       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                               March 3, 2015 Session

              STATE OF TENNESSEE v. FREDRICK THOMAS

                 Appeal from the Criminal Court for Shelby County
                   No. 12-00917     J. Robert Carter, Jr., Judge




                No. W2013-02762-CCA-R3-CD - Filed May 6, 2015


Defendant, Fredrick Thomas, was indicted by the Shelby County Grand Jury with first
degree murder and employing a firearm during the commission of a felony after the
shooting death of his wife and his unsuccessful attempt at suicide. After a jury trial,
Defendant was found guilty of first degree murder. The trial court dismissed the
remaining count. Defendant was sentenced to life imprisonment. On appeal, Defendant
challenges the sufficiency of the evidence and the trial court‟s refusal to allow expert
testimony on premeditation, deliberation, passion, and provocation. After a thorough
review, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Paul J. Springer, Memphis, Tennessee, for the appellant, Fredrick Thomas.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; Karen Cook and Jeff Jones, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                      OPINION

                                 Factual Background

      This is a direct appeal from Defendant's conviction in the Criminal Court of
Shelby County for the first degree murder of his wife.
       On November 8, 2011, Tiffany Thomas, the victim, was shot multiple times by
Defendant, her husband. The couple‟s relationship was strained. They had been arguing
for several months. In the months preceding her death, the victim spent several nights at
the home of her adult son, Branden Johnson. Defendant moved out and was living with
his mother. The couple‟s two minor daughters, S.T. and J.T.,1 were living at 2479
Whitney with the victim. At the time, S.T. was ten years old and J.T. was seventeen.

        On the afternoon of November 8, S.T. rode home from school with her mother, the
victim. She immediately went to her bedroom to complete her homework. J.T. came
home early from a basketball game and dinner with friends after receiving a telephone
call from the victim. J.T. later explained that she “didn‟t have a good feeling” about the
telephone call.

        S.T. heard her father, Defendant, arrive. Defendant‟s white Corvette pulled into
the driveway and blocked the victim‟s Nissan. Almost immediately after Defendant
arrived, she heard “loud voices.” J.T. saw Defendant come into the house and sit down
on the loveseat. She recalled that the victim was sitting on the couch when the victim
“asked him was he going to stay the night . . . and if he decided to stay, she was going to
leave cause [sic] she didn‟t feel like arguing.” The victim asked Defendant to move his
car and asked him if she needed to call the police. Defendant told her to call the police.
The victim got up from the couch with a phone and walked to the kitchen. Defendant
“got up off the couch [removed his gun from his hip] and started to shoot.” The victim
tried to run to the front door but Defendant blocked her from leaving. In a panic, J.T. ran
the other way, to S.T.‟s room. Defendant was blocking the exit of the house.

        J.T. heard Defendant say to the victim, “you‟re going to die and I am too.” She
saw Defendant shoot the victim in the corner of the bedroom while she and S.T. were
trying to get out of the house through a small bedroom window. Both girls begged
Defendant to stop shooting. When the girls could not get the window to open, they
managed to get to J.T.‟s bedroom and tried to escape through another window. They
broke the window but were unable to get out because the window was too small. J.T.
dropped her phone while she was trying to open one of the windows; the battery fell out
of the phone. The two girls eventually managed to get out of the house through the
carport door. J.T. then successfully managed to put the battery back in the phone in order
to call the police. By that time, the police were already pulling up to the house.

      J.T. knew at that point that Defendant shot the victim but did not know that she
was dead. She thought that Defendant also shot himself after shooting the victim because
she saw him being taken from the house on a stretcher. Neither J.T. nor S.T. saw

        1
            Due to the age of the children at the time of the incident, we have chosen to refer to them by
their initials to protect their identity.
                                                     -2-
Defendant again prior to trial. They did not see the victim again until her funeral, one
day prior to S.T.‟s eleventh birthday.

       At trial, J.T. testified that Defendant and the victim had argued repeatedly in the
months leading up to the shooting. She was asked if Defendant had confronted the victim
with a receipt from a hotel. J.T. recalled an argument during which Defendant “pull[ed]
up a piece of paper” but explained that she did not know what was on the piece of paper.
The night of that particular argument, J.T. recalled that she, the victim, and her sister
stayed at her older brother‟s home.

