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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs November 6, 2007 STATE OF TENNESSEE v. WILLIS AYERS
Direct Appeal from the Criminal Court for Shelby County No. 04-07182 Chris Craft, Judge

No. W2006-02441-CCA-R3-CD - Filed May 6, 2008

Defendant, Willis Ayers, was indicted for first degree murder and especially aggravated robbery. Defendant was tried jointly with co-defendant, Charles Curtis, and another co-defendant, David Milken, was tried separately for the charged offenses. Co-defendant Curtis's case is not part of this appeal. Following a jury trial, Defendant was found guilty of the lesser included offenses of second degree murder and facilitation of especially aggravated robbery. The trial court sentenced Defendant as a Range I, standard offender, to twenty-two years for his second degree murder conviction, and as a Range II, multiple offender, to fourteen years for his facilitation of especially aggravated robbery conviction. The trial court ordered Defendant to serve his sentences consecutively, for an effective sentence of thirty-six years. In his appeal, Defendant argues that (1) the evidence was insufficient to support his convictions; (2) the trial court erred by failing to instruct the jury that State's witness Corey Smith was an accomplice to the charged offenses; (3) the trial court erred in denying Defendant's motion for severance; and (4) the trial court erred in imposing consecutive sentencing. After a thorough review of the record, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed THOMAS T. WOODALL, J., delivered the opinion of the court, in which and JAMES CURWOOD WITT , JR., and J. C. MCLIN , JJ., joined. Eric Christensen, Memphis, Tennessee, for the appellant, Willis Ayers. Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William L. Gibbons, District Attorney General; Michelle Kimbril-Parks, Assistant District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION I. Background Christy Bernard testified that the victim was her brother, Charlie Jackson, Jr. Ms. Bernard said that the victim drove a burgundy Cadillac which was registered in the name of Angela Morton, the victim's cousin. Ms. Bernard stated that she worked evenings, and the victim would take her sons to football practice after school. The victim kept the children's football gear in the trunk of the Cadillac. Ms. Bernard said that she last saw the victim on April 22, 2004, between 7:00 and 7:30 p.m. at Ms. Morton's residence when she picked up her sons after football practice. Ms. Bernard observed the victim place her sons' football gear into the trunk of his car before she left. Ms. Bernard said that the victim's leather coat was also in the trunk, and both the football gear and the leather coat were missing from the Cadillac's trunk when the vehicle was returned to her after the commission of the offenses. Ms. Bernard identified the football helmet and shoulder pads which were introduced as an exhibit at trial as her sons' equipment. Ms. Bernard said that the leather coat was never recovered. Corey Smith testified that he had known Defendant for approximately four years and Mr. Curtis, the co-defendant, approximately seven years. Mr. Smith stated that he went over to Monica Terry's apartment in Summit Park Apartments to play cards on April 22, 2004, between 7:00 p.m. and 8:00 p.m. David Milken, Ms. Terry's boyfriend, Ms. Terry, and Ms. Terry's friend, Glenda, were present. Mr. Curtis arrived approximately one hour later. Mr. Curtis told the group that he needed money because he had no place to stay. Mr. Curtis asked Mr. Milken for his cell phone and then retreated to the bathroom. Mr. Curtis came out of the bathroom a few minutes later, retrieved Ms. Terry's house telephone, and returned to the bathroom. Defendant arrived at Ms. Terry's apartment while Mr. Curtis was talking on the telephone. Defendant had a book pack with him which he placed in Ms. Terry's bedroom. Defendant, Mr. Curtis and Mr. Milken went outside and stood at the bottom of the apartment's staircase, conversing, while Mr. Smith and Ms. Terry remained at the top of the stairs overlooking the apartment building's parking lot. Mr. Curtis continued to talk on Ms. Terry's house telephone as the three men conversed. Approximately thirty to forty-five minutes later, Mr. Smith observed a burgundy Cadillac pull into the parking lot. Mr. Curtis got into the front passenger seat as Defendant and Mr. Milken walked toward the "dark part" of the apartments located next door. The driver of the Cadillac and Mr. Curtis remained in the Cadillac for approximately twenty minutes. Mr. Milken then walked up to the driver's side of the Cadillac and attempted to pull the driver out of the vehicle by his neck. The vehicle jerked, and the brake lights came on. Mr. Smith said that Defendant walked up to the driver's side of the vehicle, pulled out a gun, and fired once. The driver slumped over in the car seat. Mr. Milken pushed the driver into the passenger seat and got into the driver's seat. Mr. Curtis got into the back seat, and the two men drove away.

