FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE November 26, 1997 MAY 1997 SESSION Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9608-CC-00299 ) vs. ) Blount County ) SLATER BELCHER, ) Hon. D. Kelly Thomas, Jr., Judge ) Appellant. ) (First Degree Murder, ) Aggravated Assault)
FOR THE APPELLANT: FOR THE APPELLEE:
KEVIN W. SHEPHERD JOHN KNOX WALKUP (on appeal and motion for new trial) Attorney General & Reporter Attorney at Law 404 Ellis Ave. SANDY R. COPOUS Maryville, TN 37804 Assistant Attorney General Criminal Justice Division MACK GARNER (trial) 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493
NATALEE STAATS HURLEY (trial) MIKE FLYNN Assistant District Public Defender District Attorney General 318 Court Street Blount County Courthouse Maryville, TN 37804 Maryville, TN 37804
JERRY CUNNINGHAM Attorney at Law 329 Cates St. Maryville, TN 37801
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE OPINION
The defendant, Slater Belcher, stands convicted of the first degree
murder of his best friend, Larry Wyatt, and the aggravated assault of his wife,
Denise Belcher. His convictions were returned by a jury of his peers in the Blount
County Circuit Court at the conclusion of a five day trial. The defendant is currently
serving a life sentence for the murder conviction consecutively to a three year
sentence for the aggravated assault. In this direct appeal, Belcher raises four
issues for our review:
1. Whether he was denied his constitutional rights by defense counsel's failure to pursue any pretrial motions on his behalf, specifically including failure to move for the suppression of his pretrial statement to the police.
2. Whether his due process rights were violated by the state's failure to disclose information as required by Brady v. Maryland.
3. Whether he was deprived of a fair and impartial jury by the actions of the jury foreperson in concealing material information during voir dire.
4. Whether the evidence presented at trial is sufficient to support his convictions.
We affirm the judgment of the trial court.
In February 1995, the defendant and his wife, Denise Belcher, lived
in and managed an apartment complex in Maryville. The defendant also owned a
tractor-trailer truck and worked as a truck driver through Transis. The Belchers had
several friends in their apartment complex, including Joan Huiet, who lived across
the hall from them, and David Allen, a truck driver who was Ms. Huiet's occasional
boyfriend. Larry Wyatt, a frequent visitor to the apartment complex, was a truck
driver who Slater Belcher described as his best friend. Wyatt was, at the time of his
death, engaged in an affair with the defendant's wife. He was also a former lover
of Joan Huiet, although the two continued to maintain a close friendship.
At trial, the testimony of many of the principal witnesses was
contradictory on key points.
2 Prior to February 26, 1995, the Belchers were experiencing marital
difficulties. According to Mrs. Belcher, the marriage had reached the point where
she was ready either for the defendant to leave or to leave herself. Mrs. Belcher
knew the defendant was suspicious of her relationship with Wyatt, but so far as she
knew, he had no definite knowledge of it. Unknown to Mrs. Belcher, Allen had
confirmed the defendant's suspicions about the affair a few days before February
26, and Huiet had likewise confirmed the affair on February 25. Huiet testified the
defendant was anxious over the situation prior to her conversation with him.
During the day of February 25, 1995, the Belchers argued, although
Mrs. Belcher testified her husband did not then accuse her of having an affair with
Larry Wyatt. Sometime in the afternoon or early evening hours, Mr. Belcher went
to his mother's house in Powell so Mrs. Belcher could think about what the two
needed to do about their relationship.
Within a few hours of the defendant's departure, Larry Wyatt arrived
at the building. Wyatt agreed to take Huiet to the grocery store. While at the store,
Huiet implored Wyatt to come clean with the defendant about his affair with Mrs.
Belcher. Hueit informed Wyatt she had told the defendant about the affair between
Mrs. Belcher and Wyatt and asked him to warn Mrs. Belcher. Huiet and Wyatt also
devised a warning signal whereby Huiet would alert Wyatt of danger by telling him
some flags she was supposed to pick up for him had not come in.
After Wyatt returned from the grocery store, he and Mrs. Belcher
decided to go to his trailer home nearby. Before Mrs. Belcher left the building, she
took her cordless phone to Huiet and asked Huiet to call her if the defendant
returned home.
The defendant later returned and came to Huiet's apartment looking
for the cordless phone. Huiet testified this occurred around 11:00 or 11:30 p.m.
