          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE          FILED
                        OCTOBER 1997 SESSION
                                                   November 6, 1997

                                                  Cecil W. Crowson
                                                Appellate Court Clerk
STATE OF TENNESSEE,                )   C.C.A. No. 01C01-9610-CR-00443
                                   )
      Appellee,                    )   DAVIDSON COUNTY
                                   )
VS.                                )   HON. THOMAS H. SHRIVER,
                                   )   JUDGE
WILLIAM K. HOWELL,                 )
                                   )   (Felony Murder)
      Appellant.                   )



FOR THE APPELLANT:                     FOR THE APPELLEE:

KARL DEAN                              JOHN KNOX WALKUP
Public Defender                        Attorney General and Reporter

JEFFREY A. DEVASHER (On Appeal)        LISA A. NAYLOR
Senior Assistant Public Defender       Assistant Attorney General
                                       450 James Robertson Parkway
ROSS ALDERMAN (At Trial)               Nashville, TN 37243-0493
LAURA DYKES (At Trial)
Assistant Public Defenders             VICTOR S. JOHNSON, III
1202 Stahlman Building                 District Attorney General
Nashville, TN 37201
                                       JOHN ZIMMERMANN
                                       Assistant District Attorney General
                                       Washington Square, Ste. 500
                                       222 Second Avenue, N.
                                       Nashville, TN 37201-1649




OPINION FILED:




AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION


         Defendant, William K. Howell, was convicted by a Davidson County jury of first

degree murder in perpetration of theft and sentenced to life imprisonment. In this

direct appeal, he presents the following issues for our review:

               (1)    whether the evidence was sufficient to support the
                      conviction;

               (2)    whether the trial court erred in its denial of the
                      defendant’s motion for mistrial during the
                      prosecuting attorney’s opening statement;

                (3)   whether the trial court erred in admitting numerous
                      autopsy photographs; and

                (4)   whether the trial court’s jury charge on parole
                      eligibility was unconstitutional.

Finding no reversible error, we affirm the judgment of the trial court.



                                        FACTS



         The victim, Jerry Johns, was brutally beaten and stabbed to death in his

residence on December 7, 1994. Identity was not an issue at trial as defendant

admitted to fatally striking the victim; however, defendant contended he did so in self-

defense after the victim made an unwanted homosexual advance and displayed a

knife.

         The victim’s son testified his father had been married three (3) times and had

four (4) children. To his knowledge, his father had no homosexual tendencies. Two

(2) days prior to the homicide, he had given his father $200 for a debt.

         Officer Kendall Jaegger responded to the 911 call from the victim’s residence

at approximately 4:30 a.m. The victim was found lying on the floor, and there had

obviously been an intense struggle. The room was in disarray, and some drawers

in the bedroom had been pulled out with various items strewn about the bedroom.

         Detective Larry Flair discovered a broken ashtray on the floor. Latent

fingerprints were taken from the crime scene. These prints were subsequently

identified as the fingerprints of defendant.



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       Upon receiving the fingerprint identification several days after the homicide,

Detective Flair questioned the defendant about the homicide. The defendant at first

denied knowing anything about the incident. Upon being told about the fingerprint

identification, the defendant admitted his involvement.

       In a taped statement the defendant stated he did not know the victim until the

night he was picked up by the victim while hitchhiking. They drank beer and used

drugs at the victim’s residence. The victim, according to defendant’s statement,

asked the defendant if he had ever had sex with a man. On the second occasion

when the victim brought up this subject, they began to argue and the victim pulled a

knife from his pocket. The defendant stated he hit the victim with an ashtray but did

not recall how many times. Defendant further conceded that he must have also used

the victim’s knife as a weapon. The defendant admitted removing the wallet from the

victim’s back pocket. He stated that the wallet, along with the victim’s knife, were

later thrown into the Cumberland River.

       The autopsy report indicated the cause of death to be from multiple stab and

incised wounds to the head, neck, trunk and upper extremeties. Although the

wounds were too numerous to count and detail, there were thirty (30) or more to the

head, fifteen (15) or more to the chest and back, and about forty (40) defensive

incised wounds to the hands and forearms. The wounds were inflicted by at least two

(2) different weapons, one a blount object and one a sharp object. The various

wounds were consistent with being caused by either the broken ashtray or the knife.

