            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                          APRIL SESSION, 1998

                                                              FILED
STATE OF TENNESSEE,         )                                      April 14, 1998
                            )    No. 02C01-9708-CR-00307
      Appellee              )                                Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
                            )    SHELBY COUNTY
vs.                         )
                            )    Hon. W. Fred Axley, Judge
JOHNNY O. CLARK,            )
                            )    (First Degree Murder)
      Appellant             )



For the Appellant:               For the Appellee:

Tony N. Brayton                  John Knox Walkup
Asst. Public Defender            Attorney General and Reporter
201 Poplar, Suite 2-01
Memphis, TN 38103                Elizabeth T. Ryan
                                 Assistant Attorney General
                                 Criminal Justice Division
AC Wharton, Jr.                  450 James Robertson Parkway
District Public Defender         Nashville, TN 37243-0493


                                 William L. Gibbons
                                 District Attorney General

                                 Edgar A. Peterson
                                 Asst. District Attorney General
                                 Criminal Justice Complex
                                 Suite 301, 201 Poplar Street
                                 Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                             OPINION



        The appellant, Johnny O. Clark, was found guilty by a Shelby County jury of

premeditated first degree murder. He was subsequently sentenced to a term of life

imprisonment in the Department of Correction. In this appeal as of right, the

appellant contends that the evidence is insufficient to support his conviction.



        After a review of the record, we affirm the judgment of the trial court.




                                           Background



        On the evening of March 14, 1995, a host of people, including family,

acquaintances, and others gathered at the 3171 Nathan Street residence of Betty

Clark. Included in this group was nineteen year old, Deron Cathey,1 the victim in this

case. As was customary, Mrs. Clark allowed various people to spend the night at

her home. Mrs. Clark’s home consisted of a living room, three bedrooms, a kitchen

and a bathroom.2 The only entrance to the house was through the front door and

Mrs. Clark kept the only key. On this particular evening, Jerrekcha Clark, Mrs.

Clark’s granddaughter, and her boyfriend, Robert Patterson, went to sleep in the

living room; Mrs. Clark and Eric Johnson, Jerrekcha’s nine year old son, were

sleeping in the front bedroom; Mose Dire, a family friend, and Deron Cathey

occupied the middle bedroom; and Felix Lockett, “an old guy,” and Tony Valentine,

the appellant’s brother, retired to the rear bedroom. Betty Clark is the mother of the

appellant. Although the appellant usually stayed at his mother’s house, he had

been absent from the residence for the past three days.


        1
          Deron Cathey is also referred to as Desron, Ron, or Darren in the record. He is also
referred to by his father’s surname, Taylor.

        2
          Testimony at trial indicated that the living room and one bedroom were located in the
front of the house. A hallway led from the living room to the kitchen. The only access to the two
rear bedrooms was through the front bedroom.

                                                2
         At approximately 3:15 a.m., on March 15, Tony Valentine was awakened by

the appellant and Mose Dire in the kitchen. The appellant was getting some

clothes. Valentine noticed that Deron Cathey was in the middle bedroom awake.

Valentine confronted the appellant in the kitchen and asked him to leave the home

because of previous altercations with Deron Cathey. 3                      The appellant “was like

wanting to go at [Deron] but I told him not to. . . like he wanted to break at him but I

stopped him.” Valentine then escorted the apparently angry appellant to the front

door of the residence and locked the door.



         Sometime later that morning, around 5:00 a.m., the appellant returned to his

mother’s house and began knocking on the front door. Jerrechka and Mrs. Clark

were awakened by the noise. Mrs. Clark told Valentine to let the appellant in the

house. Jerrechka and Mrs. Clark then went back to sleep. The appellant

accompanied Valentine to the rear bedroom where he told his brother, “I’m going to

sleep in my bed.” At this time, Valentine noticed that, although Mose Dire was

asleep in the middle room, Deron Cathey was awake and sitting on the bed.

Valentine then went back to sleep.



         Shortly thereafter, the sleeping residents were awakened by the sound of

gunfire. Valentine awoke to find the appellant “bent over and shooting [Deron

Cathey].” Mose Dire observed Deron Cathey laying across the bed with his hands

raised palm up in the air. Cathey was not armed with a weapon and begged the

appellant, “[p]lease don’t do this.” After firing multiple gunshots at the unarmed

Cathey, the appellant ran out the front door of the house. Jerrechka Clark noticed

the front door closing, but was unable to identify the person. Tony Valentine then

called for an ambulance and the police.