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Mr. Smith and Defendant went back inside Ms. Terry's apartment. Defendant put his gun in his book pack and told Mr. Smith that the shooting was an accident. Defendant said that he thought he saw the victim reach down and believed that the victim was going to retrieve a weapon. Mr. Curtis and Mr. Milken returned to Ms. Terry's apartment approximately thirty to forty-five minutes later in the burgundy Cadillac. Mr. Curtis told Mr. Smith that he needed "to put in some work." Mr. Smith told Mr. Curtis that he did not want to be involved, but Mr. Curtis began to verbally threaten Mr. Smith. Mr. Curtis opened the Cadillac's trunk and handed Mr. Smith two football helmets, some shoulder pads, and a leather coat. Mr. Smith took the items into Ms. Terry's apartment. Mr. Smith said that Mr. Curtis had taken some cocaine, marijuana, and twenty dollars from the victim. Mr. Curtis began cooking the cocaine on Ms. Terry's stove. Mr. Smith, Mr. Curtis and Mr. Milken then drove the Cadillac to an insurance office building approximately one-half mile from Ms. Terry's apartment. Mr. Curtis handed Mr. Smith some lighter fluid and told him to set the car on fire. Mr. Smith poured lighter fluid on the back seat, then he handed the lighter fluid back to Mr. Curtis. Mr. Smith told Mr. Curtis that he did not want anything "to do with it," and Mr. Curtis set the Cadillac on fire. Mr. Smith, Mr. Curtis, and Mr. Milken walked back to Ms. Terry's apartment and played cards. Mr. Smith testified that he did not know the victim. Mr. Smith said that he did not overhear either Mr. Curtis' telephone conversations or the conversation between Mr. Curtis, Defendant, and Mr. Milken while they stood at the bottom of the stairs. On cross-examination, Mr. Smith said that the only person he saw with a gun that night was Defendant, and that the first time he noticed the weapon was when Defendant fired the gun at the victim. Mr. Smith said that Defendant's arm was fully extended, and that the victim was facing forward in the vehicle. Mr. Smith acknowledged that Defendant was not present when the Cadillac was set on fire. Mr. Smith denied making a statement to Kaylandra Ayers or Patricia Marchbanks. Mr. Smith acknowledged that he did not hear anyone, including Defendant, plan to commit any offenses involving the victim. Officer Jeff Sealey with the Memphis Police Department routinely patrolled Will Carruthers Park during his evening shift. Officer Sealey testified that he observed an individual, who appeared to be unconscious, lying on his back with outstretched arms in the park's parking lot around midnight on April 22, 2004. Officer Sealey approached the man and attempted to find a pulse. When he could not do so, he called for an ambulance and back-up. Officer Marlon Wright, a member of the Memphis Police Department's crime scene investigation unit, arrived at the park shortly after midnight. Officer Wright testified that the victim's pockets were turned inside out. Various pieces of a broken cell phone were recovered at the crime scene including the cell phone's face plate, back plate, rubber keypad and battery. A dime

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was found next to the victim's left leg, and the victim had eleven cents in one of his pockets. Officer Wright found the victim's driver's license but not a wallet. Officer Bryan Davis responded to a call about an abandoned vehicle at approximately 1:00 a.m. on April 23, 2004. The vehicle was parked near a building behind the Summit Park Apartments. Officer Davis stated that the vehicle was registered in the name of Angela Morton, and the vehicle's keys were missing. Angela Morton, the victim's cousin, spent the afternoon of April 22, 2004, with the victim at her son's and Ms. Bernard's sons' football practice. After practice, the football gear belonging to Ms. Bernard's sons was stored in the trunk of the Cadillac which the victim drove. The victim left Ms. Morton's apartment that evening at approximately 8:00 p.m. to attend a birthday party. Ms. Morton said the victim was driving the burgundy Cadillac which was registered in her name. Ms. Morton last spoke with the victim by cell phone between 8:45 and 9:00 p.m. Ms. Morton said that the victim's cell phone was registered in her name. Lakeshea Roche Cobb dated Mr. Curtis off and on for eleven years prior to the offenses. Ms. Cobb testified that Mr. Curtis called her in mid-April, 2004, and asked where she was. Ms. Cobb told him she was at Marlowe's, a local restaurant, with her co-employees. Mr. Curtis arrived some time after 11:00 p.m. Ms. Cobb said that she and Defendant sat down at a table to talk, and Ms. Cobb noticed some specks of blood on Mr. Curtis' white t-shirt. Mr. Curtis first told Ms. Cobb that he had been in a fight and had been struck in the nose. When Ms. Cobb replied that nothing appeared wrong with his nose, Mr. Curtis told her that he had shot someone. Ms. Cobb said that she just "cried and looked at him." Mr. Curtis then told Ms. Cobb that she knew he would not do anything like that. A man entered the restaurant and told Mr. Curtis, "Man, we got to go." Ms. Cobb accompanied the two men to the door. Ms. Cobb observed Mr. Curtis and the man get into an older, large vehicle similar to a Cadillac and drive away. Ms. Cobb went back inside the restaurant. Ms. Cobb said that Mr. Curtis called her approximately two weeks later and arranged a meeting. Ms. Cobb picked Mr. Curtis up, and they stopped at a gasoline station. Mr. Curtis told her that he was "feeling heavy about something." Mr. Curtis told Ms. Cobb that he had shot "Big Daddy." Ms. Cobb identified the victim as the man she knew only as "Big Daddy." Ms. Cobb said that Sergeant Tim Sims contacted her on June 19, 2004, and escorted her to the police station. Ms. Cobb identified Mr. Milken from a photographic line-up as the man who had left Marlowe's with Mr. Curtis. Ms. Cobb spoke with Mr. Curtis the day after he was arrested, and Mr. Curtis told her to dispose of the football gear that was at Ms. Terry's apartment. Ms. Cobb said that she called Sergeant Sims and told him that she had retrieved the football gear. Ms. Cobb acknowledged that Mr. Curtis had told her he used to buy drugs from the victim.

