         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     June 2, 2009 Session

                 STATE OF TENNESSEE v. MARTINO KELLEY

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 07-07974    W. Mark Ward, Judge



                  No. W2008-01851-CCA-R3-CD - Filed December 1, 2009


The defendant, Martino Kelley, was convicted of the first degree (premeditated) murder of his wife
and sentenced to life without the possibility of parole. On appeal, he argues that: (1) the evidence
was insufficient to support his conviction; (2) the State’s attorney committed reversible error in
referencing the jury’s responsibility to the community; and (3) the trial court abused its discretion
in denying the defendant’s motion to continue the trial. After careful review, we affirm the judgment
from the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
CAMILLE R. MCMULLEN , JJ., joined.

Gerald S. Green, Memphis, Tennessee, for the appellant, Martino Kelley.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Patience Branham, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

         This case involves the murder of the victim, Lakessia Kelley, by her estranged husband, the
defendant. The victim had initiated divorce proceedings but, while attempting to reconcile in May
of 2007, the defendant shot the victim in the marital home in Shelby County. The victim was shot
at least five times and sustained wounds to her forehead, her left breast, the back of her neck, her
upper back, and her left arm. The victim was twenty-six years old at the time of her murder, and the
defendant was twenty-nine years old.

        At trial, the defendant’s nine-year-old son testified that he remembered May 12, 2007, as the
day his father killed the victim. He was in an upstairs room at the defendant’s house just across the
hall from the room where the defendant killed the victim. He heard three gunshots and ran
downstairs to tell his siblings. He told the defendant to “quit” but heard more gunshots and heard
the victim say, “get off of me or I’ll call the police.” The defendant told her that he did not care and
that he had been to jail once. The defendant locked the door to keep his son out of the room with
the victim. The police arrived later and took him and his siblings from the home.

        A Tennessee Army National Guard recruiter testified that he met the victim after her brother
enlisted in the Army. He recalled receiving several phone calls the day before the murder from
someone who identified himself as “Terrance.” The caller stated that he had found the recruiter’s
number in the victim’s cellular telephone and was inquiring about the nature of his relationship with
the victim. The caller also told the recruiter that he was the victim’s “man.” The victim had
previously told the recruiter that she had problems with the defendant and wanted to take out a
restraining order against him. Additionally, the recruiter had previously had an incident with the
defendant where the defendant shoved him and accused him of sleeping with his wife.

        The recruiter denied that he tried to seduce the victim and denied that he had dated her. He
said that he had spoken with both the victim and the defendant on the day of her murder. He recalled
the defendant told him, “I love my wife but if she don’t want to be with me that’s fine.” The
recruiter was in Arkansas and said he could not get to the victim but told her on the telephone that
everything would be okay.

         A suitor of the victim testified that he was dating the victim when she was murdered. He
testified that they had discussed marriage but that she was in the process of divorcing the defendant.
He testified that he called the recruiter when he learned that the recruiter was calling the victim. The
victim advised him that the recruiter was a friend. He also spoke to the victim the day before she
was killed, and he heard the defendant “hollering” in the background. He denied any involvement
in the victim’s death.

       Officer Newt Morgan with the Memphis Police Department testified that he investigated the
scene where the victim was murdered. The victim was shot several times in the upstairs master
bedroom. The murder weapon was found approximately five feet from the bedroom door. The
deceased victim was lying on the floor near the side of the bed.

         Officer James Harden with the Memphis Police Department testified that he responded to
a call at the defendant’s house between 8:00 a.m. and 8:30 a.m. He was told by dispatch that the
defendant had telephoned and reported that he had killed his wife. Two officers were already at the
scene when he arrived. The defendant was at the top of the stairs outside the house holding a gun
with his three children as hostages. The officers were able to get the children out of the home, but
the children did not want to pass the door where the defendant stood. There was a standoff with the
defendant after the children were removed from the home. The defendant told the officers that he
was sorry that he killed the victim and did not think he should live. A sheriff’s deputy found the
victim’s body in an upstairs bedroom and secured the scene for crime scene investigators.

        A member of the Memphis Police Department crisis intervention team testified that he
responded to the defendant’s home during the standoff to assist the defendant who was threatening
suicide. The defendant told him that he had killed his wife. The officer testified that he transported

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the defendant to the homicide division and advised the defendant to wait to say anything until he
could speak with homicide detectives. The defendant talked throughout their drive. He said he was
sorry for what he had done and was concerned about the welfare of his children.

