          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            JUNE SESSION, 1999
                                                     FILED
                                                      August 19, 1999
STATE OF TENNESSEE,               )    C.C.A. NO. 02C01-9902-CC-00063
                                                    Cecil Crowson, Jr.
                                  )                Appellate Court Clerk
            Appellee,             )
                                  )    LAUDERDALE COUNTY
V.                                )
                                  )
                                  )    HON. JOSEPH H. WALKER, JUDGE
BARRY DAVIS,                      )
                                  )
            Appe llant.           )    (FIRST DE GREE MUR DER)



FOR THE APPELLANT:                     FOR THE APPELLEE:

GARY F . ANTRICAN                      PAUL G. SUMMERS
District Public Defender               Attorney General & Reporter

JULIE K. PILLOW                        R. STEPHEN JOBE
Assistant Public Defender              Assistant Attorney General
P.O. Box 700                           2nd Floor, Cordell Hull Building
Somerville, TN 38068                   425 Fifth Avenue North
(At Trial)                             Nashville, TN 37243

CLIFF ORD K. Mc GOW N, JR.                    ELIZABETH T. RICE
113 North Court Square                 District Attorn ey Ge neral
Wa verly, TN 37185
(On App eal Only)                      JAMES WALTER FREELAND, JR.
                                       Assistant District Attorney General
                                       302 M arket Stre et
                                       Somerville, TN 38068



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                        OPINION
       The Defendant, Barry Davis, appeals as of right from his convictions in the

Circu it Court of Lau derdale Co unty. Following a jury trial, Defendant was convicted

of first degree murder and assault. The trial court sentenced Defendant to life

imprisonment for first degree murder and to a concurrent sentence of eleven (11)

months and twenty nine (29) days for assault. Defendant presen ts the following two

issue s for rev iew in th is app eal:

              1. Was the evidence sufficie nt to su pport D efend ant’s
              conviction for first degree murder; and

              2. Did the trial court abuse its discretion in permitting
              certain rebuttal argument from the State.


After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court.



                                   Sum mary o f the Fac ts



       On the morning of December 6, 1997, Defendant went to the home of the

victim, Mary Robinson, and stabbed her 14 times. The victim died as a result of the

multip le stab wounds. The victim was the mother of two of Defendant’s children.

During this offe nse, D efend ant als o wou nded their eig ht year old daughter, Lashona.



       Lashona testified at trial that on the morn ing of th e offen se, the only pe ople

home were herself, her younger brother, and the victim (her m other) , who w as still

in bed. Lashona’s fifteen year old brother had already left the home and g one to his

grand moth er’s house. Defendant arrived at the home as Lashona and her brother

were watching cartoons on television.          Lashona opened the door and let the



                                             -2-
Defendant into the home. Once inside, Defendant sat down and asked the children

how they were doing. H e went to the kitc hen to get a drink of water and then

returned to the living roo m mo menta rily. Lashon a denie d that De fendan t cooked any

breakfa st, as contrasted by Defendant’s later testimony, because she and her

brother had just finished eating soup when Defendant arrived. Defendant then

proceeded to the bedroom where the victim was, and Lashona heard Defendant ask

the victim if she would take him to Memphis. The victim replied that she did not feel

well.   According to L ashona, this w as the extent of the conversation between

Defendant and the victim.



        At this point, L asho na he ard ba nging in the bedroom and walked back there

to investigate. Once inside her mother’s bedroom, she saw Defendant stabbing the

victim. Defend ant stabb ed the victim while she was on the bed, then grabbed her

and threw her on the floor, where he stabbed her again. Lasho na attem pted to stop

Defendant from stabbing her mothe r by wrapping h er arms around his wa ist.

Defendant told her to get out of his way and h e pushed her to the floor, cutting her

with the knife in the process.



        After the stabbing, Defendant looked through the victim’s purse and retrieved

her keys. As he walked outside to leave, Lashona and her brother followed and

called for him not to leave, but he told them to go back in the house. Defend ant left

in the victim’s car and Lashona called the police.



