            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE          FILED
                                                         April 28, 1998

STATE OF TENNESSEE,                  )                Cecil Crowson, Jr.
                                          C.C.A. NO. 03C01-9603-CR-00092
                                                       Appellate C ourt Clerk
                                     )
      Appellee                       )    KNOX CRIMINAL
                                     )
v.                                   )    HON. RICHARD BAUMGARTNER,
                                     )    JUDGE
THOMAS J. McKEE,                     )
                                     )    First Degree Murder
      Defendant/Appellant            )




FOR THE APPELLANT                         FOR THE APPELLEE

Mark E. Stephens                          Charles W. Burson
Sixth District Public Defender            Attorney General & Reporter

R. Scott Carpenter                        Robin L. Harris
Assistant Public Defender                 Assistant Attorney General
1209 Euclid Avenue                        450 James Robertson Parkway
Knoxville, TN 37921                       Nashville, TN 37243-0493




OPINION FILED



AFFIRMED

JOHN K. BYERS
SENIOR JUDGE
                                          OPINION

        The defendant was convicted of murder in the first degree and sentenced to

serve life imprisonment with the possibility of parole.

        The defendant raised the following issues on appeal:

        “I.     The evidence presented during trial was insufficient to support finding
        of guilt beyond a reasonable doubt.

        II.    The State’s closing argument was prosecutorial misconduct which
        affected the verdict to the prejudice of the appellant.

        III.      The trial court erred in its charge to the jury.

        IV.    The introduction of the skull of the deceased resulted in unfair
        prejudice and reversible error.

        V.     The testimony of Randy Bryant and Laura Baird as elicited by the
        State constituted prejudice in violation of the trial court’s order.”



                                             FACTS

        The defendant, Thomas J. McKee, and the victim, Marilyn Kaye McKee,

became husband and wife on September 21, 1990. However, they eventually

became estranged. On July 31, 1994, an officer of the Lenoir City Police

Department responded to a call at the defendant’s house. During the investigation,

the victim was placed in one patrol car and the defendant was placed in another

patrol car pursuant to arrest. As the defendant walked past the car in which the

victim was sitting, he said to her “I’ll get you for this, bitch . . . I’ll kill you.” The

defendant continued to make threats that he would get even with her and that he

would kill her.

        During her estrang ement fro m the def endant, the victim lived with Laura Baird.

In August, 1994, Baird was with the victim at the Loudon County courthouse and

overhe ard the defen dant b egging the victim to com e back to him . W hen th e victim

refus ed and began to leave , the de fenda nt yelled a t her “Yo u’ve do ne it now , bitch, I’ll

kill you.”




                                                -2-
       Acco rding to Donn ie Arde n, a fam ily friend of the Mc Kee’s , the de fenda nt’s

wife w as playin g a “m ind gam e” with h er hus band , repea tedly callin g and te lling him

that she loved him , then calling back an d telling him that she h ated him. Ard en heard

some of these messages on the defendant’s answering machine.

       As previously mentioned, after the defendant and the victim became

estranged, the victim lived with Laura Baird. Baird w ould not allow the defe ndant to

come to her home or call the victim there. Brenda Bowers, a friend of both the

defendant and the victim, assisted the two in communication with each other. The

victim would call Bowers, then Bowers would page the defendant, and then the

defendant would call Bowers and give her the phone number (usually a pay phone)

where he could be reached. Bowers would give the victim this number, and the

victim would ca ll the defendant.

       At about l0:30 a.m. on September 21, 1994, the defendant was at work when

he received a message on his beeper. He left work and went to the nearest phone,

returnin g twen ty to thirty m inutes later. He told co- worke rs that h e had ta lked to his

estranged wife on the phone, that he was going to meet with her, and that there was

a chan ce the y migh t recon cile. He picked up his c arpen ter’s too ls, put th em in his

car, and left work, sa ying that he would m eet with her even if it cost him his job.

       September 21st was the couple’s wedding anniversary. Motel records

revealed that on that day the defendant, accompanied by another person, rented and

occupied a room at the Clark Motel in north Knoxville.