        David Parks, a homicide investigator with the Memphis Police Department, testified that he
responded to the scene on the day of the murder and searched the defendant’s residence after
obtaining a search warrant. He observed the victim and her gunshot wounds. He obtained a
recording of the 9-1-1 call where the defendant identified himself twice and said that he shot and
killed the victim.

       William Ashton, a homicide investigator with the Memphis Police Department, testified that
he was in the homicide office when the defendant was brought into the department. The defendant
was placed in an interview room and was shackled to a metal bench. He could hear the defendant’s
leg shackle rattling against the metal bench. He checked on the defendant and found that he had
fashioned the drawstring of his pants into a noose and attached it to a bulletin board. He took the
noose from the defendant. He then observed the defendant from the one-way mirror and saw him
attempt to manually strangle himself. He continued to monitor the defendant until he eventually put
his head on the desk and went to sleep.

         A sergeant with the Memphis Police Department testified that he participated in an interview
with the defendant. The defendant initially requested an attorney but later advised that he wanted
to answer their questions. The defendant did not draft a formal statement but told officers that he
and the victim were married but had separated after he had an affair that produced a child. He and
the victim decided to reconcile a few days prior to the murder, and the victim and their children
moved in with him. The defendant said that he had “sexual relations” with the victim the night
before the murder and the morning of the murder, but the victim began to change her mind about a
reconciliation. He got his pistol and told his children to stay downstairs and that he loved them. He
went back upstairs and saw the victim sitting in a chair. The defendant said that the next thing he
remembered was seeing her fall to the floor. He did not know how many shots he fired, but he did
recall that he phoned police.

        A Shelby County medical examiner testified that he performed the autopsy on the victim on
March 12, 2007. She died as a result of gunshot wounds to her head and torso. He observed that
she was shot “at least five times” including shots to her forehead, left breast, back of her neck, upper
back, and left arm. He opined that the shots to her back could have been fired as she lay on the floor.

        The defendant made an offer of proof during a jury-out hearing. He called Debbie Nichols,
the forensic coordinator at Midtown Mental Health Center, to testify that he suffered from
diminished capacity. Following her testimony, he withdrew his offer of proof because she opined
that he was competent to confer with an attorney to assist in his defense and was competent to stand
trial.

       The defendant testified that he and the victim were married for seven years. They separated
on September 19, 2006, because he had an affair that produced a baby. The victim had primary
custody of their children. The defendant said he regularly saw the victim and his children despite

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their separation. He learned in March 2007 that the victim filed for divorce. In April 2007, he said
they began to see each other more until the defendant told the victim that he might move to pursue
a business opportunity. He said the victim asked him to take her back.

       In May 2007, the victim was evicted from her home and moved in with the defendant. The
defendant testified that he received a telephone call from a man regarding his romantic relationship
with the victim. The defendant said that he and the victim discussed it and moved forward by
spending the evening eating pizza and having an “uneventful” night.

         The morning of the victim’s murder, the defendant received a telephone call from a woman
he dated previously. The victim made the comment that the call must have been from one of the
defendant’s “bitches.” The defendant answered the call and told the woman that he had reconciled
with his wife. The defendant then told the victim that she needed to tell her friends they were back
together. He testified that she called the recruiter and that, afterward, they were “intimate.” After
their intimacy, they discussed some “unpleasant things,” including the defendant’s affair that caused
their initial separation. They both received additional telephone calls, which caused tensions to
escalate.

        The defendant contended that he did not contemplate killing the victim because he loved her.
He recalled that, immediately before he shot her, the victim took another telephone call, which made
him angry. He testified that the gun was in the bedside table and that the victim was seated in a chair
across the room. He said he realized what he had done when he saw the victim fall to the floor after
the third shot. When the police arrived, he threatened to kill himself but said he had no intention of
actually killing himself even though he left a note that said, “she made me . . . I did [it] out of love.”

        The defendant was aware that the victim had filed for an order of protection against him
around the time of their separation. They went to court on the order in December 2006. He admitted
that he had previously assaulted the victim, but she did not file charges against him. He denied ever
assaulting their children and denied causing the victim to lose her job by harassing her at work.
When asked whose was at fault for the shooting, he responded, “I’ll have to take responsibility.”

       The defendant was convicted of first degree (premeditated) murder and sentenced to life
without the possibility of parole.




