IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED APRIL 1999 SESSION June 18, 1999
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 01C01-9801-CC-00029 Appellee, ) ) MONTGOMERY COUNTY VS. ) ) HON. ROBERT W. WEDEMEYER, JEFFERY MILLER, ) JUDGE ) Appellant. ) (First-Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
ROGER K. SMITH JOHN KNOX WALKUP 104 Woodmont Blvd., Suite 115 Attorney General & Reporter Nashville, TN 37205 ELIZABETH B. MARNEY Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493
JOHN W. CARNEY District Attorney General
HELEN YOUNG Asst. District Attorney General 204 Franklin St., Suite 300 Clarksville, TN 37040
OPINION FILED:
AFFIRMED
JOHN H. PEAY, Judge OPINION
The defendant was convicted by a jury of first-degree murder and
sentenced to life in prison with the possibility of parole. The defendant’s subsequent
motion for a new trial was denied by the trial court. The defendant now appeals and
contends that the evidence at trial was insufficient to sustain his conviction. After a
review of the record and applicable law, we find no merit to the defendant’s contention
and thus affirm his conviction.
The evidence at trial established that on September 1, 1996, the defendant
shot and killed the victim, Josh Kelley. The evidence indicated that earlier that evening,
three young ladies, Tennille, Cassie, and Heather, were driving “up and down” Riverside
Drive in Clarksville, Tennessee. They visited a motel where Mike Powers, Cassie’s
boyfriend, was throwing a party. While in the motel room, Tennille saw the defendant
preparing to leave the room, at which point someone handed a gun to him. The
defendant then left the party. Shortly thereafter, the three young ladies decided to go
cruising on Riverside Drive again. They pulled in the parking lot of Page and Taylor’s
Sporting Goods Store to change drivers. As they were changing seats, a young man in
the parking lot told them to “suck [his] dick or leave.” The three young ladies left the area
and returned to the party at the motel.
When they arrived at the motel, the ladies told Mr. Powers about the young
man’s comment. At this point, Mr. Powers and the defendant, who had returned to the
motel, went to the defendant’s car, and the defendant followed the ladies to the parking
lot of Page and Taylor’s Sporting Goods Store. According to the defendant’s second
statement to the police, upon arrival at the parking lot, the defendant told Mr. Powers to
2 “get the gun from under the passenger seat.” According to at least one witness, when
Mr. Powers exited the vehicle, he had a gun in his waistband. The defendant and Mr.
Powers then approached a group of teenagers standing in the parking lot. The evidence
at trial indicated that Mr. Powers asked which of them had told his girlfriend to “suck [his]
dick.” In response, the victim stepped forward and said, “We don’t know you. We don’t
know your girlfriend. We didn’t say anything to anybody.” Mr. Powers then pulled the
gun from his waistband and pointed it at the victim. According to one witness, the
defendant told Mr. Powers to “cap [the victim].” Mr. Powers lowered the gun to his side,
at which point the defendant took the gun out of Mr. Powers’ hand. The defendant
cocked the gun, pulled the slide back, pointed the gun at the ground in front of the
victim’s feet, and fired. The defendant then raised the gun, pointed it at the victim’s
chest, and fired. After the shooting, the defendant and Mr. Powers left the scene.
The defendant now contends that the evidence is insufficient to support his
conviction for first-degree murder. Specifically, the defendant argues that the State failed
to present proof to establish the elements of premeditation and intent.
A defendant challenging the sufficiency of the proof has the burden of
illustrating to this Court why the evidence is insufficient to support the verdict returned by
the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of
sufficient evidence unless the facts contained in the record and any inferences which
may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact
to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
When an accused challenges the sufficiency of the convicting evidence, we
3 must review the evidence in the light most favorable to the prosecution in determining
whether “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, 319 (1979). We do not
reweigh or re-evaluate the evidence and are required to afford the State the strongest
legitimate view of the proof contained in the record as well as all reasonable and
legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Because a verdict of guilt removes the presumption of innocence
and replaces it with a presumption of guilt, the accused has the burden of illustrating to
this Court why the evidence is insufficient to support the verdict returned by the trier of
fact. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973).
First-degree murder is the premeditated and intentional killing of another
person. T.C.A. § 39-13-202(a)(1). Premeditation is defined as “an act done after the
exercise of reflection and judgment.” T.C.A. § 39-13-202(d).
‘Premeditation’ means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill pre- exist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.
