        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        MARCH SESSION , 1998                FILED
                                                        May 5, 1998
STATE OF TENNESSEE,        )    C.C.A. NO. 02C01-9707-CR-00279
                           )                         Cecil Crowson, Jr.
      Appellee,            )                                Appellate C ourt Clerk
                           )
                           )    SHELBY COUNTY
VS.                        )
                           )    HON. CAROLYN WADE BLACKETT
DARRELL BRADDOCK,          )    JUDGE
                           )
      Appe llant.          )    (Direct Appeal - First Degree Felony
                           )    Murder)




FOR THE APPELLANT:              FOR THE APPELLEE:

JAMES BALL                      JOHN KNOX WALKUP
217 Exchange                    Attorney General and Reporter
Memphis, TN 38105
                                MARVIN E. CLEMENTS, JR.
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243-0493

                                WILLIAM L. GIBBONS
                                District Attorney General

                                PAUL GOODMAN
                                JANET SHIPMAN
                                Assistant District Attorn eys
                                201 Poplar Avenue
                                Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION

       On Septem ber 12, 1 996, a S helby C ounty jury fo und Ap pellant, Darre ll E.

Braddock, guilty of first degree felony m urder , crimin al attem pt: to wit e spec ially

aggravated robbery, criminal a ttempt: to wit murder in the first degree, and two

counts of aggravated assault. Appellant appeals from his convictions, raising two

issues:



       1) whether the evidence pre sented at trial was leg ally sufficient to support
the jury’s verdict; and
       2) wheth er the tr ial cou rt erred in allowing the State, beca use o f the victim ’s
family’s feelings, to withdraw its offer of a plea bargain.


       After a review of the record, the judgment of the trial court is affirmed.



                                         FACTS

       On January 12, 1994, at approximately 7:12 am, three armed masked men

entered Dan’s Big Star Grocery Store at 3237 Winchester, Memphis, Tennessee.

At the time the men entered, Robby Allen, Jr., Felicia Bailey, Janice Cox, A ngela

Adams, Malcolm Clark, and Johnny Russell, along with other employees of the

store, were inside the store. When Robby Allen, who was working in the store’s

office, saw a b lack ma le run acro ss the sto re with a gu n drawn , he reached for

his own gun. Before Mr. Allen could draw his gun, Michael Irvin jumped over the

partition between the office and the rest of the store and landed on Mr. Alle n’s

shoulder. Irvin was armed. Mr. A llen and Mr. Irvin struggle d for control of Mr.

Irvin’s weapon, in the p rocess the w eapon fired into the air.




                                            -2-
       W hile Mr. Alle n and Mr. Irvin struggled, Appellant had run to cash register

number two where Felicia Bailey, a store employee, was standing. Appellant

pointed his gun at Ms. Bailey an d ordere d her to get down on the floor. Ms. Bailey

complied. Appellant then turned and pointed the gun at Malcolm Clark, who also

got down on the floor. Mr. Clark identified exhibit 15, a .380 caliber automati c

pistol taken from Appellant’s aunt’s home, as a weapon resembling the gun which

Appe llant pointe d in his face .



       During the commotion, several shots were fired. One shot came from the

store floor. Another cam e from the gu n over which M r. Allen and Mr. Irvine

wrestled. In the strug gle over th e gun, M r. Irvin fell and Mr. Allen fell on top of

him. Mr. Allen reached for a pair of handcuffs that were in the office. As he was

doing so, a gun was extended over the wall into the office and fired into the back

of Mr. Allen’s neck, causing him to lose consciousness.



       Once the commotion ceased, Ms. Cox jumped over the back wall of the

office and ran to a phone located in the rear of the store and called 911. Ms.

Adams also called 911 and pulled the store’s alarm.



       Mr. Clark crawled along the floor toward the office. He sa w Joh nny R usse ll

lying on the floor with a large amount of blood on the floor aroun d him. Mr. Clark

retrieved Mr. Russell’s .357 Smith and Wesson pistol from the floor in front of Mr.