3 According to Huiet, the defendant was upset because he had been stopped by a
police officer on the way home. He asked Huiet whether she could get in touch with
Mrs. Belcher. Huiet called the Wyatt home with the defendant standing at her side
and confirmed that Mrs. Belcher was there.
Although Huiet's testimony is inconsistent on the sequence of events,
at some point in the evening, she went across the hall to check on the defendant
and found him sitting at the kitchen table with bullets and a gun. The two discussed
the defendant's suspicions about his wife's affair with his best friend. The defendant
was very upset and asked Huiet why this was happening and what was wrong with
him. He took the bullets and threw them across the room, stating he had better get
rid of them before he blew his brains out. He also took the gun and placed it on a
high shelf in the kitchen. Huiet was so concerned about the defendant she
suggested they go to the emergency room.
Within approximately 45 minutes of Huiet's first phone call to the
Wyatt residence, the defendant requested she make a second phone call and tell
Wyatt and Mrs. Belcher he was on his way home. Huiet testified the defendant
wanted to get his wife and Wyatt back to the apartment complex so he could talk
to them. Before she made the phone call, Huiet received the defendant's solemn
word on his children's lives and his Masonic square that no harm would come to
Wyatt or Mrs. Belcher. While talking with Wyatt, she relayed the "secret code" that
his flags had not come in.
After making the call, Huiet went into her apartment to take a shower.
She heard the defendant's Camaro crank up and leave. She recognized the car by
its distinctive sound. Before she could intercept Wyatt and Mrs. Belcher,, she heard
voices of the defendant and Mrs. Belcher. She could not make out the defendant's
words, although she heard Mrs. Belcher say, "Nothing's going on" or "Oh, nothing."
Next, she heard the defendant calling Wyatt out of hiding and accusing him of
4 behaving cowardly The next thing Huiet knew, her door popped open and the
defendant was yelling for Allen to help him carry Wyatt's body to the car. Wyatt was
lying on the floor just outside Huiet's doorway. Huiet testified the defendant said,
"I didn't mean to hurt him." She denied making a previous statement that the
defendant said, "I didn't mean to shoot him. He jumped me." Huiet claimed she
had not heard a gunshot and did not realize the seriousness of the victim's injury.
Dressed in a nightgown, Huiet stepped over Wyatt's body in her doorway and ran
out the back door to the apartment building, where she entered a taxi cab in which
Mrs. Belcher was seated. She testified Mrs. Belcher said, "He shot him." She and
Mrs. Belcher left the building in the cab, went to Allen's ex-wife's home, where Huiet
borrowed some clothing, and Allen's ex-wife's boyfriend drove them back to the
apartment building.
Denise Belcher testified that after receiving the second call from Huiet,
she and Wyatt agreed to go back to the apartment building so she could "face the
music" regarding her affair. When they arrived, Mrs. Belcher did not see the
Camaro, so she assumed the defendant was not yet home. She and Wyatt went
inside the building. While they were in the hallway outside her apartment, she
heard someone walking on her living room floor and knew her husband was home.
She looked back over her shoulder, but Wyatt was no longer behind her. When she
turned around, the defendant was in front of her. The defendant was dazed and
angry, and he demanded to know where she had been. He was holding a stick,
later determined to be an axe handle, in his hands. The two walked into their
apartment, and argued about Mrs. Belcher's whereabouts and activities, and the
defendant hit Mrs. Belcher on her upper right arm with the stick. The defendant
went through the front door into the hallway. Mrs. Belcher fled the apartment,
running out the back door and jumping into a taxi cab that was dropping off a
passenger at the building. She admitted telling the cab driver her husband was
going to hurt someone. Huiet came to the door of the building and yelled for Mrs.
Belcher to come back in. Mrs. Belcher refused, and Huiet ran out to the taxi. Mrs.
5 Belcher denied telling Huiet that the defendant shot Wyatt, although she admitted
telling her someone was going to get hurt. She denied hearing a gunshot prior to
leaving the building.
David Allen, a convicted felon on probation, was sleeping throughout
the evening on Huiet's sofa. Both he and Huiet testified he is a very sound sleeper.