        Depu ty Ted S utton of the Lauderdale County Sheriff’s Department testified

that shortly after the offense he received a phone call from Defendant. Defendant

stated that he had killed the victim and wa nted to turn himself in to the authorities.

                                          -3-
When asked what he had done with the knife, Defendant replied that he had thrown

it out of the car as he drove away from the victim’s residence. Defendant was not

crying an d aske d if the victim w as dea d “for sure .”



       Officer Chris Bailey of the Ripley Police Depa rtmen t respo nded to Las hona ’s

emergency call. Upon arriving at the residence, Lashona and her younger brother

were screaming “Barry stabbed my mama.” Officer Bailey located the victim in the

bedroom but could not find a pulse.           He testified that there were not typical

indications of a struggle in the be droom. S pecifically, furniture and lam ps were all

in their normal places. There was blood on the bed, the floor, and splattered on the

walls of the bedroom. Officer Bailey later saw Defendant at the hospital at which

point Defendant kept repeating that he did not mean to kill the victim. Defendant

was crying at this time.



       Terry Jordan , an investigator with the Ripley Police Department, also

responded to the scene.       He s aw Lasho na with her face bandage d and tears

streaming down her face saying, “Don’t let my mama die.” Investigator Jordan later

recovered a blood-stained steering wheel cover from the victim’s vehicle. Jordan

took a statement from Defendant, during which Defendant said he had thrown the

knife out of the victim’s car into the median on the Highway 51 bypass. Defendant

helped search the area but the weapon was not located. However, Investigator

Jordan retraced Defendant’s path of flight from the scene the following day and

located the knife in a ditch on the side of the road only half a mile from the victim’s

residen ce. Jorda n also rec overed a fork.




                                            -4-
       Fore nsic testing revealed the presence of human blood on both the knife and

the fork. Additionally, an autop sy reve aled th at the vic tim died a s a res ult of m ultiple

stab woun ds. Th ere we re four teen s tab wo unds in all, one to the head, thr ee to the

neck, two to the a bdom en, and eight to the back. S ome o f the stab wou nds were

more than six inches in depth. The victim also had contusions on the left upper

chest. She had no defensive wounds.



       Joseph Lee, a longtime acquaintance of Defendant, testified that he had been

working with Defendant during the week preceding the killing. During that week,

Defendant repea tedly talk ed ab out ho w mu ch he loved th e victim and s aid tha t if he

could not have her then nobody else could either. He repeatedly stated that he was

going to kill the v ictim, b ut Lee did no t take h im seriously. Lee testified that he saw

Defendant with a knife on the morning of the stabbing saying that he was going to

sharpe n the knife becau se he h ad to “take care of so me bu siness.”



       On cross-examination, Lee admitted that the victim was his second cousin.

He also admitted that he did not give police a statement until January 28, 1998,

more than one month after the killing. He said that he had not done so because the

police had not asked him for a statement. Lee also admitted that he did not mention

seeing Defendant with a knife during his statement, but stated that he simp ly did not

have a chance to write everyth ing down that he wanted to. Lee denied having

approached Defendant’s sister and asking her what had happened during the killing.



       Alonzo Pickett, a neighbor of Defendant’s sister and an acquaintance of

Defen dant, testified that Defen dant wa s living with his (Defendant’s) sister and her

boyfriend in early De cemb er of 199 7. Pickett testified that on the day before the

                                              -5-
stabbing, Defen dant visited Pickett and asked if he could borrow a file to sharpen a

knife. Defendant sharpened the knife and then left. Pickett te stified that the knife

identified as the murde r weapo n resem bled the k nife Defendant had sharpened at

his home. On cross-examination, Pickett admitted that he could not positive ly

identify the knife. In c ontrast to Defendant’s later testimony, Pickett also stated that

Defendant had never borrowed his tools before.



