D. KELLY THOMAS, Jr., J.
The Defendant, Kwane Morris, was convicted by a Shelby County jury of facilitation of first degree murder and received a twenty-two-year sentence for that conviction. In this direct appeal, the Defendant contends that (1) the trial court erred in denying his motion to suppress his statement to the police that was involuntary and coerced; (2) the evidence was insufficient to support his conviction; (3) the trial court erred by limiting his cross-examination of a State's witness for possible bias; and (4) the trial court erred by failing to give a jury instruction on accomplice testimony. Following our review of the record and the applicable authorities, the judgment of the trial court is affirmed.
In the late evening hours of November 7, 2008, fifty-five-year-old John Baker, the victim, was sitting at the desk in the office of his Shelby County home when he was killed by a stray bullet that pierced the window and struck him in the back of the head. The victim's home was located on the corner of Foyle Way and Foyle Cove East in Memphis. On February 5, 2009, a Shelby County grand jury charged the Defendant and his co-defendant, Kenneth Spencer, with the first-degree murder of the victim.
The evidence at the Defendant's trial revealed the following facts. On October 31, 2008, just a week prior to this incident, the Defendant and his co-defendant had been involved in an earlier shooting with the victim's young neighbor, Arsenio Delk. Delk testified that he and his friends were at a crowded Halloween party that was being held in a neighborhood home, when he and Spencer were involved in an altercation. According to Delk, he "accidentally bumped" into Spencer, and Spencer responded by pulling a gun on him. The group proceeded outside of the home, where the men exchanged words; the Defendant was with Spencer at that time. Next, Spencer "walked up the street . . . to a white truck." Someone in Spencer's group turned on the vehicle's lights, so Delk and his friends could not see. Then Delk's "partner" called out the Defendant's name, and shots were fired.
Dedrick Nelson testified that he saw both the Defendant, with a .32 caliber weapon, and Spencer, with a .40 caliber weapon, shooting at Delk that night. Delk was struck in the forearm by a .40 caliber bullet.
On November 7, the evening in question, Recarlos Brown, Joshua Cole, and another individual named Calvin
That same evening, the Defendant and Spencer were driven by Patrick Jefferson to a party in the victim's neighborhood. When they were turned away, the Defendant directed Jefferson to a cove in the neighborhood, showing Spencer where Delk lived. They drove slowly through the cove, and Jefferson observed two cars sitting there. The Defendant said to Spencer, "I think I see [Delk] in the car." Recarlos Brown identified the Defendant as one of the passengers in the car that drove through Foyle Cove East that night.
After Jefferson exited the cove, he was still being directed by the Defendant. According to Jefferson, he then pulled over on a nearby street so he could relay a text message. Jefferson then heard the Defendant say to Spencer, "You better get him before he gets you[,]" and "He's going to get your family." According to Jefferson, the Defendant and Spencer were talking back and forth, "You got to get him[.]" Jefferson said to the two men, "Don't do nothing crazy."
Spencer then got out of the car and headed between two houses in the direction of the cove. Moments later, the group of men in the cove were being shot at from behind. After shots were fired, the group of men in the cove got inside Adam's car and left; Spencer ran back to the car, and they drove off.
Terrance Baker, the victim's son, returned home from work that evening. He called for his father but received no response. He located his father in the office, where he found the victim sitting in his chair in front of the computer. The victim still did not respond, and Baker saw blood coming from his father, so he called 9-1-1. According to the medical examiner, the victim died from a gunshot wound to the head.
Detective Robert Butterick of the Shelby County Sheriff's Department testified that he found a bullet hole in the window of the victim's office. After determining the bullet's trajectory, he began searching the area between two neighboring houses at the end of the cove and discovered three fired .40 caliber shell casings and a bullet projectile in a telephone junction box in front of the house. Further investigation into the murder led to the issuance of search warrants for the Defendant's and Spencer's homes. The subsequent search of the Defendant's home resulted in the seizure of ammunition and two semi-automatic weapons—a .40 caliber Smith and Wesson handgun and a .380 caliber handgun. During the execution of the search warrant at Spencer's home, Det. Butterick found and seized ammunition and a number of firearms—a pellet pistol, a .22 caliber pistol, and a .32 caliber semi-automatic pistol.
