             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                 Assigned on Briefs January 10, 2006

                 STATE OF TENNESSEE v. CHARLES HUMPHRIES

                     Direct Appeal from the Criminal Court for Shelby County
                        Nos. 02-08180, 02-08178   Joseph B. Dailey, Judge



                        No. W2005-00016-CCA-R3-CD - Filed March 7, 2006


The defendant, Charles Humphries, was convicted of first degree premeditated murder and
aggravated assault (a Class C felony) and received Range II consecutive sentences of life
imprisonment and ten years. On appeal, he challenges the sufficiency of the evidence to establish
the element of premeditation and the imposition of consecutive sentences. Upon thorough review,
we affirm the convictions and sentences of the Shelby County Criminal Court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN , JJ., joined.

Robert Wilson Jones, District Public Defender; and Tony Brayton, Mary Kathryn Kent, and William
Robilio, Assistant Public Defenders, for the appellant, Charles Humphries.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich and Jerry Harris, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                                     OPINION

                                          Facts and Procedural History

        At trial, Kandace Hunt testified that she last saw her mother, the victim,1 alive at her home
on September 2, 2002, where the victim was present at a birthday party for her granddaughter. She
stated that the defendant, her stepfather, also attended the party. Hunt recalled that, following the
victim’s death, she listened to phone messages left by the defendant on the victim’s home phone,



         1
            Although there are technically two victims in this case, one of aggravated assault (Glenda Gipson) and one
of first degree murder (Patricia Humphries), we have designated the latter as the victim for purposes of identification.
which indicated that the defendant had keys he wanted to return to the victim and that the victim was
avoiding his phone calls.

        Larry Humphries, the defendant’s brother, testified that he traveled to 1586 Sidney Street on
the afternoon of September 3, 2002, accompanied by the defendant, Ricky Cole, and Lawrence
(Junior) Cole. Upon arrival, he observed a black Mercedes parked near the house, with Glenda
Gipson in the driver’s seat and the victim as the passenger. The defendant exited the vehicle, walked
to the passenger side of the car, and started a “scuffle” with the victim, hitting the victim and tearing
her clothes. As Ricky and Junior Cole attempted to restrain the defendant, the victim stated that she
was going to kill the defendant. Humphries took the victim’s purse, removed a gun from it, and
threw the gun into nearby shrubbery. The defendant later broke free, retrieved the gun, and fatally
shot the victim, who remained in the vehicle throughout the incident.

        On cross-examination, Humphries testified that he had been at his sister Louise’s home with
the defendant, Ricky Cole, and Junior Cole before going to his sister Ernestine’s home on Sidney
Street. He reiterated that the defendant immediately got out of the vehicle and approached the open
door on the passenger side of the Mercedes, where an argument between the victim and defendant
ensued. He stated that he left the scene immediately after the shooting and gave a statement to police
some time later. On redirect examination, Humphries testified that the defendant walked toward the
victim as he fired.

        Glenda Gipson testified that she and the victim were friends and that she drove her to Sidney
Street on the day of the incident in her black 1991 Mercedes 300. She recalled that the victim
phoned the defendant on the drive and that the car occupied by the defendant arrived at Sidney Street
shortly after they did. Gipson stated that the victim asked for her keys when the defendant
approached the car and that the defendant indicated he did not have them. The two then began to
argue, and the defendant struck the victim with his fist. Gipson testified that Humphries took the
victim’s purse and removed her gun. The defendant, who eventually took possession of the weapon,
went into the house briefly and came out shooting, fatally wounding the victim and injuring Gipson.

        On cross-examination, Gipson testified that the defendant did not initially have a weapon and
that she unsuccessfully attempted to restrain the defendant as he and the victim fought. She stated
that Humphries went to the driver’s side of the vehicle and took the victim’s purse, went through it,
and removed the gun. She further stated that Humphries took both the purse and the gun inside the
house and that the defendant ran out of the house, firing and hitting the victim and Gipson. She
stated that the defendant dropped the weapon after the shooting and that she used a shirt to pick it
up and take it to a nearby house. After reviewing her statement to police, Gipson stated that the
victim’s leg was outside the car immediately before the shooting, which prevented her from driving
away. She further reiterated that the weapon was dropped and was not thrown at her head, as her
statement indicated.