Russ ell’s body. Mr. Clark then climbed over the wall into the office and

handcuffed Mr. Irvin and also confiscated Mr. Irvin’s weapon, a .25 caliber

autom atic pistol. Mr. Clark picked up Mr. Alle n’s .380 caliber Bro wning pistol. Mr.




                                         -3-
Allen recovered consciousness and gave the store keys to Mr. Clark, who locked

the doors to the store.



      Mr. Russell died as a result of a gunshot wound to his back. No bullet or

bullet fragments were found in his body. Mr. Allen was hospitalized for ten days,

recovering from the wound to his neck. A bullet was removed from his body. Mr.

Irvin died as a result of gu nshot wou nds from a .38 or a .357 ca liber revolver.



      Appellant made a statement to Sergeant Tim othy C ook, o f the Me mph is

Police Depa rtment, w hich wa s introduc ed at trial. In the statement, Appellant

confessed to being involved in the attempted robbery of Da n’s Big Star G rocery.

Appellant said he used a black .380 pistol (introduced at trial as exhibit 15) which

belonged to his aun t. Appellan t also state d that Ca rlos Rice was the third

perpetrator in the robbery, and that he used a long-barreled revolver. Appellant

stated that he took th e revo lver from Mr. Ric e and threw it into a field. A Colt .38

revolver was loca ted by the police in the field indicate d by Ap pellant and was

introduced at trial as exhibit 23. Ap pellan t further stated that Mr . Rice to ld him

that Mr. Rice had shot the s tore m anag er in the back (referrin g to Mr . Russ ell)

because otherwise the manager would have shot him.



      At trial Mr. Rice testified that he ha d plead guilty to murder in the

perpetration of a robbery and related charges arising out of the attempted

robbery of Dan’s Big Star. H e ackn owledg ed that he is currently s erving a life

sentence for those c rimes, b ut stated th at he is atte mpting to obtain p ost-

conviction relief from his plea. Mr. Rice testified that he did not have a gun during

the attempted robbery, and denied that he shot Mr. Russell. He said that he

                                          -4-
recognized the .380 automatic (exhibit 15) as Appellant’s aunt’s gun, but said that

Appellant used the .38 revolver (exhibit 23) during the robbery. He further testified

that Michael Irvin planned the robbery. He stated that the plan consisted of M r.

Irvin taking ca re of the pe ople in the office, he w as to be p ositioned at register

one and App ellant was to take re gister two. Mr. Rice testified that he did not

shoot Mr. Allen a nd did not see Appellant sho ot him either.



       The State also presented evidence at trial that Appellant’s palm print was

on the car used to con vey the perpetra tors to and from Dan’s Big S tar. A Mr.

Steve Scott of the Tennessee Bureau of Investigation testified that he tested the

Colt. 38, the .25 caliber, the Browning .380 automatic, and the Smith and

Wesson .357 Magnum, and of those guns , the bullet which wa s taken from Mr.

Allen’s body could only have come from the .38 revolve r. He wa s unab le to state

conc lusively that the bullet did co me from that gun, b ut ruled ou t the poss ibility

that it came from one of the other guns found at the scene.




                      I. SUFFICIENCY OF THE EVIDENCE

       Appellant conte nds th at the e videnc e pres ented at trial wa s not le gally

sufficient to support the conviction of criminal attempt: to wit murder in the first

degree. When an appellant challenges the sufficiency of the evidence, this Co urt

is obliged to review that ch alleng e acc ording to certa in well-settled principles . A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and re solves all conf licts in the testim ony in favor of the

State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a

                                          -5-
presumption of innocence, a jury verdict removes this presumption and replaces

it with one of guilt. State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the convicting evidenc e. Id. On ap peal, “the [S ]tate is entitled to

the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that m ay be drawn therefrom.” Id. (citing State v. Cabbage,

571 S.W.2d 832, 835 (T enn. 1 978)) . W here th e suffic iency o f the evid ence is

contested on appe al, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Harris , 839 S.W .2d at 75; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

conducting our evalua tion of th e con victing e videnc e, this C ourt is precluded from

reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 1996 ); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those

drawn by the tr ier of fact from circum stantial evidence.” Id. at 779. Finally, the

Tennessee Rules of App ellate P roced ure, R ule 13(e) provides, “findings of guilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact beyond a

reasonab le doubt.” See also State v. Mathews, 805 S.W.2d at 780.



