                                                      FILED
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON          Nov. 19, 1996
                         MAY SESSION, 1996
                                               Cecil Crowson, Jr.
                                                      Appellate Court Clerk



STATE OF TENNESSEE,          )
                             )    No. 02C01-9511-CR-00336
      Appellee               )
                             )    SHELBY COUNTY
vs.                          )
                             )    Hon. L. T. Lafferty, Judge
MALUNDA L. MYERS,            )
                             )    (First Degree Murder)
      Appellant              )



For the Appellant:                For the Appellee:

James V. Ball                     Charles W. Burson
Attorney at Law                   Attorney General and Reporter
217 Exchange Avenue
Memphis, TN 38105                 Ellen H. Pollack
                                  Assistant Attorney General
                                  Criminal Justice Division
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493


                                  John W. Pierotti
                                  District Attorney General

                                  Thomas Hoover and
                                  Reginald R. Henderson
                                  Asst. District Attorneys General
                                  Third Floor, Criminal Justice Complex
                                  201 Poplar Avenue
                                  Memphis, TN 38103



OPINION FILED:

REVERSED AND REMANDED



David G. Hayes
Judge
                                          OPINION



        The appellant, Malunda L. Myers, appeals from the verdict entered by a

Shelby County jury finding him guilty of first degree murder and setting his

punishment at life imprisonment. On appeal, the appellant raises the single

issue of whether the evidence presented at trial was sufficient to support a

conviction for first degree murder. Specifically, the appellant contends that the

State failed to prove the requisite elements of premeditation and deliberation

beyond a reasonable doubt.



        After a careful review of the evidence presented at trial, we conclude that

the proof is insufficient to support a conviction for first degree murder. For the

reasons stated below, we modify the judgment of the trial court to reflect a

conviction of second degree murder and remand for re-sentencing.




                                       I. Background



        Joseph Curtis, a forty-five year old, self-employed landscaper, had

arranged to visit and spend the night at the home of Barbara Parks and her

husband, located at 2169 Harbert, Memphis. Curtis was single and resided with

his parents. Mrs. Parks and Curtis had become friends through their mutual

interest in flowers; Curtis sold flowers and Parks grew them.1 On July 3, 1994,

between 3:00 and 4:00 p.m., Curtis' mother and father took him to the Parks'

residence. At trial, Barbara Parks confirmed Curtis' presence at her home until

10:00 p.m., when she developed difficulty breathing and Curtis advised Mr.

Parks to take her to the hospital. Mr. and Mrs. Parks returned home between



        1
         The record indicates that Joseph Curtis was also pursuing a nursing degree at the
University of Mem phis.

                                               2
2:00 and 3:00 a.m. Although she did not check, Mrs. Parks assumed that Curtis

was asleep in one of the bedrooms.



        Apparently, some time after 10:00 p.m., Curtis left the Parks' home and

ultimately encountered a group of teenagers, a few blocks from the Parks'

residence, "shooting dice" on the sidewalk. In his statement to the police, the

appellant, age seventeen at the time of the offense, related that he and two

others, "Money" and "Terrio," were "shooting craps" outside Antonio Fason's

house when Curtis approached them. The appellant indicated that, at that time,

his money was on the ground beside him. Curtis was standing next to the

appellant when he asked the group whether they had "any drugs." The group

responded that they did not have any drugs, and Curtis left. Shortly after Curtis

left the group, the appellant noticed that some of his money was missing. He

spotted Curtis "at the end of the corner of Philadelphia and Walker, purchasing

some cocaine." The appellant stated:

        That's when I walked up the street, coming toward him, and he had
        started walking off south direction, and then I told him to "come
        here," and he had stopped and I asked him, "where is the money, it
        came up missing."

        [Curtis] said, "I'm the plant man and I'll git (sic) it back to you."[2]


        [Curtis] told me. . . that he would have it tomorrow or whenever he
        sees me. That's when he took off running. I caught up with him.
        He was calling for help. . . .

        But I said, I wanted it now, and he didn't have it, so that's when I hit
        him in the face with my fists. Then he fell, after about three blows
        to the face (with my fists). Then I had kicked him in his chest and
        in his face about three times. I left the scene and came back and
        took his shirt and put it over his stomach and left, going home.



The appellant admitted that, after the beating, he removed his clothing and

disposed of his jacket and shoes in "the back of some yard on Philadelphia." He



        2
        Testim ony at trial indicated that Curtis provided landscaping services to residences in the
area and was com m only referred to as "the plant m an."

                                                 3
also indicated that he had never seen the victim prior to this incident.



        Around 3:15 a.m., James Womble, a resident at 1010 South Cox, was

awakened by loud arguing in front of his house.3 He looked outside and saw a

fight going on across the street. Womble stated that the victim was "on all

fours," while the assailant, later revealed to be the appellant, was "hitting him

around the head with his hands." He added that the victim never attempted to

strike a blow. Rather, he just tried to "cover himself."4 Moreover, Womble heard

the victim "pleading 'Please stop. Help. Please stop.'" He testified:

        ...the black man was standing up over this white man, hitting him
        with his hands and kicking him with his feet.