       Ricky Cole, the defendant’s nephew, testified that he arrived at Sidney Street to find the
defendant on the passenger side of the Mercedes “having a little fight” with the victim. He stated


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that the defendant covered the victim’s hand as she tried to pull the weapon out of her purse.
Although he attempted to convince the defendant to release the victim, the defendant refused,
insisting that the victim was going to shoot him. Upon Cole’s instruction, Humphries went to the
driver’s side of the vehicle and took the victim’s purse. When the defendant began biting the
victim’s ear, Cole was able to pull the defendant away from the victim. He then gave the victim her
purse and shirt, which had been torn off, and asked her to leave. As the victim refused, the defendant
came out of the house, “zoned out,” and began shooting.

        On cross-examination, Cole testified that the argument began when the defendant refused to
give the victim her keys. He stated that he grabbed the defendant from behind in an attempt to
restrain him and that he called for Humphries when he saw the victim’s gun. Cole reiterated that the
victim refused to leave after the initial incident was over and that the defendant came out of the
house and began shooting as the victim got back in the car. Cole stated that the defendant left after
the shooting and that he did not see what happened to the gun.

        John Gordon testified that he lived at 3001 Mount Olive Street in September 2002, and that
he observed the black Mercedes parked on Sidney Street on the day of the shooting. He recalled that
he heard people arguing and saw someone fire three to four shots within close range of the vehicle.
Gordon stated that Gipson, who had been shot in the arm, came to his residence after the shooting
and that he helped her stop the bleeding and told her to put the weapon in the garbage can until the
police responded. He further stated that he told the police where the gun was located when they
arrived.

        On cross-examination, Gordon testified that he went to the front door when he heard people
arguing and that he saw Humphries trying to break up the fight. He then went to his brother’s room
to watch television but returned to the front door when he heard shots. Gordon stated that he saw
the shooter fire and run and that the police responded shortly thereafter. He acknowledged that he
did not see the victim pull the gun out of her purse but reiterated that he did witness the shooting.

        Officer Rodney Askew of the Memphis Police Department testified that, upon his arrival to
1586 Sidney Street, he observed a black Mercedes parked in front of the house and several onlookers
standing nearby. He stated that Gipson approached him and his partner and told them that she and
the victim had been shot. When Officer Askew saw the victim lying across the front seat of the
vehicle, he phoned paramedics and radioed for back-up to secure the crime scene. Gipson led Askew
and his partner to Gordon’s home, where they recovered the weapon, a .38 Smith and Wesson
revolver, which contained four spent casings.

        Sergeant Eric Freeman testified that responded to the dead on arrival (DOA) call and
investigated the crime scene. He stated that the victim was lying across the seat of the car, with her
purse and torn red T-shirt in the right floorboard. On cross-examination, Sergeant Freeman testified
that he arrived shortly after 2:00 p.m. and that he took all of the photographs on the scene.




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        Sergeant T.J. Helldorfer, the case coordinator of the investigation, testified that he developed
the defendant as a suspect after interviewing Gipson and other eyewitnesses. He stated that the
defendant was not on the scene when he arrived and that he “[m]ade numerous attempts” to locate
the defendant, including through NCIC notification and television news sources. Sergeant Helldorfer
indicated that his investigation revealed that the defendant and victim were married but had been
separated. Acting on a tip from the defendant’s family, he was eventually able to locate the
defendant in Little Rock, Arkansas.

        Officer Jan Lee of the Little Rock Police Department testified that she received a call from
the Memphis Police Department indicating that the defendant was located at 2019 Nichols Street in
Little Rock. When she and an accompanying officer responded to the location, the defendant
identified himself as Larry Walker. When asked his birth date, the defendant initially answered
February 4, but immediately changed his answer to August 18, 1950. The defendant was transported
to the police department for positive identification.

        Lieutenant Scott Timmons testified that the defendant was transported to the police
department, where photographs and fingerprints taken for comparison positively identified the
subject in custody as the defendant. On cross-examination, Lieutenant Simmons testified that he
found no identification of the defendant at the Nichols Street location.

