IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT KNOXVILLE July 6, 1999
Cecil Crowson, Jr.
APRIL SESSION, 1999 Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9708-CR-00339 )
Appellee, )
)
) WASHINGTON COUNTY
VS. )
) HON. ARDEN L. HILL
JAMES E. GAYLES, ) JUDGE )
Appe llant. ) (Direct Appeal - First Degree M urder)
FOR THE APPELLANT: FOR THE APPELLEE:
DONALD E. SPUR RELL JOHN KNOX WALKUP 128 East Market Street Attorney General and Reporter Johnson City, TN 37604 ERIK W. DAAB
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
DAVID CROCKETT
District Attorney General
JOE CRUMLEY
KENT GARLAND
Assistant District Attorn eys First Judicial District
Jonesborough, TN 37659
OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE
OPINION
On July 7, 1993, Appellant James E. Gayles was charged with one count of first degree mu rder. After a jury trial on February 6–7, 1995, Appellant was convicted of first degree murder and was sentenced to life imprisonment. Appellant challenges his conviction, raising the following issues:
1) whether the evidence was sufficient to support his conviction; and 2) whethe r the State improperly failed to disclose a leniency agree men t it had with one of its witnesses.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTS
Officer Lisa Coppock of the Johnson City Police Department testified that on May 2, 1993, she was dispatched to investigate a shooting in the parking lot of Pro-Diesel in Johnson City. When she arrived, she found Darrell Sturdivandt lying on his ba ck next to a blue veh icle. Sturdivandt was declared dead at the scene. It appeared that he had a small caliber gunshot wound in the middle of his back. There was also a spent .25 caliber shell casing on the gr ound n ext to Sturdivan dt’s right foot.
Doctor William McCormick testified that he examined Sturdivandt’s body on May 2, 1993. Dr. McCormick determined that Sturdivandt had died as a re sult of being shot in the back with a .25 caliber bullet. Dr. McCormick further
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determined that Sturdivandt had a blood alcohol level of .058 and traces of marijua na in his sy stem w hen he died.
Patrick Hale testified that he was at the Black & Tan Club on May 2, 1993, when he heard so me gun shots com ing from the vicinity of Pro-Diesel. When Hale looked in the d irection of Pro -Dies el, he saw Appellant run and get in a van driven by Steph anie B owm an. Ha le then heard Appe llant yell, “le t’s go, let’s go” and the van acc elerated down th e street.
Anthony Forney testified that he was a passenger in Bowman’s van when Appellant jumped in the van and said, “let’s go.” Anthony Forney noticed that Appellant smelled like firecrackers or gunpowder and appeared to be acting paranoid and frightened. Forney could see the shape of a gun hidden under Appe llant’s shirt.
Dwight Forney testified that the night before the shooting, Appellant had stated that “if people didn’t quit messing over him he was going to take somebody out—so meone out, or, make a n examp le of someb ody.”
Charles Dela pp tes tified tha t on Ma y 2, 199 3, he s aw Ap pellan t walk toward a blue car in the Pro-Dies el parking lot. Shortly therea fter, Delapp he ard a gunshot and saw Appellant jogging away from the area where the sound of the gunshot originated. Appellant then got in a van and the van, drove away. Delapp could se e that Ap pellant ha d wrapp ed a T -shirt arou nd his ha nd.
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Jason Beam testified that he was a friend of Sturdivandt. He had seen Sturdivandt steal cocaine from drug dealers by taking it out of their hands and fleeing or b y giving them less mo ney than the coca ine was worth.
Alonzo Norman testified that he witn esse d a dru g trans action in which an individual gave one do llar to Appe llant for fifty dollars w orth of cocaine. Appellant appeared to be upset and stated, “man, I seen him b efore a nd I’ll see him again.”
According to Norman, on May 2, 1993, Appellant came to his residence and told Norman that he wan ted to go to New York with him. Appellant stated, “I think I shot som ebody.” Appellant also stated, “the man tried to pull something out on me and I shot him.” When Norman asked Appe llant who h e had s hot, Appellant stated that he had shot “the man that—that gave [me] the dollar for the fifty.”