Nevertheless, Allen testified he was awakened by the defendant earlier in the
evening. The defendant had a stick and told Allen he was going to "talk to" Wyatt
with it. Later, Allen was again awakened by the defendant, who asked him for help
moving Wyatt's body. Wyatt was at this time lying face down in the doorway with
his head to the side and a pool of blood by his head. Allen had not heard any of the
preceding events, and did not realize Wyatt was dead. He helped the defendant
carry Wyatt's body outside and load the body into the back seat of W yatt's Camaro.
The defendant told Allen to meet him at Kay's Ice Cream, which was a few blocks
away. Allen went inside the building to get his keys and some clothing, then drove
to Kay's. The defendant was in the parking lot waiting for Allen when he arrived.
The defendant got into Allen's car, hit the dashboard very hard, and was "hyper."
According to Allen, the defendant had been nervous and stressed out earlier in the
day. The defendant handed Allen a baseball cap and a towel and asked him to get
rid of them. Allen felt a gun wrapped up in the towel and realized the gravity of the
situation. He took the defendant back to the apartment building, then went to a
convenience store and threw the items the defendant had given him into a
dumpster. Allen was concerned that he would be sent back to prison because of
his involvement, so he went to a friend's house to ask him what to do. Within a
short time, Allen alerted law enforcement of his knowledge of the crime.
Meanwhile, back at the apartment building, Huiet cleaned the floor in
the hallway. She testified she did this because she spilled some of her medical
supplies earlier in the evening. She denied noticing any blood, although Allen
testified he had seen a pool of blood in the hallway after the body was moved.
6 Huiet said the hallway was "pitch black" and she could not see what she was doing.
The defendant, Mrs. Belcher and Huiet congregated in Huiet's
apartment. Huiet demanded the defendant take her to Wyatt, and the three went
to Kay's Ice Cream. Huiet went to Wyatt's vehicle and took several items from the
body, including a trucker's log book, a dollar, some keys and a coat. According to
Huiet, the defendant told his wife to look at Wyatt to see what she made him do.
Mrs. Belcher denied her husband ever made this statement.
The defendant did not testify at trial, although his recorded statement
was played for the jury. In the statement, the defendant said he came home from
his mother's house and parked his car down the road because he wanted to sneak
up to the apartment building to see with his own eyes whether his wife was having
an affair with his best friend. Neither his wife nor Wyatt were there, although the
two arrived sometime later. The defendant repeatedly insisted Wyatt's shooting had
been an accident. He said he encountered Wyatt in the hall. Wyatt slapped him,
and he went into his kitchen to get the gun to scare Wyatt. He intended no harm,
although he wanted Wyatt to leave the apartment building. When he returned,
Wyatt grabbed the defendant, which scared him. The defendant claimed, "I didn't
mean to." He also claimed the gun was not supposed to have been loaded.
Although the defendant admitted being upset at seeing his wife and best friend
together as they entered the apartment building, he denied shooting Wyatt out of
anger. The defendant claimed he attempted to help Wyatt by first looking for his
cordless phone to call for help, and later attempting to drive him to UT Medical
Center. The defendant claimed he abandoned the trip to the hospital when he
realized his friend was not responsive. He left the car in a brightly lit parking lot and
walked home to continue the search for his telephone to call for help. During the
interrogation, he mentioned nothing of Allen's involvement in the disposal of
evidence following the crime.
7 One of the few areas about which there was no controversy was
whether the defendant had been upset prior to these crimes. Allen talked with the
defendant the previous morning and observed that, although the defendant usually
had a neat appearance, he looked as if he was about to have a nervous breakdown.
Huiet made similar observations about the defendant being agitated and upset on
the evening of February 25. Mrs. Belcher admitted she and the defendant argued
during the day, and he was apparently agitated enough to use profanity. Mrs.
Belcher also admitted her husband and Wyatt had quarreled a few nights earlier
when Wyatt had knocked on Huiet's door looking for Mrs. Belcher.1
Brandi Presley, Denise Belcher's 14 year old daughter and the step-
daughter of the defendant, testified she found a bag containing several items of the
defendant's clothing and Wyatt's jacket behind the Belchers' waterbed. These
items were turned over to the police.
Charles Sterling, a Maryville resident who lives near the apartment
building, testified that at 2:00 a.m. on February 26, he saw someone park a car near
his home. Then a shadowy figure walked away from it. Because he had
experienced trouble with vandalism, he photographed the vehicle. When he
learned of the crimes, he turned the negative over to the police. An enlargement
of the negative revealed the vehicle to have a license tag number registered to the
defendant. Mr. Sterling noticed the car was gone when he left at 5:00 a.m. Kelly
Sterling, the wife of Charles Sterling, confirmed the time the car arrived.
