         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs, April 18, 2000

          STATE OF TENNESSEE v. ANDREW CHARLES HELTON

                Direct Appeal from the Criminal Court for Davidson County
                          No. 98-B-1052    Seth Norman, Judge



                   No. M1999-01405-CCA-R3-CD - Filed October 13, 2000


The Defendant, Andrew Charles Helton, was indicted, along with co-defendants Shirley Crowell and
Shayne Cochran, for two counts of premeditated murder and two counts of felony murder for the
shooting deaths of Robert Cole and Michael Chatman. After the trial court granted a motion for a
judgment of acquittal on the felony murder charges, the Defendant was convicted by a jury of first
degree murder for the death of Robert Cole and of second degree murder for the death of Michael
Chatman. The Defendant was sentenced to mandatory life imprisonment for the first degree murder
conviction and to twenty-three years imprisonment for the second degree murder conviction. The
Defendant now appeals and argues that the evidence presented at trial was insufficient to sustain his
convictions. The Defendant also contends that the trial court erred in admitting certain crime scene
and autopsy photographs into evidence. After a thorough review of the record and applicable law,
we find no merit to the Defendant's contentions and thus affirm his convictions.


     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH, J. and
JOHN EVERETT WILLIAMS, J., joined.

Jeffrey A. DeVasher (on appeal), Assistant Public Defender, and Ross Alderman (at trial),
Metropolitan Public Defender, Nashville, Tennessee, for the appellant, Andrew Charles Helton.

Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General,
Criminal Justice Division, Victor S. Johnson, III, District Attorney General, Pamela Anderson,
Assistant District Attorney General, and T.J. Haycox, Assistant District Attorney General for the
appellee, State of Tennessee.

                                            OPINION

                                  FACTUAL BACKGROUND
         Prior to the evening of November 28, 1997, the Defendant had known victim Michael
Chatman for about eleven years. However, it was not until the Defendant got divorced that he and
Chatman began to socialize on a regular basis. During the months before the killings, the Defendant
testified that he and Chatman would see each other at least a couple of times a week. A few days
before Thanksgiving, 1997, the Defendant testified that Chatman came to his house, pushed him
against the wall, and accused the Defendant of trying to "cross him out with his girlfriend." A friend
broke the fight up, and according to the Defendant, Chatman "broke down . . . and started crying."

        The next time the Defendant saw Chatman was on the evening of November 28, 1997. On
that night, the Defendant was at home not feeling very well when Michael Chatman called and asked
the Defendant to come over. The Defendant declined, and Chatman offered to come over and bring
the Defendant some food. Chatman went to the Defendant's apartment with food and a bottle of
Crown Royal whiskey. The two men drank for a short time and then decided to go out. They went
to Shayne Cochran's house, and then all three men went to Bailey's Sports Bar in Rivergate. At
Bailey's, the men met up with Robert Cole and decided to go to the home of Leslie Hebert, a friend
of Cochran's. Allison Dowell and Hebert's roommate were also present when the men arrived. After
staying at Hebert's house for awhile, the Defendant, Cochran, Chatman, Cole, Hebert, and Dowell
went to an after-hours club downtown called "The Church."

        When the group arrived at The Church, the Defendant took off his jacket and left it in the car
that Chatman had been driving. The Defendant testified that the jacket contained approximately
$200.00 in cash and a small amount of marijuana. At The Church, the Defendant became separated
from the group. Thinking that the Defendant might have gone home, Cochran, Chatman, Cole,
Hebert, and Dowell left The Church and went to the Defendant's apartment. Cochran hid a Crown
Royal bag full of cocaine and pills behind one of the buildings at the Defendant's apartment complex
and then retrieved it shortly thereafter. The group waited outside the Defendant's apartment for a
brief period of time and then went to Chatman's apartment in Antioch.

         When the group arrived at Chatman's apartment, Chatman's roommate took his car, which
Chatman had been driving all evening, and went to work. Without a car, the two women had no way
to get home so they paged the Defendant, hoping that he would take them home. The Defendant
testified that he was on his way to his apartment in a cab he shared with Shirley Crowell, Chatman's
ex-girlfriend whom the Defendant encountered at The Church, when he got a page from Cochran and
Chatman. The Defendant testified that he called Chatman's apartment, and Chatman asked him to
come over because Hebert and Dowell needed a ride home. Crowell, who had recently broken up
with Chatman, agreed to ride with the Defendant to pick up Hebert and Dowell, but said that she
would not go inside.