       The 911 operator, Lawana Ivory, testified that she would “never forget” the call
she received on November 8, 2011, from the victim. During the call, she could hear the
victim screaming, children begging Defendant not to shoot, and what sounded like
gunshots. Ms. Ivory estimated that she heard nine gunshots. Ms. Ivory dispatched
officers as quickly as possible to the location of the call.

       Officer Paul Petty of the Memphis Police Department arrived on the scene and
entered the house through the open door from the carport. He saw a bullet hole in the
living room and could smell a “strong odor of gunpowder.” Defendant was found lying
unresponsive on his back in the bed, with a Taurus .45 pistol in his right hand. The
victim was lying on the floor nearby in a “crouching, fetal position.” She was already
deceased. Defendant was breathing and was transported via ambulance to the hospital.

       A subsequent search of the residence revealed blood stains and two shell casings
in the kitchen, a bullet hole in the wall of the den, a bullet hole near the bathroom
doorway, and a bullet hole through the linen closet and the toilet in the bathroom. In the
bedroom, there were three shell casings and a bullet hole in the wall.

        Testimony at trial from a forensic specialist indicated that the spent bullets in the
house and the victim‟s body were all fired from the gun found in Defendant‟s hand.
Additionally, all of the shell casings found in the house were fired through the same
weapon. The victim died from multiple gunshot wounds: one in the right chest wall, one
in the right lower chest that entered the heart, one in the right forearm, and one in the
outer right shoulder.

       As part of his defense, Defendant attempted to introduce the testimony of Dr. Eric
Engum, a clinical psychologist specializing in forensic and clinical neuropsychology.
The trial court held a jury-out hearing on the proposed testimony, during which Dr.
Engum testified that Defendant was competent to stand trial. Additionally, Dr. Engum
reviewed Defendant‟s medical treatment along with statements of witnesses and family
members. The doctor testified that his review of these items allowed him to make
“inferences” about Defendant‟s psychological status at the time of the incident; however,
                                             -3-
he was unable to reach a diagnosis regarding Defendant‟s mental state at the time of the
incident. Dr. Engum opined that Defendant was “overwhelm[ed]” by events in his life
and, as a result, “responded explosively towards his wife.” He stated “this was a
reasonable man [Defendant] who was pushed to a point where[,] as he saw it[,] his
options diminished to the point that he had no other thing but to act in both an overtly
aggressive manner towards his wife and an aggressive manner toward himself.” The trial
court ruled the testimony regarding Defendant‟s mental status prior to the shooting
inadmissible on the basis of State v. Hall, 958 S.W.2d 679, 691 (Tenn. 1997).
Additionally, the trial court ruled that any testimony by Dr. Engum with regard to
voluntary manslaughter would be inadmissible under Tennessee Rule of Evidence 401
because it was an issue for the jury to decide.

       Dr. Engum was permitted to testify about his evaluation of Defendant which was
performed about a year-and-a-half after the self-inflicted gunshot wound. He described
Defendant as “flattened, detached, dulled, [and] unemotional.” He performed a variety of
neurological and psychological testing on Defendant and came to the conclusion that he
suffered from a “cognitive disorder not otherwise specified secondary to the traumatic
brain injury.” He also diagnosed Defendant with a “mood disorder” and depression.

       The jury found Defendant guilty of first degree murder. The trial court dismissed
the second count of the indictment, employment of a firearm during the commission of a
dangerous felony. As a result of the conviction for first degree murder, Defendant was
sentenced to life imprisonment.

       Defendant filed a motion for new trial in which he argued that the evidence did not
support the conviction for first degree murder and that the trial court erred in excluding
the testimony of defense witness Dr. Engum, a clinical psychologist specializing in
forensic and clinical neuropsychology. The trial court denied the motion and Defendant
appealed.