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On cross-examination, Ms. Cobb said that she did not see a weapon on either Mr. Curtis or Mr. Milken while they were at Marlowe's. Ms. Cobb denied that she had entered into a relationship with Sergeant Sims after she gave her statement, but she acknowledged that she was in Sergeant Sims' boat when he drowned during a boating accident. Ms. Cobb said that she did not know Defendant, and she acknowledged that Defendant was not present at Marlowe's with Mr. Curtis and Mr. Milken. Officer Ernestine Davison testified that she was present when Ms. Cobb gave a statement to Sergeant Sims concerning the shooting. Officer Davison said that she typed up Ms. Cobb's statement, and Ms. Cobb read it over, made corrections, and signed the last page. On crossexamination, Officer Davison said that she was not present during Sergeant Sims' initial interview of Ms. Cobb. Officer Davison acknowledged that when Ms. Cobb was asked why Mr. Curtis shot the victim, she responded it was because the victim had shorted him on a drug sale. Sergeant Elaine Shelby, an investigator with the District Attorney's Office, attempted to locate Monica Terry before trial. Ms. Terry's mother told Sergeant Shelby that Ms. Terry had died in November 2004, from a lung disease. Tabatha Bender, an operations manager with Cricket Communications, testified that Ms. Morton's cell phone was used on April 22, 2004, to place two calls to the same specified telephone number at 10:25 p.m. and 11:37 p.m. respectively. Ms. Morton's cell phone received a call from that number at 12:29 a.m. on April 23, 2004. Sergeant Anthony Mullins, a member of the Memphis Police Department's homicide unit, testified that the victim's fingerprints were found on the cell phone located in the park where the victim was found. Sergeant Mullins accompanied Sergeant Sims to Ms. Cobb's apartment on June 19, 2004. Ms. Cobb told the officers about her meeting with Mr. Curtis at Marlowe's. Ms. Cobb also stated that Mr. Curtis told her that he had just shot someone and taken his car. Mr. Curtis then started laughing and told Ms. Cobb he "was just playing." Ms. Cobb said that Mr. Curtis left in "a brown or burgundy car, possibly a Cadillac." On cross-examination, Sergeant Mullins said that the police investigation of the crimes had been concluded before Sergeant Sims died. Dr. Tom Deering was serving as Shelby County's Interim Chief Medical Examiner at the time of the incident and performed an autopsy on the victim on April 23, 2004. Dr. Deering testified that the victim died as a result of a single gunshot wound to his forehead. The wound was located above the mid-point of the victim's right eyebrow. The presence of stippling and soot around the wound indicated that the barrel of the gun was between six and twenty-four inches from the victim when the weapon was discharged. Dr. Deering said that the presence of stippling in the victim's eyes and the even spacing of the stippling around the wound indicated that the victim was directly facing the shooter and his eyes were open when he was shot. Dr. Deering stated that the bullet traveled to the back of the victim's head, causing subdural and subarachnoid hemorrhaging. Dr. Deering said that the victim would have immediately lost -5-

