         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON             FILED
                           JULY 1998 SESSION            August 20, 1998

                                                      Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 02C01-9712-CR-00466
      Appellee,                     )
                                    )    SHELBY COUNTY
VS.                                 )
                                    )    HON. ARTHUR T. BENNETT,
JOSEPH L. GRANDERSON,               )    JUDGE
                                    )
      Appellant.                    )    (First Degree Murder)



FOR THE APPELLANT:                       FOR THE APPELLEE:

A.C. WHARTON, JR.                        JOHN KNOX WALKUP
Shelby County Public Defender            Attorney General and Reporter

BETTY J. THOMAS (At Trial)               ELIZABETH T. RYAN
W. MARK WARD (On Appeal)                 Assistant Attorney General
Assistant Public Defenders               Cordell Hull Building, 2nd Floor
201 Poplar Avenue, Suite 201             425 Fifth Avenue North
Memphis, TN 38103-1947                   Nashville, TN 37243-0493

                                         WILLIAM L. GIBBONS
                                         District Attorney General

                                         LEE V. COFFEE
                                         Assistant District Attorney General
                                         201 Poplar Avenue, Suite 301
                                         Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, Joseph L. Granderson, was convicted by a Shelby County

jury of premeditated first degree murder and was sentenced to life imprisonment.

On appeal, he asserts that the evidence is insufficient to sustain his conviction

because (1) the state failed to prove premeditation beyond a reasonable doubt; and

(2) the jury wrongly rejected his claim of self-defense. After a thorough review of

the record before this Court, we find that the evidence is sufficient to support the

jury’s finding of guilt. Therefore, the judgment of the trial court is affirmed.



                                       FACTS



       At approximately 11:30 p.m. on November 10, 1995, Michael Pipkin (the

victim) and Michael Peete went to L.D.’s Lounge, a late-night club in Memphis.

Approximately thirty (30) minutes after their arrival, Pipkin and Peete saw the

defendant.    The defendant was the father of Pipkin’s step-children and was

introduced to Peete by Pipkin. Peete testified at trial that defendant and Pipkin did

not argue or exchange angry words. He further stated that defendant’s speech was

not slurred, and he did not appear to be intoxicated.

       Subsequently, Pipkin and Peete returned to their table. When they came out

of the restroom, defendant was no longer standing at the bar. Approximately one

(1) hour later, Peete saw defendant standing at the front door of the lounge shooting

at Pipkin. Peete ducked out of the way and heard Pipkin shout, “I’m hit!” Pipkin

received gunshot wounds to his right arm, abdomen and pelvis. He died on

November 17, caused by a pulmonary embolus1 due to gunshot wounds to the

abdomen and pelvis.

       Peete testified that Pipkin and defendant did not fight or argue that night, nor

did the victim ever threaten the defendant. He also stated that Pipkin was not



       1
        Dr. Jerry Francisco, the Shelby County Medical Examiner, described a pulmonary
embolus as a blood clot which travels to the lungs and shuts off the blood flow.

                                           2
carrying a weapon at the time he was shot.

       Tony Coleman, a part-time employee at L.D.’s, testified that he saw the

defendant running out of the lounge after the shooting. He watched the defendant

run across the street, and defendant did not appear intoxicated as he was not

stumbling. Louis Conley, the owner of the establishment, was standing next to

defendant during the shooting. He, too, did not see any indication that defendant

was intoxicated.

       Wanda Pipkin, the victim’s wife, testified that she and defendant were

romantically involved for several years and had two (2) sons. Their relationship

ended in 1993, and she began dating the victim approximately one (1) year later.

The defendant was jealous of her relationship with the victim and told her that he

did not want her to “mess with anyone else.” In late summer 1995, defendant and

the victim were involved in several altercations as a result of this jealousy. During

this time, Mrs. Pipkin was pregnant, and defendant threatened to kill her unborn

child because he did not want her to have children “by nobody [sic] else but him.”

Defendant also made threats to kill Pipkin. Mrs. Pipkin testified that the defendant

often carried a weapon, but the victim did not.