       An employee at a tavern testified that on the night before the homicide the

victim paid for a beer with a $100 bill. The victim stated that was the smallest bill that

he had. The bartender further noticed that he had other folded money in his wallet.

       The owner of this tavern testified that she had known the victim for several

years and did not believe him to be homosexual.

       The 911 operator testified that she received a call at 4:32 a.m. on December

7, 1994. The recorded call indicated a voice saying, “please, no,” and “God, no.”

She heard fifteen impact sounds.




                                            3
       The defendant testified at trial relating facts similar to his pre-trial statement.

He admitted to using drugs with the victim at the residence. He testified the victim

made homosexual remarks, and he saw the victim with a knife in his right hand. The

defendant recalled hitting the victim in the head with the ashtray but did not

remember inflicting multiple wounds upon the victim. He stated that he picked up the

victim’s wallet by mistake thinking it was his own wallet.

       In rebuttal the victim’s girlfriend testified that on the night before the victim was

brutally murdered, the victim had asked her to marry him. She also stated that he

had no homosexual tendencies.

       The jury convicted the defendant of first degree murder in perpetration of theft.



                         SUFFICIENCY OF THE EVIDENCE



       Defendant contends the evidence is insufficient to support the conviction of

first degree murder in perpetration of theft. In determining the sufficiency of the

evidence, this court does not reweigh or reevaluate the evidence. State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge

accredits the state's witnesses and resolves all conflicts in favor of the state. State

v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75

(Tenn. 1992). On appeal, the state is entitled to the strongest legitimate view of the

evidence and all legitimate or reasonable inferences which may be drawn therefrom.

Id. This court will not disturb a verdict of guilt due to the sufficiency of the evidence

unless the defendant demonstrates that the facts contained in the record and the

inferences which may be drawn therefrom are insufficient, as a matter of law, for a

rational trier of fact to find the accused guilty beyond a reasonable doubt. State v.

Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate

court's duty to affirm the conviction if the evidence, viewed under these standards,

was sufficient for any rational trier of fact to have found the essential elements of the

offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443

U.S. 307, 317, 99 S.Ct. 2781, 2789 61 L. Ed.2d 560 (1979); State v. Cazes, 875



                                            4
S.W.2d 253, 259 (Tenn. 1994).

       Defendant was convicted of murder in perpetration of theft. See Tenn. Code

Ann. § 39-13-202(a)(2). A person commits theft if he “with intent to deprive the owner

of property, . . . knowingly obtains or exercises control over the property without the

owner’s effective consent.” Tenn. Code Ann. § 39-14-103.

       The defendant’s pre-trial statement indicated that he took the wallet out of the

victim’s back pocket. The defendant went through the victim’s drawers in the

bedroom. It was for the jury to determine whether or not this brutal attack, resulting

in over eighty-five (85) wounds, was committed in perpetration of theft. Defendant

has not overcome his presumption of guilt on appeal. See State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). This issue is without merit.



                              MOTION FOR MISTRIAL



       In a pre-trial motion the defendant requested a bill of particulars for specific

acts by the defendant alleged to constitute “the perpetration or attempt to perpetrate

theft.” Defendant specifically requested a description of the property alleged to be

the subject of the theft or attempted theft. Defense counsel stated he was aware of

the wallet and knife. The state further noted that the defendant had “rummaged

through the house.”

       During opening statement the prosecuting attorney noted that the victim’s

wallet must have contained “at least a few hundred dollars.” Defense counsel

thereafter moved for a mistrial alleging the state never disclosed that money was

taken. The motion was overruled.

       Whether an occurrence during the course of a trial warrants the entry of a

mistrial is a matter which addresses itself to the sound discretion of the trial court,

and this Court will not interfere with the exercise of that discretion absent clear abuse.

State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994).




                                            5
       The purpose of a bill of particulars is to enable a defendant to adequately

identify the offense charged. Tenn. R. Crim. P. 7(c); State v. Hicks, 666 S.W.2d 54,

56 (Tenn. 1984). A bill of particulars is not a discovery device. Tenn. R. Crim. P.

7(c), Advisory Commission Comments.

