State of Tennessee v. Marcus Dwayne Welcome

280 S.W.3d 215, 2007 Tenn. Crim. App. LEXIS 761
CourtCourt of Criminal Appeals of Tennessee
DecidedSeptember 26, 2007
DocketE2006-01839-CCA-R3-CD
StatusPublished
Cited by60 cases

This text of 280 S.W.3d 215 (State of Tennessee v. Marcus Dwayne Welcome) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Tennessee v. Marcus Dwayne Welcome, 280 S.W.3d 215, 2007 Tenn. Crim. App. LEXIS 761 (Tenn. Ct. App. 2007).

Opinions

OPINION

D. KELLY THOMAS, JR., J.,

delivered the opinion of the court,

in which THOMAS T. WOODALL, J., joined. JOSEPH M. TIPTON, P.J., filed a concurring opinion.

The defendant, Marcus Dwayne Welcome, appeals as of right his Knox County Criminal Court jury conviction for criminal responsibility for aggravated robbery for which he received a sentence of twenty years as a Range II, multiple offender. On appeal, he contends that double jeopardy precludes his conviction, that the verdict form incorrectly and prejudicially characterized criminal responsibility as a lesser included offense of aggravated robbery, that the trial court should have granted a mistrial based upon the witness’s reference to the defendant’s previous incarceration, that the trial court erred in ruling a prior robbery admissible for impeachment purposes, and that the trial court committed errors related to sentencing. Following our review, the judgment of the trial court is affirmed.

The defendant’s conviction arises from his participation in the aggravated robbery of his eighty-two-year-old uncle, Jesse Willard Turner. Turner testified that the defendant visited him often and had been at his home several times earlier in the day on September 24, 2004. He said that on one occasion, the defendant left his jacket. Turner testified that around midnight, as he was preparing to take a shower, he heard a knock at his door. He recognized the defendant’s voice and, although nude, opened the door to allow the defendant to retrieve his jacket. Upon entering the residence, instead of walking toward the jacket, the defendant walked straight to Turner’s bedroom. Turner stated that another individual followed the defendant into the home and that he was armed with a gun. The individual directed Turner not to look at him, a request that Turner stated he quickly complied with out of fear for his own safety. Turner recalled that the defendant told him that no one was going to hurt him but they just wanted some money. As the defendant and the other individual went to look for money, Turner testified that he ran nude to a neighbor’s house, who gave him some clothes to wear, and called the police. The police arrived at the scene approximately forty-five minutes later and Turner returned home to find his wallet and its contents scattered on the floor. Missing from the wallet were one hundred and fifty [219]*219dollars he had saved for car insurance and some emergency money. Turner testified that the police told him that they would not pursue the case and advised him to file a warrant “since he [knew] who it was” but also stated that “[b]ecause it’s your nephew, you probably ain’t going to do nothing about it.”

On cross-examination, Turner acknowledged that he lived in a dangerous area of town, but stated that he opened the door in the nude because he recognized the defendant’s voice. He also stated that the defendant never threatened him with a weapon and that the only armed person was the unidentified individual who followed the defendant into the home. He acknowledged that the police did not take any fingerprints, but explained that was because he had told them that the defendant committed the robbery. He testified that he was not injured during the incident.

Erroneous Verdict Form and Double Jeopardy Issues

The defendant argues that his conviction for criminal responsibility for aggravated robbery should be reversed because, he claims, the jury acquitted him of aggravated robbery as set out in the verdict form. The verdict form, in pertinent part, reads as follows:

We the Jury, find the defendant (guiltyXnot guilty)[cirele one] of Aggravated Robbery.
IF YOU FIND THE DEFENDANT GUILTY OF A GREATER OFFENSE, YOU DO NOT NEED TO CONSIDER ANY OF THE FOLLOWING LESSER INCLUDED OFFENSES:
We the Jury, find the defendant (guiltyXnot guilty)[circle one] of Criminal Responsibility of Aggravated Robbery.
We the Jury, find the defendant (guiltyXnot guilty)[circle one] of Facilitation of a Felony, a lesser included offense.
We the Jury, find the defendant (guiltyXnot guilty)[eircle one] of Robbery, a lesser included offense.