T.C.A. § 39-13-202(d). Premeditation is the process of thinking about a proposed killing
before engaging in the homicidal conduct. See State v. Brown, 836 S.W.2d 530, 540-41
(Tenn. 1992). The existence of premeditation is a question of fact for the jury to
determine and may be inferred from the circumstances surrounding the offense. State
v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) (citing Brown, 836 S.W.2d at 539). There
are several circumstances that can support an inference of premeditation, including the
use of a deadly weapon upon an unarmed victim; evidence of procurement of a weapon;
4 and calmness immediately after the killing. Bland, 958 S.W.2d at 660 (citing Brown, 836
S.W.2d at 541-42; State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)).
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED APRIL 1999 SESSION June 18, 1999
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 01C01-9801-CC-00029 Appellee, ) ) MONTGOMERY COUNTY VS. ) ) HON. ROBERT W. WEDEMEYER, JEFFERY MILLER, ) JUDGE ) Appellant. ) (First-Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
ROGER K. SMITH JOHN KNOX WALKUP 104 Woodmont Blvd., Suite 115 Attorney General & Reporter Nashville, TN 37205 ELIZABETH B. MARNEY Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493
JOHN W. CARNEY District Attorney General
HELEN YOUNG Asst. District Attorney General 204 Franklin St., Suite 300 Clarksville, TN 37040
OPINION FILED:
AFFIRMED
JOHN H. PEAY, Judge OPINION
The defendant was convicted by a jury of first-degree murder and
sentenced to life in prison with the possibility of parole. The defendant’s subsequent
motion for a new trial was denied by the trial court. The defendant now appeals and
contends that the evidence at trial was insufficient to sustain his conviction. After a
review of the record and applicable law, we find no merit to the defendant’s contention
and thus affirm his conviction.
The evidence at trial established that on September 1, 1996, the defendant
shot and killed the victim, Josh Kelley. The evidence indicated that earlier that evening,
three young ladies, Tennille, Cassie, and Heather, were driving “up and down” Riverside
Drive in Clarksville, Tennessee. They visited a motel where Mike Powers, Cassie’s
boyfriend, was throwing a party. While in the motel room, Tennille saw the defendant
preparing to leave the room, at which point someone handed a gun to him. The
defendant then left the party. Shortly thereafter, the three young ladies decided to go
cruising on Riverside Drive again. They pulled in the parking lot of Page and Taylor’s
Sporting Goods Store to change drivers. As they were changing seats, a young man in
the parking lot told them to “suck [his] dick or leave.” The three young ladies left the area
and returned to the party at the motel.
When they arrived at the motel, the ladies told Mr. Powers about the young
man’s comment. At this point, Mr. Powers and the defendant, who had returned to the
motel, went to the defendant’s car, and the defendant followed the ladies to the parking
lot of Page and Taylor’s Sporting Goods Store. According to the defendant’s second
statement to the police, upon arrival at the parking lot, the defendant told Mr. Powers to
2 “get the gun from under the passenger seat.” According to at least one witness, when
Mr. Powers exited the vehicle, he had a gun in his waistband. The defendant and Mr.
Powers then approached a group of teenagers standing in the parking lot. The evidence
at trial indicated that Mr. Powers asked which of them had told his girlfriend to “suck [his]
dick.” In response, the victim stepped forward and said, “We don’t know you. We don’t
know your girlfriend. We didn’t say anything to anybody.” Mr. Powers then pulled the
gun from his waistband and pointed it at the victim. According to one witness, the
defendant told Mr. Powers to “cap [the victim].” Mr. Powers lowered the gun to his side,
at which point the defendant took the gun out of Mr. Powers’ hand. The defendant
cocked the gun, pulled the slide back, pointed the gun at the ground in front of the
victim’s feet, and fired. The defendant then raised the gun, pointed it at the victim’s
chest, and fired. After the shooting, the defendant and Mr. Powers left the scene.
The defendant now contends that the evidence is insufficient to support his
conviction for first-degree murder. Specifically, the defendant argues that the State failed
to present proof to establish the elements of premeditation and intent.
A defendant challenging the sufficiency of the proof has the burden of
illustrating to this Court why the evidence is insufficient to support the verdict returned by
the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of
sufficient evidence unless the facts contained in the record and any inferences which
may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact
to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
When an accused challenges the sufficiency of the convicting evidence, we
3 must review the evidence in the light most favorable to the prosecution in determining
whether “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, 319 (1979). We do not
reweigh or re-evaluate the evidence and are required to afford the State the strongest
legitimate view of the proof contained in the record as well as all reasonable and
legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Because a verdict of guilt removes the presumption of innocence
and replaces it with a presumption of guilt, the accused has the burden of illustrating to
this Court why the evidence is insufficient to support the verdict returned by the trier of
fact. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973).