         Detective John Stafford testified that he interviewed the defendant at the Little Rock Police
Department. Although the defendant again identified himself as Larry Walker, the defendant
revealed his true identity after Detective Stafford informed him that they would take his fingerprints.
Detective Stafford stated that the defendant refused to sign the waiver of rights form but made a
“spontaneous statement” that “the incident in question had occurred during a family gathering and
that his wife had pulled a gun on him, [and] there was a struggle and the gun went off.” He indicated
that he did not ask the defendant any questions, and that he was transported back to Memphis. On
cross-examination, Detective Stafford testified that no one else was present when the defendant
made the statement.

         As the final witness at trial, Dr. Teresa Campbell testified that she worked as a forensic
pathologist at the Regional Medical Examiner’s Office in Memphis from July 2000 to February
2004. She stated that, upon analysis, she determined the cause of the victim’s death to be multiple
gunshot wounds. Dr. Campbell further noted that the victim had a bite mark on her right ear and that
her blood was negative for alcohol and illegal drugs. On cross-examination, Dr. Campbell stated
that an entrance wound can be distinguished based upon the condition of the skin, whether or not a
bullet is found, or upon the condition of a bone. She further indicated that she recovered two bullets
from the victim’s body, both of which were “full metal jacket [and] medium caliber.” Following the
presentation of proof, the jury convicted the defendant of first degree premeditated murder and
aggravated assault.




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                                               Analysis

                                            I. Sufficiency

        The defendant first contends that the evidence is legally insufficient to establish that he acted
with premeditation. The applicable definition of first degree murder is “[a] premeditated and
intentional killing of another.” T.C.A. § 39-13-202(a)(1). Premeditation necessitates “a previously
formed design or intent to kill,” State v. West, 844 S.W.2d 144, 147 (Tenn. 1992) (citations
omitted), and “an act done after the exercise of reflection and judgment . . . [meaning] that the intent
to kill must have been formed prior to the act itself.” T.C.A. § 39-13-202(d). It also requires that
the accused be “sufficiently free from excitement and passion as to be capable of premeditation.” Id.

        The element of premeditation is a question of fact to be determined by the jury. State v.
Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Although the jury may not engage in speculation, it may
infer premeditation from the manner and circumstances of the killing. State v. Bland, 958 S.W.2d
651, 660 (Tenn. 1997); State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Our
supreme court delineated several circumstances that may be indicative of premeditation, including:
declarations of the intent to kill; procurement of a weapon; the use of a deadly weapon upon an
unarmed victim; the fact that the killing was particularly cruel; infliction of multiple wounds; the
making of preparations before the killing for the purpose of concealing the crime; failure to render
aid to the victim; destruction or secretion of evidence; and calmness immediately after the killing.
State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000); State v. Lewis, 36 S.W.3d 88 (Tenn. Crim. App.
2000).

        Although the time between the initial encounter and the shooting was relatively short, there
is significant circumstantial evidence that, when taken in a light most favorable to the State,
establishes that the defendant acted with premeditation. The evidence establishes that the defendant
used a deadly weapon, specifically a .38 Smith and Wesson revolver, on the unarmed victim. We
further note that the initial encounter was diffused with the aid of the defendant’s friends and that
the defendant went into the house briefly. When he exited, he ignored the admonitions of his friends
and walked aggressively toward the victim, firing multiple rounds at her. Although multiple
gunshots are not alone sufficient to support the element of premeditation, State v. Brown, 836
S.W.2d 530, 542 (Tenn. 1992), in our view, this fact, taken together with the defendant’s conscious
disregard of his friends’ requests, supports the conclusion that the defendant exercised reflection and
judgment before fatally shooting his wife. See T.C.A. § 39-13-202(d).

        The testimony further establishes a cool and calculated demeanor after the fact, as the
defendant immediately left the scene, failing to render aid to the victim, and evaded police for almost
a year after the shooting. For these reasons, we conclude that sufficient circumstantial evidence
existed to establish the element of premeditation.