Victoria O'Hara, a tenant of the apartment building, testified she
awoke at 2:14 a.m. on the morning of February 26 when she heard a gunshot. She
looked at her clock, then went back to sleep. A day or two later, she found a watch
by the dumpster which she turned over to the police. The watch was identified by
1 There was some evidence Wyatt used his friendship with Huiet as a "cover" for his affair with Mrs. Belcher.
8 Wyatt's son as belonging to his father.
Several law enforcement officers from the Blount County Sheriff's
Department and the Maryville Police Department testified regarding their
investigation of this case. Significantly, Maryville Detective David Graves found a
blood smear on a wall in the Belcher apartment. Testing by the TBI lab later
determined the blood was the same type as that of W yatt. However, Graves
admitted the defendant's blood had not been typed to determine whether he might
be the source of the blood found in his apartment. Graves further testified that
substances found on the steps and gravel outside the building, the towel recovered
from the convenience store dumpster, and the defendant's clothing found behind
the waterbed were human blood. The samples could not be typed, however, due
to their age by the time they reached the TBI lab. Hairs found on the baseball cap
recovered from the convenience store dumpster was scientifically determined to
match Wyatt's hair.
Raymond Finney, M.D., the Blount County Medical Examiner,
performed an autopsy of Wyatt's body. He determined that Wyatt's death resulted
from a gunshot. Based on the lack of injury to the body from hot gases, powder
burns or gun barrel contact, Dr. Finney opined the wound was not inflicted at close
range.
Gerald Wilkes, an agent with the FBI, testified the .22 caliber weapon
recovered from the dumpster was a single action revolver, a weapon that would
have to be cocked and then the trigger depressed separately for each firing. He
performed tests on the weapon and determined it was the weapon used to shoot
Wyatt. He further determined there would be residue burns, called stippling or
tattooing, on Wyatt's body or clothing if the weapon was fired from a distance of five
feet or less. Chemical processing and microscopic examination of Wyatt's shirt
revealed no evidence of stippling or tattooing.
9 Finally, the parties stipulated that if Blount County Sheriff's Deputy
J.R. Johnson testified, he would say that he stopped the defendant driving a
Camaro on Alcoa Highway traveling toward Maryville at 11:56 p.m.
I
The first issue we are called upon to consider is whether the
defendant has been denied his constitutional rights through trial counsel's failure to
pursue pretrial motions on his behalf, including a motion to suppress his pretrial
statement to the police. Essentially, this is an allegation of ineffective assistance
of counsel. We note, however, the defendant failed to raise this issue in any of his
three motions for a new trial. Therefore, the issue is waived. Tenn. R. App. P. 3(e);
State v. Karl Christopher Davis, No. 01C01-9202-CC-00062, slip op. at 5 (Tenn.
Crim. App., Nashville, Mar. 17, 1993).
Moreover, as we have repeatedly noted in the past, the practice of
raising ineffective assistance of counsel claims on direct appeal without an
evidentiary hearing having been conducted on the issue is "fraught with peril." See,
e.g., State v. Anderson, 835 S.W.2d 600 (Tenn. Crim. App. 1992). In this case, the
defendant failed to raise the issue in his motions for new trial and submitted no
proof regarding counsel's performance. The trial court had no opportunity to make
findings of fact on this issue. As such, it is inappropriate for us to consider the
issue. Nevertheless, our abstention from considering the issue does not deprive the
defendant of an opportunity to have this issue reviewed in an appropriate post-
conviction proceeding if he so desires.
II
Next, the defendant alleges his due process rights were violated
because the state failed to disclose the identity of a witness and her allegedly
exculpatory statement, contrary to the requirements of Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194 (1963). At the hearing on the motion for new trial, Elizabeth
10 Ostler testified she lived in the apartment building where the crimes occurred. She
heard a loud bang between 1:30 and 2:00 a.m. on February 26. She reported this
to Det. Graves later that morning while he was processing the crime scene. She
also called him a couple of weeks later and reiterated the information. Greg Ostler
confirmed his wife spoke with Det. Ostler on February 26. Detective Graves had no
notes or independent recollection of speaking with Mrs. Ostler. He admitted he had
a phone message from Mrs. Ostler but could not recall whether he spoke with her.
