            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                        NOVEMBER 1999 SESSION

                   STATE OF TENNESSEE v. LETIVIAS PRINCE

                 Direct Appeal from the Circuit Court for Williamson County
                          No. I-497-141 Donald P. Harris, Judge


                    No. M1998-00005-CCA-R3-CD - Filed August 10, 2000


The defendant, Letivias Prince, was convicted of first degree murder and was sentenced to life
imprisonment. On appeal, the defendant argues that the jury pool did not adequately represent the
racial makeup of the community; that pre-trial publicity deprived him of a fair trial; that the trial
court erred by permitting eight peremptory challenges in jury selection; that the trial court erred by
allowing the state to either call a rebuttal witness or receive a missing witness instruction; that the
trial court erred by instructing the jury regarding the order of consideration of offenses; and that the
evidence was insufficient to sustain his conviction. The judgment of the trial court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which JOHN H. PEAY and NORMA MCGEE
OGLE , JJ., joined.

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Letivias Prince.

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General,
Joseph Baugh and John Barringer, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                              OPINION

        The defendant, Letivias Prince, was convicted of first degree murder in the shooting death
of Richard Clinton Fly. Tenn. Code Ann. § 39-13-202. The trial court sentenced the defendant to
life imprisonment. In this appeal of right, the defendant presents the following issues
for review:

                (1) whether the defendant was deprived of a fair trial because the jury
                did not represent a fair cross-section of the community due to the
                systematic exclusion of blacks from the jury pool;

                (2) whether pretrial publicity surrounding the defendant's trial
                deprived him of a fair trial;
               (3) whether the trial court erred by allowing the defendant
               eight peremptory challenges in the jury selection process;

               (4) whether the trial court erred by allowing the state to choose
               between a missing witness instruction or calling a rebuttal witness;

               (5) whether the trial court erred by instructing the jury regarding
               the order of consideration of offenses; and

               (6) whether the evidence of premeditation was sufficient to support
               his conviction.

       Because we find no reversible error, the judgment of the trial court is affirmed.

        At approximately 10:30 P.M. on March 8, 1997, Joel Dickerson, directed by the victim,
Ricky Fly, drove to an area of Franklin to purchase crack cocaine. After circling the block several
times, they stopped at a street corner to ask a "large black man" for a "twenty." When the man
responded that there was "nothing going on," they drove away. As they approached the intersection
of Glass and Eleventh, Dickerson heard between four and six successive gunshots which seemed to
be coming from some bushes behind his truck. Fly was struck in the back of the head by a bullet
which came through the rear window. Dickerson drove to a nearby gas station and called 911.
Neither Dickerson nor the victim were armed. Dickerson did have a small pocket knife stored in his
glove compartment.

        Police immediately identified the defendant as a suspect. Several hours later, he was found
hiding in a vehicle. The defendant initially denied any involvement in the shooting, but later took
officers to the crime scene and admitted that he had fired at the truck.

        When interviewed by the police, the defendant stated that two white men in a truck had
driven through the area asking for crack cocaine. The defendant stated that he and his companions
had informed the men that they did not sell drugs. He claimed that the two men threatened to shoot
them and then drove away. He contended that the two men came around the block again and
appeared to be throwing bottles from the truck. The defendant told police that he shot at the truck
in order to frighten the men. He claimed that after he fired the shots, he took the weapon to his home
and hid it under a mattress. The police recovered a Lorcin .380 semiautomatic pistol from the
defendant's step-grandfather at the defendant's residence.

       At the trial, Marcus Cannon, who was standing at the corner of Glass Street and Ninth
Avenue, testified that the men in the truck also asked him to sell them some drugs. He claimed that
when he informed them that he had none, they threatened to kill someone. Cannon contended that
he warned the defendant and his friends about the two men. Defense witnesses claimed that the two
men in the truck turned off the lights as if to do a "drive by shooting" on their third trip around the
block.


                                                 -2-
        Dickerson's truck contained four different bullet holes. Two bullets were imbedded in the
truck, one in the passenger door, and another in the left rear wheel well. One bullet and seven lead
bullet jackets were recovered from the scene of the shooting. The state's expert testimony
established that all three bullets and four of the seven shells had been fired from the Lorcin .380
pistol. The other three shells were very close to a match. Other than Dickerson's small pocket knife
located in the glove compartment, there were no weapons in the truck.

                                                   I

         The defendant, who is African-American, argues that he was deprived of his right to a fair
trial through the "systematic exclusion of blacks from the jury pool in Williamson County,
Tennessee." His contention is that "the lack of blacks within the jury pool almost guaranteed" his
conviction.