       At 2:12 p.m. that day, Knox County Sheriff’s deputies were called to Brushy

Valley Road, a coun try road next to a field bordered by a ba rbed-wire fence , where

the victim was found lying dead. She had sustained multiple blows to her head and

numerous scratches that appeared to have been caused by the barbed wire.

       A witness had seen a red sporty car speeding away from the area shortly

before the body was found. There is no evidence that the killing occurred in the car

or in the motel.

       At 2:30 p.m. that afternoon, while investigators were still at the crime scene,

Arden saw and talked with the defendant at his father’s home. The defendant, who

had a beard, was shaving. The defendant said “he had fucked up, fucked up big

                                              -3-
time.” When Arden asked him to explain, the defendant said he had killed Marilyn.

When Arden asked if he was sure she was dead, the defendant said “yes, she

ought to be.” Arden testified that the defendant said his wife had called him that

morning and they had agreed to meet. The defendant also said they had gone to a

motel and made love. Later that afternoon, the defendant had asked his wife to

move back in with him and she had refused. The defendant said she told him that

she was living with another man and “that’s when it [the killing] happened.” Arden

testified that the defendant said the victim had told him she loved him as they drove

to the motel.

       The defendant had asked Arden to take the license plate off his red Camaro

and hide the car, which Arden did. But when the defendant asked Arden to provide

him with an alibi for the time of the killing, Arden refused and told him to turn himself

in. The defendant answered that he needed to talk to a lawyer.

       The defendant’s red Camaro was found where Arden had put it. An unsigned

anniversary card, which read “For My Wonderful Wife . . .,” was found inside the car,

and the defendant’s carpentry tools were found in the back seat. The victim’s car

was found at Powell Shopping Center with non-perishable groceries in the trunk

along with a cash register receipt which indicated she had purchased the groceries

at Food City at 11:48 a.m. on the day of her death.

       The day after the victim was killed, the defendant’s attorney brought him to

the Knox County Sheriff’s Office. The defendant had several scratches on his arms

that resembled the scratches on the victim’s body.

       Autopsy revealed that the victim’s death was caused by at least twelve blows

of massive force to the head and neck. In order to determine the type of instrument

used, the medical examiner decapitated the body of the victim and sent the head to

the University of Tennessee for cleaning and examination. Through this procedure,

it was determined that death was caused by a circular blunt instrument, most likely a

hammer. There were numerous fractures of the skull, a fracture on the facial area,

and one blow which fractured three vertebrae in the victim’s neck. A small metal

fragment was found in the victim’s brain. There was extensive bruising and swelling



                                           -4-
of the hands, most likely caused by the victim’s attempt to defend herself from the

blows.

         We will address the sufficiency of the evidence issue last.



                   STATE’S OPENING AND CLOSING ARGUMENTS

                     First Complaint - State’s Opening Argument

         The defendant says the State erroneously and prejudicially argued to the jury

in two aspects. First, the defendant says the District Attorney General in opening

argument to the jury attempted to anticipate that the defendant would argue the

victim invited the attack upon her. The defendant objected to the argument and the

trial court overruled the objection. We see no error.

         It is not improper for the State to say what it thinks the accused will argue to

the jury, so long as the statements are not so far removed from the evidence in the

case as to make such arguments patently improper or inflammatory.

         We conclude that the State’s argument in this regard is not improper.

                    Second Complaint - State’s Closing Argument

         The defendant asserts also that the State erroneously argued that the actions

of the defendant of shaving, concealing his car, and asking a friend to supply an

alibi after the killing were evidence of a premeditated and deliberate killing.

         The argument of the District Attorney General was an improper assertion of

how these facts could be weighed by the jury. Concealment of evidence is not

sufficient to show a premeditated or deliberated killing. State v. West, 844 S.W.2d

144 (Tenn. 1992).

         However, the defendant may not obtain a new trial upon this basis. The

defendant did not make a contemporaneous objection to this argument as required

for relief. Tenn. R. App. P. 36(a). The defendant did not object until after the State

had closed its argument.