       The defendant telephoned Mrs. Pipkin on the night after the shooting. She

asked the defendant if he shot her husband, which he denied. He told her that he

was in Mississippi the previous night. Although defendant was arrested for the

offense on November 25, he continually denied involvement to Mrs. Pipkin until

September 1996, when he admitted that he shot the victim “out of fear.”

       Defendant testified on his own behalf at trial. He stated that he drank

excessively, suffered memory loss when he drank and was unable to “function” if

he drank in excess. He stated that the victim threatened him repeatedly and was

the aggressor in the various altercations between the two men. He testified that as

a result of these conflicts, he began carrying a gun out of fear for his safety.

       Defendant testified that on November 10, he drank an excessive amount of

various alcoholic beverages. He arrived at L.D.’s at approximately 11:00 p.m., and

saw Pipkin and Peete shortly thereafter. Although he was afraid of Pipkin, he



                                          3
remained at the club. Defendant was carrying a gun at the time. While he was

sitting at a table, he and Pipkin made eye contact. Pipkin began staring at him,

giving him a “hard look.” As the defendant was about to leave, Pipkin “really started

looking at [defendant].” Defendant testified that he felt threatened by the victim’s

presence in the lounge. He stated that the victim made a move as if to reach for a

weapon, and defendant shot him “out of fear.” He then ran from the club and went

to his sister’s house.

       He further testified that he did not remember shooting Pipkin until after Pipkin

died. Although he claimed at trial that he was afraid of the victim, defendant

acknowledged that the victim never threatened him that night, and he never saw the

victim with a weapon.

       In rebuttal, the state presented the testimony of the two (2) homicide

detectives who questioned defendant concerning this offense. Both detectives

testified that defendant never mentioned that the victim appeared to be reaching for

a weapon when defendant shot him. The defendant’s transcribed statement

corroborates their testimony.

       The jury found defendant guilty of premeditated first degree murder.

Defendant now brings this appeal.



                         SUFFICIENCY OF THE EVIDENCE



       In his sole issue on appeal, defendant challenges the sufficiency of the

convicting evidence. Specifically, defendant contends that the state failed to prove

premeditation beyond a reasonable doubt, in light of the evidence that he was

intoxicated at the time of the offense. He also argues that the jury wrongly rejected

his claim of self-defense. Therefore, he alleges that the evidence is insufficient for

a rational trier of fact to find him guilty beyond a reasonable doubt.

                              A. Standard of Review

       When an accused challenges the sufficiency of the evidence, this Court must

review the record to determine if the evidence adduced during the trial was sufficient



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"to support the findings by the trier of fact of guilt beyond a reasonable doubt."

Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt predicated upon

direct evidence, circumstantial evidence or a combination of direct and

circumstantial evidence. State v. Brewer, 932 S.W.2d 1,19 (Tenn. Crim. App. 1996).

       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).

Nor may this Court substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859

(1956). To the contrary, this Court is required to afford the state the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914

S.W.2d 926, 932 (Tenn. Crim. App. 1995).

       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 insufficient to support the verdict returned by the trier

of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973).

                                   B. Premeditation

       The law is well-established in Tennessee that all homicides are presumed

to be murder in the second degree. State v. West, 844 S.W.2d 144, 147 (Tenn.

1992); State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992). The state bears the

burden to prove premeditation in order to elevate the offense to murder in the first

degree. Id.

       At the time the offense was committed, first degree murder was defined as

the “premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-

202(a)(1) (Supp. 1995).2 A premeditated act is one “done after the exercise of


       2
         As a result of the 1995 amendment to Tenn. Code Ann. § 39-13-202, “deliberate”
is no longer a required element of first degree murder. See 1995 Public Acts, Chapter 460.
Since the instant offense was committed after July 1, 1995, “deliberate” was not a required
element of first degree murder.

       Nevertheless, the indictment included the word “deliberately,” and the trial court
charged the jury that this was an element of the offense. Regardless, the proof established

                                            5
reflection and judgment.” Tenn. Code Ann. § 39-13-201(d) (Supp. 1995).

