a rational trier of fact to find
him guilty beyond a reasonable doubt. Tennessee Rule of Appellate Procedure 13(e) prescribes that
“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable
doubt.” Evidence is sufficient if, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d
274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destroys the presumption
of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden
of showing that the evidence was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (Tenn.
1963); see also State v. Buggs, 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d
185, 191 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and
value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate
courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

        The Defendant was convicted of first degree felony murder and attempted especially
aggravated robbery. Felony murder is a killing committed during the perpetration or attempted
perpetration of a robbery. See Tenn. Code Ann. § 39-13-202(a)(2). Robbery is an intentional or
knowing theft of property from the person of another by violence or putting the person in fear. See
id. § 39-13-401. A robbery becomes an especially aggravated robbery when it is accomplished with
a deadly weapon and the victim suffers serious bodily injury. See id. § 39-13-403. One attempts to
commit an offense when one acts with the intent “to complete a course of action or cause a result that
would constitute the offense, under the circumstances surrounding the conduct as the person believes
them to be, and the conduct constitutes a substantial step toward the commission of the offense.”
Id. § 39-12-101(a)(3).

        In the present case, the Defendant and his codefendants testified that the Defendant
approached the victim, pointed a gun at the victim’s head and demanded money. When the victim
resisted, the Defendant shot him three times, killing him. The Defendant’s only defense was that he
was forced to participate in the robbery by two of his codefendants who threatened to kill him if he
did not cooperate. The codefendants denied the Defendant’s allegations and stated that the
Defendant participated in the crime freely. It is clear that the jury credited their testimony.
Furthermore, in his statement to police the Defendant did not mention the alleged coercion, but
stated that he participated in the crime because he needed money.


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        Accordingly, we find that the Defendant’s conduct in approaching the victim and pointing
a gun at the victim’s head constituted a substantial step toward the commission of an especially
aggravated robbery. Furthermore, the murder of the victim occurred during the attempted especially
aggravated robbery. Accordingly, we find sufficient evidence to support the Defendant’s convictions
of felony murder and attempted especially aggravated robbery. This issue is without merit.

                                   VICTIM PHOTOGRAPHS

        The Defendant next challenges the admission of photographs of the victim’s wounds,
alleging that the photos were inflammatory and prejudicial. Initially, we note that a trial court's
decision regarding the admissibility of photographs will not be reversed on appeal absent a clear
showing of an abuse of discretion. See State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994).
Moreover, “photographs of the corpse are admissible in murder prosecutions if they are relevant to
the issues on trial, notwithstanding their gruesome and horrifying character.” State v. Banks, 564
S.W.2d 947, 950-51 (Tenn. 1978). However, “if they are not relevant to prove some part of the
prosecution's case, they may not be admitted solely to inflame the jury and prejudice them against
the defendant.”Id. at 951 (citing Milam v. Commonwealth, 275 S.W.2d 921 (Ky. 1955)).

        In this case, the photographs were used to illustrate the testimony of Dr. Deering concerning
the number and location of the gunshot wounds. The Defendant suggests that he essentially
stipulated to the number of gunshot wounds suffered by the victim. The record is devoid of any
express stipulation. The trial court found that the photos were relevant to establish the number of
shots fired by the Defendant, and that the photos were not inflammatory. Additionally, we have
reviewed the photographs, and while they are unpleasant, they are isolated shots of the three gunshot
wounds and are not particularly gruesome or horrifying. Thus, we find that the trial judge did not
abuse his discretion. This issue is without merit.


                                    DURESS INSTRUCTION

        The Defendant also argues that the trial court erred by refusing to instruct the jury with the
special duress instruction requested by the Defendant. The Defendant requested that the trial court
instruct the jury that “the facts relied on by the defendant constituting duress may be considered by
you ladies and gentlemen of the jury as to the defendant’s state of mind which would reduce the
charge of murder in the first degree to murder in the second degree.” The trial court found such a
diminished capacity instruction to be inapplicable because there was no evidence that the Defendant
was mentally unsound or incompetent. The trial court did, however, properly instruct the jury
regarding the law of duress.