         Further, the trial judge upon request of the defendant instructed the jury that

the actions of the defendant after the killing were not evidence of the defendant’s

intent or state of mind at the time of the killing.



                                             -5-
       The State relies upon the case of State v. William Singleton, Jr., No. 03C01-

9406-CR-00221, Claiborne County (Tenn. Crim. App. Mar. 13, 1995), to say the

actions of the defendant were sufficient to show premeditation and deliberation.

The major issue in Singleton appears to be the concealment of the body. Although

the court in Singleton recognized the general rule, as stated in State v. Brown, 836

S.W.2d 530 (Tenn. 1992), that such acts are not sufficient to establish first degree

murder, the court said “in this case” the jury could consider the concealment of the

body on the issue of whether the killing was first degree murder. However, the body

of the victim was not concealed in this case. We must assume therefore that the

holding in Singleton is limited to the particular act of concealing a body and thus is

not a general attempt by the court to overturn the general rule established by the

Supreme Court in Brown.

       We conclude the State’s argument as set out in the defendant’s second

complaint was improper, but both the failure of the defendant to enter a

contemporaneous objection to the argument and the instruction of the trial court on

the law applicable to the argued facts diffused any taint created by such argument.

       The State could have argued the acts of concealment to show the defendant

was the person who killed the victim. However, in this case, there was no claim by

the defendant that he did not kill the victim.



                         THE INSTRUCTION TO THE JURY

                           Premeditation and Deliberation

       The defendant contends the trial court failed to distinguish between the

elements of premeditation and deliberation in the instructions given to the jury. The

record does not support this claim.

       The record shows the trial judge connected the elements of premeditation

and deliberation one time in the instruction. The coupling in that instance was not

erroneous. The trial judge was explaining how excitement applies in assessing the

elements of premeditation and deliberation. We see no error in this connection.




                                           -6-
       The record shows the trial judge clearly and properly instructed the injury on

the difference between premeditation and deliberation as required. State v. Brooks,

880 S.W.2d 390 (Tenn. Crim. App. 1993).

       We need not address the State’s unpersuasive argument that any error in the

instruction was harmless error.

       The defendant asked the trial judge to charge the jury by several requests.

The requests numbered 4, 5, and 6, which were rejected by the trial judge, dealt

with various definitions of what constituted voluntary manslaughter. The trial judge

allowed the defendant to argue the facts which he claimed made the instructions

valid. The trial judge properly charged the jury on voluntary manslaughter. Further,

the requests submitted by the defendant border closely upon a comment on the

evidence.

       The defendant also complains that the trial judge did not properly charge the

jury on how they were to weigh the concealment of evidence as it relates to

premeditation and deliberation. The record shows the trial judge gave a full

instruction to the jury in this regard. When the trial judge has given a correct and

sufficient instruction to the jury, the refusal to give requested instructions is not error.

State v. Story, 608 S.W.2d 599 (Tenn. Crim. App. 1980). We find no error in the

instruction given by the trial judge on the matter raised by the defendant’s requests

numbered 4, 5, and 6, and we reject the defendant’s claim as to the refusal of the

trial judge to give the instruction.

       The defendant also argues the trial judge was in error for not instructing, at

his request, the jury that a homicide when shown is presumed to be murder in the

second degree.

       The defendant was attempting to convince the jury that he was guilty of

manslaughter. The State was attempting to convince the jury that the defendant

had committed first degree murder. The State has the burden of proving the

defendant committed the offense and the degree of the offense, i.e. murder in the

first degree, murder in the second degree, or voluntary manslaughter. If the

defendant’s requested instruction had been given, the burden of proof would have



                                            -7-
been as follows. The burden would be on the State to elevate the offense from

second degree murder to first degree murder. And, the defendant would have the

burden of reducing the crime to voluntary manslaughter.

        The instruction sought by the defendant, though the rule in days gone by, fell

to the holding of the United States Supreme Court in Sandstrom v. Montana, 442

U.S. 510 (1979), that any instruction which shifts the burden from the State to the

defendant to show an element of the offense is constitutionally impermissible. In

State v. Bolin, 678 S.W.2d 42 (Tenn. 1984), our Supreme Court espoused the same

rule.