Steph anie Bowman testified that she was driving a van on May 2, 1993, when Appellant came running across the street with a gun in his hand. Appellant got in the van and yelled, “let’s go—let’s go.” Appellant stated, “what the hell are you all doing . . . you all are riding around having fun while I just had to do a man.” Bowman noticed that when Appellant got in the van, she could smell what appea red to be the odo r of firecrack ers or gu npowd er.
Teresa Gayles, Nico le Friday, Derrick Frida y, Denika H arper, and Jo Hazel all testified that A ppellant w as in Ne w York o n May 2 , 1993.
II. SUFFICIENCY OF THE EVIDENCE
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Appellant conten ds that the evidence w as insu fficient to supp ort his conviction for first degre e murd er. Appe llant conc edes th at the evidence was sufficient to support a conviction for second degree murder, but conte nds th at it was insufficient to support a conviction for first degree murder becau se the S tate failed to establish the elements of premeditation and deliberation.
When an appellant challenges the sufficie ncy of th e evide nce, th is Court is obliged to review that challenge according to certain well-settled principles. A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the State’s witnesses and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W .2d 253, 259 (Tenn. 199 4). Although an accused is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this presumption and rep laces it with o ne of gu ilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof res ts with Ap pellant to demo nstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the [S]tate is entitled to the strongest legitimate view of th e evide nce a s well a s all reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere the sufficiency of the evidence is contested on appeal, the relevant question for the reviewing court is wh ether any rational trier of fact could have found the accused guilty of every elemen t of the offense be yond a reaso nable d oubt. Jackson v. Virgin ia, 443 U.S . 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting our evaluation of the convicting evidence, this Co urt is precluded from reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not substitute its own inferences “for those drawn by the trier of fact from circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
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App. 1990). Finally, Rule 13(e) of the Te nness ee Ru les of Ap pellate Procedure provides, “finding s of gu ilt in crim inal actions whether by the trial court or jury shall be set aside if the evide nce is insufficient to sup port the findings by the trier of fact beyo nd a rea sonab le doub t.”
When Sturdivandt was killed in 1993, Tennessee’s first degree murder statute provided that “[f]irst degree murder is: [a]n intentional, premeditated and deliberate killing of another.” Te nn. Code Ann. § 39-1 3-202 (199 3). 1 Premeditation requires a showing of a previously formed design or intent to kill. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). Deliberation requires that the offense be committed with cool purpose, free of the p assions of the m omen t. Id. Although premeditation “may be formed in an instant, deliberation requires some period of reflection, during which the mind is ‘free from the influence of excitem ent, or pas sion.’” State v. Brown, 836 S.W.2d 530, 538 (Tenn. 1992) (citation omitte d). W hile it remains true that no specific length of time is required for the formation of a cool, dispassionate intent to kill, more than a “split-second” of reflection is required in order to satisfy the elements of premeditation and deliberatio n. Id. at 543.
The elements of premeditation and deliberation are questions for the jury which may be established by proof of the circumstances surrounding the killing. State v. Bland, 958 S.W .2d 651, 660 (Tenn. 199 7); State v. Bord is, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Tennessee courts have delineated several circumstances that may be indicative of premeditation and deliberation, including
1 A 1995 ame ndm ent elim inated de liberation as an elem ent of first de gree m urder. See Tenn.
Code Ann. § 39-13-202(a)(1) (Supp. 1998) (“First degree murder is: A premeditated and intentional killing of another.”).
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facts from wh ich mo tive may b e inferred , Bord is, 905 S.W.2d at 222; declarations by the defen dant of an intent to kill, State v. P ike, 978 S.W.2d 904, 914 (Tenn. 1998); the us e of a d eadly weapon upon a n unarm ed victim, Brown, 836 S.W.2d at 841; an d facts ab out the na ture of the k illing, Bord is, 905 S.W.2d at 222.
