        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                       JANUARY 1998 SESSION
                                                        FILED
                                )
                                                         March 12, 1998
STATE OF TENNESSEE,             )
                                ) C.C.A. No. 02C01-9702-CR-00059
                                                        Cecil Crowson, Jr.
     Appellee,                   )
                                                        Appe llate Court C lerk
                                 ) Shelby County
V.                               )
                                 ) Hon. James C. Beasley, Sr., Special Judge
JAMES H. MABRY,                  )
                                 ) (First Degree Murder)
     Appellant.                  )
                                 )




FOR THE APPELLANT:              FOR THE APPELLEE:

Seymour S. Rosenberg            John Knox Walkup
Attorney at Law                 Attorney General & Reporter
371 Carroll Avenue
Memphis, TN 38105               Deborah A. Tullis
                                Assistant Attorney General
                                Cordell Hull Building, 2d Floor
                                425 Fifth Avenue North
                                Nashville, TN 37243

                                William L. Gibbons
                                District Attorney General

                                Charles W. Bell, Jr.
                                Assistant District Attorney General
                                201 Poplar Avenue, Suite 301
                                Memphis, TN 38103




OPINION FILED: _______________________


MODIFIED AND REMANDED


PAUL G. SUMMERS,
Judge
                                   OPINION



       The appellant, James H. Mabry, was convicted by a jury of first degree

murder and sentenced to life in prison for the shooting death of his girlfriend,

Aretha Howard. The appellant’s sole issue for our review is whether the

evidence is sufficient regarding premeditation to support his conviction for first

degree murder. We reverse the judgment of first degree murder, modify it to

second degree murder, and remand the case to the trial court for the appellant’s

sentencing for second degree murder.



       On the morning of July 29, 1995, Ms. Howard drove the appellant’s white

Cadillac to a neighbor’s home because the victim thought it was too hot to walk.

According to the appellant’s statement to the police, he had told Ms. Howard not

to drive the car because the engine light was coming on; and he feared the

engine would be damaged. A mechanic had told him that the car would not get

good gas mileage, and the appellant also thought that something else might be

wrong with the car. Ms. Howard stayed at the neighbor’s home for a couple of

hours and then returned to her house.



       When the appellant returned to Ms. Howard’s house from Tunica,

Mississippi, he noticed that she had driven his Cadillac. According to the

appellant’s statement, he and Ms. Howard began arguing in the bedroom, and

the argument continued into the kitchen. The appellant’s statement indicates

that he went into the living room, and Ms. Howard then came into the living room.

The appellant stated that the two were shouting at each other when Ms. Howard

spit in his face and hit him with an ashtray. He indicated that he told her, “Stop, I

don’t want to hurt you!” He then indicated that the two shoved each other, and

then Ms. Howard went down the stairs and out the backdoor.




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       The appellant’s statement further indicates that Ms. Howard got a

fireplace log on the outside of the house and started hitting the appellant’s

Cadillac. The appellant indicated that he went to the door and told her to stop

hitting his car, but she continued. The appellant then went outside. As Ms.

Howard continued to hit the appellant’s car, the appellant told her to stop

repeatedly. At trial, the appellant’s ex-wife, Maime Murphy, testified that there

were dents in the roof of the Cadillac, which she took possession of in early

August 1995. When Ms. Howard would not stop, the appellant stated that he

pulled a .38 revolver from his right front pants pocket. In his statement to the

police, the appellant stated that Ms. Howard “came toward me with the log in her

hand saying, ‘Well, shoot me then!’” The appellant shot her three times in rapid

succession. The appellant indicated that he was scared and did not know what

to do, so he left in his Cadillac and drove around for a while before returning to

Tunica. He was arrested several hours later by the Tunica County Sheriff’s

Department.



         Ms. Khari Gray, a neighbor who lived across the street, heard shots and

looked out her bedroom window. She testified that she saw the victim lying on

her driveway. Although she did not see anyone else, she did see a yellow

Lincoln and a white Cadillac in the driveway. Ms. Gray called 911, and when she

looked out the window again, she saw the white Cadillac moving down the street.



       According to testimony at trial, the appellant and Ms. Howard, who had

lived together intermittently for three to five years, had a turbulent relationship.

The appellant apparently telephoned the victim’s mother, Irma Foster, on the

morning of the shooting, July 29, 1995, and told her that she “was going to have

a dead daughter.” Also, he had threatened the victim during a telephone

conversation with Ms. Foster about a week before the shooting. According to

testimony at trial, Ms. Howard had wanted the appellant to move out of her

house.


