State v. El Paso Pitts

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 22, 1999
• Docket: 02C01-9803-CR-00091
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED JANUARY 1999 SESSION January 22, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 02C01-9803-CR-00091 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DAILEY, POASO PITTS, ) JUDGE ) Appellant. ) (Attempted First Degree Murder)

FOR THE APPELLANT: FOR THE APPELLEE:

A.C. WHARTON, JR. JOHN KNOX WALKUP Shelby County Public Defender Attorney General and Reporter

WALKER GWINN (on appeal) CLINTON J. MORGAN Assistant Public Defender Assistant Attorney General Cordell Hull Building, 2nd Floor DIANNE M. THACKERY (at trial) 425 Fifth Avenue North Assistant Public Defender Nashville, TN 37243-0493 201 Poplar Avenue, Suite 201 Memphis, TN 38103-1947 WILLIAM L. GIBBONS District Attorney General

DAVID C. HENRY Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

A Shelby County jury found defendant, Poaso Pitts, 1 guilty of one count of

attempted first degree murder against Ricky Green and one count of aggravated

assault against Clifford Roy. The trial court sentenced defendant to concurrent

Range I sentences of twenty-three years and three years, respectively. In this

appeal as of right, defendant contends there was insufficient evidence of

premeditation upon which to base the conviction of attempted first degree murder.

We disagree and AFFIRM the judgment of the trial court.

FACTS

On April 23, 1996, defendant was at the home of Ricky Green. An argument

ensued and Green ordered defendant to leave. Defendant left amidst threats that

he would kill Green.

Approximately thirty minutes later, defendant returned. He burst into the

trailer, pushed Green, and pointed a loaded pistol at him. Green “broke and run

(sic)” and hid behind a nearby chair. Green’s guest, Clifford Roy, also ran when he

caught sight of the pistol, and heard multiple shots fired.

Green testified there were three bullet holes in the chair behind which he hid,

and one in the ceiling. Officer Marlon Evans testified he found one bullet hole in the

chair and one in the ceiling.

The defense offered no proof.

SUFFICIENCY OF THE EVIDENCE

Defendant claims insufficient evidence of premeditation as required for a

finding of guilt on the attempted first degree murder charge. In support of this claim

he asserts that there was no evidence to show his mind was “so far free from

excitement and passion as to be capable of premeditation.”

When sufficiency of the evidence is challenged, the standard of review is

1 Defendant was indicted under the name “Poaso Pitts.” The record also reflects the names “Elpaso Pitts” and “El Paso Pitts” at various places.

2 whether, after viewing the evidence in the light most favorable to the state, 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, 318, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560, 573 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992);

Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strongest legitimate

view of the evidence and all reasonable or legitimate inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This court

will not reweigh or reevaluate the evidence, nor substitute its evidentiary inferences

for those reached by the jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App.

1995). Furthermore, in a criminal trial, great weight is given to the result reached

by the jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).

Under Tennessee law applicable at the time of this offense,

A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: . . .[a]cts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.

Tenn. Code Ann. § 39-12-101(a)(3).

The 1995 amendment to the Tennessee Code provides the applicable

definition of first degree murder as, “[a] premeditated and intentional killing of

another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation is defined as “an act

done after the exercise of reflection and judgment. . .[meaning] that the intent to kill

must have been formed prior to the act itself.” Tenn. Code Ann. § 39-13-202(d).

It also requires that the accused be “sufficiently free from excitement and passion

as to be capable of premeditation.” Id.

The existence of premeditation is a jury question and may be inferred from

the manner and circumstances of the event. State v. Bland, 958 S.W.2d 651, 660

(Tenn. 1997)(citations omitted). However, use of a deadly weapon upon an

unarmed victim and defendant’s declarations of his intent to kill may provide

evidence of premeditation. Id.

Viewing the evidence in the light most favorable to the state, the defendant

has not overcome the presumption of guilt created by the jury’s verdict. The

3 evidence was sufficient for a rational trier of fact to find that defendant displayed a

premeditated intent to kill Green and attempted to do so. Defendant argued with

Green and then threatened to kill him when ordered to leave the premises. Thirty

minutes passed and defendant returned to Green’s home with a loaded pistol. He

then tried to carry out his threats by firing the pistol in Green’s direction at close

range, as evidenced by the fact that at least one bullet went into the chair behind

which Green was hiding.

This issue is without merit.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is AFFIRMED.

______________________________ JOE G. RILEY, JUDGE

CONCUR:

______________________________ DAVID G. HAYES, JUDGE

______________________________ JOHN EVERETT WILLIAMS, JUDGE