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                                     II. Consecutive Sentencing

       Second and finally, the defendant challenges the imposition of consecutive sentences.
Generally, it is within the discretion of the trial court to impose consecutive sentences if it finds by
a preponderance of the evidence that at least one of the following statutory criteria applies:
       (1) [t]he defendant is a professional criminal who has knowingly devoted such
           defendant’s life to criminal acts as a major source of livelihood;
       (2) [t]he defendant is an offender whose record of criminal activity is extensive;
       (3) [t]he defendant is a dangerous mentally abnormal person so declared by a
           competent psychiatrist who concludes as a result of an investigation prior to
           sentencing that the defendant’s criminal conduct has been characterized by a
           pattern of repetitive or compulsive behavior with heedless indifference to
           consequences;
       (4) [t]he defendant is a dangerous offender whose behavior indicates little or no
           regard for human life, and no hesitation about committing a crime in which the
           risk to human life is high;
       (5) [t]he defendant is convicted of two (2) or more statutory offenses involving
           sexual abuse of a minor with consideration of the aggravating circumstances
           arising from the relationship between the defendant and victim or victims, the
           time span of defendant’s undetected sexual activity, the nature and scope of the
           sexual acts and the extent of the residual, physical and mental damage to the
           victim or victims;
       (6) [t]he defendant is sentenced for an offense committed while on probation; or
       (7) [t]he defendant is sentenced for criminal contempt.
T.C.A. § 40-35-115(b).

        If the court concludes the defendant is a dangerous offender under Tennessee Code
Annotated section 40-35-115(b)(4), it must make two further determinations in addition to applying
general sentencing principles. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). First, it must find
an extended sentence is necessary to protect the public from further criminal conduct by the
defendant, and, second, it must find consecutive sentencing to be reasonably related to the severity
of the offenses. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). However, such specific
factual findings are unnecessary for the other categories of Tennessee Code Annotated section 40-35-
115(b). State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

       The trial court found made the following findings of fact at the conclusion of the sentencing
hearing:
               All right. Well, based on his prior record, he is, clearly, Range II; and based
       on his prior record and the number of convictions and the types of convictions, I think
       without any Blakely problems, whatsoever, he can be sentenced to a ten-year sentence
       as a Range-II offender for this aggravated assualt.




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                I’m also going to run this consecutively to the life sentence he received for the
        murder given his extensive criminal history, which is reflected in the presentence
        report that’s part of this record.

                And given his absence of any other meaningful means of employment, it
        appears to me that his criminal endeavors - his bank larcenies, the robberies, and the
        uttering forged papers and the thefts of property and the grand larcenies - petit
        larcenies, they were the types of offenses that would have been committed for the
        purpose of providing himself with his major source of livelihood.

               And, I think, clearly, the facts of the case would bear out the fact that he would
        be a dangerous offender as well.

               But I think Factors 1 and 2 are clearly present and are matters that can be
        gleaned straight from his prior record without any further conclusions necessary.

                Ten years, Range II, consecutive to his life sentence. Step out.

       We initially note that the defendant has failed to include the presentence report in the record
on appeal. It is well-settled that it is the duty of the accused to provide a record that conveys a fair,
accurate, and complete account of what transpired with regard to the issues that form the basis of
the appeal. Tenn. R. App. P. 24(b); see State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999).
Certainly, the presentence report is vital in appellate review of the trial court’s imposition of
consecutive sentencing; therefore, in its absence, we presume the accuracy of the trial court’s
findings. See State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

         Although the trial court did not make the requisite findings to determine the defendant was
a dangerous offender, we conclude that the defendant’s status as a professional criminal and his
prior criminal history certainly constituted a sufficient basis to sentence him consecutively. With
respect to these factors, the trial court particularly noted the defendant’s lack of “meaningful means
of employment” and multiple convictions for larceny, robbery, forgery, and theft. Taking the
court’s findings as accurate, we agree that the defendant’s prior criminal record is extensive and that
his work history, coupled with the types of offenses he has committed, establishes him as one whose
livelihood is derived from criminal behavior. It is necessary to find only one of the statutory
categories listed in section 40-35-115(b) to support the imposition of consecutive sentencing. State
v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). Therefore, we conclude that the trial
court did not abuse its discretion in sentencing the defendant consecutively, and we affirm the
imposed sentences.




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                                        Conclusion

      Based upon the foregoing, we affirm the convictions and sentences imposed by the Shelby
County Criminal Court.




                                                   ___________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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