Det. Butterick testified that the ballistics evidence found at the crime scene, bullet fragments recovered from Delk's arm and from the victim's body, and a number of the items seized as a result of the search warrant were submitted to the Tennessee Bureau of Investigation ("TBI") laboratory for analysis. Testing confirmed that the three shell casings recovered from the scene were all fired from the .40 caliber pistol found in the Defendant's home. The fired bullets recovered from the victim's head, the cove, and Delk's arm were all consistent in shape, type, and design with the live rounds that were loaded in the .40 caliber gun, but they were too damaged for a conclusive determination that they had been fired from that same gun.
In a statement to Detectives Matthew Keaton and Terrell Robertson of the Shelby County Sheriff's Department, the Defendant admitted to his involvement in the shooting, stating that he directed Jefferson to the location of Delk's home, that they believed Delk was out for revenge, and that he encouraged Spencer to get Delk first. Spencer also gave a statement to law enforcement, which was played in its entirety for the jury, wherein he admitted that he had shot toward two cars near the victim's house under the belief that Delk was inside one of them. Spencer also stated that, as he was exiting the vehicle, the Defendant told him not to shoot at one of the cars because the Defendant's friend, Robert Adams, was inside.
Following the conclusion of the proof, the jury found the Defendant not guilty of first degree murder but guilty of the lesser-included offense of facilitation. The trial court imposed a sentence of twenty-two years. This appeal followed.
On appeal, the Defendant raises four issues for our review: (1) whether the trial court erred in denying his motion to suppress his statement to the police that was involuntary and coerced; (2) whether the evidence was sufficient to support his conviction for facilitation of first degree murder; (3) whether the trial court erred by limiting his impeachment of Patrick Jefferson for possible bias; (4) whether the trial court erred by failing to give a jury instruction on accomplice testimony.
The Defendant argues that the trial court erred in denying his motion to suppress his statement to police because that statement was involuntary and coerced. The State argues that the Defendant has waived this issue by failing to include a transcript of the suppression hearing in the record on appeal. Waiver notwithstanding, the State contends that the trial court's conclusions detailed in the order denying the Defendant's suppression motion are supported by the recording of the Defendant's statement.
Preliminarily, we address the State's waiver argument because the transcript of the hearing on the motion to suppress is not included in the record. We agree that it is the duty of the accused to provide a record which conveys a fair, accurate, and complete account of what transpired with regard to the issues which form the basis of the appeal.
On review, an appellate court may consider the evidence presented at the suppression hearing as well as at trial in determining whether the trial court properly denied a pretrial motion to suppress.
The Fifth Amendment of the United States Constitution provides that "[n]o person. . . shall be compelled . . . to be a witness against himself" in a criminal case. U.S. Const. amend. V. Similarly, article I, section 9 of the Tennessee constitution provides that an accused "shall not be compelled to give evidence against himself." Tenn. Const. art. I, § 9. "The test of voluntariness for confessions under article I, [section] 9 of the Tennessee Constitution is broader and more protective of individual rights than the test of voluntariness under the Fifth Amendment."
A police officer is required to warn a suspect of his
Because we are without the benefit of transcript, we will quote extensively from the trial court's order denying the Defendant's motion to suppress. The trial court initially made the following findings of fact
Additionally, Officer Keaton suggested that he wanted to help the Defendant but the only way he could is if he confessed. He stated:
At trial, Det. Keaton testified that he took two statements from the Defendant. The recording played for the jury was the second statement; in the first statement, the Defendant denied any involvement in the shooting. Detailing the circumstances of the second statement, Det. Keaton testified that the Defendant was read his
According to Det. Keaton, the Defendant did not appear to be under the influence of drugs of alcohol at the time he gave his statement. The entire statement took "roughly an hour." Det. Keaton was also asked some general questions about the interrogation techniques used in the video in effort to get the Defendant to talk.
On cross-examination, Det. Keaton affirmed that he "brought" Det. Robertson into the interview room because Det. Robertson had a prior relationship with the Defendant. However, Det. Keaton stated that "the whole conversation" about Det. Robertson being the Defendant's "Uncle Terrell" was not a "preplanned situation[.]" Det. Keaton clarified that he got Det. Robertson because he was "the best interviewer" they had and that "[j]ust the fact that he [was] somehow connected to" the Defendant "didn't matter" to him. Det. Keaton stated that the "Uncle Terrell" reference did not call for Det. Robertson's excusal from the interview room.