        The statistics contained in the record regarding Williamson County reveal that in 1997,
African-Americans made up approximately five percent of the drivers' license pool. The overall
percentage of African-Americans in the general population in 1996 was seven percent. It is the
defendant's position that a broader statistical base should have been used from which his jury was
selected. The defendant insists that the venire should have encompassed nearby Davidson County,
which is 25 percent African-American, so that he had "a fair cross-section of the community in
selecting a jury." As support of his claim, the defendant submitted the affidavit of a black juror, who
swore that the racial composition of the jury had an effect on the disposition of the case.

        Article I, Section 9 guarantees all criminal defendants a right to a jury from "the County in
which the crime shall have been committed." See State v. Upchurch, 620 S.W.2d 540, 542 (Tenn.
Crim. App. 1980) (stating that "an accused must be tried in the county in which the crimes are
alleged to have been committed."). Moreover, a criminal defendant has a constitutional right to a
jury drawn from a venire that represents a fair cross-section of the community. "[S]election of a petit
jury from a representative cross-section of the community is an essential component of the Sixth
Amendment right to a jury trial." State v. Bell, 745 S.W.2d 858, 860 (Tenn. 1988) (citing Taylor v.
Louisiana, 419 U.S. 522 (1975)). In Duren v. Missouri, 439 U.S. 357 (1979), the United States
Supreme Court listed the criteria for establishing a prima facie violation of the requirement of a fair-
cross section:

               (1) the group alleged to be excluded is a "distinctive group" within
               the community;

               (2) the representation of the group in venires from which juries are
               selected is not fair and reasonable in relation to the number of such
               persons in the community; and

               (3) this underrepresentation is due to systematic exclusion of the


                                                  -3-
               group in the jury selection process.

Id. at 364; see also State v. Buck, 670 S.W.2d 600, 610 (Tenn. 1984); Adkins v. State, 911 S.W.2d
334 (Tenn. Crim. App. 1995), app. dismissed (Tenn., Aug. 25, 1995).

       Clearly, the African-American population of Williamson County represents a distinctive
group in the community. The defendant, however, has not established that the representation of
African-Americans on the venire from which his jury was selected was unfair or unreasonable.
Likewise, there is no showing that the jury selection process in Williamson County resulted in
underrepresentation of blacks due to systematic exclusion.

        The record indicates that in 1996, seven percent of the total Williamson County population
was African-American. One year later, at the time of the defendant's trial, African- Americans made
up five percent of the drivers' license pool from which jurors were drawn in Williamson County.
In his brief, the defendant estimates that only five of the 60 to 75 potential jurors were black. Based
upon the defendant's own estimates, African-Americans on the venire ranged between 6.6 and 8.3
percent, a fair representation of the county as a whole. Notwithstanding these figures, the defendant
argues that the Williamson County trial court should have attempted to achieve a higher ratio of
black potential jurors by drawing from Davidson County, a bordering county, but one outside of "the
community," by the traditional definition. The defendant has not cited, nor has this court found, any
authority for such a proposition. In our view, the trial court's procedures did not systematically
exclude the black segment of the population and the jury venire represented a statistically appropriate
cross-section of the Williamson County community.

                                                   II

         Next, the defendant argues that pretrial publicity, including several newspaper articles which
were published in the days leading up to his trial and which included his prior criminal record,
deprived him of a fair trial. The defendant cites no legal authority for his argument. He merely
argues that it "would not have been humanly possible for the prospective jurors to have not either
read or heard about . . . the Defendant's criminal record prior to the commencement of the trial." The
defendant did not include copies of the newspaper articles in the record. Moreover, the defendant
did not move the trial court for a change of venue, which would have been the proper remedy in the
event of excessive pretrial publicity. State v. Nichols, 877 S.W.2d 722 (Tenn. 1994).