The defendant contends Mrs. Ostler's statement is exculpatory because it contains
evidence the gunshot was fired earlier in time than shown at trial, potentially
inculpating Mrs. Belcher as the shooter. The state counters that the sequence of
events, rather than the time of the gunshot itself is determinative in this case, and
the Ostler evidence is only marginally material and not subject to Brady disclosure.
In Brady v. Maryland, the United States Supreme Court held that the
prosecution has the duty to furnish exculpatory evidence to the accused upon
request. Any "suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution." Brady,
373 U.S. at 87, 83 S. Ct. at 1196-97. The duty to disclose extends to all "favorable
information" regardless of whether the evidence is admissible at trial. State v.
Marshall, 845 S.W.2d 228, 232-33 (Tenn. Crim. App. 1992); Branch v. State, 4
Tenn. Crim. App. 164, 168, 469 S.W.2d 533, 536 (1969). In United States v.
Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 (1985), the
Supreme Court held that both exculpatory and impeachment evidence fall under the
Brady rule.
Before an accused is entitled to relief under this theory, he must
establish several prerequisites: (a) the prosecution must have suppressed the
evidence; (b) the evidence suppressed must have been favorable to the accused;
and (c) the evidence must have been material. See Bagley, 473 U.S. at 674-75,
11 105 S. Ct. at 3379-80; Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; Workman v.
State, 868 S.W.2d 705, 709 (Tenn. Crim. App. 1993); State v. Marshall, 845 S.W.2d
228, 232; Strouth v. State, 755 S.W.2d 819, 828 (Tenn. Crim. App. 1986). In State
v. Spurlock, 874 S.W.2d 602 (Tenn. Crim. App. 1993), this court recognized a fourth
prerequisite to relief, that "the accused must make a proper request for the
production of the evidence, unless the evidence, when viewed by the prosecution,
is obviously exculpatory in nature and will be helpful to the accused." Spurlock, 874
S.W.2d at 609 (citations omitted).
Assuming the Ostlers' testimony is accepted as credible, we fail to see
how this evidence is material. As the trial court found and the state posits, the
sequence of events, not the actual time they occurred, is pertinent in this case.
Additionally, the record is devoid of any evidence the defense requested Brady
material.2 In the absence of a request for exculpatory material, there has been a
Brady violation only if the evidence in question is obviously exculpatory in nature.
Mrs. Ostler's alleged statement to Det. Graves fails to meet this standard. Mrs.
Ostler's testimony sheds no light on the critical sequence of events; she merely
places a time on one of the events. The trial witnesses' and Mrs. Ostler's estimates
of the time when the events occurred varied by as much as approximately two
hours. None of the witnesses who estimated the time Mrs. Belcher and Huiet left
the apartment building were able to give a precise answer. Because of the
uncertainty of that evidence, Mrs. Ostler's statement cannot be viewed as
contradicting the evidence actually presented and does not indicate that Mrs.
Belcher or Huiet could be the killer because they were still in the apartment building
when Wyatt was shot.3 There has been no Brady violation.
2 The defendant contends in his brief that a discovery request was made; however, no request appears of record. Unsupported assertions of counsel do not suffice as evidence in this court. 3 We are not unmindful that the defendant's position that his wife or Huiet may have committed the crime is belied by the confession he gave the investigating officers in the hours following the crime, in which he said, "I didn't mean to" and repeatedly insisted Wyatt's death was an accident.
12 III
The defendant next claims he was denied a fair trial because during
voir dire the jury foreperson concealed material information regarding her
knowledge of the case. The state argues there was no intentional failure to
disclose, nor was there any concealment or misrepresentation of information
bearing on impartiality.
Challenges to juror qualifications generally fall into two categories at
common law -- propter defectum or propter affectum. Partin v. Henderson, 686
S.W.2d 587, 589 (Tenn. App. 1984). Objections based on general disqualifications,
such as alienage, family relationship or statutory mandate, are classified as propter
defectum and must be challenged prior to the return of the jury verdict. State v.
Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993). On the other hand,
objections based on bias, prejudice or partiality toward a party are classified as
propter affectum. Durham v. State, 182 Tenn. 577, 582, 188 S.W.2d 555, 559
(Tenn. 1945). Propter affectum challenges may be made after the return of the jury
verdict. State v. Furlough, 797 S.W.2d 631, 652 (Tenn. Crim. App. 1990).