       Ricky Henderson, the boyfriend of Defendant’s sister, testified that on the day

before the killing, he and Defendant had a conversation about guns. Defendant

indicated that he might like to purchase a shotgun.                Defendant stated that

Hen derso n’s single shot shotgun was not good enough, but seemed interested in

Hen derso n’s father’s three-shot shotgun. However, the asking price was too high

for Defendant. Henderson also sa w De fenda nt leave their reside nce w ith a kn ife in

his back pocket on the day before the killing.             The knife rese mbled the knife

identified as the m urder we apon. Henderson said that Defendant had asked him not

to mention anything about their shotgun conversation. On cross-examination,

Hende rson stated that he had seen Defendant leave on the morning of the killing

and tha t he did no t see a kn ife in his bac k pocke t.



       Defendant offered the testimony of his sister, Denise Estes. Estes testified

that she a sked Defe ndan t to sha rpen th e knife at Alon zo Pic kett’s in order to repair

her cable television. Estes also testified that Joseph Lee, contrary to his earlier

testimony, had indeed approached her and asked her what had happened during the

killing.




                                            -6-
       Defendant testified on his own behalf.           He stated that he had a good

relation ship with the victim and that they had arranged to go to Memphis together on

the mornin g of the killing . Defe ndan t called the victim to con firm the ir trip the night

before. He called from another women’s house, but told the victim that h e was a t a

phone booth. The victim, who had caller identification on her telephone, hung up on

Defen dant.



       Defendant came to the victim’s residence the next day.                He confirmed

watching television w ith the childre n for a sho rt time.        Contr ary to L asho na’s

testimony, however, Defendant stated that he went into the kitche n and fixed him self

and his three-y ear-old s on a sa ndwich . Defenda nt state d that h e kne w the vic tim

was still mad, and when he went to her bedroom door, she rushed him with a knife.

He said that they scuffled and that he took the knife from her and laid it on a d resser.

They continued to scuffle and the victim eventu ally bit Defendant. At that point, she

retrieved the knife from the dre sser. D efend ant wa s cut o n his h ands in the process

of defending himself, but eventually disarmed the victim. At that point, Defendant

stated that the victim slapped him and rushed at him with a fork.



       Defendant testified that he “just clicked” and attacked the victim. He did not

recall exactly what happened or how badly the victim was injured. Afterwards, he

fled in pan ic because Lashona had already called an ambulance, and ac cording to

Defenda nt, the police were a lready hunting for h im on an u nrelated ma tter.



       Defendant denied any intention to kill the v ictim. H e also denie d havin g told

Joseph Lee that he was going to kill the victim. He admitted having gone to Alonzo




                                             -7-
Picke tt’s to use his file, but in contrast to Pickett’s testimony, stated that he borrowed

Pickett’s tools all he time.



       On cross-examination, Defendant stated that during his ten-to-twelve year

relation ship with the victim, that he had pursued relationships with other women and

had even fath ered ch ildren with o ther wom en. He denied being concerned about the

victim seeing o ther me n. Defendant admitted that in his sta teme nt to po lice, he did

not indicate that the victim had rushed him with the knife and bitten him. In contrast

to Lashona’s testimony, he also denied having retrieved keys from the victim’s purse,

instead indicating that he retrieved the keys fro m the top of a spea ker. H e did a dmit

to having picked up the fork from the bedroom floor before fleeing the house. He

also admitted to prior convictions for selling cocaine.



                               I. Sufficiency of the Evidence



       In this issue, Defendant challenges the sufficiency of the evidence supporting

the jury’s verdict in reg ard to first degree premeditated murder. Defendant contends

that the evidence p resented at trial supported, at most, a conviction for a lesser

offense rather tha n first degree prem editated mu rder.



       When an accused challenges the sufficiency of the convicting evidence, the

standa rd is whe ther, after rev iewing the evidenc e in the light m ost favora ble to the

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

crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 307, 31 9 (1979).

This standard is applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence or a combination of direct and circumstantial evidence.

                                            -8-
State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the

State is entitled to the strongest legitimate view of the evidence and all inferences

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this court of illustrating why the

evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v.

Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 19 73).



       Questions concerning the credibility of the witnesses, the weight and valu e to

be given the evidence, as well as all factual issues raised b y the evidence, a re

resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835 . A jury verdict

approved by the trial judge accredits the State’s witnesses and resolve s all conflicts

in favor of the State. Grace, 493 S.W .2d at 476 .