       At trial, the State presented the tes timon y of Ca rlos R ice, Ap pellan t’s

cous in and partner in this crime. Mr. Rice testified that he did not carry a gun on

the day of the attempted robbery, and that he did not shoot anyone. He also

stated that Appellant us ed a .38 caliber re volver during the rob bery. Expert




                                          -6-
ballistics testim ony revealed that a .38 ca liber bullet was recove red from M r.

Allen’s body.



      The offense of first-degree murder, at the time of this crime, required a

showing of an inte ntiona l, premeditated and deliberate killing. Tenn. Code Ann.

§ 39-13-202 (1991). A premeditated act is “one done after the exercise of

reflection and judgm ent.” Tenn. C ode Ann . § 39-13-201 (b)(2) (1991).

Premeditation can be formed in an insta nt. State v. Brown, 836 S.W .2d 539

(Tenn. 1992). A deliberate act is “one performed with a cool purpose.” Tenn.

Code Ann. § 39-13-201(b)(1)(1991). Deliberation is present when the

circumstances suggest        that the    actor   contemplated     the   manner    and

consequences of his actions. State v. West, 844 S.W.2d 144, 147 (Ten n. 1992).

On appe llate review, questions of fact, contradictions in testimony, and the

credibility of witness es are left for the jury to resolve. Byrge v. S tate, 575 S.W.2d

292, 295 (Tenn. Crim. App. 1978). There is ample evidence to support the

conclu sion that appellant shot Mr. Allen as Allen got the better of one of

Appe llant’s compa triots during the robbery.       Clearly, such a shooting was

deliberate and pre medita ted. This issue is with out me rit.




                II. STATE ’S REF USAL TO O FFER PLEA B ARGAIN

      Appellant also complains that the family of Johnny Russell blocked an offer

which the State had previously extended to Appellant regarding a plea

agreement. It is well-settled that even in the presence of an agreement, an

Appellant does not have an absolute right to have a plea bargain accepted.

Santo bello v. New York , 404 U.S. 257, 92 S.Ct. 495, 498, 30 L.Ed .2d 427 (197 1).

                                          -7-
There is also no obligation on the State to offer any benefit or advantage to a

defendant by reason of his pleading guilty, and aside from any agreement that

may exist between a defendant and the State in reference to the entry of the

guilty plea, the u ltimate de cision to accept or reject any such plea is to be made

by the trial court. William s v. State, 491 S.W.2d 862, 867 (Tenn. Crim. App.

1972). It is also well-settled th at any p lea ba rgain o ffer from the Sta te is

revoc able until it is accep ted by the trial court. See Mabry v. Johnson, 467 U.S.

504, 104 S.Ct. 2543, 2548, 81 L.Ed.2d 437 (1984). The ultimate decision whether

to accep t or reject a p articular ple a barga in agree ment re sts entirely with the trial

court. A prereq uisite to the e ffectivenes s and e nforcea bility of a plea agreement

is its approva l by the cou rt. State v. Todd, 654 S.W .2d 379, 382 (Tenn.19 83). In

the matte r sub ju dice, it a ppea rs that th e State and A ppella nt had enga ged in

plea negotiations, but had not formally entered a plea. Until such time as the trial

court acce pts the plea a greem ent, the State is free to rescind any offer it makes.



       While withdrawing a plea bargain offer prior to its acceptance by the trial

court may be unacceptable if the withdrawal is premised on som e invidio us ba sis

such as race, gen der or religion, victim impact is not a prohibited basis for

withdraw ing an un approve d plea ba rgain offer. T his issue is without m erit.



       According ly, for the aforemen tioned reason s, the judgme nt of the trial court

is affirmed.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE




                                            -8-
CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
GARY R. WADE, JUDGE




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