        We find the trial judge correctly refused to give the instruction.



                           INTRODUCTION OF THE SKULL

        The defendant contends the introduction of the victim’s skull to show the

injuries sustained was error because its prejudicial effect outweighed its probative

value, because it was an inaccurate depiction of the injuries suffered by the victim,

and because it was unnecessary to introduce the skull into evidence.

        The introduction of the skull into evidence is not unique to this trial. Such

evidence has been allowed before in this State and in other jurisdictions.

        In State v. Morris, 641 S.W.2d 883 (Tenn. 1982), the Supreme Court

approved the use of a skull to show the nature and type of injuries sustained by the

victim. In State v. Cazes, 875 S.W.2d 253 (Tenn. 1994), the Supreme Court held

the introduction of the skull was proper as it aided in identifying the weapon used in

the murder. Further, it appears in Cazes that the introduction of the skull is relevant

to identify the accused as the perpetrator of the crime.

        In State v. King, 718 S.W.2d 241 (Tenn. 1986), and in State v. Sexton, 724

S.W.2d 371 (Tenn. Crim. App. 1986), the Supreme Court and the Court of Criminal

Appeals held such evidence was admissible to show premeditation and deliberation.

We believe the validity of these views is brought into question by the decision in

State v. Brown, which expresses the view that repeated blows are not sufficient by

themselves to show first degree murder because repeated blows may be delivered


                                            -8-
in the heat of passion with no design or reflection. 836 S.W.2d 530 (Tenn. 1992). It

appears therefore that there must be something more than an attempt to show first

degree murder apparent to justify the introduction of the skull. In this case,

however, we find the introduction of the skull was relevant to show the nature of the

injuries inflicted upon the victim and thus relevant to show the defendant’s intent at

the time he inflicted the blows.

       We are further satisfied the trial judge properly allowed the skull to be

introduced because the forensic expert testified she would have difficulty in showing

the extent of the injuries from pictures or diagrams. We also note that the trial judge

did not allow the skull to be passed to the jury.

       We conclude, therefore, that the trial court properly allowed the skull to be

introduced under the rule which excludes evidence if its prejudicial value far

outweighs its probative value. State v. Banks, 564 S.W.2d 947 (Tenn. 1978). In

this case, the prejudicial value of the introduction of the victim’s skull did not

outweigh it probative value.

       The defendant further contends the skull was an inaccurate depiction of the

victim’s injuries because a piece of bone was missing from the cheek area from

where the victim had apparently sustained a previous injury. This was explained by

the forensic expert out of the presence of the jury. There is nothing to show the jury

saw the place where the bone was missing nor was there any showing they were

influenced by this. We see no basis for excluding the skull by reason of this.

       The defendant further says the trial judge should not have allowed the use of

the skull because he had filed a timely request for Notice of Intention to Use

Evidence pursuant to Rule 12(d)(2) some days prior to trial and yet was not notified

of the State’s intent to use the skull until the first day of the trial.

       It appears from this record that the District Attorney General and the

defendant’s attorney learned at approximately the same time that the body of the

victim had been decapitated and the skull was available for use at the trial. The

time of the knowledge of the evidence exonerates the State from any attempt to

surprise the defendant at trial. That alone, however, does not answer the question



                                              -9-
of whether the late revelation results in prejudice to the accused if the evidence is

introduced. This is determined of course by whether, given adequate time, the

defendant could reasonably refute the veracity of the evidence offered, explain the

evidence in a manner to show it has no relevancy on the issues to be found, or

make acceptable stipulations as discussed in Banks which would make the

introduction of the evidence unnecessary.

       The record in this case shows the following: the defendant never denied he

caused the victim’s death; the deceased received massive blows; the expert

witness, Dr. Elken, stated that there were twelve blows suffered by the victim; and

the forensic pathologist, who reconstructed the evidence, said the victim received at

least seven blows.

