State v. Utley

928 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 952
CourtCourt of Criminal Appeals of Tennessee
DecidedDecember 6, 1995
StatusPublished
Cited by20 cases

This text of 928 S.W.2d 448 (State v. Utley) 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 v. Utley, 928 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 952 (Tenn. Ct. App. 1995).

Opinion

OPINION

SUMMERS, Judge.

The appellant, Joe L. Utley, was convicted by a jury of felony murder and especially aggravated robbery. He received a life sentence and a concurrent twenty year sentence respectively. On appeal he raises four issues for review. First, he claims that the evidence was insufficient to convict him of first degree murder. Secondly, he argues that the trial court erred in not instructing the jury as to facilitation of felony murder. Next, he contends that the trial court erred in failing to suppress the identifications made by two witnesses. Finally, the appellant challenges the constitutionality of the felony murder statute. Following our review, we affirm the judgment of the trial court.

The testimony presented at trial revealed that on January 7, 1993, four men, Derrick Carey, Eric Brown, Donald Walton and the appellant, entered the Las Palmas Restaurant on Antioch Pike wearing gloves and ski masks. Carey and Walton carried shotguns and remained near the front of the restaurant while Brown and the appellant were in the rear of the establishment. Brown fired a [450]*450shot with a pistol to gain the attention of the employees and customers and ordered everyone to the floor. Carey asked Raphael Mag-na, an employee, where the safe was located. When Magna could not provide an answer, Carey shot Magna, who died as a result of the gunshot. Just as the restaurant’s manager was attempting to open the safe, one of the men yelled “Five-O,” indicating that the police were on their way and all four men left hurriedly taking over $500 in cash with them.

Officer Dennis Hamm of the Nashville Police Department arrived on the scene and began to search the surrounding area. Within minutes, Officer Hamm spotted the appellant running behind a building located about two hundred yards from the restaurant. Hamm stopped the appellant, who stated that he had been dropped off by a bus and was looking for a phone to call his father. However, John Cannon of the Metro Transit Authority (MTA) testified that no MTA buses had run a route on Harding and Antioch after 6:00 p.m. that evening. Meanwhile, a description of one of the suspects was broadcast over Hamm’s police radio which indicated that he was wearing a multi-colored jacket with dark pants. Because the appellant matched this description, Officer Hamm advised the appellant of his rights and immediately took him back to the restaurant to see if any of the customers recognized him.

Two patrons, Kimberly Honeycutt and Heidi Fralick, independently identified the appellant as one of the robbers based upon his build and the jacket worn during the robbery. Further, both gave essentially the same account of the events leading up to the death of the victim and eventual flight of the robbers. However, both admitted that they had not seen the face of the robbers. Ho-neycutt testified that when she saw the appellant she realized that she had met him casually on an earlier occasion. Another patron, Sherry Smith, testified that she heard someone say, “Get down on the floor,” at which time she observed a man in a black Raiders jacket. She, too, heard two shots fired but could not observe the events from where she was situated.

Brown, an accomplice, testified against the appellant. He indicated that the four men had met at an apartment earlier that evening to plan a robbery. Although some of the men carried weapons, Brown stated that the men had agreed they would not harm anyone. The four had originally planned to rob the nearby Applebee’s restaurant but a heavy police presence detoured them to Las Palmas. Brown indicated that they drove to the restaurant in a stolen automobile which they parked nearby as a getaway vehicle. According to Brown, Carey, Walton and he had planned to enter through the front of the store and that appellant was to have been the driver. However, after entering the restaurant, Brown went to the rear of the restaurant where he saw the appellant. Brown explained that he did not know how the appellant entered the building. The other two accomplices remained near the cash register in the front of the store. Brown stated that he had fired a shot to get everyone’s attention but was surprised when the victim was shot. When one of the robbers indicated that the police were coming, Brown and the appellant exited through the back door. Brown stated that he had worn a San Jose Sharks cap and the appellant had worn black jeans, a Sharks coat and red shoes.1

I.

In his first issue, the appellant claims that the evidence was insufficient to support the verdict of first degree murder. In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury verdict accredits the state’s witnesses and resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405 (Tenn. 1983). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 882 (Tenn.1978). Moreover, a guilty verdict removes the presumption of innocence, which the appellant enjoyed at trial, [451]*451and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474 (Tenn.1973). The appellant has the burden of overcoming this presumption of guilt. Id.

Where sufficiency of the evidence is challenged, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Duncan, 698 S.W.2d 63 (Tenn.1985); Tenn.R.App.P., Rule 13(e).

The appellant contends that, as an accomplice, the evidence failed to show that he had the requisite intent to commit murder. Further, he claims that there was no evidence to prove the necessary elements of deliberation and premeditation. However, the appellant’s attack is misguided. Felony murder is defined as “[a] reckless killing of another committed in the perpetration of, or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping or aircraft piracy.” Tenn.Code Ann. § 39-13-202(a)(2) (1991).

The mental element required for felony murder is recklessness which the state carries the burden of proving. In effect, the appellant is arguing that the jury was required to conclude that he intended to cause the victim’s death. Again, the appellant’s argument is misdirected. “When one enters into a scheme with another to commit one of the felonies enumerated in [the felony murder statute] and death ensues, [all] defendants are responsible for the death, regardless of who actually committed the murder and whether the killing was specifically contemplated by the other. State v. Brown, 756 S.W.2d 700, 704 (Tenn.Crim.App.1988).

The jury heard testimony that the four men devised a plan to rob a restaurant during which they would cany guns.

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Cite This Page — Counsel Stack

Bluebook (online)
928 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-utley-tenncrimapp-1995.