       The element of premeditation may be established by the circumstances

surrounding the offense. State v. Bordis, 905 S.W.2d 214, 221 (Tenn. Crim. App.

1995); State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). Indeed, in State

v. Brown, supra, our Supreme Court recognized:

       there may be legitimate first-degree murder cases in which there is no
       direct evidence of the perpetrator's state of mind. Since that state of
       mind is crucial to the establishment of the elements of the offense, the
       cases have long recognized that the necessary elements of
       first-degree murder may be shown by circumstantial evidence.
       Relevant circumstances recognized by other courts around the
       country have included the fact “that a deadly weapon was used upon
       an unarmed victim; that the homicidal act was part of a conspiracy to
       kill persons of a particular class; that the killing was particularly cruel;
       that weapons with which to commit the homicide were procured; that
       the defendant made declarations of his intent to kill the victim; or that
       preparations were made before the homicide for concealment of the
       crime, as by the digging of a grave.”

836 S.W.2d at 541-42 (quoting C. Torcia, Wharton's Criminal Law § 140 (14th ed.

1979)(emphasis added).

       In the present case, defendant made prior repeated threats to kill the victim.

When he saw the victim on the night of November 10, defendant had a weapon in

his possession. Although the victim was unarmed and had not threatened the

defendant that night, defendant shot the victim without provocation. The evidence

was sufficient for a jury to find that defendant killed the victim with premeditation.

                                     C. Intoxication

       We are unpersuaded by defendant’s argument that his intoxication prevented

him from possessing the requisite culpable mental state. Voluntary intoxication is

not a defense to a prosecution, but evidence of intoxication is admissible “if it is

relevant to negate a culpable mental state.” Tenn. Code Ann. § 39-11-503(a); State

v. Williamson, 919 S.W.2d 69, 79 (Tenn. Crim. App. 1995). Whether a defendant

is too intoxicated to form the requisite mental state is a question for the jury to

determine as the sole trier of fact. State v. Howard, 926 S.W.2d 579, 584 (Tenn.

Crim. App. 1996); State v. Brooks, 909 S.W.2d 854, 859 (Tenn. Crim. App. 1995).

       Defendant testified that he drank an excessive amount of alcoholic



this element just as it did premeditation.

                                             6
beverages on the night of the incident. However, he also stated that when he drank

heavily, he could not “function.” Coleman, Conley and Peete all testified that they

saw no indication that defendant was intoxicated. Defendant’s speech was not

slurred, his eyes were not red, and he was not stumbling as he ran from the lounge.

The jury was properly charged as to intoxication. The jury was well within their

prerogative in finding that the defendant’s “intoxication” did not negate his culpable

mental state. State v. Howard, 926 S.W.2d at 584.

       This issue is without merit.

                                   D. Self-Defense

       Defendant also argues that the jury unreasonably rejected his claim of self-

defense. He claims that he was fearful of the victim. When he saw the victim on

November 10, defendant stated he felt threatened by Pipkin’s presence at the

lounge because the victim was giving him a “hard look.” He contends that when he

began to leave the club, the victim made a move as if to reach for a weapon, and

defendant shot him “out of fear.” The state’s proof contradicted this contention.

Furthermore, there was testimony that defendant had previously threatened to kill

the victim. Defendant acknowledged that he never saw the victim with a weapon,

and the victim did not threaten him on the night of the incident.

       Whether the defendant acted in self-defense is a factual determination to be

made by the jury. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997);

State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). The jury was properly

charged as to self-defense. The jury could have reasonably concluded that the

defendant was not justified in shooting the victim in self-defense. This Court is not

at liberty to disturb the jury’s finding in light of the evidence.

       This issue is without merit.



                                    CONCLUSION



       The evidence was sufficient for a rational trier of fact to find that defendant

was guilty of premeditated first degree murder beyond a reasonable doubt.



                                            7
Accordingly, the judgment of the trial court is affirmed.




                                                 JOE G. RILEY, JUDGE



CONCUR:




CURWOOD WITT, JUDGE




ROBERT W. WEDEMEYER, SPECIAL JUDGE




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