IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE December 29, 1999
NOVEMBER SESSION, 1999 Cecil Crowson, Jr. Appellate Court Clerk
STATE OF TENNESSEE, * * No. 03C01-9905-CR-00206 Appellee, * * HAMILTON COUNTY vs. * * Hon. Douglas A. Meyer, Judge JOHN WALTER SULLIVAN, * * (Attempted Second Degree Murder) Appellant. *
For the Appellant: For the Appellee:
Hank Hill Paul G. Summers Hank Hill & Associates, Attorneys Attorney General and Reporter 701 Cherry Street, Suite 200 Chattanooga, TN 37402 Michael J. Fahey, II Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
William H. Cox III District Attorney General
H. C. Bright Asst. District Attorney General 313 Courts Building 600 Market Street Chattanooga, TN 37402
OPINION FILED:
AFFIRMED
David G. Hayes, Judge OPINION
The appellant, John Walter Sullivan, was convicted by a Hamilton County jury
of one count of attempted second degree murder. Following a sentencing hearing,
the appellant was sentenced to ten years in the Department of Correction. The
appellant contends that the evidence is insufficient to support a conviction for
attempted second degree murder.
After review of the evidence, we affirm the judgment of the trial court.
Background
On October 19, 1997, the Hamilton County Grand Jury returned an
indictment charging the appellant with the attempted first degree murder of Linda
Jackson. The case proceeded to trial on November 18, 1998, at which time the
following proof was developed.
Linda Jackson, the victim, testified that she met the appellant at the
community kitchen in Chattanooga. Both Jackson and the appellant were homeless.
Soon thereafter, the couple began a romantic relationship, which continued over
several months.
On July 19, 1997, Ms. Jackson was given a ride to the Conoco convenience
store by a male friend. He dropped Ms. Jackson off at the store and she proceeded
inside the store to “get [her] a cup of ice.” The appellant, who apparently was in the
immediate vicinity, saw Ms. Jackson and followed her into the store. Ms. Jackson
immediately informed the cashier “to call the police because he’s nagging me and
he don’t [sic] supposed to be around me.” The appellant left. The cashier locked
2 the door and called the police. However, approximately five minutes later the
cashier had to unlock the door as other customers were trying to enter. As soon as
the door was unlocked, the appellant rushed into the store and “came at [Ms.
Jackson] with a butcher knife.” Ms. Jackson moved in an attempt to protect herself,
however, her attempt was futile as the appellant stabbed her in the arm. Teresa
McMillan, the cashier at the Conoco convenience store, corroborated the account of
events provided by Ms. Jackson.
Chattanooga Police Officer James Hixson was on patrol the night of the
stabbing and responded to a dispatch to the incident at the convenience store.
Upon arriving at the scene and entering the store, he “noticed a large amount of
blood on the floor. . .” and “Ms. Jackson standing there . . . [with] a towel wrapped
around her arm. . . .” Ms. Jackson informed Officer Hixson that the appellant had
stabbed her. She provided Officer Hixson with a physical description of the
appellant. Other officers located the appellant “right down the block.” At the time
he was apprehended by the police officers, the appellant had disposed of the knife
used in the attack.
Detective David Sowder with the Hamilton County Sheriff’s Department
testified that the appellant eventually led him to the location in a nearby yard where
he had disposed of the knife. Detective Sowder stated that the appellant was very
cooperative and provided a statement. In the statement, the appellant admitted that
he stabbed Linda Jackson, his girlfriend, at the Conoco convenience market and
that he “did it out of love.” He explained that Linda was married and that they were
having an affair. The appellant also asserted that Linda was “carrying his child.”
During his statement, the appellant began crying and stated that “[he] would never
do it again.”
Additionally, the appellant stated that he “hung out” at the Conoco market,
3 although he had previously been warned to stay away from the store. He did not
know that Linda Jackson was going to be at the store. When Ms. Jackson got out of
the car of another man, the appellant approached her and tried to talk to her. She
responded that she didn’t want to be bothered and entered the store. The appellant
withdrew. Shortly thereafter, the appellant reentered the store; this time “[he] lost it,
[he] just couldn’t take it,” and “stuck her.” The appellant then walked out of the store
and left. He explained that he carried the knife on his person at all times for
protection. He also agreed that, “at the time, he was trying to kill her.”
The night of the incident, Ms. Jackson underwent surgery on her hand. Ms.
