OPINION
HARBISON, Justice.
Appellant was convicted of armed robbery and of murder in the first degree in the perpetration of armed robbery of Robert Boddie, a delivery man for the Athens Distributing Company, while the victim was on the premises of a retail liquor store in Chattanooga. In addition to the present offenses, the jury found (1) that appellant had been previously convicted of three other felonies which involved the use or threat of violence to the person and (2) that the instant murder was committed while appellant was engaged in committing robbery. Therefore it found aggravating circumstances which justified the imposition of the death penalty under the provisions of T.C.A. § 39 — 2—203(i)(2) and (7). The trial judge approved the verdict and sentence. We affirm.
On July 8, 1983, at about 3 p.m., Robert Boddie, a driver for Athens Distributing Company, a wholesale liquor dealer, was shot three times and killed while making a delivery at Daddy’s Liquor Store on Glass Street in Chattanooga. A clerk at the liquor store saw Boddie lying on the ground and a black male standing beside the deliv[481]*481ery truck going through a billfold. The clerk did not see a gun. When she shouted at the man, he fled on foot. She described him as having short hair, no beard and wearing a short-sleeved sports shirt and dark pants. At “about 4:00 p.m.” on the same day, Desica Steele, who was visiting a friend about a block from the liquor store, saw a black man, about 5 feet 5 inches tall and weighing approximately 160 to 170 pounds, standing by a power pole near the liquor store, going through a wallet. This man had a gun in his pants and was wearing a blue t-shirt, cut-off faded jeans, blue sweat socks and tennis shoes. When this man saw the witness Steele, he ran in the direction opposite Daddy’s Liquor Store. Steele testified that she had a good look at the man, but she was unable to identify anyone at trial as the person she had seen. Investigating police officers did not find a wallet on the deceased, although other testimony showed that he customarily carried one.
By early August, 1983, the investigation by police led to Michael Jones, Melvin Nichols and appellant Willie Sparks. The latter by then had left the state. Jones and Nichols cooperated with the police and were important trial witnesses. Jones permitted the police to tap his telephone.
On August 11 Detectives Angel and Stafford participated in and recorded a telephone call to the residence of Jones by a person identifying himself as appellant Sparks. Nichols and Jones testified that the caller was in fact the appellant.
In the course of that telephone conversation Nichols advised the caller that Sparks together with Nichols had been implicated in the Boddie murder by an informant. Nichols stated that a warrant had been issued for the arrest of both. He told the caller that he planned to leave Chattanooga to go to Atlanta. The caller stated that he was already in Atlanta, and the two arranged to meet there the next day at the bus station.
Appellant was at the bus station near the appointed time the next day and was arrested there by John Arthur, an officer of the Georgia Bureau of Investigation. Appellant gave a statement denying any knowledge of the Boddie murder and denying that he had spoken with Jones or Nichols since he had been in Atlanta.
Both Jones and Nichols were indicted for armed robbery and first degree murder as a result of Mr. Boddie’s death. At the trial of appellant they testified to essentially the same facts. Their testimony was that on July 8 they went to a loan company where Nichols picked up a .38 caliber pistol that he had pawned for Jones a few days earlier. Later that day when Jones, Nichols and appellant went to sell some food stamps for Jones, Nichols met Lebrón Griffin and referred him to appellant. After appellant spoke with Griffin, he asked Nichols to drive him to Glass Street and Jones to lend him his pistol. According to Nichols, appellant explained that a man with whom he had been speaking had told him he could make some extra money if he got an empty pistol and met him behind Daddy’s liquor Store where they were “going to set up this rip-off.” Nichols said that he thought that a “fake robbery” was planned. Jones testified that appellant told him something had been set up with the delivery man who was going to give them the money. Jones gave appellant the gun, which both he and Nichols said was unloaded.
Nichols then dropped Jones and appellant off on Glass Street and as he drove away he saw the appellant walking toward Daddy’s Liquor Store. Jones testified that he went inside the liquor store for appellant to see if it was crowded. When he came out, he saw appellant standing beside the store.