consciousness after he was shot, but that the victim could have lived for a few seconds to a few minutes after the injury. The bullet was extracted from the victim's head during the autopsy. Dr. Deering stated that the victim also had bruising and swelling around his eyes and two abrasions on the back of his left wrist. On cross-examination, Dr. Deering testified that he did not know if the victim's eyes were blackened before the shooting or as a result of the shooting. Dr. Deering said that he did not detect any injuries to the victim's neck. Mr. Curtis testified in his own behalf. Mr. Curtis said that he arrived at Ms. Terry's apartment on April 22, 2004, between 6:00 p.m. and 7:00 p.m. Mr. Smith, Mr. Milken, and Ms. Terry's friend, Glenda, were also present. At some point, Mr. Curtis called Ms. Cobb, and a male voice responded on her answering machine. Mr. Curtis grew angry. He continued to call Ms. Cobb until he reached her, and they argued over the telephone. When the battery on the cell phone he was using went dead, Mr. Curtis continued to talk to Ms. Cobb on Ms. Terry's house telephone. Mr. Curtis stated that he did not have a way to get to Marlowe's where Ms. Cobb worked, so he called the victim, whom he had known since elementary school, and asked for a ride. Mr. Curtis told the victim that he wanted to go to Marlowe's to get something to eat, but the victim believed that Mr. Curtis wanted to see if Ms. Cobb was with another man. The victim told Mr. Curtis he would go buy him something to eat from another restaurant. The victim left and returned to the Summit Park Apartments between 9:45 and 10:00 p.m. The victim and Mr. Curtis sat in the victim's vehicle and talked for approximately ten to twenty minutes. Mr. Curtis said that Mr. Milken walked passed the Cadillac, and the victim appeared nervous. Mr. Curtis reassured the victim that Mr. Milken was a friend. Mr. Milken walked passed the vehicle a second time, grabbed the victim's head, and tried to pull him out of the Cadillac. Defendant appeared at the front passenger side of the vehicle and pointed a gun through the open window. Mr. Curtis said that he hit Defendant's arm, and the gun discharged, striking the victim in the forehead. Mr. Curtis described the events immediately following the shooting: After the shooting, Mr. Jackson fell forward onto my shirt. And, I jumped out of the car. [Defendant] ran. When [Defendant] ran, [Mr.] Milken panicked and talk[ed] about burning the car. So, I said, no, I said, let's go to the baseball park. I went to the baseball park because I played softball up there, and I know what time the police run. They run every hour up there like clockwork. So, instead of burning the body in the car[,] I dropped the body and took the car. We left, when we left the park, [we] went to Marlowe's. Mr. Curtis stated that he told Ms. Cobb he had shot someone "basically, to scare her." Mr. Curtis went to Marlow's because he wanted "to show [his] face." Mr. Curtis explained that "if you see a murder, no witness, no case," and Mr. Curtis wanted Ms. Cobb to see that he was with Mr. Milken if anything happened to him. Mr. Curtis said that after they left Marlowe's, Mr. Milken drove the Cadillac back to the Summit Park Apartments. Mr. Milken handed Mr. Smith the football gear and the leather coat from the Cadillac's trunk, and Mr. Smith took the items into Ms. Terry's -6-