       There is an affirmative duty upon a trial judge in a criminal case to give the jury a complete
charge on the law applicable to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn.
1992). A defendant has a right to have every issue of fact raised by the evidence and material to his
defense submitted to the jury under proper instructions. See State v. Phipps, 883 S.W.2d 138, 149-


                                                 -5-
50 (Tenn. Crim. App. 1994). However, requested instructions need not be given when existing
instructions are correct statements of law and adequately cover the subject matter contained in the
special instruction. See State v. Bohanan, 745 S.W.2d 892, 897 (Tenn. Crim. App. 1987).

        In the present case, the Defendant’s only defense was that of duress. The Defendant claimed
that he participated in the robbery and murder of the victim because his codefendants placed a gun
to his head and threatened to kill him. Duress is a “defense to prosecution where the person or a
third person is threatened with harm which is present, imminent, impending and of such a nature to
induce a well-grounded apprehension of death or serious bodily injury if the act is not done.” Tenn.
Code Ann. § 39-11-504 (a). The threatened harm must be continuous throughout the time the act
is committed, and the defense is unavailable to a person who intentionally, knowingly, or recklessly
becomes involved in the situation that subjects that person to compulsion. See id. § 39-11-504
(a)(b).

         The Defendant is suggesting through his requested instruction that because he was subjected
to a threat of violence or death by his codefendants he was not capable of acting with the requisite
mens rea to commit first degree murder. Accordingly, the defendant believes he was entitled to a
diminished capacity instruction via his duress defense. The Defendant relies on this court’s decision
in Phipps to support his argument. In Phipps, this Court held that evidence of a defendant’s mental
state or mental condition was relevant and admissible in certain cases to rebut the mens rea element
of an offense. Phipps, 883 S.W.2d at 149. The Defendant’s reliance on Phipps in this case,
however, is misplaced. Phipps, unlike the present case, involved a defendant who suffered from
post-traumatic stress syndrome as a result of his military service in Operation Desert Storm. Id. We
held that the trial court erred in refusing to instruct the jury that they could consider the defendant’s
mental condition in determining the sufficiency of the evidence of intent as required for the various
degrees of homicide. Id. at 151.

        In the present case, the Defendant’s mental state or condition was not in issue. No evidence
was presented to suggest that the Defendant was not a competent and mentally stable individual.
Therefore, the trial court did not err in refusing a jury instruction regarding reducing a charge of first
degree murder to second degree based upon a diminished capacity theory of duress because such an
instruction was not supported by the facts. Indeed, such an instruction would not have been a correct
statement of law. The legislature has provided by statute a defense to criminal prosecution for a
defendant who acted under duress. See Tenn. Code Ann. § 39-11-504. A defendant who commits
a crime under the threat of death or serious bodily injury is entitled to raise that issue before a jury.
Id. If a jury finds that the defendant acted under such a threat the defendant should be acquitted of
all charges. Id. In the present case, the jury clearly rejected the Defendant’s claim that he acted
under duress and convicted him of felony murder and attempted especially aggravated robbery. We
find no error in the trial court’s refusal to give the requested jury instruction. This issue is without
merit.

                                     MOTION TO SUPPRESS



                                                   -6-
         Finally the Defendant contends that the trial court erred in refusing to suppress his statement
to police because he was held for three days without a judicial determination of probable cause. The
Defendant relies on State v. Huddleston, in which our supreme court held that when a person
confesses after having been detained for 48 hours without a judicial determination of probable cause,
the confession should be excluded unless the prosecution can show that the confession was
sufficiently an act of free will in order to purge the taint of the unlawful detention. See 924 S.W.2d
666, 674 (Tenn. 1996). However, the Huddleston court also stated that “if the statement was given
prior to the time the detention ripened into a constitutional violation, it is not the product of the
illegality and should not be suppressed.” Id. at 675.