Initially, we conclude that when the evidence is viewed in the light most favora ble to the State, the evid ence was c learly sufficient for a rational jury to find beyond a reasonable doubt that Appellant was the person who killed Sturdivan dt. Hale and Delapp both saw Appellant run away from the scene of the murder and get in a van shortly after they heard gunshots. Bowman and Anthony Forney both smelled the odor of firecrackers or gunpowder when Appellant got in the van. Further, Antho ny Forney could see the shape of a gun hidden under Appellant’s shirt, and Bowman actually saw a gun in Appellant’s hand. In addition, Appellant told Bowman that he “just had to do a man.” Finally, Appellant told Norman on the night of the shooting that he had just shot the man who had previously given him one dollar for fifty dollar’s worth of cocaine.
W e also co nclud e that w hen th e evide nce is v iewed in the light most favora ble to the State, the evidence was sufficient for a rational jury to find beyond a reas onab le dou bt that A ppella nt inten tionally killed Sturd ivandt with premeditation and deliberation. First, the State presented evidence that Appellant had a motive to kill Sturdivandt beca use S turdiva ndt ha d che ated h im during a drug transaction. Norman witnessed an individual pay one dollar to Appellant for fifty dollar’s worth of cocaine and Norm an heard Appellant say that he had seen that individual before and he would see him again. Norman also believed that Appellant appeared to be u pset a t the tim e. Furth er, Ap pellan t told
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Dwight Forney the night b efore the shooting that “if people didn’t quit messing over him he was going to take somebody out—someone out, or, make an exam ple of somebody.” Shortly after the shoo ting, Ap pellan t told Norman that he had shot the individual who had paid him one dollar for fifty dollar’s worth of cocaine .
Second, while there was no evidence that Appellant had previo usly expressed an intent to kill Sturdivan dt, there was clearly evidence that Appellant had expressed an intent to get revenge on Sturdivandt. As previously stated, Appellant told Norman that he would see the person who had cheated him in the drug transaction again and told Dwight Forney that he was going to make an exam ple out of s omeo ne.
Third, the evidence showed that Sturdivandt was unarmed when Appellant shot him. Beam testified that he had never known Sturdivandt to carry a gun or a knife and Coppock testified that Sturdivandt did no t have a ny wea pons on his person and no weapo ns were found a t the scen e of the sh ooting.
Fourth, the natur e of the killing indicates that it was deliberate and premeditated. Indeed, the evidence showed that Appellant shot Sturdivandt when Sturdivandt was facing away from him. Further, the fac t that Ap pellan t did not kill Sturdivandt until sometime after the drug transaction indicates that he had time to refle ct on his d ecision to take reve nge on Sturdivan dt.
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In short, we conclude that this evidence was sufficient for a rational jury to find the essential elem ents of first degree m urder beyon d a reasonable doubt. This issu e has n o merit.
III. LENIENCY AGREEMENT
Appellant contends that he is entitled to a new trial because the State failed to disclose that it had an implicit agreement with Norman that it would drop certain charg es ag ainst h im an d wou ld be lenient with respect to other charges if he testified a gainst A ppellant.
In Brady v. Maryland, 373 U.S . 83, 83 S .Ct. 1194, 10 L.Ed.2d 21 5 (1963), the United S tates Suprem e Court held that the prosecution has a constitutional duty to furnish the accused with exculpatory evidence pertaining to either the accu sed’s guilt or innocence and the potential punishment that may be imposed. Failure to reveal exculpatory evidence violates due process where the evidence is materia l either to guilt or punishment, irrespective of good faith or bad faith of the prosec ution. Id. 373 U .S. at 87, 83 S.Ct. at 1196–97. The prosecution must also disclose evidence which may be used by the defense to impeach a witness. Giglio v. United States, 405 U.S. 150, 154–55, 92 S.Ct. 763, 766, 31 L Ed.2d 104 (1972); Wo rkman v. State, 868 S.W.2d 705, 709 (T enn. Crim. A pp. 1993). Because promises the State makes to a witness in exchange for his or her testimony relate directly to the credibility of the witness, th e State h as a du ty to disclose evidence of any promises it has m ade to a pros ecutio n witne ss in exchange for his or her testimon y. Hartm an v. State , 896 S.W.2d 94, 101 (Tenn. 1995) (citation om itted).