apartment. Mr. Milken retrieved some lighter fluid from the apartment, and Mr. Curtis told Mr. Milken that he would burn the vehicle. Mr. Curtis said that he and Mr. Smith drove to an insurance building a short distance from the apartments. Mr. Smith poured lighter fluid on the vehicle and set it on fire. Mr. Curtis said that he did not return to Ms. Terry's apartment but walked instead to a nearby hotel where he had a room. Mr. Curtis gave a statement to Sergeant Sims about the incident. As he was leaving, Sergeant Sims told Mr. Curtis that he would need a second statement the next day about the shoulder pads that were in the victim's Cadillac. Mr. Curtis said that "shook [him] up," so he called Ms. Cobb asked her to dispose of the football gear. Mr. Curtis denied that he knew what Mr. Milken and Defendant planned to do that night. Mr. Curtis acknowledged that he helped dispose of the body and burn the victim's Cadillac. On cross-examination, Mr. Curtis said that the victim was facing him when Defendant shot him through the front passenger side window. Mr. Curtis said that Mr. Milken pulled the victim out of the vehicle by himself after they arrived at the park, and Mr. Curtis remained in the Cadillac. Mr. Curtis acknowledged that he did not try to help the victim after he was shot and that his only thought was "to clean up the mess." Mr. Curtis denied that Mr. Smith was afraid of him and said that he did not talk to Mr. Smith after the shooting. Mr. Curtis said that he had heard about Defendant but did not personally know him. Mr. Curtis acknowledged that he bought cocaine from the victim which he later resold. Mr. Curtis said that a police car appeared behind them while Mr. Milken was driving to the park. The victim was in the front passenger seat, bent over with his face pointed toward the floorboard. Mr. Curtis told Mr. Milken not to panic. Mr. Curtis said that he did not know whether the victim was still alive when they arrived at the park. Mr. Curtis denied taking any money or drugs from the victim. Mr. Curtis said that Mr. Milken smashed the victim's cell phone and jumped back in the Cadillac. Mr. Curtis acknowledged that he told Ms. Cobb he "had a heavy conscious [sic]," but said that they had that conversation in a hotel room, not a gasoline station. On redirect examination, Mr. Curtis said that the victim did not carry drugs late at night because he was afraid he would be robbed. Defendant then presented his defense to the jury. Kaylandra Ayers, Defendant's sister, testified that Mr. Smith contacted her after the shooting and asked Ms. Ayers to take him to Defendant's attorney. Ms. Ayers said that Mr. Smith wanted to tell the attorney that Defendant was with him on the porch when the victim was shot, and that Defendant did not shoot the victim. On cross-examination, Ms. Ayers said that she did not know Mr. Smith, but Mr. Smith knew some of her siblings. Ms. Ayers said that she never told her brother about Mr. Smith's statement that Defendant was not the shooter. Ms. Ayers acknowledged that Mr. Smith testified at the preliminary hearing that Defendant shot the victim. Ms. Ayers acknowledged that she did not tell the police about Mr. Smith's statement, and she did not see Mr. Smith again after the preliminary hearing. -7-

Patricia Marchbanks testified that she was working as a paralegal for Defendant's attorney at the time of the incident. Ms. Marchbanks said that Ms. Ayers brought Mr. Smith to the office the day before Defendant's preliminary hearing, but Defendant's attorney was not there. Ms. Marchbanks took notes as Mr. Smith talked. Mr. Smith told Ms. Marchbanks that the investigating officers had changed his statement, and he felt bad and wanted to clear things up. Ms. Marchbanks said that she intended to type up Mr. Smith's statement, but Mr. Smith said he would not sign the statement, and left the office before the statement could be prepared. On cross-examination, Ms. Marchbanks said that she did not have an opportunity to tell Defendant's attorney about the meeting before the preliminary hearing. II. Sufficiency of the Evidence Defendant contends that the evidence was insufficient to support his convictions of second degree murder and facilitation of especially aggravated kidnapping. Defendant argues that Mr. Smith was an accomplice as a matter of law whose testimony that Defendant was the shooter was uncorroborated by anyone other than his co-defendant, Mr. Curtis. Defendant also contends that the trial court erred in not instructing the jury that Mr. Smith was an accomplice as a matter of law. The trial court found that Mr. Smith was not an accomplice as a matter of law and that his status as an accomplice was a question for the jury to decide. The trial court specifically found: [O]f course, Mr. Smith's testimony was that he had nothing to do with the murder or the robbery at all. That after it was completed he then took the, he put lighter fluid in the car and at the request of the defendants he took the football equipment. So, that's a question for the jury to decide. They're going to have to evaluate all of that. I did not hear Mr. Curtis testify that Mr. Smith was in on anything. Nor, [in] any of the proof you put on. So, for that reason because it's a question for the jury, I'm going to use that paragraph and make it optional. The trial court instructed the jury: [i]f you find from the proof that the witness was an accomplice, then a defendant cannot be convicted upon the uncorroborated testimony of this witness. If you find that the witness was not an accomplice, then you will judge the weight to be given to his testimony just as you do that of the other witnesses in the case. "An accomplice is one who knowingly, voluntarily, and with common intent participates with the principal offender in the commission of a crime." State v. Bough, 152 S.W.3d 453, 464 (Tenn. 2004) (citing State v. Lewis, 36 S.W.3d 88, 94 (Tenn. 2000); Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975)). "This means that the person must do more than have guilty knowledge, be morally delinquent, or participate in other offenses with the principal actor." State v. Jackson, 52 S.W.3d 661, 665 (Tenn. Crim. App. 2001) (citing Pennington v. State, 478 S.W.2d 892, 898 -8-

(Tenn. Crim. App. 1971)). "Essentially, an accomplice must be a person who could be indicted for the offense at issue." Jackson, 52 S.W.3d at 665. If the offense in question was not committed by the person's own conduct, the person may, nonetheless, be criminally responsible as a principal to the offense if the person "solicits, directs, aids, or attempts to aid another person to commit the offense." T.C.A.

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