In addition to the lack of a transcript, the Defendant has confused the matter even further on appeal by failing to accurately set forth his contentions in his appellate brief; the argument section challenging the denial of his motion to suppress is anything but clear. He relies on the following allegations in support of this issue: "(1) that [he] was in custody at the time that he gave the confession; (2) that the officers were required to advise [him] of his
In ruling on the voluntariness of the Defendant's confession, the trial court separately addressed many of the Defendant's concerns. First, the trial court discussed the Defendant's argument "that the statement was the result of promises or other inducements that raised the hope of leniency" and that "the statement was the result of trickery and deception by officers." Determining that this allegation was without merit, the trial court found as follows:
Next, the trial court addressed the Defendant's contention "that the interrogation technique used by" Officer Robertson "was inappropriate .. . because he was a friend of the family." The trial court then recounted the following events from the Defendant's interview:
During the interrogation, Officer Robertson stated,
Defendant Morris subsequently disclosed that his co-defendant shot the gun that killed the victim. Officer Robertson responded,
In concluding that this allegation was without merit, the trial court reasoned as follows:
In the instant case, Officer's Robertson's presence during the interrogation and his statements were not sufficient to declare that Defendant Morris' will was overborne. Defendant Morris voluntarily waived his rights and he knew that he could remain silent or request an attorney at anytime and he neglected to do so. Although he may not have been forthcoming, Morris was cooperative throughout the interview. Additionally, Officers Robertson and Keaton at no time gave Morris false hope as to what would happen to him if he cooperated. Also, Officer Keaton conducted the majority of the interview while Officer Robertson only participated intermittently. Officer Robertson did not misrepresent information to Morris at any time during the interrogation. Considering the totality of the circumstances, Morris' statements were voluntary and Officer Robertson's presence and statements did not amount to coercion.
The trial court then reviewed the totality of the circumstances surrounding both Defendants' confessions. The court ruled that "[c]onsidering the totality of the interrogation and the circumstances, the Defendants' statements were voluntary and there was no violation of the Due Process Clause of the Fourteenth Amendment." In so concluding, the trial court reasoned as follows:
In a final section, the trial court dealt with the Defendant's assertion that "the waiver of his
The Defendant, in his appellate brief, initially outlines the "in custody" requirements for
The Defendant next makes a vague reference in his brief that his statement should have been suppressed as involuntary because he was under the influence or alcohol or drugs at the time he made that statement. However, this allegation was not raised in the motion to suppress and was not addressed by the trial court in its order denying the motion and, therefore, is arguably waived.
In the trial court, the Defendant argued that he did not knowingly waive his
The Defendant focuses most of his argument on appeal on the interrogation techniques used by the officers, citing only to the exact portions of the interview delineated in the trial court's order. First, the Defendant notes Det. Robertson's reference that he was the Defendant's "Uncle Terrell," and then the Defendant argues, "The officer asserting himself as a family member based on his history with the Defendant and his family and then inferring that the Defendant's failure to confess is going to hurt him and put him in a compromising or untenable situation crosses the line for proper interrogation techniques." The Defendant also challenges Det. Keaton's interrogation techniques. He asserts,
A court determining voluntariness must examine the totality of the circumstances surrounding the giving of a confession, "both the characteristics of the accused and the details of the interrogation."
The trial court in this case correctly observed that these types of interrogation techniques are to be considered in the totality of the circumstances. Promises of leniency by state officers do not render subsequent confessions involuntary per se: "`The Fifth Amendment does not condemn all promise-induced admissions and confessions; it condemns only those which are compelled by promises of leniency.'"
Regarding the Defendant's allegation that Det. Robertson should not have been present due to his personal relationship with the Defendant or should not have referred to himself as "Uncle Terrell" during the interview, we agree with the trial court that this does not per se render the Defendant's statement involuntary. The exact extent of Det. Robertson's and the Defendant's relationship is unclear. Det. Robertson did not testify at trial, and relying on the trial court's findings of the fact, he did not testify at the motion to suppress hearing either. However, as noted by the trial court, the Defendant never once referred to Det. Robertson as "Uncle Terrell" during the interview. It does not appear that the two men were extremely close but rather only that Det. Robertson had some knowledge of the Defendant and his family. Det. Keaton referred to their relationship as "somehow connected" to one another. The trial court also noted that Det. Keaton conducted the majority of the interview while Det. Robertson "only participated intermittently" and, at no point, misrepresented information to the Defendant. This factor alone was not enough to declare the Defendant's will overborne.