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Before a reviewing court may find a due proce ss violation under Brady, all of the following four prerequisites must be satisfied:
1) The defendant must have requested the information (unless the evidence is obviously exculpatory, in which case the S tate is bou nd to release the inform ation whethe r requested o r not);
2) The State must have suppressed the information;
3) The information must have been favorable to the accused; and 4) The informa tion mu st have b een m aterial.
State v. Evans, 838 S.W .2d 185 , 196 (T enn. 19 92). In Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995), the United States Supreme Court stated that in determining whether information is material, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its abs ence he rec eived a fair trial, understood as a trial resulting in a verdict worthy of co nfidence.”
During the hearing on Appellant’s motion for a new trial, Norman testified that when he tes tified at tria l, he was sca red bec ause h e had b een ch arged w ith coercion of a witness, being an accessory after the fact to first degree m urder, and multip le drug offens es. No rman also te stified th at his a ttorney s told him that the prose cutor c ould n ot ma ke an y deals with him before he testified, but if he did testify, the prosecutor would have to drop the charges for being an accessory after the fact and coercion of a witness and the prosecutor would also be lenient with respec t to the drug charge s. Howe ver, Norman ad mitted that he had o nly met with the prosecutor one time before he testified and expressly stated that the prosecutor h ad never offere d him anything in return for his testimon y.
Mike Kellum, one of Norman’s attorneys, provided an affidavit in which he stated that the prosecutor had approached him and said that if Norman testified
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truthfu lly in Appellant’s trial, the “testimony would be appreciated and considered in any future plea offers regarding” the charges against Norman of being an accessory after the fact and coercion of a witness. However, Kellum did not testify du ring the hearin g on th e mo tion for a new tria l.
Deborah Huskin s, anothe r of Norm an’s attorneys, testified during the hearing on the motion for a new trial that she had believed that if Norman testified truthfu lly at Appe llant’s trial, it would make a difference in any sentence he subs eque ntly received in the drug case. However, Huskins also testified that although she be lieved it would benefit Norman to testify truthfully, “we had abso lutely no agreement as to what plea if any we would be entering, the number of years, ranges, we—we did not discuss an y specifics like that, not an ything.” Further, Huskins testified that she and Kellum had explained to Norman that the prosecutor had not made any definite offer of leniency in return for his tes timony.
The trial court found that there was no merit to Appellant’s claim that he was entitled to a new trial because the State had failed to disclose that it had a leniency agreement with Norman. Although the trial court made no express findings of fact, th e cou rt did no te that N orma n’s credibility was qu estionab le. In addition, the court’s ruling necessarily implies a finding that there had been no implic it leniency agreement between the State and Norman. The evidence does not preponderate against that finding. Indeed, Appellant failed to introduce any evidence that the prosecutor promised Norman anything definite in return for his testimony. 2 At mos t, Appellant merely established that the prosecutor would take
2 Appellant contends that the subsequent dismissal of the charges against Norman for being an acces sory after th e fact an d coerc ion of a witne ss prov es that N orm an did ha ve a lenien cy agree men t with the State. However, the record indicates that the charge for being an accessory after the fact was
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Norm an’s decision to testify truthfully into “conside ration” in any future plea negotiations. An indefinite offer of “consideration” falls far short of constituting an agreem ent. In addition, although Norman may well ha ve belie ved tha t he wo uld receive leniency in return for his testimony, the unilateral belief o f one p erson is insufficient to create an agreement. In short, Appellant had failed to show that there was an y agreem ent betw een the State and N orma n in regard to Nor man ’s testimon y. This issu e has n o merit.
Accordingly, the judgment of the trial court is AFFIRMED.
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JERRY L. SMITH, JUDGE
CONCUR:
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JOE G. RILEY, JUDGE
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NORMA MCGEE OGLE, JUDGE
dismissed because there was insufficient evidence to support a conviction, and the charge for coercion of a witness was dismissed because the victim did not want the case to be prosecuted. Further, the prosecutor expressly informed the jury that if Norman testified truthfully, the charge for being an accessory after the fa ct would b e dropp ed.