                                         Analysis

                              A. Sufficiency of the Evidence

       Initially, Defendant insists that the evidence was insufficient to support the
conviction for first degree murder. Specifically, Defendant points to eyewitness
testimony that an “excessive heated arguing” between Defendant and the victim
supported a conviction of voluntary manslaughter rather than first degree murder.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt. State v. Evans,
                                            -4-
838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal
to demonstrate why the evidence is insufficient to support the conviction. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The relevant question the reviewing court
must answer is whether any rational trier of fact could have found the accused guilty of
every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, “the State is entitled to the
strongest legitimate view of the evidence and to all reasonable and legitimate inferences
that may be drawn therefrom.” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As
such, this Court is precluded from re-weighing or reconsidering the evidence when
evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.
App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Moreover, we may not substitute our own “inferences for those drawn by the trier of fact
from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions
concerning the credibility of the witnesses and the weight and value to be given to
evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
“The standard of review „is the same whether the conviction is based upon direct or
circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

      First degree murder is described as “[a] premeditated and intentional killing of
another . . . .” T.C.A. § 39-13-202(a). Tennessee Code Annotated section 39-13-202(d)
provides that:

       “[P]remeditation” is an act done after the exercise of reflection and
       judgment. “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.

An intentional act requires that the person have the desire to engage in the conduct or
cause the result. T.C.A. § 39-11-106(a)(18). Whether the evidence was sufficient
depends entirely on whether the State was able to establish beyond a reasonable doubt the
element of premeditation. See State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8
S.W.3d 593, 599 (Tenn. 1999). Premeditation may be proved by circumstantial evidence.
See, e.g., State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992). Whether premeditation
is present is a question of fact for the jury, and it may be inferred from the circumstances
surrounding the killing. State v. Young, 196 S.W.3d 85, 108 (Tenn. 2006); see also State

                                              -5-
v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State v. Pike, 978 S.W.2d 904, 914 (Tenn.
1998).

        Our supreme court has identified a number of circumstances from which the jury
may infer premeditation: (1) the use of a deadly weapon upon an unarmed victim; (2) the
particular cruelty of the killing; (3) the defendant‟s threats or declarations of intent to kill;
(4) the defendant‟s procurement of a weapon; (5) any preparations to conceal the crime
undertaken before the crime is committed; (6) destruction or secretion of evidence of the
killing; and (7) a defendant‟s calmness immediately after the killing. State v. Bland, 958
S.W.2d 651, 660 (Tenn. 1997); Pike, 978 S.W.2d at 914-15. This list, however, is not
exhaustive and serves only to demonstrate that premeditation may be established by any
evidence from which the jury may infer that the killing was done “after the exercise of
reflection and judgment.” T.C.A. § 39-13-202(d); see Pike, 978 S.W.2d at 914-15;
Bland, 958 S.W.2d at 660. One well-regarded treatise states that premeditation may be
inferred from events that occur before and at the time of the killing:

       Three categories of evidence are important for [the] purpose [of inferring
       premeditation]: (1) facts about how and what the defendant did prior to the
       actual killing which show he was engaged in activity directed toward the
       killing, that is, planning activity; (2) facts about the defendant‟s prior
       relationship and conduct with the victim from which motive may be
       inferred; and (3) facts about 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.

2 Wayne R. LaFave, Substantive Criminal Law § 14.7(a) (2d ed. 2003); State v. Berry,
141 S.W.3d 549, 566 (Tenn. 2004).

       We conclude that the evidence presented was sufficient to support the jury‟s
findings that premeditation existed. The evidence presented at trial showed that
Defendant and the victim had been unhappy in their relationship in the days and weeks
leading up to their final argument. On the evening of the victim‟s death, Defendant and
the victim got into an argument. Defendant told the victim that she should call the police
and that they were both going to die. The victim hysterically called 911; the operator
heard the victim scream and heard the children begging Defendant not to shoot their
mother. Defendant took his gun from its holster and repeatedly shot the unarmed victim
and then turned the gun on himself. When police arrived, Defendant was holding a
weapon. Testing confirmed that this was indeed the gun that murdered the victim. The
jury heard the evidence and chose to disregard Defendant‟s theory that the crime was
borne out of passion. It was in their prerogative to do so. From this evidence, we

                                               -6-
conclude that a reasonable jury could find premeditation. Consequently, Defendant‟s
conviction for first degree murder is affirmed.