          As previously stated, Article I, section 9 of the Tennessee Constitution guarantees "the right
. . . to a speedy public trial . . . [by] an impartial jury." "The challenge for cause was designed to
exclude from the jury triers whose bias or prejudice rendered them unfit . . . ." Manning v. State, 155
Tenn. 266, 292 S.W.2d 451, 455 (1927). Rule 24(b) of the Tennessee Rules of Criminal Procedure
provides that "[i]f the trial judge, after examination of any juror, is of the opinion that grounds for
challenge for cause are present, the judge shall excuse that juror from the trial of the case." A party
may challenge a prospective juror for cause if the "prospective juror's exposure to potentially
prejudicial information makes the person unacceptable as a juror." Tenn. R. Crim. P. 24(b)(2). The


                                                  -4-
rule further provides as follows:

                Both the degree of exposure and the prospective juror's testimony as
                to his or her state of mind shall be considered in determining
                acceptability. A prospective juror who states that he or she will be
                unable to overcome preconceptions shall be subject to challenge for
                cause no matter how slight the exposure. If the prospective juror has
                seen or heard and remembers information that will be developed in
                the course of trial, or that may be inadmissible but is not so
                prejudicial as to create a substantial risk that his or her judgment will
                be affected, the prospective juror's acceptablitity shall depend on
                whether the testimony as to impartiality is believed. If the
                prospective juror admits to having formed an opinion, he or she shall
                be subject to challenge for cause unless the examination shows
                unequivocally that the prospective juror can be impartial.

Id. Juror qualification rests within the discretion of the trial court and "the trial judge's finding a
juror to be qualified will not be disturbed on review except on the clear showing of an abuse of
discretion." Burns v. State, 591 S.W.2d 780, 782 (Tenn. Crim. App. 1979).

        Although jurors may be excluded for cause if they have formed an opinion which will prevent
impartiality, "[j]urors need not be totally ignorant of the facts of the case on which they sit [and even]
the formation of an opinion on the merits will not disqualify a juror if [the juror] can lay aside [his
or her] opinion and render a verdict based on the evidence presented in court." State v. Howell, 868
S.W.2d 238, 249 (Tenn. 1993). The United States Supreme Court has made the following
observation:

                In these days of swift, widespread and diverse methods of
                communication, an important case can be expected to arouse the
                interest of the public in the vicinity, and scarcely any of those best
                qualified to serve as jurors will not have formed some impression or
                opinion as to the merits of the case. This is particularly true in
                criminal cases. To hold that the mere existence of any preconceived
                notion as to the guilt or innocence of an accused, without more, is
                sufficient to rebut the presumption of a prospective juror's
                impartiality would be to establish an impossible standard.

Irvin v. Dowd, 366 U.S. 717, 722-23 (1961). Thus, so long as a juror may set aside any previously
formed opinions and render a verdict based upon the evidence presented in court, the juror may
properly sit on the case. Id.

       Here, the trial judge allowed extensive voir dire. Further, any juror who acknowledged
having heard or read about the case was individually questioned by the judge, the prosecution, and


                                                   -5-
defense counsel. Each juror stated that he or she had not formed an opinion about the case. In light
of their assurances of impartiality, the fact that some of the jurors previously had heard or read about
the defendant does not disqualify them from participation. In our view, the trial court did not abuse
its discretion by its approval of the jury panel.

                                                    III

       Next, the defendant contends that the trial court erred by allowing only eight peremptory
challenges. The defendant asserts that the plain language of the statute entitles him to 15 peremptory
challenges. Specifically, he points to the language of the statute which states that a defendant
"charged with an offense punishable by death" is entitled to 15 peremptory challenges.

                Tenn. Code Ann. § 40-18-118 provides:

                Peremptory challenges.– Notwithstanding any other provision of
                law or rule of court to the contrary, in any case in which a defendant
                is charged with an offense punishable by death, such defendant is
                entitled to fifteen (15) peremptory challenges and the state is entitled
                to fifteen (15) peremptory challenges for each such defendant. If the
                offense charged is punishable by imprisonment for more than one (1)
                year but not by death, each defendant is entitled to eight (8)
                peremptory challenges, and the state is entitled to eight (8)
                peremptory challenges for each defendant. If the offense charged is
                punishable by imprisonment for less than one (1) year or by fine, or
                both, each side is entitled to three (3) peremptory challenges for each
                defendant.

Tenn. Code Ann. § 40-18-118 (emphasis added).

       In State v. Atkins, 681 S.W.2d 571 (Tenn. Crim. App. 1984), cert. denied, 105 S. Ct. 1395
(1985), this court concluded that where the death penalty is not to be submitted for the jury's
consideration, the defendant is entitled to only eight peremptory challenges. Because the state did
not seek the death penalty in this case, the trial court did not err by permitting the defendant only
eight peremptory challenges.

                                                    IV

         The defendant next contends that the trial court erred by allowing the state the opportunity
to either call its ballistics expert, Steve Scott, as a rebuttal witness or receive the benefit of a missing
witness jury instruction due to the failure of the defendant's ballistics expert, Robert Goodwin, to
testify.