        The Defendant eventually arrived at Chatman's apartment and testified that he asked Chatman
about his jacket that he left in the car. Chatman told the Defendant that Cochran had gotten the
jacket out of the car and that it was in the living room. When the Defendant retrieved his jacket, he
realized that several items, including $200.00 and some marijuana, were missing. The Defendant



                                                 -2-
talked briefly with Cochran outside while Chatman went upstairs to change clothes. After changing
clothes, Chatman came back downstairs about the time that the Defendant came inside.

         Although the Defendant's story differs as to what occurred next, Hebert and Dowell testified
that the Defendant began to accuse Chatman of stealing. Dowell testified that the Defendant and
Chatman were arguing "kind of loud." Dowell also noticed that the Defendant had a gun strapped
on his shoulder underneath his jacket. When Chatman denied the allegation, Hebert and Dowell
testified that the Defendant pulled out a gun and shot Chatman. According to Hebert and Dowell,
Chatman did not touch the Defendant before he started shooting. Hebert testified that the Defendant
just began shooting for no apparent reason.

        Soon after the Defendant began shooting, Hebert ran outside, and Dowell ran to the back of
the apartment. Dowell testified that she saw the first shot and could hear more shots as she was
running to the back of the apartment. At one point, Dowell testified that the Defendant walked to
the back of the apartment where she was, looked at her for a moment, and then returned to the front
of the apartment. In fear that she might be shot for hiding, Dowell went to the front of the apartment
and saw the Defendant shoot Chatman one more time in the mouth. Dowell then ran outside and
found Hebert hiding in the bushes.

         Hebert testified that she was hiding outside with a view of the apartment. She saw Dowell
run outside and saw Chatman lying on the floor and Cole sitting on the living room couch. Hebert
testified that Cole remained sitting on the living room couch during the entire confrontation between
the Defendant and Chatman. This is contradictory to the Defendant's testimony that Cole had been
involved in the fight. The Defendant testified that Cole was pulling at the Defendant's pockets and
claimed that he shot Cole only to make him let go.

         After the killings, the Defendant and Cochran got into the Defendant's car. Cochran asked
Hebert and Dowell to get in also. Hebert and Dowell got into the car and saw that Shirley Crowell
was also present. After driving a short distance in the parking lot, the Defendant returned to
Chatman's apartment and retrieved Dowell's purse as well as the gun that he had used to shoot
Chatman and Cole. Crowell made some threatening statements to Hebert and Dowell. Hebert
testified that the Defendant told her and Dowell, "I am sorry y'all had to see that."

        When police arrived at Chatman's apartment after the shooting, Chatman was found lying
on the floor near the front door, and Cole was found lying on the living room couch. Both Chatman
and Cole had been shot multiple times. The police were able to get a description of the Defendant's
car from neighbors and within minutes were in pursuit. During the pursuit, Crowell threw the gun
out of the car window. The Defendant, upon realizing that the police were behind him, put the car
in neutral and got out of the car. Everyone fled from the car, except for Hebert, who jumped into
the front seat to stop the car from rolling. All of the occupants of the car, including the Defendant,
were found and taken into police custody. The police also found the nine millimeter semiautomatic
handgun on a sidewalk near the Defendant's car.



                                                 -3-
         Both victims were pronounced dead upon arriving at nearby hospitals. Autopsies performed
on the victims revealed the following: (1) Chatman had a "contact" wound to his lower left abdomen,
a "close-range" wound to his upper left abdomen, and a contusion to the right side of his head; (2)
Cole had a "close-range" gunshot wound to the left eyebrow and additional gunshot wounds on the
right side of the head and on the scrotum; and (3) both victims tested positive for cocaine, marijuana,
and alcohol.

        The Defendant was convicted by a jury of first degree murder for the death of Robert Cole
and of second degree murder for the death of Michael Chatman. The Defendant now contends that
the evidence presented at trial was insufficient to sustain his convictions. In addition, the Defendant
argues that the trial court erred in admitting a number of crime scene and autopsy photographs into
evidence.

                            I. SUFFICIENCY OF THE EVIDENCE

        The Defendant argues that the evidence presented at trial is insufficient to support either his
conviction for first degree murder or his conviction for second degree murder. Viewing the evidence
in the light most favorable to the State, we conclude that the evidence is sufficient to support both
convictions.

