         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs September 11, 2007

              STATE OF TENNESSEE v. JAMES DAVID JOHNSON

                    Direct Appeal from the Circuit Court for Tipton County
                        Nos. 5132, 5221   Joseph H. Walker, III, Judge



                    No. W2006-01842-CCA-R3-CD - Filed February 6, 2008


The defendant, James David Johnson, was convicted of premeditated first degree murder; felony first
degree murder; aggravated robbery, a Class B felony; and theft over $10,000, a Class C felony. The
felony first degree murder conviction was merged with the premeditated first degree murder, and a
life sentence was imposed. The defendant was sentenced to eighteen years as a multiple offender
for aggravated robbery and to fifteen years as a career offender for theft over $10,000. The theft
offense was set as concurrent to the aggravated robbery, but the two, together, were consecutive to
the life sentence. This resulted in an effective sentence of life imprisonment plus eighteen years.
On appeal, the defendant submits three issues: (1) the evidence was insufficient to support the
convictions; (2) the trial court erred in failing to suppress the defendant’s statements; and (3) the trial
court erred in admitting hearsay testimony. After review, we affirm the convictions.

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

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

Gary F. Antrican, District Public Defender; and Julie K. Pillow, Kari I. Weber, and W. Ray Glasgow,
Assistant Public Defenders, for the appellant, James David Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
and D. Michael Dunavant, District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

        Florence Jean Hall, the seventy-three-year-old victim, was found dead in her garage on July
3, 2003. The victim owned several residential and commercial properties which she rented. The
victim’s purse was missing and was never recovered. Her son, Jack Hall, Jr., stated that on the third
of the month the victim would have been collecting rental money and often would have one to ten
thousand dollars cash in her purse. A diamond pendant and a diamond ring were the only jewelry
items known by the victim’s family to have been removed. Jack Hall, Jr., estimated the value of the
diamond ring was $25,000.

        Dr. O. C. Smith, a forensic pathologist, testified that the victim died from multiple injuries.
She suffered blunt trauma to the head and was strangled with a shirt used as a ligature. The ligature
was left on the victim’s neck.

        Daryl Griggs, an employee of Hall’s Rental, stated that the defendant had worked for the
victim in the past. The victim had terminated the defendant in April of 2003.

       The diamond from the victim’s diamond ring was recovered from a jewelry store in
Memphis. The owner of the store stated that the ring had been purchased in July 2003 for three
hundred to four hundred dollars. The seller produced no identification and claimed the ring had been
found.

        The defendant was interviewed by officers on several occasions. During two of the
interviews, the defendant admitted being at the scene of the murder but named two other individuals
as the perpetrators. In both of these statements, the defendant admitted to acquiring possession of
the victim’s ring and selling it.

        The defendant was questioned again on April 20, 2005, and admitted to his sole
responsibility for the crimes. He stated that the victim caught him in the garage and slapped him.
The defendant stated he choked the victim with a shirt, struck her four or five times, and then placed
a plastic bag over her head. The defendant removed the ring from the victim’s finger and took her
purse. He stated the purse contained five hundred to six hundred dollars. He said his cousin pawned
the ring in Memphis and gave him $300 afterward.

                                      Sufficiency of Evidence

        The defendant challenges the sufficiency of the evidence to convict as to all convictions.
When an accused challenges the sufficiency of the convicting evidence, the standard of review is
“whether, after reviewing the evidence in the light most favorable to the prosecution, 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 (1979) (emphasis in original); State v. Goodwin, 143 S.W.3d
771, 775 (Tenn. 2004); see also Tenn. R. App. P. 13(e). “[T]he 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. Smith, 24 S.W.3d 274, 279 (Tenn. 2000). Questions about the credibility of
witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence
are resolved by the trier of fact, and an appellate court does not reweigh or re-evaluate the evidence.
State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003).

        A jury verdict approved by the trial court accredits the State’s witnesses and resolves all
conflicts in the evidence in favor of the State. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).


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“Because a verdict of guilt removes the presumption of innocence and imposes a presumption of
guilt, the burden shifts to the defendant upon conviction to show why the evidence is insufficient to
support the verdict.” State v. Thacker, 164 S.W.3d 208, 221 (Tenn. 2005). These rules are
applicable to findings of guilt predicated upon the direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-
93 (Tenn. Crim. App. 1999).

        The standard of review is the same for circumstantial evidence as direct evidence. State v.
Vann, 976 S.W.2d 93, 111 (Tenn. 1998). On appeal, this court may not substitute its own inferences
“for those drawn by the trier of fact from circumstantial evidence.” State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990).