Jackson explained that, as the result of the stabbing, she can no longer “make a full
fist and [she] can’t hardly lift nothing [sic], and when it get [sic] real cold, it aches real
bad.”
At the close of the State’s proof, defense counsel moved for a directed
verdict as to the charge of attempted first degree murder. The trial court sustained
the motion and ordered that the trial proceed on the charge of attempted second
degree murder. After deliberations, the jury announced their verdict finding the
appellant guilty of attempted second degree murder.
Analysis
In his only issue, the appellant contends that the evidence is insufficient, as a
matter of law, to support a conviction for attempted second degree murder. He
concedes that, at best, he is only guilty of attempted voluntary manslaughter. The
trial court charged the jury on both offenses and the jury found the appellant guilty of
4 When a defendant challenges the sufficiency of the convicting evidence, we
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, 317, 99 S.Ct. 2781, 2789 (1979). We do not reweigh or reevaluate 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).
A defendant challenging the sufficiency of the evidence has the burden of
illustrating to this court why the evidence is insufficient to support the verdict
returned by the trier of fact. 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).
In this case, the appellant was convicted of attempted second degree
murder. Second degree murder is the “knowing killing of another.” Tenn. Code
Ann.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE December 29, 1999
NOVEMBER SESSION, 1999 Cecil Crowson, Jr. Appellate Court Clerk
STATE OF TENNESSEE, * * No. 03C01-9905-CR-00206 Appellee, * * HAMILTON COUNTY vs. * * Hon. Douglas A. Meyer, Judge JOHN WALTER SULLIVAN, * * (Attempted Second Degree Murder) Appellant. *
For the Appellant: For the Appellee:
Hank Hill Paul G. Summers Hank Hill & Associates, Attorneys Attorney General and Reporter 701 Cherry Street, Suite 200 Chattanooga, TN 37402 Michael J. Fahey, II Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
William H. Cox III District Attorney General
H. C. Bright Asst. District Attorney General 313 Courts Building 600 Market Street Chattanooga, TN 37402
OPINION FILED:
AFFIRMED
David G. Hayes, Judge OPINION
The appellant, John Walter Sullivan, was convicted by a Hamilton County jury
of one count of attempted second degree murder. Following a sentencing hearing,
the appellant was sentenced to ten years in the Department of Correction. The
appellant contends that the evidence is insufficient to support a conviction for
attempted second degree murder.
After review of the evidence, we affirm the judgment of the trial court.
Background
On October 19, 1997, the Hamilton County Grand Jury returned an
indictment charging the appellant with the attempted first degree murder of Linda
Jackson. The case proceeded to trial on November 18, 1998, at which time the
following proof was developed.
Linda Jackson, the victim, testified that she met the appellant at the
community kitchen in Chattanooga. Both Jackson and the appellant were homeless.
Soon thereafter, the couple began a romantic relationship, which continued over
several months.
On July 19, 1997, Ms. Jackson was given a ride to the Conoco convenience
store by a male friend. He dropped Ms. Jackson off at the store and she proceeded
inside the store to “get [her] a cup of ice.” The appellant, who apparently was in the
immediate vicinity, saw Ms. Jackson and followed her into the store. Ms. Jackson
immediately informed the cashier “to call the police because he’s nagging me and
he don’t [sic] supposed to be around me.” The appellant left. The cashier locked
2 the door and called the police. However, approximately five minutes later the
cashier had to unlock the door as other customers were trying to enter. As soon as
the door was unlocked, the appellant rushed into the store and “came at [Ms.
Jackson] with a butcher knife.” Ms. Jackson moved in an attempt to protect herself,
however, her attempt was futile as the appellant stabbed her in the arm. Teresa
McMillan, the cashier at the Conoco convenience store, corroborated the account of
events provided by Ms. Jackson.
Chattanooga Police Officer James Hixson was on patrol the night of the
stabbing and responded to a dispatch to the incident at the convenience store.
Upon arriving at the scene and entering the store, he “noticed a large amount of
blood on the floor. . .” and “Ms. Jackson standing there . . . [with] a towel wrapped
around her arm. . . .” Ms. Jackson informed Officer Hixson that the appellant had
stabbed her. She provided Officer Hixson with a physical description of the
appellant. Other officers located the appellant “right down the block.” At the time
he was apprehended by the police officers, the appellant had disposed of the knife
used in the attack.