        I opened my front door and went out. . . . I went back in the house
        trying to find my telephone . . . and my gun. . . . I couldn't find
        either one. Went back outside where they had moved further down
        the yard. Found my phone, called 911. . . .


        At this point, the victim was "doubled up" in a modified fetal position. The

appellant was kicking the victim This assault continued for about ninety seconds.

At this point, Womble realized that he needed to find a weapon to stop the

assailant's attack, although he stated that he never saw the appellant use or

have possession of any type of weapon. Inside his residence, he attempted to

locate his gun without success. When Womble emerged from his house a third

time, the appellant was gone and the victim was in the street. Womble testified

that the victim was barely moving, "like slow motion." He approached the victim

and noticed that:

        he was . . . breathing very erratic and very loud, like gurgling. And I
        believed he was . . . about to expire. And I went over to him and
        tried to comfort . . . him as best as I could and held his hand until
        he died and the police showed up.



        3
         Barbara Parks stated, in her testim ony, that her residence, at 2169 Harbert, is within
walking distance ("about a street over") of Cox, where the beating occurred.

        4
          Barbara Parks testified that the victim was a very sm all m an, weighing about 130 pounds
and being around 5'4" tall. However, the autopsy report indicated that Curtis weighed 173 pounds
at the tim e of his death. No indication of his height was noted in the report. The pre-sentence
report indicates that the appellant was approxim ately 5'6" tall, 150 pounds.

                                                 4
The following afternoon, the appellant was taken into custody, pursuant to the

issuance of a petition charging him with second degree murder.5 Following his

arrest, the appellant waived his rights and volunteered a statement revealing his

involvement in Curtis' death.



        At trial, Dr. Jerry Francisco, medical examiner for Shelby County,

concluded that Curtis' "death was due to multiple injuries to the head and body,

basically beaten to death." He explained that these injuries were consistent with

"a kicking, or stomping of the body" and with "a beating with the fists." Moreover,

he stated that laboratory tests, routinely administered during an autopsy,

revealed the presence of cocaine and cocaine metabolights in the victim's

system. Dr. Francisco also noticed that the victim "had a variety of old scars

elsewhere on his body" and that there was "periportal inflammation of the liver,"

which, according to him, suggested hepatitis. However, on cross-examination,

Dr. Francisco was questioned about an autopsy report completed by Dr. Violet

Hnilica. The findings of Dr. Hnilica's report indicated that "[the victim] had

cocaine and it's products in the blood at toxic levels at the time of death and

evidence of periportal inflammation in the liver that suggests repeated drug use."



        Based upon this evidence, the court instructed the jury on the elements of

first degree murder, second degree murder, and voluntary manslaughter. The

jury found the appellant guilty of first degree murder.




                              II. Sufficiency of the Evidence



        The sole issue for our review is whether the evidence presented at trial is



        5
         The record indicates that the initial petition was dism issed and that a second petition
charging the appellant with first degree m urder was issued.

                                                  5
sufficient to sustain a conviction for premeditated and deliberated first degree

murder. Specifically, the appellant argues that there was no use of a deadly

weapon; there was no conspiracy to kill people of a certain class; there was no

evidence that the killing was particularly cruel; there was no declaration of an

intent to kill the victim; and there was no evidence of preparations to conceal the

crime before it occurred, all indicators of premeditation and deliberation.

Moreover, he argues, the proof does establish that the victim and the appellant

did not know each other, that the victim had stolen money from the appellant in

order to purchase cocaine, that the victim was under the influence of cocaine at

the time of the incident, and that the arresting officer believes that the facts of

this investigation constitute second degree murder.



       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).



       First degree murder not committed in the perpetration of a crime requires

the "intentional, premeditated and deliberate killing of another." Tenn. Code

Ann. § 39-13-202(a)(1) (1994 Supp.). A death caused by the intentional act of


                                          6
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 elevate the offense to first degree murder. Id. Premeditation

necessitates "the exercise of reflection and judgment," Tenn. Code Ann. § 39-

13-201(b)(2) (1991), 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, 836

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)

(1989). The State bears the burden of proving, beyond a reasonable doubt, the

separate and distinct elements of premeditation and deliberation. See Tenn.

Code Ann. § 39-11-201(1) (1991).



       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). Although there are no strict standards governing what constitutes

proof of premeditation and deliberation, several relevant circumstances are

helpful in the inquiry, 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; and the making of preparations before the killing for

the purpose of concealing the crime. State v. Bland, No. 02C01-9412-CR-0028

(Tenn. Crim. App. at Jackson, Mar. 27, 1996), reh'g denied, (Tenn. Crim. App.