       Premeditated first degree murder is defined as “[a] premeditated and intentional killing of
another.” Tenn. Code Ann. § 39-13-202(a)(I) (2003). An act is premeditated if the act is “done after
the exercise of reflection and judgment.” Id. at (d).
       “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.
Id. The existence of premeditation is a question of fact for the jury to determine and may be inferred
from the circumstances surrounding the offense. State v. Rosa, 996 S.W.2d 833, 837 (Tenn. Crim.
App. 1999) (citing State v. Brown, 836 S.W.2d 530, 539 (Tenn. 1992)).

       Felony murder is “[a] killing of another committed in the perpetration of or attempt to
perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping,
aggravated child abuse, aggravated child neglect or aircraft piracy.” Tenn. Code Ann. § 39-13-
202(a)(2).

        “Aggravated robbery is robbery as defined in [Tennessee Code Annotated section] 39-13-
401: (1) Accomplished with a deadly weapon or by display of any article used or fashioned to lead
the victim to reasonably believe it would be a deadly weapon; or (2) Where the victim suffers serious
bodily injury.” Tenn. Code Ann. § 39-13-402. “Robbery is the intentional or knowing theft of
property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. §
39-13-401.

       “A person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s effective
consent.” Tenn. Code Ann. § 39-14-103.




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       From our review of the evidence, we conclude that the jury was entirely rational and justified
in convicting the defendant of premeditated first degree murder, felony first degree murder,
aggravated robbery, and theft.

        The defendant admitted going into the victim’s garage with the intent of stealing a
lawnmower. The defendant said he was confronted by the victim, who slapped him. The defendant
choked the victim using a shirt, struck the victim in the head several times, and then choked her
again. He then placed a plastic bag over the victim’s head. The defendant stated he then removed
the victim’s ring and took her purse. The defendant told his cousin of these events, and the cousin
sold the ring in Memphis. The defendant also provided certain details concerning the murder scene
which had not been publicized. He admitted climbing into the truck bed to unplug the garage door.
A dusty footprint was lifted from the bumper of the truck, which was consistent with the sole of the
defendant’s shoes, although not conclusive. The testimony of the forensic pathologist confirmed that
a rolled shirt was still in place on the victim’s neck and that she died from strangulation and blunt
head injuries.

         There are several non-exclusive factors that can be used to infer premeditation: a motive for
the killing; the use of a deadly weapon upon an unarmed victim; the particular cruelty of a killing;
the defendant’s threats or declarations of intent to kill; the defendant’s procurement of a weapon; any
preparations to conceal the crime undertaken before the crime is committed; destruction or secretion
of evidence of the killing; and a defendant’s calmness after a killing. See State v. Davidson, 121
S.W.3d 600, 614 (Tenn. 2003); State v. Dellinger, 79 S.W.3d 458, 492 (Tenn. 2002); State v.
Nichols, 24 S.W.3d 297, 302 (Tenn. 2000); State v. Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998); State
v. Bland, 958 S.W.2d 641, 660 (Tenn. 1997). Additional factors indicative of the existence of
premeditation include a lack of provocation on the part of a victim and the defendant’s failure to
render aid to a victim. State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000). Evidence of
repeated blows is also relevant to establish premeditation. State v. Sims, 45 S.W.3d 1, 8 (Tenn.
2001).

        There was sufficient evidence for the jury to find that the defendant committed the murder
after the exercise of reflection and judgment. The defendant had recently been fired by the victim.
The defendant struck her repeatedly and choked her at least twice, by his admission. The defendant
then took time to place a plastic bag over the victim’s head.

      The defendant’s entire course of action justified the convictions for felony first degree
murder, aggravated robbery, and theft and satisfied the essential elements of each crime.

                                      Defendant’s Statements

        In his second issue, the defendant contends that his statements given to officers were not
voluntarily given, were the product of stress or fear, and were in response to promises of leniency.
The trial court refused to suppress the defendant’s statements after a hearing.



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         In reviewing a trial court’s denial of a motion to suppress, this court must look to the
evidence and facts accredited by the trial court which are most favorable to the State, as the
prevailing party. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The appealing party bears the
burden of demonstrating that the evidence preponderates against the trial court’s findings. State v.
Harts, 7 S.W.3d 78, 84 (Tenn. Crim. App. 1999). Findings of fact made by the trial judge on a
motion to suppress are conclusive and are afforded the weight of a jury verdict, and this court may
not set aside the trial court’s decision unless the evidence contained within the record preponderates
against the trial court’s findings. State v. Jackson, 889 S.W.2d 219, 222 (Tenn. Crim. App. 1993).
Questions of credibility of the witnesses, the weight and value of the evidence, and a resolution of
conflicts in the evidence are matters entrusted to the trial judge. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996).