        The evidence offered by the state established that the victim was killed by a bullet fired from


                                                    -6-
a large caliber pistol, such as a .380. A Lorcin .380 was recovered from the defendant's residence.
The state's ballistics expert testified that the bullet found in the area of the shooting and the bullets
found embedded in the truck in which the victim was riding were fired from the defendant's gun.
A defense witness, Rena Prince, testified that Marcus Cannon asked her to hold a "similar" pistol
sometime after the shooting on the night of the crime. She claimed that Cannon's pistol was not the
same as that recovered from the defendant's residence. According to Ms. Prince, she was at the
American Legion Club near the women's room when Marcus Cannon entered the club followed by
the police. She testified that as officers moved closer to Cannon, he ran to her, and handed her a gun,
saying, "Auntie, take this." She put the gun in her pocket and held it for Cannon for approximately
five minutes. Cannon then retrieved the gun and left through the back door. Ms. Prince described
the gun given to her by Cannon as being black, heavy, and having a length of approximately five
inches long. The gun given to her by Cannon was not the same gun put into evidence by the state.
It was simply described as "similar."

         Upon the close of the defendant's proof, the state sought to rebut the testimony of Rena
Prince, which it characterized as "placing another gun at the scene." Initially, the state attempted to
introduce the agreed order allowing the defendant's ballistics expert to access the state's ballistics-
related evidence. The defense objected, however, and the trial court sustained the objection.
Although the state suggested several other possible courses of action that it believed to be available
for purposes of rebutting Ms. Prince's testimony, the only one entertained by the trial court was a
missing witness jury charge. The state offered to recall its own ballistics expert, Steve Scott, to
testify that the defendant's ballistics expert had indeed tested the ballistics evidence at the TBI
facilities and that he was within the range of the court's subpoena power, thereby establishing a
foundation for the missing witness charge. When the trial court indicated that it would allow the
state to recall Scott to establish the basis for the instruction, defense counsel offered to stipulate the
anticipated testimony. The trial court read the stipulation into the record and ultimately provided
the jury with a missing witness charge.

        Rebuttal evidence, defined as that "which tends to explain or controvert evidence produced
by an adverse party," is admissible within the discretion of the trial court. Cozzolino v. State, 584
S.W.2d 765, 768 (Tenn. 1979); see State v. Yarbro, 618 S.W.2d 521, 525 (Tenn. Crim. App. 1981).
"Whether [evidence] is rebuttal [evidence] is not determined by the order in which [it is presented].
This determination is based upon the content of the evidence offered." State v. West, 825 S.W.2d
695, 698 (Tenn. Crim. App. 1992). "The rationale behind [the rule] is <[s]ince the state does not and
cannot know what evidence the defense will use until it is presented at trial, the state is given the
right of rebuttal.'" State v. Cyrus Deville Wilson, No. 01C01-9408-CR-00266 (Tenn. Crim. App.,
at Nashville, Nov. 15, 1995) (citing Johnson v. State, 469 S.W.2d 529, 530 (Tenn. Crim. App.
1971)). The scope of rebuttal testimony usually lies within the discretion of the trial court. Beasley
v. State, 539 S.W.2d 820, 824 (Tenn. Crim. App. 1976). Trial courts may properly permit the state
to introduce testimony in rebuttal which should have been introduced in their proof in chief.
Johnson, 469 S.W.2d at 530.

       The missing witness rule provides that when there is "<a reasonable assurance that it would
have been natural for a party to have called the absent witness but for some apprehension about his

                                                   -7-
[or her] testimony,' an inference may be drawn by the jury that the testimony would have been
unfavorable." State v. Francis, 669 S.W.2d 85, 89 (Tenn. 1984) (quoting Burgess v. United States,
440 F.2d 226, 237 (D.C. Cir. 1970)). This rule was established in Graves v. United States, 150 U.S.
118 (1893). While the original rule in Graves created a presumption of the unfavorability of the
testimony, the rule is now generally characterized as authorizing a permissive inference. Francis,
669 S.W.2d at 88; see also State v. Jones, 598 S.W.2d 209, 224 (Tenn. 1980). In Delk v. State, 590
S.W.2d 435, 440 (Tenn. 1979), our supreme court held that a party may comment about an absent
witness when the evidence shows as follows:

                (1) the witness had knowledge of material facts;

                (2) that a relationship exists between the witness and the party
                that would naturally incline the witness to favor the party; and

                (3) that the missing witness was available to the process of the
                trial court.