       Defendant and his counsel were aware that the theft involved the victim’s

wallet. The fact that the state did not specifically reveal that the wallet apparently had

a significant sum of money in it is not required by a bill of particulars. Furthermore,

there is no showing that the state deliberately withheld this information. The trial

court did not abuse its discretion in denying the motion for mistrial.



                                   PHOTOGRAPHS



       Next, defendant argues that the trial judge erred in allowing the state to

introduce numerous photographs of the victim taken during the autopsy. The

photographs are indeed graphic and depict numerous and extensive wounds inflicted

upon the victim.

       The admissibility of photographs lies within the sound discretion of the trial

court and will not be overturned on appeal absent a clear showing of an abuse of

discretion. State v. Cazes, 875 S.W.2d 253, 262-63 (Tenn. 1994); State v. Banks,

564 S.W.2d 947, 949 (Tenn. 1978).

       In a jury-out hearing the pathologist explained that there were too many

wounds to put on a diagram. He stated the photos would be helpful in describing the

number of injuries and types of weapons. The trial court found that the pathologist’s

diagram would not be beneficial to the jury and agreed that certain photographs

should be admitted. Some were excluded by the trial court.

       Many of the photographs are relevant to the issue of self-defense. At the time

the photographs were admitted, the defendant was charged with both premeditated




                                            6
first degree murder as well as first degree murder in perpetration of theft.1 The

number and nature of the defensive wounds on the hands and arms of the victim are

certainly relevant to the issue of self-defense. Another photo depicted a very deep

wound that, in the opinion of the pathologist, was inflicted near or after death. This

also refutes the self-defense claim.

         Defendant’s contention that the numerous exhibits are cumulative with the

danger of unfair prejudice outweighing probative value presents a much closer issue.

See Tenn. R. Evid. 403. A careful examination of the evidence, however, reveals no

reversible error in light of the overwhelming evidence that the defendant unlawfully

committed this homicide. If indeed there was error in the admission of some of the

photographs, that error was harmless beyond a reasonable doubt. Tenn. R. App. P.

36(b).



                    PAROLE ELIGIBILITY JURY INSTRUCTION



         Defendant requested that the jury be charged as to range of punishment

pursuant to Tenn. Code Ann. § 40-35-201(b)(1). The trial court also charged the

jury, as required by Tenn. Code Ann. § 40-35-201(b)(2), as to the approximate

calculation of the minimum time a person must serve before reaching the earliest

release eligibility date. Defendant contends the latter portion of the jury charge is

unconstitutionally vague, violates due process, deprives the defendant of a fair and

impartial jury, and violates the separation of powers doctrine. In State v. Howard E.

King, C.C.A. No. 02C01-9601-CR-00032, Shelby County (Tenn. Crim. App. filed Oct.

22, 1996, at Jackson), perm. to app. granted (March 10, 1997), this Court upheld the

constitutionality of Tenn. Code Ann. § 40-35-201(b).           Subsequent cases have

followed King in upholding the constitutionality of the statute. See State v. James


         1
          In fact, both first degree murder in perpetration of theft and premeditated first
degree murder were submitted to the jury. The jury announced that it found the defendant
guilty of both first degree murder in perpetration of theft as charged in Count 1 and
premeditated first degree murder as charged in Count 2. Upon being further instructed by
the trial court that defendant could only be convicted of one of the counts and to consider
Count 1 first, the jury deliberated further and announced a guilty finding of first degree
murder in perpetration of theft.

                                             7
Edward Gates, C.C.A. No. 01C01-9607-CR-00312, Davidson County (Tenn. Crim.

App. filed Sept. 30, 1997, at Nashville); State v. Dwjuan L. Bradford, C.C.A. No.

01C01-9607-CR-00294, Davidson County (Tenn. Crim. App. filed Sept. 30, 1997, at

Nashville); State v. Curtis Lee Majors, C.C.A. No. 01C01-9602-CR-00076, Davidson

County (Tenn. Crim. App. filed July 30, 1997, at Nashville). This issue is without

merit.



         The judgment of the trial court is AFFIRMED.




                                         JOE G. RILEY, JUDGE




CONCUR




JOE B. JONES, PRESIDING JUDGE




WILLIAM M. BARKER, JUDGE




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