             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE             FILED
                                AUGUST SESSION, 1999 September 22, 1999

                                                          Cecil Crowson, Jr.
                                                         Appellate Court Clerk
STATE OF TENNESSEE,                *
                                   *     No. 01C01-9811-CR-00451
      Appellee,                    *
                                   *     DAVIDSON COUNTY
vs.                                *
                                   *     Hon. Cheryl Blackburn, Judge
CLARENCE DAVIS,             *
                                   *     (Premeditated First Degree Murder)
      Appellant.                   *



For the Appellant:                       For the Appellee:

Jeffrey A. DeVasher                      Paul G. Summers
Assistant Public Defender                Attorney General and Reporter
1202 Stahlman Building
Nashville, TN 37201                      Georgia Blythe Felner
                                         Assistant Attorney General
(ON APPEAL)                              Criminal Justice Division
                                         425 Fifth Avenue North
                                         2d Floor, Cordell Hull Building
Ralph Newman                             Nashville, TN 37243-0493
Assistant Public Defender
1202 Stahlman Building
Nashville, TN 37201                      Victor S. Johnson III
                                         District Attorney General
(AT TRIAL)
                                         Dan Hamm
                                         Asst. District Attorney General
Karl Dean                                Washington Sq., Suite 500
District Public Defender                 222-2nd Avenue, N.
                                         Nashville, TN 37201



OPINION FILED:

REVERSED; CONVICTION MODIFIED TO SECOND DEGREE MURDER;
REMANDED FOR SENTENCING



David G. Hayes, Judge
                                       OPINION



       The appellant, Clarence Davis, was convicted of the premeditated first

degree murder of Benjamin Kirk in the Davidson County Criminal Court and was

sentenced to life imprisonment. In this appeal, the appellant challenges the

sufficiency of the evidence supporting his first degree murder conviction, specifically

he argues that the proof failed to establish beyond a reasonable doubt the requisite

element of premeditation.



       After a review of the evidence presented at trial, we conclude that the proof is

insufficient to support a conviction for premeditated first degree murder.

Accordingly, we vacate the judgment of conviction and sentence entered by the trial

court. However, we find evidence sufficient to support a conviction of second

degree murder. This case is remanded to the trial court for resentencing.




                                   BACKGROUND

       In May of 1997, the appellant and his wife lived with the appellant’s mother-

in-law, Corrine Bell, in Nashville. The backyard of the Bell residence joined the

backyard of Benjamin Kirk. No fences or other barriers separated the yards. On

Memorial Day afternoon, May 26, the appellant and Ben Kirk visited with one

another while relaxing in their backyards. During a portion of the afternoon, the

appellant was preparing to grill for members of his wife’s family that were arriving at

the Bell residence. After 5 p.m., the appellant and Kirk were joined by Kirk’s friend

James Bass. Both Bass and Kirk were professors at Tennessee State University.



       Over the next “two and a half to three hour period of time” the appellant

traveled “back and forth” between his yard and Kirk’s yard. During this period, Kirk,

Bass, and the appellant routinely engaged in conversation and the drinking of Kirk’s


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Crown Royal whiskey. The appellant’s nieces who had arrived earlier for the

barbeque ventured into Kirk’s backyard to play with the appellant’s Rottweiler dog

that was running loose in Kirk’s yard. One of the nieces, approximately four years

old, approached the three men at the table. Kirk placed the child on his knee while

preparing her a hotdog. Bass observed nothing inappropriate about Kirk’s behavior

with the child.



       Thereafter, Kirk invited his wife to join the men outside. Kirk and the

appellant continued to drink Crown Royal. Abruptly, the appellant stood and began

dancing to the music with a gun in his hand “swinging it from side to side.” After a

few minutes, the appellant stopped dancing and placed the gun inside the

waistband of his pants. Bass testified that he witnessed no argument or hostility

between Kirk and the appellant. Feeling uncomfortable, however, in his present

surroundings, Bass left the Kirk’s residence around 8:40 p.m.



       Brenda Kirk, the wife of the victim, testified that she remained inside for the

majority of the time the three men were outside. However, that evening, Mrs. Kirk

observed the appellant dancing in front of Mr. Bass but she did not notice a gun in

the appellant’s hand. Finding his behavior odd, she returned indoors and went to

bed around 9 p.m. Sometime after 11 p.m., her neighbor, Ms. Bell, telephoned to

inform her that something had happened to her husband. Mrs. Kirk, having

awakened her daughter, ran downstairs and found her husband lying on the patio.

Soon thereafter, the paramedics and the police arrived to find the victim deceased.



       Detective Clifford Mann with Metro Police arrived at the crime scene between

11:30 p.m. and midnight. He assisted with the interviews of Ms. Bell and Mrs. Kirk.