When Nichols returned to Glass Street, he saw Jones who told him that something was “going on.” However, Jones testified that he only told Nichols that he did not know where appellant Sparks was. About this time Sparks, who was shirtless and no longer had the pistol, came running down the street and got into Nichols’ car. He told Nichols and Jones that it was “the wrong guy back there,” that he had to shoot “the old guy” because “he started getting smart with me” and “jumped at me.” When Jones asked why he did it, [482]*482appellant replied that “If he was going down, he wanted to go all the way.” Sparks told Nichols that he had hidden the gun in a hole behind a church on Glass Street. The gun was introduced into evidence, and a firearms expert testified that a bullet removed from the victim’s body had been fired from Jones’ gun.
While appellant was in jail in Chattanooga, on August 25, 1988, he telephoned Jones and asked him to come for a visit. Jones informed the police of this telephone call, and Chattanooga Detective Stafford wired Jones for sound by placing a microphone on his person and instructed him to accept appellant’s request for a visit so that their conversation could be intercepted through the microphone and could be heard by Detective Stafford while he remained hidden in a room next to the room used by Jones and Sparks for their conversation. He instructed Jones “to be normal and try not to talk any more than he had to, just to see what he wanted.”
Jones testified that during this conversation appellant told him that things looked bad for him and that Nichols had set him up. Therefore he planned to have Nichols killed. Stafford also testified to the substance of this conversation which he overheard. He said that appellant had asked about the gun and threatened Nichols who had set him up at the bus station in Atlanta. He interpreted appellant’s remarks as implying that nothing would have happened if Nichols had remained silent.
A. The Suppression Issue
As pointed out in the dissent, the most serious issue presented in this appeal is the denial of appellant’s pre-trial motion to suppress evidence of his conversation with Jones in the jail at Chattanooga on August 25, 1983.
It should be noted that neither the taped interview nor a transcript of it was introduced into evidence. There was nothing more than a brief summary of it elicited from Jones and Stafford. Their testimony contained nothing which had not already been clearly established by other evidence. The interview led to the discovery of no new evidence.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
HARBISON, Justice.
Appellant was convicted of armed robbery and of murder in the first degree in the perpetration of armed robbery of Robert Boddie, a delivery man for the Athens Distributing Company, while the victim was on the premises of a retail liquor store in Chattanooga. In addition to the present offenses, the jury found (1) that appellant had been previously convicted of three other felonies which involved the use or threat of violence to the person and (2) that the instant murder was committed while appellant was engaged in committing robbery. Therefore it found aggravating circumstances which justified the imposition of the death penalty under the provisions of T.C.A. § 39 — 2—203(i)(2) and (7). The trial judge approved the verdict and sentence. We affirm.
On July 8, 1983, at about 3 p.m., Robert Boddie, a driver for Athens Distributing Company, a wholesale liquor dealer, was shot three times and killed while making a delivery at Daddy’s Liquor Store on Glass Street in Chattanooga. A clerk at the liquor store saw Boddie lying on the ground and a black male standing beside the deliv[481]*481ery truck going through a billfold. The clerk did not see a gun. When she shouted at the man, he fled on foot. She described him as having short hair, no beard and wearing a short-sleeved sports shirt and dark pants. At “about 4:00 p.m.” on the same day, Desica Steele, who was visiting a friend about a block from the liquor store, saw a black man, about 5 feet 5 inches tall and weighing approximately 160 to 170 pounds, standing by a power pole near the liquor store, going through a wallet. This man had a gun in his pants and was wearing a blue t-shirt, cut-off faded jeans, blue sweat socks and tennis shoes. When this man saw the witness Steele, he ran in the direction opposite Daddy’s Liquor Store. Steele testified that she had a good look at the man, but she was unable to identify anyone at trial as the person she had seen. Investigating police officers did not find a wallet on the deceased, although other testimony showed that he customarily carried one.
By early August, 1983, the investigation by police led to Michael Jones, Melvin Nichols and appellant Willie Sparks. The latter by then had left the state. Jones and Nichols cooperated with the police and were important trial witnesses. Jones permitted the police to tap his telephone.
On August 11 Detectives Angel and Stafford participated in and recorded a telephone call to the residence of Jones by a person identifying himself as appellant Sparks. Nichols and Jones testified that the caller was in fact the appellant.
In the course of that telephone conversation Nichols advised the caller that Sparks together with Nichols had been implicated in the Boddie murder by an informant. Nichols stated that a warrant had been issued for the arrest of both. He told the caller that he planned to leave Chattanooga to go to Atlanta. The caller stated that he was already in Atlanta, and the two arranged to meet there the next day at the bus station.