The Defendant alleges that his statement was involuntary because it resulted from trickery, deception, and promises of leniency made to him by his interviewing officers, which overbore his free will. While the detectives urged the Defendant to confess, the trial court determined that neither officer ever made a false promise to the Defendant. Det. Keaton told the Defendant that if he made a statement then he would make the Defendant's cooperation known to his "bosses and the prosecutors[.]" Det. Keaton made several similar statements throughout the interview, such as "I'm trying to keep you from this Charge but you won't let me help you" and that if the Defendant did not talk to the detectives, then his "bosses" would tell him to put the Defendant "in jail with Ken." At one point in the interview, the Defendant asked what could the detectives promise him, and Det. Robertson specifically stated that they could not promise the Defendant anything in exchange for his cooperation. The trial court also found that Det. Keaton did not make any specific promises to the Defendant. The trial court concluded that, at no time, did the detectives give the Defendant "false hope as to what would happen to him if he cooperated[,]" rather, they were arguably trying to appeal to the Defendant's conscience. After the Defendant confessed, it is clear from the videotape that he still anticipated a long prison term for his participation in the shooting. We cannot conclude that the detectives' statements amounted to enforceable promises of leniency.
Upon our review, we conclude that the record supports the trial court's conclusions that the Defendant's statements were voluntarily given and were not the result of police coercion or promises of leniency. The nineteen-year-old Defendant, who had completed high school, was provided with
The Defendant has challenged the sufficiency of the evidence supporting his conviction for facilitation of first degree premeditated murder. He specifically argues that the evidence is insufficient because "there was no clear and credible testimony stating that the Defendant was aware that Kenneth Spencer planned to shoot at two cars parked in the Foyle Cove East." The State responds that "the evidence is legally sufficient to support the jury's conclusion that the [D]efendant knew Spencer intended to kill Mr. Delk by firing upon the group in front of Mr. Baker's house and provided substantial assistance to him."
An appellate court's standard of review when a defendant questions the sufficiency of the evidence on appeal 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 beyond a reasonable doubt."
A guilty verdict "removes the presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the evidence is insufficient to support the jury's verdict."
The Defendant was convicted of facilitation of first degree murder. First degree murder is the intentional and premeditated killing of another. Tenn. Code Ann. § 39-13-202(a)(1). Facilitation occurs "if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony." Tenn. Code Ann. § 39-11-403(a).
Determining whether the Defendant knew of his co-defendant's intent required the jury to consider the Defendant's mental state, which is a factual question for the jury to resolve.
Indeed, in this case, the evidence in the light most favorable to the State, showed that the Defendant and his co-defendant had a prior altercation with Delk at a Halloween party, during which time both the Defendant and co-defendant Spencer shot at Delk, hitting him in the forearm with a .40 caliber bullet. Just a week later, on November 7, 2008, the Defendant and Spencer were driven by Jefferson to a party in Delk's neighborhood. After being denied admittance to this party, the Defendant directed Jefferson to the location of Delk's home in Foyle Cove East and pointed out Delk's house to Spencer. At that time, there were two cars and several men gathered in the cove. According to Jefferson, the Defendant said to Spencer, "I think I see [Delk] in the car." Recarlos Brown identified the Defendant as a passenger in Jefferson's vehicle.
Jefferson then drove away from the cove but soon thereafter stopped the car on a nearby street to relay a text message. Around this time, Jefferson overheard the Defendant encouraging his co-defendant Spencer, saying, "You better get him before he gets you[,]" and "He's going to get your family." As Spencer was getting ready to exit the car, the Defendant requested of Spencer that he not shoot at Robert Adam's vehicle. The co-defendant then exited the car and shot at the group of men in the cove. As a result, a stray bullet hit the victim, sitting inside his home, in the head, killing him.
Testing confirmed that shell casings from the scene were fired through the 40. caliber weapon found inside the Defendant's home. The bullets recovered from the victim's head, the cove, and Delk's arm were all consistent in shape, type, and design with live bullets that were loaded in the .40 caliber weapon. Both the Defendant and Spencer gave statements to law enforcement admitting to their involvement in the shooting.
Based on this evidence, the jury could have reasonably inferred that the Defendant was aware of Spencer's intent to kill Delk by firing upon the group of men and that the Defendant furnished substantial assistance in that endeavor. Accordingly, the evidence supports the Defendant's conviction for facilitation, and he is not entitled to relief on this issue.
The Defendant contends that he "was unable to fully impeach Patrick Jefferson," noting that he "attempted to elicit evidence that the witness, Patrick Jefferson[,] was not credible because he had entered into a Memorandum of Understanding with the State and had been arrested several times since the November 8, 2008 incident." He explains,
The Defendant contends that he was denied his right to show the witness's bias. The State responds that the Defendant is not entitled to relief on this issue because he "consented to allowing Mr. Jefferson being advised by counsel and that [he] was able to fully cross-examine and attempt to impeach Mr. Jefferson."