       The defendant contends now that if he had been given notice of the State’s

intent to use the skull, a stipulation as to the manner of death could have been

entered and thus obviated the need to introduce the skull.

       Looking back at this issue as we are able to do, we find that the purpose for

which the skull was introduced would not have been nullified by such a stipulation

because the probative value of this evidence was greater than its prejudicial effect.

Therefore, there would have been no error in admitting the skull even in the face of

a stipulation as that suggested by the defendant.



             TESTIMONY OF OFFICER BRYANT AND LAURA BAIRD

       The defendant claims that the testimony of Officer Bryant and the testimony

of Laura Baird concerning the arrest of the defendant on a previous domestic

altercation between the defendant and the victim should have been excluded

because it did not qualify for admission under Rules 404, 608, or 609 of the

Tennessee Rules of Evidence or in accordance with the use of prior arrests in the

decision of this Court in State v. Bordeis, 905 S.W.2d 214 (Tenn. Crim. App. 1995).

       We find the testimony of Officer Bryant is admissible for two reasons. First,

the defendant did not object to the introduction of the testimony when given. In fact,

this record does not show any objection. The defendant may not now predicate an



                                          -10-
error upon this basis. State v. Copenry, 888 S.W.2d 450 (Tenn. Crim. App. 1993);

Adams v. Manis, 859 S.W.2d 323 (Tenn. Crim. App. 1993). Second, we think the

testimony of Officer Bryant was relevant on an essential issue of the crime charged

in this case. The State had the burden of showing premeditation for a conviction in

this case. In the course of the arrest, the defendant made statements that he would

kill the victim. Proof material to the issues under review is not incompetent because

the defendant has committed other crimes. Lacey v. State, 506 S.W.2d 809 (Tenn.

Crim. App. 1974).

        The only testimony Laura Baird gave in this regard was that she was aware of

the arrest made by Officer Bryant, about which he had testified. W e find no error in

this.



                          SUFFICIENCY OF THE EVIDENCE

        Our standard of review when the sufficiency of the evidence is questioned on

appeal is “whether, after viewing the evidence in the light most favorable to the

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

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

This means that we may not reweigh the evidence, but must presume that the jury

has resolved all conflicts in the testimony and drawn all reasonable inferences from

the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

        At the time of the offense in this case, an intentional, premeditated, and

deliberate killing of another constituted first degree murder. See Tenn. Code. Ann.

§ 39-13-202(a)(1) (1991). Our criminal code defined a deliberate act as “one

performed with a cool purpose” and a premeditated act as “one done after the

exercise of reflection and judgment.” Tenn. Code. Ann. § 39-13-201(b)(1)(2) (1991).

In State v. Brown, our Supreme Court stated that deliberation required some period

of reflection, without passion or provocation, and concluded that the “deliberation

necessary to establish first degree murder cannot be formed in an instant.” 836

S.W.2d 530, 539, 543 (Tenn. 1992). Premeditation requires a showing of a


                                          -11-
previously formed design or intent to kill. State v. West, 844 S.W.2d 144, 147

(Tenn. 1992).

      The existence of the separate and distinct elements of premeditation and

deliberation is a question of fact to be decided by the jury. See Brown, 836 S.W.2d

at 541-42. In this respect, the determination of the state of mind necessary to

establish the elements of first degree murder may be shown by circumstantial

evidence. Id. at 541; State v. Burlison, 868 S.W.2d 713, 717 (Tenn. Crim. App.

1993). However, a jury may not find an element of the offense if there is not

evidence to support the theory of the state. See West, 844 S.W.2d at 147.

      The evidence in this case shows the defendant and the victim were married

on September 21, 1990. Shortly before the death of the victim, they became

estranged. On two occasions before the death of his estranged wife, the defendant

made statements that he would kill the victim. One of the statements was made at

the time the defendant was arrested in the course of a domestic dispute. The other

statement was made at the Loudon County courthouse after a hearing involving the

defendant and the victim. We are satisfied that the evidence of the statements

made by the defendant could support a finding of premeditation in this case.