       First degree murde r is a "prem editated a nd intentio nal killing of an other."

Tenn. Code Ann. § 39-13-202(a)(1). Premeditation "is an act done after the exercise

of reflection a nd judg ment," and it means that "the intent to kill must have been

formed prior to the act itself." Tenn. Code Ann. § 39-13-202(d). Furthermore, it is not

necessa ry 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 tim e the a ccus ed alle gedly

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

premed itation. Tenn. Co de Ann. § 3 9-13-202(d ).

                                            -9-
      The element of p remeditation is a question for the jury a nd "m ay be

established by proof of the circumstances surroundin g the killing." State v. Bland,

958 S.W .2d 651, 660 (Tenn. 199 7) (citing State v. Brown, 836 S.W.2d 530, 539

(Tenn. 1992)), cert. denied, 118 S. C t. 1536 (1 998); see also State v. Pike, 978

S.W.2d 904, 91 4 (Ten n. 1998 ). Our su preme court ha s identified s everal factors

tending to demon strate existence of p remedita tion, inc luding : the us e of a d eadly

weapon upon an unarmed victim; the particular c ruelty of the killing; declarations by

the defend ant of an in tent to kill; evidence of procu remen t of a weapon; preparations

before the killing for concealment of the crime; and calmness immediately after the

killing. Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d at 541-42, and State v.

West, 844 S.W .2d 144 , 148 (T enn. 19 92)); Pike, 978 S.W .2d at 914 -15.



      Applying the above principles to the instant case, we find that the evidence

presented was sufficient to sustain a co nviction for first degree prem editated mu rder.

Defendant spok e of killing the victim during the week before the killing, stating that

if he could not have her, nobody else would either. He considered procuring a

shotgun on the day before the killing, but could not afford to do so.           Instead,

Defendant took a knife, identified by witnesses as resembling the murder weapon,

and sharpe ned it, stating that he had “to take care of some business.” Defendant

went to the victim’s reside nce e arly on a Satu rday m orning , when only the victim and

their two young children were there. Upon entering the home, he watched television

with the children for a short time, drank a glass of water, and then proceeded to the

victim’s bedro om w here th e victim was still in the bed. Defendant asked the victim

to take h im to M emp his an d the vic tim told Defe ndan t that sh e did not feel we ll.

Defendant then be gan sta bbing the victim. He stabbed her on th e bed, thr ew her to

the floor, and then continued stabbing her on the floor. When their young daughter

                                          -10-
attempted to stop Defendant, he told her to get out of his way and injured her in the

process. Defen dant s tabbe d the vic tim a total of fourteen times, with some wounds

penetrating more than six inches deep.            After stabbing the victim, Defendant

retrieved keys from her purse and drove away in her car. He then discarded the

murder w eapon ou t the window of the car.



         After viewing the evidence in a light most favorab le to the prosecu tion, there

was more than sufficient evidence for the jury to have found that Defendant

intentio nally and with premeditation killed the victim. Defendant claimed at trial that

he “just clicked” when the victim allegedly attacked him. However, it was for the jury

to determine if the Defendant’s testimony was persuasive, and by their verdict they

obviou sly did not find it to be. See Pappas, 754 S.W.2 d at 623 . We find that a

rational jury could have indeed reasonably rejected Defendant’s version.

Accordingly, the evidence was legally sufficient to support Defendant’s conviction for

first degree premeditated murd er bey ond a reaso nable doub t. This issue is without

merit.




                                  II. Rebuttal Argument



         Defendant argues in this issue that the State’s rebuttal argument exceeded

the proper scope. He contends that the State’s rebuttal argument constituted

prosecutorial misconduct which requires reversal of his conviction and a remand for

a new tria l.




                                           -11-
       In Ten ness ee, it is well-settled that in reviewing allegations of prosecutorial

misco nduct, the test to b e applied by the ap pellate co urt is to asce rtain "whether

such cond uct co uld ha ve affec ted the verdict to the pre judice of the defen dant."