The crime scene revealed three spent .380 shell casings. No one witnessed the

shooting, nor was any weapon ever discovered. After the shooting, the appellant

unchained his dog, told his wife and mother-in-law what he had done, and walked


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six miles into downtown Nashville. Several days later, on June 3, 1997, the

appellant was taken into custody. Following the appellant’s waiver of his

constitutional rights, he provided the police with a detailed statement admitting his

shooting of the victim. The appellant’s recorded statement, which was a crucial part

of the State’s proof, was introduced into evidence at trial. Excerpts of the statement

relevant to the issue of premeditation are as follows:

       [Kirk] had been knowing me for eight years and it ain’t like I’m no
       perfect stranger to him. . . [W]e were best buddies.
       ...
       So we was over there. . . and then he grabbed my little nieces, you
       know, he was cuddling them, you know, and I was sitting there
       watching him and then Coach Bass was just smiling at him as he was
       fondling them. . . And then I told them to go on back over there on their
       side of the yard and do what they gonna do, you know, play on over
       there . . . Kirk persuaded me and the Coach and kids to come on back
       over there again. . . . And he sat (name inaudible) on his knee first and
       then he started fondling her . . . I sent them on back over there and we
       just kept on listening to music and drinking and things. Then . . .
       everybody left. . . and me and him [Kirk] and Coach Bass was just
       sitting there and I got to talking to Kirk about, you know, what he had
       been doing. . . . Coach Bass. . .[left] at that particular time.
       ...
       I figured I was there you know and it was my responsibility . . . to do
       something about it. . . . I didn’t have no intention of doing nothing
       physically to him, I just wanted . . . [to] communicate with him. Let him
       know how I feel so he can correct himself.
       ...
       He got up - he stand up and I stand up - you know. . . we got in an
       heated argument. He told me, what you talking about nigger. So he
       stood up and I stood up you know and then that’s when Bass walked
       toward the door talking to his [Kirk’s] wife. . . . He pushed me cause
       I’m trying to relate to him you know and he get hostile with me you
       know. . . I was trying to communicate with him. You know - I was
       trying to tell him what he was doing - trying to make him see what he
       was doing.
       ...
       I keep my weapon on me. . . .
       Q: (Detective) And you had it on your side- while you was barbequing
       - when he asked you to come over there?
       A: (Defendant) Yes,. . . I had come from the other side of town - on
       fortieth - and I just you know had it and hadn’t put it away.
       ...
       Q: (Detective) Now Clarence, why didn’t you, when you saw it was
       getting out of hand, and he had done something to offend you, why
       didn’t you leave and go to your house and call the police and report
       him?
       A: (Defendant) I don’t know. I just wasn’t thinking.


       Dr. Bruce Levy, the medical examiner for Davidson County, testified that the

victim exhibited two gunshot wounds, one to the right side of his face fracturing the

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bones of the skull and the other to his abdomen piercing his aorta, intestines, and

backbone. The doctor testified that both wounds were potentially fatal. He stated

that the gunshot wound to the abdomen was fired in contact range, i.e., where the

gun is in actual contact with the body when fired. The doctor determined the cause

of death to be hemorrhaging from the gunshot wound to the abdomen. The

toxicology report revealed that the victim’s blood/alcohol content was .13 grams.

From this report, the doctor opined that the victim had consumed about a dozen

“one-and-a-half ounce” shots of whiskey.



       Following this testimony, the State rested their case and the defense

presented no proof. The jury returned a verdict of first degree premeditated murder.



                             Sufficiency of the Evidence



       The appellant contends the proof is insufficient to support a verdict of first

degree murder. Specifically, he asserts that there is no evidence of premeditation.

He argues that, at best, the evidence supports second degree murder.



       A jury conviction removes the presumption of innocence with which a

defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a

convicted defendant has the burden of demonstrating that the evidence is

insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). It is the appellate

court’s duty to affirm the conviction if the evidence viewed under these standards

was sufficient for any rational trier of fact to have found the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99

S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert.

denied, 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App. P. 13(e). On appeal,

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

or reasonable inferences which may be drawn therefrom. State v. Harris, 839


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S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368 (1993).

         Once a homicide is established it is presumed to be second degree murder.

State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992). The State, then, has the

burden of proving the element of premeditation to elevate the offense to first degree

murder. Id. Premeditation necessitates “the exercise of reflection and judgment,”

requiring a “previously formed design or intent to kill.”1 State v. West, 844 S.W.2d

144, 147 (Tenn. 1992).



         The element of premeditation is a question for the jury and may be inferred

from the circumstances surrounding the killing. State v. Gentry, 881 S.W.2d 1, 3

(Tenn. Crim. App. 1993), perm. to appeal denied, (Tenn. 1994). Because the trier

of fact cannot speculate as to what was in the killer’s mind, the existence of facts of

premeditation must be determined from the appellant’s conduct in light of the

surrounding circumstances. State v. Johnny Wright, No. 01C01-9503-CC-00093

(Tenn. Crim. App. at Nashville, Jan. 5, 1996). Although there is no strict standard

governing what constitutes proof of premeditation, several relevant circumstances

are helpful, including: the use of a deadly weapon upon an unarmed victim; the fact

that the killing was particularly cruel; declaration by the defendant of his intent to kill;

and the making of preparations before the killing for the purpose of concealing the

crime. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997), cert. denied, -- U.S. --,

118 S.Ct. 1536 (1998) (citing Brown, 836 S.W.2d at 541-42). Additional factors

from which a jury may infer premeditation include planning activities by the appellant

prior to the killing, the appellant’s prior relationship with the victim, and the nature of

the killing. Gentry, 881 S.W.2d at 4-5 (citation omitted).