        When an accused challenges the sufficiency of the convicting evidence, this Court must
review the evidence in the light most favorable to the prosecution in determining "whether 'any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.'" State v. Meade, 942 S.W.2d 561, 564 (Tenn. Crim. App. 1996) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Because the presumption of innocence is replaced by a
presumption of guilt upon conviction, a convicted criminal defendant bears the burden of showing
that the evidence presented at trial was insufficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn.
1963). This Court will not disturb a verdict of guilt for lack of sufficient evidence unless the facts
contained in the record and any inferences which may be drawn from the facts are insufficient, as
a matter of law, for a rational trier of fact to find the defendant guilty beyond a reasonable doubt.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). On appeal, this Court must afford the State "the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom." Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). This Court
will not reweigh or reevaluate the evidence. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1982)
(citing Cabbage, 571 S.W.2d at 835). A criminal conviction shall be set aside where the evidence
is "insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt." Tenn.
R. App. P. 13(e).

                                      A. First Degree Murder

       The Defendant argues that the evidence presented at trial was insufficient to support a
conviction for first degree murder. Specifically, the Defendant argues that he did not act with
premeditation when shooting Robert Cole. We disagree.


                                                  -4-
       First degree murder is the premeditated and intentional killing of another person. Tenn. Code
Ann. § 39-13-202(a)(1). Once a homicide has been established, it is presumed to be second degree
murder, and the State has the burden of proving premeditation to raise the offense to first degree
murder. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999) (citing State v. Nesbit, 978 S.W.2d 872, 898
(Tenn. 1998)). Premeditation is defined as "an act done after the exercise of reflection and
judgment." Tenn. Code Ann. § 39-13-202(d).
       "Premeditation" means that the intent to kill must have been formed prior to the act
       itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused
       for any definite period of time. The mental state of the accused at the time the
       accused allegedly decided to kill must be carefully considered in order to determine
       whether the accused was sufficiently free from excitement and passion as to be
       capable of premeditation.

Id. Premeditation is the process of thinking about a proposed killing before engaging in the
homicidal conduct. See State v. Brown, 836 S.W.2d 530, 540-41 (Tenn. 1992).

        The existence of premeditation is a question of fact for the jury to determine and may be
inferred from the circumstances surrounding the offense. State v. Rosa, 996 S.W.2d 833, 837 (Tenn.
1999) (citing Brown, 836 S.W.2d at 539). The use of a deadly weapon upon an unarmed victim and
a defendant's calmness after the crime may support the existence of premeditation. Id. (citing State
v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)).

         Viewing the evidence in the light most favorable to the State, a jury could have reasonably
found that the Defendant shot and killed victim Cole after the exercise of reflection and judgment.
See Tenn. Code Ann. § 39-13-202(a)(1), (d). It is undisputed that the Defendant shot both of the
victims. Allison Dowell testified that when the Defendant left the scene the first time, Cole was still
sitting on the couch. Dowell's testimony is substantiated by that of Janet Dixon, a resident of the
adjoining townhouse, who testified that she heard "three popping sounds," a car pull away and come
back, and then more popping sounds. Hebert also testified that when she came back to the front of
the apartment after Chatman had been shot, she saw Cole sitting on the couch. No evidence was
presented at trial to support the Defendant's testimony that he shot Cole immediately after he shot
Chatman because Cole would not let go of the Defendant's pockets. Cole was unarmed when the
Defendant shot him.

        The testimony at trial also indicated that the Defendant was unusually calm after the
shootings. The Defendant testified that when he went back into the apartment and retrieved the gun,
the victims were convulsing and in pain; yet he did not call for an ambulance. Instead, the Defendant
got into his car and drove away. In the car, he told Hebert and Dowell that he was sorry that they
had to see what had happened. Hebert testified that the Defendant was the "calmest out of everybody
there." These circumstances indicate a calmness immediately following the killings, which supports
a finding of premeditation. See Bland, 958 S.W.2d at 660. Thus, there is nothing to indicate that
the jury acted unreasonably in finding that the Defendant acted with a previously formed intent to
kill when he shot Cole. See Tenn. Code Ann. § 39-13-202(d).


                                                 -5-
                                    B. Second Degree Murder

       The Defendant argues the evidence presented at trial was insufficient to convict him for
second degree murder. Specifically, the Defendant argues that the offense amounted to, at most,
voluntary manslaughter, that is, an "intentional or knowing killing of another in a state of passion
produced by adequate provocation sufficient to lead a reasonable person to act in an irrational
manner." Tenn. Code Ann. § 39-13-211(a). However, it is the opinion of this Court that there was
ample evidence in the record to establish that the Defendant knowingly shot and killed Chatman
without the adequate provocation to reduce the conviction to voluntary manslaughter. Witnesses
Hebert and Dowell both testified that the Defendant was the one who confronted Chatman and
accused him of stealing. Other than the Defendant's own testimony, there is no evidence that
Chatman provoked or attacked the Defendant.