Initially, we note that although neither party has commended the issue to us, this court has noticed upon review of the record that the issue is not included in the Defendant's motion for new trial or amended motion for a new trial and that the motion for new trial transcript is not included in the record on appeal.
"When necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of an accused at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal." Tenn. R. App. P. 36(b). In determining whether plain error review is appropriate, the following factors must be established:
The Defendant cites Tennessee Rule of Evidence 616, which permits a party to "offer evidence by cross-examination, extrinsic evidence, or both, that a witness is biased in favor of or prejudiced against a party or another witness." The right to question a witness as to potential bias is a recognized fundamental right.
The right of a defendant to impeach a witness for bias "includes the right to examine a witness regarding any promises of leniency, promises to help the witness, or any other favorable treatment offered to the witness."
Because the transcript of the motion for new trial hearing is not included in the record on appeal, it is arguable that the appellate record does not clearly establish what occurred in the trial court. However, because waiver occurred due to the Defendant's failure to include the issue in his motion for new trial, and therefore, the issue was likely not addressed at the hearing, we will proceed to an analysis of the remaining plain error factors.
At the outset of the trial, defense counsel referenced that he had filed a motion generally requesting any impeaching information of government witnesses. Specifically, with regard to the witness Patrick Jefferson, defense counsel noted that he wanted information about whether Jefferson had received promises of consideration in exchange for his cooperation with the State in the Defendant's trial. Defense counsel asserted that Jefferson had "been arrested several times since this matter" and that he had a robbery charge reduced to a conviction for theft. The prosecutor responded that the "only thing" Jefferson had been convicted of was theft and that they would provide any information with regard to that conviction. As far as Jefferson's cooperation in this matter, the prosecutor noted that "the State took a proffer from him at the outset of this investigation[,]" and Jefferson gave a statement to law enforcement, but Jefferson had not received any promises of consideration in this case. Defense counsel then noted that Jefferson also had a statutory rape charge pending. The prosecutor confirmed that a statutory rape charge was pending but asserted that the case had not been discussed "in any way, shape or fashion" and that Jefferson had not "been offered anything in exchange for" his cooperation on this case. Defense counsel averred that Jefferson "was set for sentencing today on another matter"
During the direct examination of Jefferson, the trial court held a bench conference on the issue of impeaching information. The State informed the court that Jefferson had pled guilty to misdemeanor theft but that he not been sentenced yet and was applying for diversion. The State objected to cross-examining Jefferson about the theft conviction, arguing that the matter had "not been disposed of" and that Jefferson "might get his diversion." Defense counsel noted that the theft conviction had "been disposed of" but that Jefferson had not "been sentenced." Defense counsel averred that "anything that [Jefferson] ha[d] pending for which he [might] benefit" and which provided him with "motive . . . to cooperate and give testimony" was proper material for cross-examination. Defense counsel again noted that Jefferson had a statutory rape charge pending and had been arrested several times since this matter occurred. In conclusion, defense counsel argued, "I think the jury should be able to hear that for purposes of determining whether or not he is going to get some benefit depending on how he performs at this trial." The prosecutor once more lodged an objection to any questioning about the theft charge because Jefferson had not "been sentenced yet" and could obtain diversion. The trial court ruled that the defense could question Jefferson about the theft conviction, including that it was reduced from a robbery charge, as it was "all part of the negotiation."
Thereafter, the State questioned Jefferson about his conviction for theft and that it was reduced from a robbery charge. Jefferson testified that the district attorney's office did not make any promises to him in exchange for his testimony against the Defendant.
Jefferson was then thoroughly cross-examined about the Memorandum of Understanding he entered into with the State prior to making a statement to law enforcement in this matter. Jefferson confirmed that he not been charged in relation to the victim's death. Defense counsel then asked about the prior robbery charge and attempted to question Jefferson about the facts underlying that conviction. As defense counsel persisted in questioning Jefferson about the robbery charge, Jefferson asked if he could "plead the Fifth." Defense counsel requested that the witness be instructed to answer the questions because he did not have any Fifth Amendment rights following his guilty plea. The court warned defense counsel that if he continued in this vein, then the court would have to obtain Jefferson's lawyer to assist him in answering his questions. Defense counsel then asked Jefferson about his robbery charge being reduced to a theft conviction and that sentencing on that charge had been rescheduled. Next, defense counsel inquired about how Jefferson was able to obtain such a "good deal."