The party alleging juror bias or partiality bears the burden of proof on
the issue. See State v. Taylor, 669 S.W.2d 694, 700 (Tenn. Crim. App. 1983).
When a juror wilfully conceals or fails to disclose information which calls into
question her impartiality, a presumption of prejudice arises. Durham, 182 Tenn. at
584,188 S.W.2d at 559; see Hyatt v. State, 221 Tenn. 644, 646, 430 S.W.2d 129,
130 (Tenn. 1967) (silence on an issue considered a negative response).
The evidence regarding the juror in question, Debbie Mills, was
developed at the hearing on the motion for new trial. Mrs. Mills is married to a truck
driver, Russell Mills, who works for Transis. The defendant also worked for this
company. Mr. Mills previously worked at Service Way, another trucking company,
for a brief time with Larry W yatt. The defendant also worked for Service W ay,
13 although he left before Mr. Mills was hired. On the evening before jury selection
began, the Millses ate dinner at a Shoney's restaurant with Robert and Angie
Hubbard. Mr. Hubbard is the owner of Hubbard Trucking. Hubbard Trucking leases
its services to Transis. The Hubbards knew the defendant. During dinner, Mrs.
Mills mentioned that she had been summoned for jury duty the following day. Mr.
Hubbard mentioned that the defendant's trial was scheduled to start the next day.
Mrs. Hubbard claims Mr. Mills responded by saying, "Yeah, you know Slater
Belcher," to his wife, while the Millses deny this. Mrs. Mills claims the defendant's
name meant nothing to her. According to Mrs. Hubbard, Mrs. Mills also said she
had always wanted to serve on a jury in a murder trial.
Mr. Mills also testified he heard some rumors at work about one truck
driver shooting another. He told his wife about these rumors, although he did not
know the names of those involved. Mrs. Mills recalled her husband telling her one
trucker from Service Way "supposedly" shot another trucker from Service Way.4
She testified she was unaware a fatality resulted, and she had not followed the case
in the newspaper.
Mrs. Mills testified she gave truthful answers to all of the questions
posed during voir dire. She further testified she based her verdict on the evidence
she heard in the courtroom.
In resolving this issue against the defendant, the lower court obviously
accredited the testimony of Mr. and Mrs. Mills over that of Mrs. Hubbard, which was
its prerogative to do as the finder of fact. Thereby, the court accepted the state's
4 With the consent of the state, the defendant presented an affidavit of Jimmy Wilkerson, alleging Wilkerson was the vice president of operations of Service Way Motor Freight, Inc., in which capacity he was the custodian of the company's business records. According to those records, Slater Belcher was employed by Service Way from April 4, 1990 until May 21, 1993. Russell Mills was employed from June 13, 1994 until August 25, 1995, and he worked for Service Way through a temporary agency prior to his term of employment. Larry Wyatt was employed from October 30, 1992 until July 28, 1994, after which time he purchased his own truck, which he parked on Service Way's premises.
14 evidence as rebutting the presumption of bias. In this case, we are required to give
the findings of fact made by the trial court the weight of a jury verdict. See State v.
Burgin, 668 S.W.2d 668 (Tenn. Crim. App. 1984). We cannot reverse the holding
unless the evidence clearly preponderates against the trial court's conclusion that
the juror acted without bias and performed her duties with impartiality. In this case,
the evidence does not preponderate against the conclusion of the trial court.
Having accepted the Millses as credible, the court reached the correct conclusion.
This issue is without merit.
IV
Finally, the defendant challenges the sufficiency of the evidence
supporting his two convictions. When an accused challenges the sufficiency of the
evidence, an appellate court’s standard of review is whether, after considering 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.
Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v.
Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule
applies to findings of guilt based upon direct evidence, circumstantial evidence, or
a combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d
250, 253 (Tenn. Crim. App. 1990).
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this Court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On
the contrary, this court must afford the State of Tennessee the strongest legitimate
15 view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.
Moreover, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v.
Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d
608 (Tenn. Crim. App. 1987). However, before an accused may be convicted of a
criminal offense based upon circumstantial evidence alone, the facts and
circumstances "must be so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470
S.W.2d 610 (1971); Jones, 901 S.W.2d at 396. In other words, "[a] web of guilt
must be woven around the defendant from which he cannot escape and from which
facts and circumstances the jury could draw no other reasonable inference save the
guilt of the defendant beyond a reasonable doubt." Crawford, 470 S.W.2d at 613;
State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).