Appellant was at the bus station near the appointed time the next day and was arrested there by John Arthur, an officer of the Georgia Bureau of Investigation. Appellant gave a statement denying any knowledge of the Boddie murder and denying that he had spoken with Jones or Nichols since he had been in Atlanta.
Both Jones and Nichols were indicted for armed robbery and first degree murder as a result of Mr. Boddie’s death. At the trial of appellant they testified to essentially the same facts. Their testimony was that on July 8 they went to a loan company where Nichols picked up a .38 caliber pistol that he had pawned for Jones a few days earlier. Later that day when Jones, Nichols and appellant went to sell some food stamps for Jones, Nichols met Lebrón Griffin and referred him to appellant. After appellant spoke with Griffin, he asked Nichols to drive him to Glass Street and Jones to lend him his pistol. According to Nichols, appellant explained that a man with whom he had been speaking had told him he could make some extra money if he got an empty pistol and met him behind Daddy’s liquor Store where they were “going to set up this rip-off.” Nichols said that he thought that a “fake robbery” was planned. Jones testified that appellant told him something had been set up with the delivery man who was going to give them the money. Jones gave appellant the gun, which both he and Nichols said was unloaded.
Nichols then dropped Jones and appellant off on Glass Street and as he drove away he saw the appellant walking toward Daddy’s Liquor Store. Jones testified that he went inside the liquor store for appellant to see if it was crowded. When he came out, he saw appellant standing beside the store.
When Nichols returned to Glass Street, he saw Jones who told him that something was “going on.” However, Jones testified that he only told Nichols that he did not know where appellant Sparks was. About this time Sparks, who was shirtless and no longer had the pistol, came running down the street and got into Nichols’ car. He told Nichols and Jones that it was “the wrong guy back there,” that he had to shoot “the old guy” because “he started getting smart with me” and “jumped at me.” When Jones asked why he did it, [482]*482appellant replied that “If he was going down, he wanted to go all the way.” Sparks told Nichols that he had hidden the gun in a hole behind a church on Glass Street. The gun was introduced into evidence, and a firearms expert testified that a bullet removed from the victim’s body had been fired from Jones’ gun.
While appellant was in jail in Chattanooga, on August 25, 1988, he telephoned Jones and asked him to come for a visit. Jones informed the police of this telephone call, and Chattanooga Detective Stafford wired Jones for sound by placing a microphone on his person and instructed him to accept appellant’s request for a visit so that their conversation could be intercepted through the microphone and could be heard by Detective Stafford while he remained hidden in a room next to the room used by Jones and Sparks for their conversation. He instructed Jones “to be normal and try not to talk any more than he had to, just to see what he wanted.”
Jones testified that during this conversation appellant told him that things looked bad for him and that Nichols had set him up. Therefore he planned to have Nichols killed. Stafford also testified to the substance of this conversation which he overheard. He said that appellant had asked about the gun and threatened Nichols who had set him up at the bus station in Atlanta. He interpreted appellant’s remarks as implying that nothing would have happened if Nichols had remained silent.
A. The Suppression Issue
As pointed out in the dissent, the most serious issue presented in this appeal is the denial of appellant’s pre-trial motion to suppress evidence of his conversation with Jones in the jail at Chattanooga on August 25, 1983.
It should be noted that neither the taped interview nor a transcript of it was introduced into evidence. There was nothing more than a brief summary of it elicited from Jones and Stafford. Their testimony contained nothing which had not already been clearly established by other evidence. The interview led to the discovery of no new evidence.
More than a week before this conversation at the jail occurred, Stafford had obtained the murder weapon from one Lebrón Griffin. Both Nichols and Jones, in their testimony, identified Griffin as the individual who suggested that appellant participate in the homicide. The testimony of Nichols and Jones that they redeemed this weapon from pawn shop on the date of the homicide, July 8,1983, was corroborated by documentary evidence from the pawn shop.
Nichols testified that after the homicide, appellant gave him the pistol. It was again placed in pawn, and a ticket showing its withdrawal on August 5, 1983, was likewise introduced into evidence.
Before the conversation between Jones and appellant occurred in the jail on August 25, 1983, the weapon had been subjected to a ballistics test by Georgia police officials and confirmed to be the one from which the fatal shots had been fired.