        A trial court’s findings of fact during a suppression hearing will be upheld by this Court
unless the evidence preponderates against it. See State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
“The application of the law to the facts found by the trial court, however, is a question of law which
this Court reviews de novo.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

       At the hearing on the motion to suppress, the trial court found that the Defendant’s
confession was taken eleven hours after he was initially taken in for questioning. The trial court then
determined that the Huddleston presumption of exclusion was inapplicable because the statement
was given prior to the time the detention “ripened into a constitutional violation.” After a thorough
review of the record, we conclude that the trial court properly denied the Defendant’s motion to
suppress his statement to police.

        Accordingly, this issue is without merit.

                                    MERGER OF OFFENSES

        The State raises one issue on appeal, arguing that the trial court erred in merging the
Defendant’s conviction for attempted especially aggravated robbery into his conviction for felony
murder. The State asks this Court to reinstate the conviction and remand this case for sentencing on
the attempted especially aggravated robbery conviction.

         Tennessee case law makes it clear that separate convictions and punishments for felony
murder and the underlying felony are permissible when the two offenses are charged as separate
counts. See State v. Godsey, 60 S.W.3d 759, 776 (Tenn. 2001); State v. Blackburn, 694 S.W.2d
934, 937 (Tenn. 1985); State v. Zirkle, 910 S.W.2d 874, 890 (Tenn. Crim. App. 1995); Welch v.
State, 836 S.W.2d 586, 588-89 (Tenn. Crim. App. 1992). Indeed, our supreme court has stated that
“the Legislature intended that multiple punishments be imposed on conviction of a defendant for
felony murder and for the underlying felony.” Blackburn, 694 S.W.2d at 937. In upholding
convictions for both felony murder and especially aggravated robbery, this Court has stated that
“[e]very first degree felony murder does not involve an especially aggravated robbery, nor does every
especially aggravated robbery involve a murder. Neither crime is essentially incidental to the other.”
State v. John Robert Tory, No. 03C01-9306-CR-00202, 1994 WL 398808, at *5 (Tenn. Crim. App.,
Knoxville, Aug. 3, 1994).


                                                  -7-
        Therefore, the facts in the record are clearly sufficient to support the conviction for attempted
especially aggravated robbery based upon the use of the deadly weapon and the victim’s suffering
serious bodily injury. The felony murder conviction is warranted by the additional fact that the
victim died.

        Accordingly, we conclude that the trial court erred in merging the two convictions. The
conviction for attempted especially aggravated robbery is reinstated and that case is remanded to the
trial court for sentencing.

                 LESSER-INCLUDED OFFENSES OF FELONY MURDER

         Finally, the State suggests in its brief that the trial court failed to instruct the jury on any
lesser- included offenses of felony murder. See State v. Ely, 48 S.W.3d 710 (Tenn. 2001). The State
also asserts that any error in this regard is harmless, because the jury was instructed on the lesser-
included offenses to first degree premeditated murder. The Defendant does not assert any error on
the part of the trial court in charging felony murder. The record does not contain a verbatim
transcript of the jury charge. The copy of the jury charge contained in the technical record indicates
that the jury was charged regarding first degree felony murder, first-degree premeditated murder,
second degree murder, voluntary manslaughter, reckless homicide, and criminally negligent
homicide. Based on the record before us, we cannot conclude that the trial judge erred in his
instructions concerning lesser-included offenses.

                                           CONCLUSION

        For the foregoing reasons, we conclude that the evidence is sufficient to support the
convictions, the trial court did not err in allowing the introduction of photographs of the victim, the
tiral court properly instructed the jury on the law of duress as applicable to the case, and the trial
court properly denied the Defendant’s motion to suppress. However, the trial court erred in merging
the Defendant’s attempted especially aggravated robbery conviction with his felony murder
conviction. Accordingly, the Defendant’s conviction for felony murder is AFFIRMED and his
conviction for attempted especially aggravated robbery is REINSTATED and REMANDED for
sentencing.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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