State v. Smith, 803 S.W.2d 709, 710 (Ten n. Crim. App . 1990) (citing Judge v. State,

539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)). In Judge, 539 S .W .2d at 3 44, this

Court articulated five factors to be utilized by appellate courts when evaluating

claims of prosecutorial misconduct during closing argument. The Tennessee

Suprem e Court approved of and adopted this five-factor analysis in State v. Buck,

670 S.W.2d 600, 609 (Tenn. 1984). These five factors include: "'(1) the conduct

complained of viewed in context and in light of the facts and circumstances of the

case; (2) the curative me asures un dertaken by the court and the prosecution; (3) the

intent of the pros ecutor in m aking the improp er statem ent; (4) the cumulative effect

of the improper conduct and any other errors in the record; and (5) the relative

streng th or we akne ss of th e cas e.'" Id. (quoting Judge, 539 S.W .2d at 344 ).



       In Coke r v. State, this Court explained that "[t]rial courts have substantia l

discretionary authority in determining the propriety of final argument. Although

counsel is genera lly given wide latitude, courts must restrict any improper

comm entary." 911 S.W.2d 357, 368 (Tenn. Crim. App . 1995) (citing Sparks v. State,

563 S.W .2d 564 (Te nn. Crim. Ap p. 1978)). The broad discretion accorded to trial

courts in controlling the argument of counsel "will not be reviewed absent abuse of

that discretion ." Smith v. State, 527 S.W .2d 737 , 739 (T enn. 19 75). See also State

v. Payton, 782 S.W.2d 490, 496 (Tenn. Crim. App. 1989). Nevertheless, “closing

argument ‘must be temperate, must be predicated on evidence introduced during the

trial of the cas e and m ust be pe rtinent to the issues being tried.’” State v. Sutton, 562

S.W.2d 820, 823 (Tenn. 1978) (citation omitted). Tennessee law does provide that

                                            -12-
the State’s rebuttal closing argument, which is at issue here, is limited to the subject

matter covered in the State’s initial closing argument and the defendant’s closing

argum ent. Tenn. R . Crim. P . 29.1(b); see also State v. Houston, 688 S.W.2d 838,

841 (T enn. C rim. App . 1984).



       In the case sub judice, the State’s initial closing argument focus ed ge nerally

on the elem ents of the h omic ide offe nse a nd urg ed the jury that the on ly valid issue

in the case was the degree of that homicide. Defendant then responded that the

State had not carried its burden of demonstrating premeditation beyond a

reaso nable doubt.       He then attacked the State’s reliance of testimony from

witnesses, such as Alon zo Picke tt and Ric ky Hen derson . Finally, h e poin ted to h is

own testim ony in s uppo rt of his claim that the evidence showed his behavior was

irrational and not premeditated. In rebuttal, that State focused on showing that the

testimony of Defenda nt was simp ly not credible and pointed out several

circumstances which as sailed D efenda nt’s credib ility.           For examp le, the State

pointe d out that Defendant had prior convictions. However, the State seemed to

prima rily focus in rebuttal on the testimony of othe r credib le witnes ses, sp ecifica lly

Lashona Davis, whose testimony differed substantially from Defendant’s. Defendant

objected stating that he had n ot brou ght ou t any sp ecific details about her testimony

during his closing argument. Defendant incorrectly argued that the State was limited

to the scope of only his closing argu ment fo r its rebuttal ar gume nt. See Tenn. R.

Crim. P. 29.1(b ). Regardles s, the trial court overruled the objection. The State then

continued to question the credibility of Defendant, concluding by pointing out that

Defe ndan t had n eglec ted to te ll the po lice m uch o f what h e testifie d to at tria l.




                                              -13-
      We find that the pro sector’s a rgume nt was fair re buttal to defen se co unse l’s

remarks. See Sutton, 562 S.W.2d at 823-24. Accordingly, under the circumstances

of this case, we find n o reversible error.



      Based on all the for egoing , we affirm th e judgm ent of the tria l court.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
DAVID H. WELLES , Judge



___________________________________
NORMA McG EE OGLE, Judge




                                          -14-