                                                Analysis

         On appeal, the defendant argues that the evidence was insufficient to support his conviction
for first degree (premeditated) murder. In his brief, the defendant merely concludes that the trial
court erred in denying his motion for acquittal because the State did not show that he was
“sufficiently free from passion to form the required mental state to commit Murder in the First
Degree.” The defendant’s brief consists of conclusions as introductions to the issues that he raised
and the text of his argument contains boilerplate language that includes the statutory definitions for

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the homicide offenses. He makes no attempt to apply the law to the facts of his case. Further, in the
argument of his brief, the defendant failed to cite to the record. Therefore, this issue would be
properly waived. See Tenn. Ct. Crim. App. R. 10(b); State v. Schaller, 975 S.W.2d 313, 318 (Tenn.
Crim. App. 1997); State v. Turner, 919 S.W.2d 346, 358 (Tenn. Crim. App. 1995); see also Tenn.
R. App. P. 27(a)(7) and (g). However, we will not deny the defendant his opportunity on appeal
because his counsel on appeal failed to comply with the Rules of Appellate Procedure.

        Regardless, the evidence presented at trial is sufficient to support the defendant’s conviction.
A defendant challenging the sufficiency of the proof has the burden of illustrating why the evidence
is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). We review the evidence in the
light most favorable to the prosecution to 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, 61 L. Ed. 2d 560, 573 (1979). We do not reweigh or reevaluate the
evidence but afford the State the strongest legitimate view of the proof contained in the record, as
well as all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978).

        Evaluation of witnesses’ credibility, the weight and value to be given to the evidence, and
resolution of factual issues raised by the evidence is left to the trier of fact. Id. at 835. A guilty
verdict rendered by the jury and approved by the trial judge accredits the testimony of the State’s
witnesses, and a presumption of guilt replaces the presumption of innocence. State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973).

        When viewed in the light most favorable to the prosecution, any rational trier of fact could
have concluded that the defendant committed first degree (premeditated) murder. First degree
murder is the “premeditated and intentional killing of another.” T.C.A. § 39-13-202(a)(1) (2006).
Here, it is undisputed that the defendant shot and killed the victim. The defendant denies that he
intentionally shot the victim, but the evidence established that the defendant was angry that the
victim had been dating other men during their separation. By his own admission, he was angered
that she accepted a telephone call just before he shot her.

        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, destruction or
secretion of evidence, and calmness immediately after the killing. State v. Nichols, 24 S.W.3d 297,
302 (Tenn. 2000).

        The element of premeditation is present in the instant case. The defendant acknowledged
a history of physical abuse toward the victim. The recruiter had a physical confrontation with the

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defendant. The defendant’s son testified that he pleaded with the defendant to stop hurting the
victim after the initial shots were fired, but the defendant continued to shoot her. There was
testimony elicited at trial that some of the victim’s multiple gunshot wounds could have been
sustained as she lay on the floor. The defendant admitted in a statement that he went downstairs and
told the kids he loved them before he murdered the victim. Based on the evidence presented at trial,
a rational jury could have concluded that the defendant was guilty of first degree (premeditated)
murder. This issue is without merit.

        Next, the defendant argues that the State committed reversible error when the State’s attorney
made a passing reference during closing argument to the jury’s responsibility to the community.
Again, the defendant fails to make any citation to the record to support his argument. His brief
consists of a statement in introduction that the State’s attorney made a statement that the jury needed
to send a message to the community and, thereby, made the panel feel they had a duty to the
community to return a guilty verdict. His argument consists of stating the factors used to determine
if prosecutorial misconduct has occurred as set forth by the Tennessee Appellate Courts.

        The defendant does not reference the record for this issue, which causes this court to
speculate as to the specific language he contests. Under these circumstances, it is not the obligation
of an appellate court to review this issue as it is presented. The defendant is required on appeal to
make appropriate references to the record in the argument portion of his brief and to cite relevant
authority. This issue is waived since the defendant fails to make appropriate references to the record.
See Tenn. Ct. Crim. App. R. 10(b); Schaller, 975 S.W.2d at 318; Turner, 919 S.W.2d at 358; see
also Tenn. R. App. P. 27(a)(7) and (g).

        Next, the defendant argues that the trial court erred when it denied his motion for a
continuance. Specifically, he contends that being in jail affected his state of mind so that he was not
able to assist in his defense. However, this issue is waived as the defendant fails to cite authority to
support his argument. See Tenn. Ct. Crim. App. R. 10(b); State v. Schaller, 975 S.W.2d 313, 318
(Tenn. Crim. App. 1997).




                                             Conclusion

         Based on the foregoing and the record as a whole, we affirm the judgment from the trial
court.




                                                        ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE


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