1. First Degree Murder
On February 26, 1995, the definition of first degree murder was "[a]n
intentional, premeditated and deliberate killing of another." Tenn. Code Ann. § 39-
13-202 (1991) (amended 1995). In this case, the state presented circumstantial
evidence which, if accepted by the trier of fact, sufficiently supports the defendant's
conviction of first degree murder of Larry Wyatt. Prior to Wyatt's death, the
defendant expressed his intent to "talk to" Wyatt with an axe handle. He lured
Wyatt to the apartment building. While waiting for Wyatt to arrive, the defendant hid
his car down the street. The jury could logically infer the defendant was laying a
trap for Wyatt. According to the defendant's statement, he was upset over his wife's
affair with Wyatt. After Wyatt arrived, Wyatt hit the defendant. Belcher did not
respond immediately, but retreated to his apartment, got a gun, and shot Wyatt from
a distance of at least five feet. The evidence strongly supports the conclusion the
defendant and the victim were alone at the time of the shooting. The officers who
16 interrogated the defendant repeatedly referred to the defendant having shot Wyatt,
and in the course of giving a full statement, the defendant never denied he was the
shooter. The defendant admitted, "I didn't mean to," and repeatedly stated, "It was
an accident." He made a similar statement to Huiet immediately after the crime.
A rational trier of fact could easily interpret these statements as confessions of guilt.
While the defendant interprets the evidence much differently, we must
adhere to a review in the light most favorable to the state. Moreover, we are
constrained not to consider the defendant's wife's testimony at the hearing on the
motion for new trial in our review of this issue, as the defendant would have us do.
At that hearing, Mrs. Belcher testified she knew her husband had not shot Wyatt
and then asserted her Fifth Amendment privilege when asked how she knew this.
We are limited to consideration of the evidence presented to the jury. If the
defendant has new evidence that was not available at trial, he may apply to the trial
court for a Writ of Error Coram Nobis. See generally Tenn. Code Ann. §§ 27-7-101
to -108 (1980).
2. Aggravated Assault
Aggravated assault, as indicted in this case, is knowingly causing
bodily injury to another through the use of a deadly weapon. Tenn. Code Ann. § 39-
13-102 (1991). The defendant argues the state's evidence was insufficient to prove
the axe handle qualified as a deadly weapon and that he committed the crime
knowingly.
According to the criminal code, "'Deadly weapon' means: (A) A
firearm or anything manifestly designed, made or adapted for the purpose of
inflicting death or serious bodily injury, or (B) Anything that in the manner of its use
or intended use is capable of causing death or serious bodily injury[.]" Tenn. Code
Ann. § 39-11-106(5) (Supp. 1996). "Serious bodily injury" results from bodily injury
17 involving "(A) A substantial risk of death; (B) Protracted unconsciousness; (C)
Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted
loss or substantial impairment of a function of a bodily member, organ or mental
faculty." Tenn. Code Ann. § 39-11-106(33) (Supp. 1996).
In this case, the state exhibited the axe handle to the jury. The state
offered further proof through photographs of the injury that resulted to Mrs.
Belcher's arm after only one blow from the axe handle. One of the photographs
shows Mrs. Belcher's upper left arm with a solid purple/blue bruise extending
completely across her arm from side to side and extending from a few inches below
her shoulder at least five to six inches down toward her elbow. From this evidence,
the jury could reasonably conclude the axe handle was capable of causing death
or serious bodily injury by the manner of its use. Cf. State v. David Lee Dycus, No.
1, slip op. at 4 (Tenn. Crim. App., Jackson, Oct. 24, 1990) (a large stick and martial
arts fighting sticks considered deadly weapons).
We find no error in the defendant's conviction of aggravated assault.5
The judgment of the trial court is affirmed.
_______________________________ CURWOOD WITT, JUDGE
CONCUR:
_______________________________ JOSEPH B. JONES, PRESIDING JUDGE
5 The appellant makes a cursory allegation attacking the sufficiency of the knowing element of the aggravated assault conviction. This allegation is less than one sentence long and contains no argument or citations. Because the defendant has failed to present his case, he has waived our consideration of the issue. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).
18 _______________________________ JOSEPH M. TIPTON, JUDGE