       Whether acts constitute a knowing killing, so as to support a conviction for second degree
murder, or a killing due to adequate provocation, so as to support a conviction for voluntary
manslaughter, is a question for the jury. State v. Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App.
1995). In this case, the jury was instructed on both the offense of voluntary manslaughter and that
of second degree murder and determined that the Defendant was guilty of second degree murder.
It was within the jury's prerogative to reject the notion of provocation. See id.

                                    II. THE PHOTOGRAPHS

       The Defendant argues that the trial court erred in admitting certain crime scene and autopsy
photographs into evidence. It is within the discretion of the trial court to admit photographs into
evidence, and such a ruling shall not be reversed absent a clear showing of abuse. State v. Banks,
564 S.W.2d 947, 949 (Tenn. 1978). Evidence shall be excluded where the probative value is
substantially outweighed by the danger of unfair prejudice. Tenn. R. Evid. 403. Because the
probative value of the photographs outweighs any potential prejudicial effects, we find that the trial
court correctly allowed the photographs to be admitted into evidence.

                                   A. Crime Scene Photographs

         The Defendant argues that the trial court erred in admitting into evidence several photographs
of the crime scene. Specifically, the Defendant argues that the probative value of the evidence was
outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 403. The basis of this argument
is that the pictures were unduly gruesome and should not have been admitted because other less
inflammatory evidence could have been used instead. We disagree.

        The trial court did not abuse its discretion in admitting photographs of the crime scene into
evidence. All of the crime scene photographs were relevant to the location of the victims' bodies
and to other key evidence in this case. One photograph was admitted to show where Cole's body was
found because the manner and location in which Cole was shot was in dispute. Two other crime
scene photographs were probative of the damage done to the room that may have resulted from a


                                                 -6-
scuffle. These photographs contain placards pointing out where various pieces of evidence were
located in the room and thus are probative of the location in which evidence was found at the scene.
The final crime scene photograph that was objected to shows a bullet hole in one of the pillows on
the couch. This photograph was used to assist Detective Tim Mason with his testimony at trial and
was also probative of the manner and location in which Cole was shot. The photographs admitted
into evidence are not unduly gruesome and thus not unfairly prejudicial. Although it is unfortunate
that the photographs of the room, and the furniture therein, contained blood stains from the murders,
the probative value of the living room layout outweighs any prejudicial effect.

                                    B. Autopsy Photographs

        The Defendant argues that the trial court erred in admitting autopsy photographs of both
victims. Specifically, the Defendant argues that the medical testimony presented by the State
adequately described the degree and extent of the victims' injuries, reducing the probative value of
the pictures. However, it is the opinion of this Court that the probative value of the photographs
outweighed any prejudicial effects and thus were properly admitted into evidence.

        The Tennessee Supreme Court has held that photographs of a corpse are "admissible in
murder prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome and
horrifying character." Banks, 564 S.W.2d at 950-51. However, where medical testimony adequately
describes the degree or extent of injuries, such photographs should generally be excluded. State v.
Collins, 986 S.W.2d 13, 21 (Tenn. Crim. App. 1998).

        In this case, the autopsy photographs were used by the State to show entry and exit wounds,
as well as the range at which the victims were shot. This evidence directly relates to the State's
position regarding the manner in which the victims were killed. The number and location of the
wounds were relevant to the State's argument that the shootings were premeditated and intentional.
We therefore conclude that the trial court did not err by admitting autopsy photographs of the
victims.

                                         CONCLUSION

       We conclude that the evidence presented at trial is sufficient to support both of the
Defendant's convictions. On the basis of the evidence in the record, a reasonable jury could have
found that the Defendant was guilty of second degree murder for the knowing killing of Michael
Chatman and of first degree murder for the premeditated murder of Robert Cole. Furthermore, we
conclude that the trial court properly admitted into evidence the photographs at issue. The probative
value of the photographs outweighs any potential prejudicial effects. Finding no error in the record
before us, we affirm the judgment of the trial court.



       The judgment of the trial court is accordingly AFFIRMED.


                                                -7-
      ___________________________________
      ROBERT W. WEDEMEYER, JUDGE




-8-