      The record shows that on the date the victim was killed, she, as was

customary, initiated a call to make contact with the defendant. The defendant met

the victim, and they went to a motel where they were involved in sexual activity.

After the defendant and the victim left the motel, the defendant asked the victim to

return to him. The victim told the defendant she could not because she had a

boyfriend with whom she was living. The evidence shows the victim was living with

the boyfriend in the home of Laura Baird. The defendant then killed the victim and

drove away.

      The question becomes whether the evidence is sufficient to show the

defendant deliberated the killing of the victim. We think not.

      The jury may draw inferences from the circumstances surrounding a killing to

find deliberation. Such inferences must, however, be based upon the evidence in

the case which reasonably could lead one to reach a conclusion. As stated in State



                                         -12-
v. West, 844 S.W.2d 144 (Tenn. 1992), the jury cannot construct a theory based on

no evidence at all. We find little evidence in this record for a finding of deliberation.

       The State argues that the defendant was aware that the victim was living with

another man at the time of the killing. The State bases this upon the testimony of

Officer Bryant. We cannot find any testimony of this witness which shows the

defendant was aware of the victim’s boyfriend. Officer Bryant testified that he

arrested a person in December 1994 who said he was the victim’s boyfriend. This

was three months after the killing. Laura Baird, the woman with whom the victim

and the boyfriend lived, did not testify that the defendant knew of the boyfriend prior

to the date of the killing.

       The State further says the defendant mentioned the boyfriend on the date of

the murder. However, these statements were made by the defendant after the

killing, and the defendant was quoting what his estranged wife had revealed to him

about the existence of the boyfriend.

       The State further argues that the evidence shows the defendant deliberated

before killing the victim because he placed his tools in his car before going to meet

her. This theory is based upon the fact that the defendant did not customarily carry

his tools in his car.

       It is fairly common knowledge that carpenters and other artisans own and

carry with them their own tools. Further, it is the general course for carpenters to

carry their tools in a tool belt from their home to their job and back. In the context of

this case, we do not think the State’s theory is valid.

       The time between when the defendant talked with the victim and left the job

site in Loudon around 10:30 and 11:00 a.m. and when the victim bought groceries at

a grocery store in Knox County at 11:48 indicates the defendant drove his car

directly from the job site to where he met the victim. It more logically follows that his

tools were in the car in the normal course of the defendant’s routine rather than by a

diabolic intent by the defendant to arm himself prior to meeting his estranged wife.

       Further, the evidence shows the defendant made no effort to disguise himself

when he registered at the motel. The defendant gave his correct name, address,



                                           -13-
driver’s license number, and vehicle tag number. All of this belies a pre-determined

and deliberate journey to Knox County to kill his estranged wife.

      We find the evidence in this case falls short of meeting the test in State v.

Brown, 836 S.W.2d 530 (Tenn. 1992), that deliberation cannot be formed in an

instant and that the proof must show the homicide was committed with a cool

purpose and without passion or provocation.

       The decision in Brown clearly shows that premeditation and deliberation do

not have a synomous meaning. There may be one without the other. One may

premeditate and kill in a heat of passion without deliberation, and such killing would

not be murder in the first degree because at the time of the killing the mind of the

accused would be incapable of acting with coolness and deliberation.

       We conclude the evidence in this case is closely akin to the evidence in State

v. Thornton, 730 S.W.2d 309 (Tenn. 1987), where the Supreme Court reduced a

conviction from murder in the first degree to voluntary manslaughter.

       In Thornton, the defendant and his wife were estranged. The defendant was

attempting to reconcile with his wife. The defendant went to the home that he and

his wife had shared. He discovered his estranged wife engaged in sexual

intercourse with a man he did not know. The defendant shot the man in the hip.

The man died later from infection which resulted from the bullet wound. The

Supreme Court held, after citing various cases involving sexual acts of a spouse

with another, that the passion of any reasonable person would have been inflamed

and intensely aroused by the discovery of his estranged wife involved in intercourse

with a strange man and that such would reduce the crime to voluntary

manslaughter.