May 1, 1996) (citing Brown, 836 S.W.2d at 541-42). Additional factors from

which the jury may infer premeditation and deliberation include planning activities

by the appellant prior to the killing, the appellant's prior relationship with the

victim, and the nature of the killing. Id. (citing State v. Bordis, No. 01C01-9305-

CR-00157 (Tenn. Crim. App. at Nashville, Feb. 24, 1995), perm. to appeal


                                           7
denied, (Tenn. July 10, 1995) (quoting 2 W. LaFave and A. Scott, Jr.,

Substantive Criminal Law Sec. 7.7 (1986))); Gentry, 881 S.W.2d at 4-5 (citation

omitted). As noted earlier, the appellant argues that not one of these

circumstances exist in the present case.



        Nonetheless, in order to prove premeditation and deliberation, the State,

in its brief, relies upon three factors: (1) the appellant's repeated blows to the

victim; (2) the victim pleading for help during the assault; and (3) the appellant's

concealment of his jacket and shoes after the incident.6 James Womble testified

that he witnessed the appellant's persistent beating of Joseph Curtis and Curtis'

pleas for help. The appellant, himself, informed the police that he had disposed

of his clothing after the incident. The State seeks to use this evidence as proof

of premeditation and deliberation. In State v. Brown, our supreme court held that

"the fact that repeated blows were inflicted on the victim is not sufficient, by itself,

to establish first degree murder." Brown, 836 S.W.2d at 542. See also State v.

Darnell, 905 S.W.2d 953, 962 (Tenn. Crim. App. 1995). "Repeated blows can be

delivered in the heat of passion, with no design or reflection." Id. Additionally,

"the concealment of evidence after a crime may be associated with the

commission of any crime and the accompanying fear of punishment." West, 844

S.W.2d at 148 (emphasis in original). One who kills another in a passionate

rage may dispose of the weapon when reason returns just as readily as the cool,

dispassionate killer. Id.



        Because the trier of fact cannot speculate as to what was in the killer's



        6
            The State argued, at both the m otion for judgm ent of acquittal and the m otion for new
trial, that, on the night of the incident, two separate encounters (the initial encounter near
Philadelphia and W alker and the final encounter on Cox) between the appellant and the victim
occurred. The prosecutor contended that the requisite prem editation and deliberation were
form ed between these two encounters. However, the State does not adopt this theory on appeal.
Moreover, we conclude, from the proof in the record, that there was but one continuing
uninterrupted episode. The evidence presented at trial indicates that the appellant did not learn of
the victim 's inability to return the stolen m oney until confronting the victim on Cox. It was only at
this tim e that the appellant began his assault on the victim , culm inating in the victim 's death.

                                                  8
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). The State bears the burden of demonstrating some

affirmative evidence to support a finding of both premeditation and deliberation.

Brown, 836 S.W.2d at 530; see also Tenn. Code Ann. § 39-11-201(1). By all

accounts, the proof, in the record, reveals that the intent to assault was formed in

passion, upon the appellant's inability to recover his money from the victim (". . .I

said, I wanted it now, and he didn't have it, so that's when I hit him in the face. .

.." See supra, Section I, Background.). Moreover, there is no proof in the record

that the appellant, at this time, had formed a design or intent to kill the victim.

The assault proceeded to a conclusion without any intervening or dispassionate

reflection. Only after the victim was rendered utterly helpless did the assault,

which eventually resulted in the victim's death, end. In Brown, our supreme court

stated:

       . . .[I]t has been held several times that the purpose need not be
       deliberated upon any particular length of time -- it is enough if it
       precede the act, but in all such cases the purpose must be coolly
       formed, and not in passion, or, if formed in passion, it must be
       executed after the passion has had time to subside. . . . [I]f the
       purpose to kill is formed in passion . . . , and executed without time
       for the passion to cool, it is not murder in the first degree, but
       murder in the second degree.


Brown, 836 S.W.2d at 539 (quoting Rader v. State, 73 Tenn. 610, 619-20

(1880)). Based upon these facts, we conclude that there is insufficient evidence

to support the jury's findings of premeditation or deliberation. Accordingly, the

appellant's conviction of first degree murder cannot stand.



       Again, once a homicide has been established, it is presumed to be

second degree murder. Brown, 836 S.W.2d at 543. Tenn. Code Ann. § 39-13-

210 (1991) defines second degree murder as, "a knowing killing of another."

Clearly, under the facts of this case, the appellant acted "knowingly" with an


                                           9
awareness that his repeated and forceful blows to the head and body of the

victim were reasonably certain to produce death. See Tenn. Code Ann. § 39-

11-106(20) (1991). We conclude that there is evidence to support "knowing"

conduct, and, therefore, a second degree murder conviction.




                                  III. Conclusion



       For the reasons set forth above, we reverse the appellant's conviction for

first degree murder and modify the judgment of the trial court to reflect his

conviction of murder in the second degree. Accordingly, we remand this cause

to the trial court for entry of a judgment of conviction in accordance with this

opinion and for re-sentencing consistent with the principles of sentencing.




                                         10
                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:



_________________________________
PAUL G. SUMMERS, Judge



_________________________________
PAUL R. SUMMERS, Special Judge




                               11