         3
          At trial, Valentine explained that, three days earlier, the appellant and Deron Cathey had
been involved in a verbal argument regarding Phyllis, the appellant’s girlfriend, and money
appare ntly owed to C athey. Cath ey may h ave bee n arm ed with a w eapon during this a ltercation.
The appellant’s mother, Betty Clark, confirmed that the appellant and Deron had been arguing
over som ethin g for abou t a m onth . In the appe llant’s defe nse , she testifie d tha t Cath ey had told
her that he was go ing to kill the ap pellant.

                                                     3
       Memphis Police Officers Joseph Locastro and J.L. Simpson responded to the

call from the Nathan Street address within two minutes of hearing the dispatch.

They found the victim, Deron Cathey, lying on the floor, between a couch and a bed,

in a bedroom on the east side of the house. The victim had sustained multiple

gunshots wounds. The officers secured the scene, began preliminary

investigations, and identified the appellant as the suspect. However, no weapons

were discovered at the scene nor did the officers locate any spent shells or bullet

holes. All of the witnesses at the scene testified that no weapons were kept in Betty

Clark’s residence, as she forbade them. Around 6:15 a.m, Officer Locastro was

outside on the front porch of the house when he spotted the appellant emerging

from between two houses. The appellant was placed under arrest, but no weapon

was discovered on his person or in the area from which he emerged.



       Paramedics from the Memphis Fire Department arrived at the scene at 5:31

a.m. and proceeded to transport the victim to a local hospital. The victim, whose

condition deteriorated in transport, was pronounced dead at 7:54 a.m. Dr. O.C.

Smith performed the autopsy on the victim. He determined that the victim had died

from multiple gunshot wounds. Dr. Smith testified that the victim had been shot four

times: in his right upper lip; in his left back; in his right front chest, and in the

backside of his left upper arm.



       At trial, the appellant testified in his own behalf. He stated that he arrived at

3171 Nathan Street at 5:05 a.m. in order to change his clothes. He explained that

       [w]hen I reached in my drawer to get my cologne to put on, and
       [Deron] stepped up to the door and asked me, say, ‘You ready for you
       ass whooping.’ So I just looked at him and he walked off. And when
       he walked off, he went to the right where guns are kept there in the
       house. And so when I put my cologne back in the drawer, I looked. . .
       up, he was coming toward me and I shot him. I shot him as he
       stepped into my room coming toward me. . . . I was scared.




                                            4
After the appellant fled the house, he threw the gun in a field located at the

intersection of “Crystal and Baltic.”4 The appellant admitted that he had purchased

the gun, a .38 revolver, earlier that evening for “40 something dollars” from a “guy

named . . . Mac” on the street.



         The appellant stated that, three days prior to the shooting, he and Deron had

an argument and the appellant had to escape from the kitchen window because

Deron was armed with a weapon. He believed that “they were planning to get me,

because Deron had hit Phyllis in the eye and broke her glasses and hit her under

here. And she was a friend of mine. . . .” The appellant explained that Deron was

involved in drugs and that drugs were sold out of his mother’s house.

Consequently, he stated that a lot of guns were kept in the residence, hidden in the

air conditioner and under the couch. He alleged that the State’s witnesses lied

during their testimony.




                                                       Analysis



         The appellant contends that a rational trier of fact could not find, from the

evidence presented at trial, that the appellant acted with premeditation and

deliberation.5 Specifically, he argues that the proof fails to establish that the

homicide was “committed with coolness and reflection and without passion or

provocation.” Thus, he concludes his conviction for premeditated first degree

murder cannot stand. We disagree.




         4
             The weapon used by the appellant was never recovered.

         5
          At tria l, the a ppe llant a rgue d self -def ens e. Th e jury, b y their v erdic t, reje cted this th eory,
finding that the killing was not justified. On appeal, the appellant concedes “while [the appellant’s]
fear may not have been enough to give rise to a defense of self-defense, it does indicate that the
appellan t acted in the passion and fea r of the m ome nt. . . . [ergo,] the pr oof wou ld only supp ort a
conviction for second degree murder unless the State could show that premeditation and
deliberation preced ed the stru ggle.”