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      When the paramedics arrived, they found the victim lying on her driveway.

They placed a tarp over her body, but the wind kept blowing the tarp away. The

testimony at trial indicates that someone in a blue uniform, either a paramedic or

a police officer, got the logs from the side of the victim’s house and placed them

on the tarp. The appellant contends that none of the state’s witnesses recalled

seeing a log near Ms. Howard’s body, which he insists was there.



      Dr. Wendy Gunther, an assistant medical examiner for Shelby County,

performed the autopsy on the victim. She testified that Ms. Howard was shot

three times: once in the pelvis, once in the shoulder, and once in the back of the

head, which was the fatal wound. She further testified that it was possible that

the wound to the back of the head could have occurred if Ms. Howard had fallen

forward from one of the other two shots in such a way that the bullet could have

entered the back of the head.    Dr. Gunther also testified that the three shots

were fired from a distance of more than three feet, although she could not tell the

exact distance. She also testified that the autopsy revealed that Ms. Howard

had a blood alcohol level of .21 and that she had ingested cocaine as well.        The

autopsy revealed that the level of alcohol in Ms. Howard’s brain was more than

half of her blood alcohol level, thus indicating that she had been drinking heavily

thirty minutes before her death. Dr. Gunther also testified that the combined

effects of cocaine and alcohol would produce decreased inhibition and an

increased adrenaline-like release.



       The appellant argues that the evidence is insufficient regarding

premeditation to sustain the appellant’s conviction for first degree murder.   The

appellant argues that the state “failed to show that Mr. Mabry’s mental state at

the time of the shooting was ‘sufficiently free from excitement and passion.’” The

appellant contends that he “was embroiled in a heated altercation with Ms.

Howard that began in her house and progressed out into the front driveway.” He


                                        -4-
further asserts that Ms. Howard, who was under the influence of alcohol and

cocaine at the time, spit in his face, threw an ashtray at him, hit his car with a log,

and threatened him with a log.



       First, the appellant maintains that there is no evidence that he planned the

killing because before the shooting, he had been gambling at a casino. Second,

he contends that there is no evidence that he had any motive for the shooting.

Third, he argues that there is no evidence that he acted according to any

“preconceived design.” He theorizes that had he had a design he would not

have killed the victim out in the open for the whole world to see.



       The state argues that the evidence is sufficient to support the appellant’s

conviction for first degree murder. It contends that the appellant’s threats, his

possession of a revolver, and his shooting of an unarmed woman three times

indicate premeditation.



       Once a homicide has occurred, it is presumed to be second degree

murder, and the state has the burden of proving first degree murder. State v.

Brown, 836 S.W.2d 530, 543 (Tenn. 1992). At the time of the offense, first

degree murder was defined as “[a] premeditated and intentional killing of

another.” Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1995). Premeditation is

defined as follows:

              “[P]remeditation” is an act done after the exercise of
      reflection and judgment. “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.
Tenn. Code Ann. § 39-13-202(d). Premeditation indicates “a previously formed

design or intent to kill.” State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). At

the time of the offense, second degree murder was defined as ”[a] knowing

killing of another.” Tenn. Code Ann. § 39-13-210(a)(1) (Supp. 1995).


                                          -5-
      When appellants challenge the sufficiency of the evidence, this Court

must determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The

weight and credibility of a witness’ testimony are matters entrusted exclusively to

the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);

Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).



      Based on the record before us, the appellant and Ms. Howard began to

argue inside Ms. Howard’s home, where Ms. Howard threw an ashtray at the

appellant and spit at him. Ms. Howard, who had a blood alcohol level of .21 and

had ingested cocaine as well, left the house and began beating the appellant’s

car with a log and threatening him with the log as well. The appellant then pulled

a revolver from his pants pocket and shot Ms. Howard three times in rapid

succession. From the facts of this case, we must agree with the appellant that

the state failed to show that the appellant was “free from passion and excitement

as to be capable of premeditation.” Therefore, we reverse the judgment of first

degree murder and modify it to second degree murder. We remand the case to

the trial court for the appellant’s sentencing for second degree murder.

Because the state filed a notice of enhancement before trial, it may seek

enhancement of the appellant’s sentence at the new sentencing hearing. See

State v. Dunn, 901 S.W.2d 398, 399-400 (Tenn. Crim. App. 1995).



                                                _______________________
                                                PAUL G. SUMMERS, Judge



CONCUR:




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____________________________
DAVID G. HAYES, Judge




____________________________
JOE G. RILEY, Judge




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