       In the case before us, the defendant and the victim had met at the victim’s

behest and had gone to a motel to engage in sexual intercourse. It seems only

reasonable that the defendant’s desire to reconcile with his wife had taken a positive

turn. When the defendant’s estranged wife informed him she could not return to him

because she had a boyfriend with whom she was living, the normal human reaction

from the defendant would be to react passionately and without reflection, and such a



                                         -14-
response defies the conclusion that the defendant acted coolly and with reflection

when he killed his estranged wife.

       We are of the opinion, however, as expressed in the dissenting opinion in

Thornton, that there is sufficient evidence to show the defendant acted with malice

when he killed his estranged wife and that the evidence is sufficient to find the

defendant guilty of second degree murder. We therefore reduce the conviction of

the defendant to second degree murder and remand the case to the trial court for

sentencing on that offense.




                                          John K. Byers, Senior Judge

CONCUR:




Joseph M. Tipton, Judge




Paul G. Summers, Judge




                                         -15-
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE                      FILED
                                                                      April 28, 1998

                                                                   Cecil Crowson, Jr.
                                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                            )
       Appellee,            )      No. 03C01-9603-CR-00092
                            )
                            )      Knox County
v.                          )
                            )      Honorable Richard Baumgartner, Judge
                            )
THOMAS J. McKEE,                   )      (First Degree Murder)
                            )
       Appellant.           )



                                  SEPARATE OPINION



       I concur with most of the reasoning and the results reached in Judge Byers’

opinion. However, I respectfully disagree with his view that the evidence is insufficient

to prove a deliberate and premeditated murder.



       The defendant contends that the evidence does not prove that he killed the

victim with premeditation and deliberation, showing instead that he acted in a heat of

passion. In support, he argues that the repeated blows to the victim’s head show that

his actions were a result of a sudden rage initiated by the victim’s rejection of him.



       Judge Byers follows suit and presents a view of the evidence that rationally

supports the defendant’s assertions. However, the fact that the evidence could lead

one to agree with Judge Byers’ view of it does not focus our review upon the necessary

inquiry. That inquiry is “whether, after viewing the evidence in the light most favorable

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

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.



                                            -16-
Ct. 2781, 2789 (1979). In such an analysis, we may not reweigh the evidence, but must

presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978).



       At the time of the offense, an unlawful, intentional, premeditated and deliberate

killing of another constituted first degree murder. See T.C.A. § 39-13-202(a)(1) (1991).

A deliberate act was defined as “one performed with a cool purpose,” and a

premeditated act as “one done after the exercise of reflection and judgment.” T.C.A. §

39-13-201(b)(1) and (2) (1991). In State v. Brown, 836 S.W.2d 530, 539, 543 (Tenn.

1992), our supreme court stated that deliberation required some period of reflection,

without passion or provocation, and concluded that the “deliberation necessary to

establish first degree murder cannot be formed in an instant.” Premeditation requires a

showing of a previously formed design or intent to kill. State v. West, 844 S.W.2d 144,

147 (Tenn. 1992).



       The existence of the elements of premeditation and deliberation is a question of

fact to be decided by the jury. See Brown, 836 S.W.2d at 541-42. In this respect, the

state of mind elements necessary to establish first degree murder are typically shown

by circumstantial evidence. Id.; State v. Burlison, 868 S.W.2d 713, 717 (Tenn. Crim.

App. 1993). That is, circumstances such as the use of a deadly weapon upon an

unarmed victim, a particularly cruel killing, and threats to kill the victim are relevant to

prove the perpetrator’s state of mind with regard to premeditation and deliberation. See

Brown, 836 S.W.2d at 541.



       Judge Byers looks to the events immediately surrounding the killing. That

evidence reflects that the defendant met with the victim and rented a motel room.

While at the motel, the defendant and the victim engaged in consensual sexual



                                             -17-
intercourse. As they were driving away from the motel, the defendant asked the victim

to move back with him. When she told him no and explained that she was living with

another man, the defendant stopped the car and he and the victim got out. The proof

reflects that the defendant obtained a circular, blunt instrument from his car, went

toward a fence located eight to ten feet away, and killed the victim by inflicting at least

twelve blows of great force to her head.1 The numerous blows caused several fractures

to the vertebrae and the victim’s neck and to her skull.