                                                          5
       When there is a challenge to the verdict based on the sufficiency of the

evidence, this court must review the evidence in the light most favorable to the

prosecution and determine 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, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,

259 (Tenn. 1994); Tenn. R. App. P. 13(e). We do not reweigh or reevaluate the

evidence; these are issues resolved by the trier of fact. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Furthermore, a guilty verdict accredits the testimony

of witnesses for the State and a presumption of guilt replaces the presumption of

innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant

bears the burden of proving that the evidence was insufficient to support the jury

verdict in his case. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



       On the date of this offense, first degree murder not committed in the

perpetration of a crime required proof of the “intentional, premeditated and

deliberate killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1994 Supp.). A

death caused by another is presumed to be second degree murder. State v. Brown,

836 S.W.2d 530, 543 (Tenn. 1992). Thus, the State must prove premeditation and

deliberation to raise the offense to first degree murder. Id. Premeditation

necessitates “the exercise of reflection and judgment,” Tenn. Code Ann. § 39-13-

201(b)(2) (1991), “includ[ing] instances of homicide committed by poison or lying in

wait,” and requiring “a previously formed design or intent to kill.” State v. West, 844

S.W.2d 144, 147 (Tenn. 1992). Deliberation, on the other hand, is defined as a

“cool purpose . . . formed in the absence of passion.” Brown, 835 S.W.2d at 538

(citations and internal quotations omitted). Deliberation also requires “some period

of reflection, during which the mind is free from the influence of excitement.” Id.;

see also Tenn. Code Ann. § 39-13-201(b)(2).




                                         6
       The elements of premeditation and deliberation are questions for the jury and

may be inferred from the circumstances surrounding the killing. State v. Gentry, 881

S.W.2d 1, 3 (Tenn. Crim. App. 1993), perm. to appeal denied, (Tenn. 1994).

Because the trier of fact cannot speculate as to what was in the killer’s mind, the

existence of facts of premeditation and deliberation must be determined from the

appellant’s conduct in light of the surrounding circumstances. State v. Wright, No.

01C01-9503-CC-00093 (Tenn. Crim. App. at Nashville, Jan. 5, 1996). Although

there is no strict standard governing what constitutes proof of premeditation and

deliberation, several relevant circumstances are helpful, including: the use of a

deadly weapon upon an unarmed victim; the fact that the killing was particularly

cruel; declarations by the defendant of his intent to kill; the making of preparations

before the killing for the purpose of concealing the crime; and the procurement of

weapons immediately prior to the killing. State v. Bland, 958 S.W.2d 651, 660

(Tenn. 1997) (citing Brown, 836 S.W.2d at 541-542). Additional factors from which

a jury may infer premeditation and deliberation include planning activities by the

appellant prior to the killing, the appellant’s prior relationship with the victim from

which motive may be inferred, and the nature of the killing from which it may be

inferred that the manner of killing was so particular and exacting that the defendant

must have intentionally killed according to a preconceived design. Gentry, 881

S.W.2d at 4-5 (citation omitted).



       Reviewing the present case in the light most favorable to the State, the

appellant and the victim had an oral argument three days prior to the homicide. See

Gentry, 881 S.W.2d at 5 (while motive is not an element of the offense, its proof

may reflect upon the elements of premeditation and deliberation). The appellant

purchased a weapon within several hours of the incident. He also was aware that

Deron Cathey had been staying at his mother’s Nathan Street residence. See

Brown, 836 S.W.2d at 541 (facts about what the defendant did prior to the killing

which show he was engaged in planning activity support an inference of


                                           7
premeditation and deliberation). At 3:00 a.m. the next morning, he went to his

mother’s house, where his brother, Tony Valentine, instructed him to leave because

the appellant “was . . wanting to go at [Deron] Cathey.” He returned several hours

later and found Deron Cathey unarmed in the middle bedroom. See Bland, 958

S.W.2d at 660. Tony Valentine and Mose Dire witnessed the appellant shoot Deron

multiple times despite Deron’s pleas. Gentry, 881 S.W.2d at 4-5. The weapon was

fired at close range. The appellant ran out of the house and subsequently threw the

weapon in a vacant field. See West, 844 S.W.2d at 148 (fact that defendant

disposed of weapon immediately after shooting supports theory that homicide was

committed in the absence of passion).



      From these facts, we conclude that a reasonable trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Accordingly,

the judgment of conviction for the offense of first degree murder is affirmed.




                                  ____________________________________
                                  DAVID G. HAYES, Judge



CONCUR:



________________________________
WILLIAM M. BARKER, Judge


________________________________
JOE G. RILEY, Judge




                                         8