Appellant insists that there was a violation of his right to counsel when police authorities arranged for or sanctioned the contact between him and Jones. Appellant relies upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) and similar cases in which uncounselled statements made to undercover agents have been held to contravene the Sixth Amendment. See also State v. Berry, 592 S.W.2d 553 (Tenn.1980) and State v. Webb, 625 S.W.2d 281 (Tenn.Crim.App.1980) and cases cited therein.
In the present case the jail statements of appellant testified to at trial were cumulative and their contents had already been proved by other evidence which was overwhelming.
In our opinion if any error occurred in their admission under the circumstances of this case, it was harmless beyond a reasonable doubt and could not have affected the verdict or the sentence.
[483]*483B. Corroboration
Appellant insists that if the evidence concerning his statements at the jail had been excluded, then there remained insufficient independent evidence to corroborate the testimony of Jones and Nichols, who, he asserts, were accomplices as a matter of law.
We have already outlined the evidence given by Detective Stafford, as well as by Jones and Nichols, concerning the telephone conversation made by appellant to the residence of Jones on August 11, 1983. As stated, during that conversation Nichols arranged to meet the caller at the Atlanta bus station the next day. Appellant was there as agreed and was arrested by Officer Arthur, who was a witness at the trial.
The testimony of this officer, if accepted by the triers of fact, clearly confirmed the testimony of Nichols, Jones and Stafford that the telephone caller on August 11, 1983, was in fact appellant and that appellant had arranged to meet Nichols at the bus station, with full knowledge that both were the subject of an arrest warrant for the homicide out of which the present case arose.
Appellant cites and relies upon the case of McKinney v. State, 552 S.W.2d 787 (Tenn.Crim.App.1977), for the rule that independent evidence is necessary to corroborate the testimony of an accomplice. This rule is well settled in Tennessee, but in the McKinney case, supra, as well as in numerous other cases, the following principles were stated:
“The corroborative evidence may be direct or circumstantial. It need not be, of itself, sufficient to support a conviction. If the corroborating evidence fairly and legitimately tends to connect the accused with the commission of the crime charged, it satisfies the requirement of the rule on corroboration of the accomplice’s testimony. Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959). Slight circumstances may be sufficient to furnish the necessary corroboration of an accomplice’s testimony. Garton v. State, 206 Tenn. 79, 332 S.W.2d 169 (1960). The question of corroboration of an accomplice’s testimony is for the jury to determine. Clapp v. State, 94 Tenn. 186, 30 S.W. 214 (1895). The jury may look at all the evidence in the case and draw reasonable inferences therefrom.” 552 S.W.2d at 789.
In our opinion the testimony of Nichols and Jones was clearly corroborated by the independent testimony of both officers Stafford and Arthur, wholly apart from the jail conversation recorded on August 25. In addition to their testimony, it was established by the testimony of Vivian Eberhardt, the aunt of Michael Jones, that the three men, Jones, Nichols and appellant, were together on the morning of the homicide and that in fact they picked her and another person up in an automobile a short time before the homicide occurred.
The testimony of Nichols and Jones, if accepted by the jury, overwhelmingly established the guilt of appellant. The homicide was a deliberate shooting in the course of a planned robbery. Appellant did not testify or offer any evidence at either the guilt phase of the trial or at the sentencing hearing. The jurors were, in our opinion, clearly warranted in convicting him of felony murder and in imposing the death penalty. The sentence is not disproportionate to that approved in numerous other felony murders. See, e.g., State v. Laney, 654 S.W.2d 383 (Tenn.1983), cert. denied 464 U.S. 1003, 104 S.Ct. 510, 78 L.Ed.2d 699 (1983); Houston v. State, 593 S.W.2d 267 (Tenn.1980), cert. denied 449 U.S. 891, 101 S.Ct. 251, 66 L.Ed.2d 117 (1980).
All of the other issues raised by counsel for appellant have been previously considered by the Court and in our opinion do not warrant reversal of the judgment or the sentence. The sentence will be carried out as provided by law on July 15, 1987 unless stayed by order of this Court or other proper authority. All costs are assessed to appellant.
COOPER and DROWOTA, JJ., concur.
BROCK, C.J., files dissent in which FONES, J., concurs.