        In Miranda v. Arizona, the United States Supreme Court held that the prosecution cannot
admit a statement by the defendant stemming from “custodial interrogation” unless it demonstrates
the use of procedural safeguards effective to secure the privilege against self-incrimination. 384 U.S.
436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). The Court defined “custodial
interrogation” as “questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant way.” Id.

        Before a custodial interrogation can occur, law enforcement must inform the person (a) he
or she has the right to remain silent; (b) any statement made may be used as evidence against the
person; (c) the person has the right to the presence of an attorney; and (d) if the person cannot afford
an attorney, one will be appointed prior to questioning, if the person so desires. Miranda, 384 U.S.
at 444. Unless these warnings are given, a subsequent statement by the individual is generally
inadmissible as evidence. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed.
2d 293 (1994).

        The accused must be adequately apprized of the right to remain silent and the consequences
of deciding to abandon that right for the accused to effect a valid waiver. State v. Stephenson, 878
S.W.2d 530, 544 (Tenn. 1994). The State bears the burden of proving a voluntary and knowing
waiver by a preponderance of the evidence. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997). The
court must consider the totality of the circumstances when determining whether the State has met
its burden of proof. Id.

        Although the defendant made statements to officers on multiple occasions, only three of the
statements were introduced as evidence by the State. These statements occurred on May 6, 2004;
March 30, 2005; and April 20, 2005. The defendant was given Miranda warnings prior to each of
these statements, and the defendant executed a written waiver of his rights. The trial court, at the
motion to suppress, found that the statements were knowingly and voluntarily made without coercion
or promises of leniency. The defendant contends he was under the influence of drugs but has failed
to support this claim. Furthermore, intoxication does not render a confession invalid if the evidence
shows that the defendant was capable of understanding and waiving his rights. State v. Bell, 690
S.W.2d 879, 882 (Tenn. Crim. App. 1985). The evidence does not preponderate against the trial


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judge’s findings at the suppression motion, and we conclude that the defendant’s motion was
properly denied.

                                                Hearsay

         In his final issue, the defendant claims that the trial court erred in overruling his objections
to the testimony of the victim’s son during the defendant’s cross examination.

      The subject testimony occurred while the defendant was questioning the victim’s son as to
whether he saw the victim on July 3, 2003. The verbatim colloquy was as follows:
      Q.              You did see her that day?
      A.              No, I didn’t see her.
      Q.              I thought you said you just went and saw her that day?
      A.              No. I went by there to see her. She wasn’t there.
      Q.              Okay. Can you tell me about what time that was?
      A.              It would seem like to me – well, she had called me, I believe it was
                      two nights before, and told me he had came over to her house --
      Ms. Pillow: Object to hearsay.
      A.              – at –
      Mr. Glasgow: Objection, Your Honor.
      A.              – six o’clock that morning –
      The Court:      Restate another question, please.
      Q.              Can you just tell me what time you went by the house on July 3rd?
      A.              It was about one o’clock.
      Q.              In the afternoon?
      A.              Uh-huh.
      Q.              And you said you had a treatment two days prior to that?
      A.              Uh-huh.
      Q.              Was there any particular reason you went by?
      A.              Well, she had told me he had caught her outside and --
      Q.              It’s hearsay again. You can’t testify to what she told you?
      A.              Well, you said why did I go by.
      Q.              I just asked you why you went by.
      A.              That was the reason why.
      Q.              Because she called you?
      A.              She called me and told me he had been over there threatening her. I
                      wanted to go by and see –
      Ms. Pillow: Objection, You Honor.
      Mr. Glasgow: Objection, Your Honor.
      Ms. Pillow: Hearsay.
      A.              – how it was.
      Mr. Glasgow: Move to strike.
      The Court:      The Court will allow the response. State another question, please.


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         Hearsay is defined as “a statement, other than one made by the declarant while testifying at
the trial of hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). As a general rule, hearsay is not admissible at trial except as provided by the rules or
otherwise by law. Tenn. R. Evid. 802.

         A corrective instruction by the trial court to disregard the witness’ testimony as to the
victim’s statements would have been appropriate. It should also be noted that the defendant, through
his questioning, invited the most egregious of the hearsay statements. A litigant is not entitled to
relief for the natural consequences of his own neglect or misconduct. State v. Robinson, 146 S.W.3d
469, 493 (Tenn. 2004). The failure to take corrective action was harmless error in light of the
overwhelming evidence of the defendant’s guilt. The defendant is not entitled to relief on this issue.

                                             Conclusion

       After review, the convictions are affirmed.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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