When defense counsel asked, "Do you think that you have any responsibility for driving and stopping the car and letting Ken hop out of the car?", the prosecutor objected. The prosecutor reasoned that Jefferson needed his counsel present before answering that question because the defense was "asking [Jefferson] to throw himself in as a [d]efendant in this case right now." Defense counsel replied, "I mean that's what the memorandum says." The prosecutor disagreed that the memorandum stated such, and defense counsel said, "Well, then I think [Jefferson's counsel] does need to be here, then." The court then took a recess to obtain Jefferson's lawyer's presence before questioning resumed.
Again, the Defendant's exact challenge to the trial court's ruling is murky at best, discussing the Memorandum of Understanding, Jefferson's pending charges, and Jefferson's right to self-incrimination on the theft charge. First, Jefferson's counsel's presence was obtained in response to questioning designed to elicit a response from Jefferson implicating himself in this case. Jefferson's counsel was not obtained to advise Jefferson about the theft conviction; defense counsel abandoned further questioning of Jefferson about the facts underlying the theft conviction. At the time Jefferson's counsel was actually summoned, defense counsel assented to Jefferson's counsel presence.
Turning to the challenged impeachment evidence, we note that the defense was allowed to question Jefferson about the theft conviction, albeit not about the specific facts of that conviction. Moreover, the defense was allowed to examine Jefferson about the fact that the theft had been reduced from a charge of robbery and that his sentencing on that conviction had been postponed. What the State fails to take into account is that the defense also indicated a desire to question Jefferson about "three or four" subsequent arrests "since this event," including a pending statutory rape charge, and that the trial court ruled that defense counsel could not question Jefferson about any pending charges, only about convictions. Nonetheless, any error by the trial court in this regard would be subjected to a harmless error analysis.
The Defendant and his co-defendant confessed to their involvement in the shooting. Ballistics evidence connected the gun found in the Defendant's home to shell casings found at the scene, and Recarlos Brown's testimony also placed the Defendant at the scene. The trial court did permit the Defendant to question Jefferson about his recent conviction for theft, including whether the State had promised him favorable treatment as to that charge in exchange for his testimony. The defense was also allowed to thoroughly question Jefferson about the Memorandum of Understanding he entered into before giving his statement in the present matter. Furthermore, because the Defendant did not offer any other evidence of a possible connection between the additional arrests and the pending statutory rape charge and Jefferson's testimony against the Defendant at trial, the evidence excluded as a result of the error was limited to the mere existence of those arrests and charges.
On appeal, the Defendant argues that the trial court erred by failing to give a jury instruction on accomplice testimony.
It is well-established in Tennessee that "a conviction may not be based solely upon the uncorroborated testimony of an accomplice."
This court has previously considered the issue of whether the court or the jury determines a witness's status as an accomplice:
The record is clear that Jefferson disputed his status as the Defendant's and Spencer's willing accomplice. Jefferson testified that he was not involved in the shooting in any way but was merely driving the Defendant and Spencer through the neighborhood. He claimed that he did not know that the two men led him to the cove to shoot at Delk prior to their attempt to do that very act. Thus, we cannot say that the trial court erred in failing to charge the jury that Jefferson was the Defendant's accomplice as a matter of law whose testimony required corroboration.
However, the trial court also failed to present this factual dispute to the jury in its instructions. We agree with the Defendant that there was evidence in the record from which the jury could have inferred that Jefferson was an accomplice. It does not matter that there was insufficient evidence for law enforcement to charge Jefferson as a criminally responsible party to this crime; what matters is that the issue was raised by the evidence and should have been submitted to the jury. Jefferson testified that he drove the two men to the cove, that he did so knowing that they were looking for Delk, and that he overheard their conversations about seeking revenge. Nonetheless, even when evidence exists that would support a finding that a witness is an accomplice, and the trial court fails in its duty to instruct the jury concerning accomplice testimony, such an error is subject to harmless error analysis.
The State presented ample evidence at trial to corroborate Jefferson's testimony if the jury had found him to be an accomplice to first degree murder. "[C]orroborating evidence is sufficient if it connects the accused with the crime in question."
Furthermore, Jefferson was vigorously cross-examined at trial about his participation in these events and the Memorandum of Understanding he entered into with the police prior to giving his statement. Importantly, the Defendant was convicted of facilitation, not first degree murder; the jury did not even find the Defendant, much less Jefferson, guilty under a theory of accomplice liability.
In accordance with the foregoing reasoning and authorities, the judgment of the trial court is affirmed.