First-degree murder is the premeditated and intentional killing of another
person. T.C.A. § 39-13-202(a)(1). Premeditation is defined as “an act done after the
exercise of reflection and judgment.” T.C.A. § 39-13-202(d).
‘Premeditation’ means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill pre- exist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.
T.C.A. § 39-13-202(d). Premeditation is the process of thinking about a proposed killing
before engaging in the homicidal conduct. See State v. Brown, 836 S.W.2d 530, 540-41
(Tenn. 1992). The existence of premeditation is a question of fact for the jury to
determine and may be inferred from the circumstances surrounding the offense. State
v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) (citing Brown, 836 S.W.2d at 539). There
are several circumstances that can support an inference of premeditation, including the
use of a deadly weapon upon an unarmed victim; evidence of procurement of a weapon;
4 and calmness immediately after the killing. Bland, 958 S.W.2d at 660 (citing Brown, 836
S.W.2d at 541-42; State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)).
Here, the evidence taken in the light most favorable to the State indicates
that the defendant arrived at the scene of the crime with a gun in his vehicle. The
defendant told Mr. Powers to take the gun from underneath the passenger seat of the
defendant’s car before they exited the vehicle. After Mr. Powers addressed the group of
teenagers, the victim approached the defendant and Mr. Powers in a non-threatening
manner, never made any sudden moves toward them, and never threatened them in any
way. In fact, the victim never directly addressed the defendant. There was no evidence
that the victim was in possession of any weapon. Mr. Powers aimed the gun at the victim
and the defendant told Mr. Powers to “cap his ass.” When Mr. Powers did not shoot the
victim, the defendant grabbed the gun and pointed it at the ground in front of the victim’s
feet. After shooting the ground in front of the victim’s feet, the defendant raised the gun,
aimed it at the victim, and shot him in the chest. Although at trial the defendant claimed
the second shot was an accident, in his first statement to the police the defendant
admitted that he had been having homicidal thoughts prior to the shooting. After the
shooting, the defendant threw the weapon on top of a nearby building and went back to
the party in the motel room.
Whether these facts support a finding of premeditation is a question of fact
for the jury. After hearing the testimony at trial, the jury evidently rejected the defendant’s
assertion that the second shot was accidental as is within their province. In light of the
circumstances surrounding the murder, we find the evidence was sufficient to establish
that the defendant acted after the exercise of reflection and judgment with a previously
formed intent to kill, which supports a finding of premeditation. See T.C.A. § 39-13-
5 202(d).
In addition, it is also apparent that the defendant intended to kill the victim
by the nature of his actions. The defendant stood approximately one to four feet away
from the victim and pointed a loaded gun at the victim’s chest. The defendant then pulled
the trigger. It is therefore logical to conclude that the defendant acted with the intent
necessary for first-degree murder. See State v. William Alfred Holt, Jr., No. 01C01-9704-
CC-00155, Marshall County (Tenn. Crim. App. filed March 27, 1998, at Nashville).
The defendant contends that at the time of the offense he was high on
cocaine and therefore unable to form the necessary culpable mental state. At trial, the
defendant asserted that he ingested approximately one gram of cocaine shortly before
the shooting. However, the State presented two witnesses who were present at the party
in the motel room. Both witnesses claimed that there were no drugs or alcohol at the
party. In addition, witnesses to the shooting testified that the defendant appeared calm
and “normal” at the time of the shooting. As such, the evidence indicating that the
defendant was not under the influence of an intoxicant at the time of the shooting was
clearly sufficient for the jury to determine the issues accordingly. As it is within the
province of the jury to determine the credibility of witnesses, it was proper for the jury to
disregard the defendant’s testimony that drug ingestion negated his culpable mental
state. See State v. Howard, 926 S.W.2d 579, 584 (Tenn. Crim. App. 1996), overruled
on other grounds by State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998); see also State
v. Roy E. Keough, No. 02C01-9708-CR-00317, Shelby County (Tenn. Crim. App. filed
January 13, 1999, at Jackson). As such, this issue is without merit.
In sum, we find the evidence sufficient to establish the elements of
6 premeditation and intent. Further, the defendant’s argument that drug ingestion negated
the required mens rea is without merit. Accordingly, we affirm the defendant’s conviction
for first-degree murder.
______________________________ JOHN H. PEAY, Judge
CONCUR:
______________________________ DAVID H. WELLES, Judge
______________________________ J. CURWOOD WITT, JR., Judge