                                Testimony of Dr. Engum

       Defendant complains that the trial court erred in refusing to allow Dr. Engum to
testify regarding the “definitions of premeditation, deliberation, passion, and
provocation” and that this error was not harmless. The State counters that the trial court
properly applied the standard in Hall, 958 S.W.2d at 689, to limit the testimony of Dr.
Engum

        Ordinarily, expert testimony regarding a defendant‟s capacity or lack of capacity
to form the mental state required for the commission of an offense is admissible if it
satisfies “general relevancy standards as well as the evidentiary rules which specifically
govern expert testimony.” Hall, 958 S.W.2d at 689. Relevant evidence is “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401. However, even relevant evidence may be excluded if its
probative value is “substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury.” Tenn. R. Evid. 403. Further, Tennessee Rule of
Evidence 702 requires that expert testimony “substantially assist the trier of fact to
understand the evidence or to determine a fact in issue.” Rule 703 requires that the facts
or data underlying the expert‟s opinion be trustworthy. A trial court‟s application of
these rules to exclude expert testimony will not be reversed on appeal absent an abuse of
discretion. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999).

       Under Tennessee law, evidence of a mental disease or defect that does not rise to
the level of an insanity defense is nevertheless admissible to negate elements of specific
intent. State v. Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994). In Hall, our
supreme court explained:

      [D]iminished capacity is not considered a justification or excuse for a
      crime, but rather an attempt to prove that the defendant, incapable of the
      requisite intent of the crime charged, is innocent of that crime but most
      likely guilty of a lesser included offense. Thus, a defendant claiming
      diminished capacity contemplates full responsibility, but only for the crime
      actually committed. In other words, “diminished capacity” is actually a
      defendant‟s presentation of expert, psychiatric evidence aimed at negating
      the requisite culpable mental state.

958 S.W.2d at 688 (citations omitted). The testimony from the expert “should not be
proffered as proof of „diminished capacity.‟ Instead, such evidence should be presented
                                           -7-
to the trial court as relevant to negate the existence of the culpable mental state required
to establish the criminal offense for which the defendant is being tried.” Id. at 690.
Thus, in order for expert testimony regarding a defendant‟s mental state to be admissible,
the expert must testify that (1) the defendant has a mental disease or defect and that (2)
because of the mental disease or defect, the defendant lacks the capacity to form the
requisite mens rea. See id. at 689-91.

        In State v. Ferrell, 277 S.W.3d 372 (Tenn. 2009), our supreme court clarified that
the “decision in Hall established that the [mental health] testimony is properly admissible
if it satisfies the relevancy and expert testimony provisions in the Tennessee Rules of
Evidence and its content indicates that a defendant lacked the capacity to form the
required mental state for an offense. . . .” Id. at 379. Our supreme court explained that
the Hall holding “was based upon the broader legal principle that „expert testimony
relevant to negating intent is admissible in Tennessee even though diminished capacity is
not a defense.‟” Id. (quoting Hall, 958 S.W.2d at 691). To that end, “Hall recognized
that a defendant may negate an element of the offense as a defense to the prosecution.”
Id. at 380.

       In the case herein, during the jury-out hearing, Dr. Engum testified that Defendant
was competent to stand trial. He explained that he attempted to ascertain Defendant‟s
mental state at the time of the crime by examining medical records and reviewing
statements of witnesses and family members. From this information, Dr. Engum could
“infer” Defendant‟s psychological status at the time of the crime. He opined that
Defendant was “overwhelm[ed]” with his own life and, as a result, he acted “explosively
towards his wife.” Dr. Engum could not conclude that Defendant was “incapable” of
forming premeditation. Our discussion above makes clear that expert testimony
regarding a defendant‟s mental state is relevant and admissible only to establish that, at
the time of the crimes, the defendant lacked the capacity to premeditate. Because Dr.
Engum‟s testimony did not do so, we conclude that the trial court did not err in finding
that the testimony was inadmissible. Accordingly, we conclude the trial court did not
abuse its discretion in this regard.

       The trial court also prohibited Dr. Engum from testifying about whether
Defendant‟s actions were performed in the heat of passion because his testimony was not
relevant under Tennessee Rule of Evidence 401. We agree. Dr. Engum‟s assessment of
Defendant‟s pre-injury mental state was not within his purview. He had no personal
knowledge of Defendant‟s mental state, behavior, or relationship with his wife prior to
the incident. The jury is charged with examining the evidence presented, assessing the
credibility of the witnesses and the weight and value to be given to evidence, as well as
resolving all factual issues. Pruett, 788 S.W.2d at 561. Defendant is not entitled to relief
on this issue.

                                            -8-
                                 Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.


                                                 ___________________________
                                                 TIMOTHY L. EASTER, JUDGE




                                     -9-