Detective David Sowder with the Hamilton County Sheriff’s Department
testified that the appellant eventually led him to the location in a nearby yard where
he had disposed of the knife. Detective Sowder stated that the appellant was very
cooperative and provided a statement. In the statement, the appellant admitted that
he stabbed Linda Jackson, his girlfriend, at the Conoco convenience market and
that he “did it out of love.” He explained that Linda was married and that they were
having an affair. The appellant also asserted that Linda was “carrying his child.”
During his statement, the appellant began crying and stated that “[he] would never
do it again.”
Additionally, the appellant stated that he “hung out” at the Conoco market,
3 although he had previously been warned to stay away from the store. He did not
know that Linda Jackson was going to be at the store. When Ms. Jackson got out of
the car of another man, the appellant approached her and tried to talk to her. She
responded that she didn’t want to be bothered and entered the store. The appellant
withdrew. Shortly thereafter, the appellant reentered the store; this time “[he] lost it,
[he] just couldn’t take it,” and “stuck her.” The appellant then walked out of the store
and left. He explained that he carried the knife on his person at all times for
protection. He also agreed that, “at the time, he was trying to kill her.”
The night of the incident, Ms. Jackson underwent surgery on her hand. Ms.
Jackson explained that, as the result of the stabbing, she can no longer “make a full
fist and [she] can’t hardly lift nothing [sic], and when it get [sic] real cold, it aches real
bad.”
At the close of the State’s proof, defense counsel moved for a directed
verdict as to the charge of attempted first degree murder. The trial court sustained
the motion and ordered that the trial proceed on the charge of attempted second
degree murder. After deliberations, the jury announced their verdict finding the
appellant guilty of attempted second degree murder.
Analysis
In his only issue, the appellant contends that the evidence is insufficient, as a
matter of law, to support a conviction for attempted second degree murder. He
concedes that, at best, he is only guilty of attempted voluntary manslaughter. The
trial court charged the jury on both offenses and the jury found the appellant guilty of
4 When a defendant challenges the sufficiency of the convicting evidence, we
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, 317, 99 S.Ct. 2781, 2789 (1979). We do not reweigh or reevaluate 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).
A defendant challenging the sufficiency of the evidence has the burden of
illustrating to this court why the evidence is insufficient to support the verdict
returned by the trier of fact. 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).
In this case, the appellant was convicted of attempted second degree
murder. Second degree murder is the “knowing killing of another.” Tenn. Code
Ann. § 39-13-210(a)(1) (1997). A person acts knowingly with respect to a result of
the person’s conduct when the person is aware that the conduct is reasonably
certain to cause the result. Tenn. Code Ann. § 39-11-106(a)(20) (1997). Attempted
second degree murder may be proven by showing that the defendant “intentionally
acted with the requisite culpability to commit the offense of murder in the second
degree” and the defendant “could have been convicted of murder in the second
degree . . . if he had actually killed the victims.” See State v. Dale Nolan, No.
01C01-9511-CC-00387 (Tenn. Crim. App. at Nashville, Jun. 26, 1997), perm. to
appeal denied, (Tenn. Mar. 2, 1998) (citations omitted). See generally Tenn. Code
5 Ann. § 39-12-101 (a)(1), (2), (3) (1997). The appellant argues that the evidence
supports only a conviction for attempted voluntary manslaughter. Voluntary
manslaughter is “the intentional or knowing killing of another in a state of passion
produced by adequate provocation sufficient to lead a reasonable person to act in
an irrational manner.” See Tenn. Code Ann. § 39-13-211(a) (1997).
Whether the acts of the appellant constitute a “knowing” attempt (second
degree murder) or an attempt due to “adequate provocation” (voluntary
manslaughter) is a question for the jury. State v. Johnson, 909 S.W.2d 461, 464
(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). The proof at trial
established that the appellant confronted the victim at the Conoco market after he
saw her exit the vehicle of another man. Ms. Jackson sought assistance from the
store cashier and the appellant retreated. Sometime thereafter, the appellant
reentered the store and stabbed the victim. There is no proof that the victim said or
did any thing to provoke the appellant. Additionally, he later admitted to Detective
Sowder that he was trying to kill the victim at the time of the incident.
Accordingly, we conclude, as a matter of law, that the evidence is sufficient to
support a finding by the jury that the appellant is guilty of attempted second degree
murder. Tenn. R. App. P. 13(e). The judgment is affirmed.
6 ____________________________________ DAVID G. HAYES, Judge
CONCUR:
________________________________________ ALAN E. GLENN, Judge
________________________________________ JOE H. WALKER, III, Special Judge