These requirements are to be "strictly construed, particularly when the rights of a criminal defendant
may be affected." Francis, 669 S.W.2d at 89.

         Rena Prince's testimony was offered by the defense to imply that Cannon might have fired
the fatal shot. The stipulation that Robert Goodwin had tested the defendant's weapon, coupled with
his failure to testify, was presented to rebut any possible inference drawn by the jurors. Because,
however, the "missing witness" was a ballistics expert, his testimony would have related to his
opinions as to the weapon used in the shooting and whether the pistol recovered from the defendant's
home was the same weapon used in the shooting. This testimony does not meet the first criteria
listed in Delk. That is, the expert witness did not have knowledge of "material facts" relative to the
shooting. Instead, he had formed opinions based upon his knowledge in the field of ballistics and
his examination of the weapons and ammunition. See Tenn. R. Evid. 703 (stating that experts in
scientific or technical fields may testify in the form of an opinion).

         Additionally, it cannot be said that an expert will always be naturally inclined to favor the
party who hires him, as required by the second Delk criteria. Although an expert may be more likely
to testify if his views are consistent with the theory of his employer, "we are not convinced that an
expert's testimony must somehow be a commodity bought and sold to reflect exactly what a party
might wish or direct." Taylor v. Kohli, 625 N.E.2d 64, 68 (Ill. Ct. App. 1993). It was, therefore,
erroneous for the trial court to provide a missing witness instruction relative to the ballistics expert.
Were we to hold otherwise, any expert witness not called upon to testify for the state or the defense
would entitle the other side to a missing witness instruction. Parties might be disinclined to hire
consulting, non-testifying experts for fear that their absence might result in a negative inference. In
our view, that is not the intention of the missing witness rule. Our research does not indicate any
other Tennessee case in which the missing witness rule was applied under similar circumstances.
An Indiana appellate court, reviewing a trial court's refusal to issue a missing witness instruction
under similar circumstances, stated the following:

                                                  -8-
                Refusing the instruction was not reversible error. The court is
                invested with discretion in determining the final instructions to be
                given to the jury. Our prior decisions have disapproved the giving of
                such "missing witness" instructions unless clearly required by the
                evidence. We find it unrealistic to impose on litigants the necessity
                of calling as witnesses every expert whom they may have consulted
                at some stage of the proceedings or suffer a missing witness
                instruction when the case goes to trial.

Bitzer v. Pradziad, 571 N.E.2d 593, 597 (Ind. Ct. App. 1991) (citations omitted).

        Furthermore, the record provides us with no information to assess the admissibility of the
"missing" ballistics expert's testimony. The only reference in the record to the defendant's ballistics
expert comes from the agreed order, wherein the state and the defense stipulated that Goodwin would
be permitted to test the weapon at the TBI laboratory. In the absence of any information about
Goodwin's education or training, this court is unable to conclude that he would have qualified as an
expert in the field of ballistics under Tenn. R. Evid. 701. It is, therefore, our conclusion that the trial
court erred by providing a missing witness instruction relating to the ballistics expert.

         Although the trial court erred by instructing the jury regarding the missing witness, the state
is entitled to a harmless error analysis. See Francis, 669 S.W.2d at 90. A reversal is required if the
error affirmatively appears to have affected the result of the trial on the merits. Tenn. R. App. P.
36(b); Tenn. R. Crim. P. 52(a). The proof of the defendant's guilt was substantial. The weapon
located at the defendant's home matched the bullets and casings recovered from the scene of the
shooting and the bullets recovered from the truck. In contrast, the testimony of Rena Prince provided
little assistance to the defense theory. It merely suggested that another gun might have been present
at the scene of the crime. There was no indication that it had been fired. Moreover, the defendant
admitted to shooting at the truck. In our assessment, the missing witness jury instruction was
harmless error.

                                                    V

        Next, the defendant contends that the trial court erred in its instruction to the jury relative to
the order of consideration of offenses. The trial court charged the jury on first degree murder, and
the lesser included offenses of second degree murder, voluntary manslaughter, reckless homicide,
and criminally negligent homicide. In conformity with Tennessee Pattern Jury Instruction Criminal
41.01, the trial court instructed the jury to first consider whether the defendant was guilty of first
degree murder before proceeding to the lesser included offense of second degree murder, and to
continue in that manner until reaching a verdict. Tennessee Pattern Jury Instruction Criminal 41.01
provides as follows:

                If you have a reasonable doubt as to the defendant's guilt of
                _________ (insert offense charged) as charged in the indictment, then

                                                   -9-
                your verdict must be not guilty as to this offense, and then you shall
                proceed to determine [his][her] guilt or innocence of the lesser
                included offense of _________ (insert lesser included offense).