(Emphasis added). The verdict form lists, in descending order, robbery, aggravated assault, assault and theft as lesser included offenses of aggravated robbery. Facilitation of a felony is also properly listed as a lesser included offense of aggravated robbery. Included in each verdict option is the phrase “a lesser included offense” where appropriate for a lesser included offense. The verdict option relevant to criminal responsibility does not include the phrase “a lesser included offense.” In returning its verdict, the jury circled “not guilty” for the offense of aggravated robbery but circled guilty for criminal responsibility for aggravated robbery. The guilty verdict as announced by the foreperson was for criminal responsibility for aggravated robbery as well. The defendant contends that a plain reading of the verdict form shows that the jury found him to be not guilty of aggravated robbery. Therefore, he argues, this amounts to an acquittal of the charged offense under all theories of culpability embraced in the indictment. The state argues that the trial court properly instructed the jury that criminal responsibility for the conduct of another was one theory of culpability for aggravated robbery and that the verdict announced represented a special verdict relative to the theory of culpability. Therefore, the state argues, the conviction should be affirmed despite the wording of the order of consideration on the verdict form.

A criminal defendant has the right to a complete and accurate charge of the law given to the jury by the trial court. [220]*220State v. Stephenson, 878 S.W.2d 530, 555 (Tenn.1994). For the purposes of determining whether a defendant has been afforded that right, the jury charge should be “viewed in its entirety” and “considered as a whole.” Id. (citing Otis v. Cambridge Mutual Fire Insurance Co., 850 S.W.2d 439, 446 (Tenn.1992)). Our supreme court has explained that “inconsistent or contradictory instructions ‘do not neutralize or validate each other’ ” and that “ ‘[t]he parties are entitled to a clear and consistent charge, as well as a correct one, that justice may be reached.’ ” Id. (quoting Citizens Street Railroad Co. v. Shepherd, 107 Tenn. 444, 64 S.W. 710, 711 (1901)). Therefore, this court’s inquiry must be whether the language of the verdict form renders the jury instruction inconsistent or contradictory when read in its entirety.

Relevant to criminal responsibility, the trial court correctly instructed the jury that:

The defendant is criminally responsible as a party to the offense of aggravated robbery or any lesser included offenses if the offense was committed by the defendant’s own conduct, by the conduct of another for which the defendant is criminally responsible, or by both. Each party to the offense may be charged with the commission of the offense.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Tennessee v. Romeaka Evans
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Jimmy Uhl
Court of Criminal Appeals of Tennessee, 2025
State of Tennessee v. Laverick Clark
Court of Criminal Appeals of Tennessee, 2024
State of Tennessee v. Jerrell Anderson
Court of Criminal Appeals of Tennessee, 2024
State of Tennessee v. John Shaffighi
Court of Criminal Appeals of Tennessee, 2023
State of Tennessee v. Christopher Lee Goodwin
Court of Criminal Appeals of Tennessee, 2023
Marico Vales v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2022
Millard Ellis Spurgeon v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2021
William Scott Hunley v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2021
State of Tennessee v. Darnell Treshawn Wiggins
Court of Criminal Appeals of Tennessee, 2021
State of Tennessee v. Matthew Thomas Dotson
Court of Criminal Appeals of Tennessee, 2021
State of Tennessee v. Joshua Travis Griffith
Court of Criminal Appeals of Tennessee, 2021
State of Tennessee v. Demon L. Adkins
Court of Criminal Appeals of Tennessee, 2021
Stephen Gerard Smith v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2021
State of Tennesse v. Terrance Lawrence
Court of Criminal Appeals of Tennessee, 2021
State of Tennessee v. Robert Edward Seaton
Court of Criminal Appeals of Tennessee, 2021
State of Tennessee v. Dallas Sarden
Court of Criminal Appeals of Tennessee, 2020
State of Tennessee v. Jeffrey Mansir
Court of Criminal Appeals of Tennessee, 2020
Cordell Ash v. State of Tennessee
Court of Criminal Appeals of Tennessee, 2020

Cite This Page — Counsel Stack

Bluebook (online)
280 S.W.3d 215, 2007 Tenn. Crim. App. LEXIS 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-tennessee-v-marcus-dwayne-welcome-tenncrimapp-2007.