         Taken in the light most favorable to the State, the proof established that the


         1
           "’Prem editation’ m eans th at the intent to kill mus t have be en form ed prior to th e act itself.
It is not nece ssary that th e perso n to kill pre-ex ist in the m ind of the a ccuse d for any de finite
perio d of tim e. Th e m enta l state of the acc use d at th e tim e the acc use d alleg edly de cide d to k ill
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)
(1997).

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appellant and the victim were friends for nearly eight years and had been neighbors

for a month. On the day of the homicide, at the victim’s invitation, the appellant

joined him and Bass for drinks and continued visiting with them throughout the

evening. Bass confirmed that both the victim and the appellant were drinking

whiskey throughout the evening as confirmed by the victim’s toxicology report. Their

relationship was amicable without any previous history of animosity. Moreover, all

conversations that evening, as testified to by Bass, were amicable as well. Indeed,

the proof shows that, on this evening, the appellant and the victim’s relationship

remained harmonious. There existed no indication of any hostility until the

accusation by the appellant toward the victim erupted into an argument between the

two. After confronting the victim with the accusation, the victim became hostile and

shoved the appellant. Then, the appellant pulled the gun on the victim and

admittedly shot the victim twice at close range. The proof does not support the

proposition that the appellant obtained the weapon to use against the victim.

Rather, the only proof as to this issue indicates that the appellant always carried a

weapon.



       After careful consideration of all the facts and circumstances surrounding this

homicide, we are unable to conclude that the element of premeditation was

established. Indeed, the appellant’s confrontation with the victim regarding the

alleged sexual abuse and the subsequent altercation which resulted in the shooting

is not indicative of the “exercise of reflection and judgment.” Moreover, although the

appellant admitted that it was his “responsibility . . . to do something about [the

fondling]” of his nieces, the record does not support proof beyond a reasonable

doubt of homicidal intent at this point. Indeed, the appellant’s statement at this

stage manifested the opposite, i.e., “I didn’t have no intention of doing nothing

physical to him.” As evidence of premeditation, the State contends that the

evidence is sufficient based upon the use of the deadly weapon upon an unarmed

victim and the two shots that hit the victim. Although we agree that this homicide


                                          7
was committed with a deadly weapon against an unarmed victim, that alone will not

support premeditation. Otherwise, all homicides involving a deadly weapon would

constitute first degree murder. See State v. Tune, 872 S.W.2d 922, 925 (Tenn.

Crim. App. 1993). Moreover, we cannot conclude that the two shots constitute

evidence of premeditation because “[r]epeated blows can be delivered in the heat of

passion, with no design or reflection.” Brown, 836 S.W.2d at 542.



       Next, the State contends that the victim had sufficient time to contemplate his

actions in order to remove the gun from his waist area and aim it at the victim. The

State argues that because the appellant fired one shot at contact range into the

abdomen and then another at the victim’s head, that firing at different parts of the

victim’s body suggests time to reflect upon his actions constituting premeditation.



       Again, repeated blows do not constitute evidence of premeditation regardless

of the different parts of the body where the shots were fired. See e.g., Brown, 836

S.W.2d at 542. While we acknowledge that only a moment of time is required to

formulate premeditation, Tenn. Code Ann. § 39-13-202(d) requires that the time

must be “free from excitement and passion.” The evidence shows that following the

accusation and argument, the victim shoved the appellant evincing passion which

resulted in the victim’s shooting and death. In sum, the absence of planning activity,

the absence of hostility between the two, and the circumstances surrounding the

manner of the killing, all militate against proof of premeditation or that the appellant

killed according to a preconceived design. Absent the element of premeditation, the

appellant’s conviction for first degree murder cannot stand.



       Notwithstanding this conclusion, again, a homicide is presumed to be second

degree murder. Brown, 836 S.W.2d at 543. Second degree murder is a knowing

killing of another. Tenn. Code Ann. § 39-13-210(a)(1) (1997). Under the facts of

this case, we find that the proof establishes that the appellant acted “knowingly” with


                                          8
an awareness that the discharge of a gun at close range to the victim’s head and at

contact range to the abdomen was reasonably certain to cause death. See Tenn.

Code Ann. § 39-11-106 (20) (1997). We conclude that there is evidence to support

“knowing” conduct, and, therefore, a conviction for second degree murder.



      For the reasons set forth above, we reverse the appellant’s conviction for

premeditated murder and vacate the accompanying sentence. This cause is

remanded to the trial court for entry of judgment of conviction in accordance with

this opinion and for re-sentencing consistent with the principles of sentencing.




                                  ____________________________________
                                  DAVID G. HAYES, Judge



CONCUR:



___________________________________
JOE G. RILEY, Judge



___________________________________
L. T. LAFFERTY, Senior Judge




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