The defendant now argues that the court's instructions to first consider first degree murder "gave
more weight to the charge of first degree murder, invaded the province of the jury regarding the
manner in which their deliberations were to be conducted, and effectively prevented the jury from
considering all possible convictions."

        This court has previously rejected similar arguments. In State v. Rutherford, 876 S.W.2d 118
(Tenn. Crim. App. 1993), app. denied (Tenn., Feb. 14, 1994), the defendant argued that the
sequential nature of the charge prevented the jury from determining the degree of homicide shown
by the evidence. A panel from this court concluded as follows:

                The jury does have a duty to determine the grade of the offense, but
                the "sequential" instruction was not violative of this duty under
                Tennessee law. The judge instructed the jury on all of the lesser
                offenses included in the charge of first degree murder as required by
                statute. The sequential jury instruction did not preclude the jury from
                considering the lesser charges.

Id. at 119 (citations omitted); see also State v. Robert Williams, No. 03C01-9302-CR-00050 (Tenn.
Crim. App., at Knoxville, Apr. 2, 1996). This issue, therefore, is without merit.

                                                   VI

       As his final issue, the defendant argues that the evidence was insufficient to support his
conviction for first degree murder. Specifically, he contends that the evidence did not support a
finding of premeditation.

        On appeal, the state is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836
(Tenn. 1978). The credibility of witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the evidence are matters entrusted exclusively to the jury as the trier of
fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). In a criminal case, a conviction
may be set aside only when the reviewing court finds that the "evidence is insufficient to support the
finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). A guilty
verdict, approved by the trial judge, accredits the testimony of the witnesses for the state and
resolves all conflicts in testimony in favor of the state's theory. State v. Hatchett, 560 S.W.2d 627,
630 (Tenn. 1978). A verdict against the defendant removes the presumption of innocence and raises
a presumption of guilt upon appeal. State v. Grace, 493 S.W.2d 474 (Tenn. 1973).

      First degree murder is defined as a "premeditated and intentional killing of another." Tenn.
Code Ann. § 39-13-202(a)(1). "'[P]remeditation' is an act done after the exercise of reflection and

                                                  -10-
judgment" and requires that the "intent to kill [be] formed prior to the act itself." Tenn. Code Ann.
§ 39-13-202(d). A person "acts intentionally with respect to the nature of the conduct or to a result
of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause
the result." Tenn. Code Ann. § 39-11-302(a). While the intent to kill must have been formed prior
to the act itself, "[i]t is not necessary that the purpose to kill pre-exist in the mind of the accused for
any definite period of time." Tenn. Code Ann. § 39-13-202(d). One authority provides some insight
into the nature of proof required before a jury might properly infer premeditation:

                (1) facts about how and what the defendant did prior to the actual
                killing which show he was engaged in activity directed toward the
                killing, that is, planning activity;
                (2) facts about the defendant's prior relationship and conduct with the
                victim from which motive may be inferred; and
                (3) facts about the nature of the killing from which it may be inferred
                that the manner of the killing was so particular and exacting that the
                defendant must have intentionally killed according to a preconceived
                design.

2 LaFave & Scott, Substantive Criminal Law § 7.7; see also State v. Jones, 15 S.W.3d 880, 888-89;
State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Premeditation is a question for the
jury and may be inferred from the manner and circumstances of the killing. State v. Gentry, 881
S.W.2d 1, 3 (Tenn. Crim. App. 1993).

        The evidence here established that the defendant, rather than leaving the scene, armed
himself and hid in some bushes while waiting for the truck to drive by. The defendant fired at least
seven different times from his semiautomatic weapon into a truck containing two unarmed
passengers. The shot that killed the victim entered from the rear of the truck, striking the victim in
the back of the head, thereby indicating that the truck was already past the defendant when he fired
the fatal shot. The defendant was found hiding in a car after the shooting. He admitted that he
intended to fire his weapon at the truck. The jury was given a self-defense instruction, but rejected
that theory, finding instead that the defendant had intentionally and with premeditation shot and
killed the victim. This evidence, accredited by the jury, is sufficient to prove the elements of the
crime.




                                                   -11-
Accordingly, the judgment of the trial court is affirmed.



                                              ____________________________________
                                              GARY R. WADE, PRESIDING JUDGE




                                       -12-