        These facts could lead to a conclusion that the killing acts occurred while the

defendant was in an emotional state. However, this does not necessarily negate first

degree murder. Strong feelings and excitement can co-exist with premeditation and

deliberation. State v. McAfee, 784 S.W.2d 930, 932 (Tenn. Crim. App. 1989).

              “‘However, passion does not always reduce the crime since a man
        may deliberate, may premeditate, and may intend to kill after premeditation
        and deliberation, although prompted and to a large extent controlled by
        passion at the time. If the design to kill was formed with deliberation and
        premeditation, it is immaterial that defendant was in a passion or excited
        when the design was carried into effect.’”

Leonard v. State, 155 Tenn. 325, 337-38, 292 S.W. 849, 852 (1927) (quoting from 29

C.J., Homicide, § 100 at 1116-17); see also Franks v. State, 187 Tenn. 174, 179, 213

S.W.2d 105, 107 (1948).



        A most telling point in the present case is the fact that the defendant on more

than one occasion threatened to kill the victim. On July 31, 1994, police responded to a

call involving a domestic dispute between the defendant and the victim. Immediately

after the defendant was arrested, he looked at the victim and stated, “I’ll get you for this,

bitch” and “I’ll kill you.” After the defendant was put into a patrol car, he stated at least

three or four more times that if it was the last thing he did, he would get even with the



        1
          I concur with Judge Byers that the skull was admissible, primarily because it was relevant as
tending to prove that the defendant intended to kill the victim. Absent the defendant stipulating or
conceding before the jury that he intended to kill the victim, the victim’s skull was the best evidence of
the severity of the attack for intent purposes.

                                                    -18-
victim and would kill her. Also, during August 1994, the defendant again threatened the

victim at the courthouse when the victim told him that she would not come back to him.

He responded, “You’ve done it now, bitch. I’ll kill you.” Within two months of this threat,

the defendant killed the victim after she refused to reconcile with him.



       I believe that the foregoing facts justify the jury rationally concluding beyond a

reasonable doubt that the defendant deliberately decided to kill the victim if she chose

not to continue the relationship. This type of conditional threat followed by a killing

upon fulfillment of the condition shows reflection and planning. See, e.g., State v.

Morris Ray, No. 01C01-9201-CC-00025, Bedford County (Tenn. Crim. App. Mar. 1,

1993), app. denied (Tenn. July 6, 1993) (upholding first degree murder conviction when

the defendant expressed the intent to kill the victim if a criminal warrant were issued

and the killing occurred after a warrant issued); cf. Leonard, supra. Under such

circumstances, the presence of passion would not negate the fact that the design to kill

was formed with deliberation and premeditation. The conviction for first degree murder

should be affirmed. I am authorized to state that Judge Paul G. Summers concurs in

this opinion.



                                          __________________________
                                          Joseph M. Tipton, Judge




                                            -19-
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE                   FILED
                                                                April 28, 1998

                                                              Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
STATE OF TENNESSEE,                    )
                                       )
              Appellee,                )     No. 03C01-9603-CR-00092
                                       )
                                       )     Knox County
v.                                     )
                                       )     Honorable Richard Baumgartner, Judge
THOMAS J. McKEE,                       )
                                       )     (Murder in the First Degree)
              Appellant.               )



                            SEPARATE OPINION



       I concur with Judge Tipton’s separate opinion. I also agree with most of

the reasoning and the results reached in Judge Byers’ opinion. However, I

respectfully disagree with Judge Byers’ view that the evidence is not sufficient to

prove a deliberate and premeditated murder. The facts of this case justify the

jury’s rational conclusion beyond a reasonable doubt that the defendant

deliberately killed the victim. Therefore, I vote to affirm the conviction of murder

in the first degree.



                                                   __________________________
                                                   PAUL G. SUMMERS, Judge




                                           -20-
