         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs April 23, 2002

                 STATE OF TENNESSEE v. JAMES L. McCURRY

                  Direct Appeal from the Criminal Court for Roane County
                           No. 12057     E. Eugene Eblen, Judge



                                  No. E2001-01900-CCA-R3-CD
                                          May 20, 2002

The Appellant, James L. McCurry, was convicted by a Roane County jury of one count of
premeditated first degree murder and was sentenced to life imprisonment. On appeal, McCurry
raises two issues for our review: (1) Whether the evidence presented at trial was sufficient to support
a conviction for premeditated first degree murder; and (2) whether the trial court erred by failing to
exercise its role as the thirteenth juror. After review, we find no error and affirm the judgment of
the trial court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL , JJ., joined.

Harold D. Balcom, Jr., Kingston, Tennessee, for the Appellant, James L. McCurry.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W.
Turner, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Frank Harvey,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

        The Appellant and the victim, Brenda McCurry, married in 1994 and divorced in 1996.
Notwithstanding their divorce, the Appellant and victim continued living together in an “off and on”
relationship for the next two years. The victim was a real estate agent for Re/Max Realty Company
in Kingston, Tennessee. Her co-workers testified that they had observed her at work with black eyes
and finger marks around her neck. Despite repeated requests by the victim to leave her alone during
their many separations, the Appellant persisted in harassing his ex-wife, including telephoning her
at work every day at “roughly five minute intervals.”
        On September 4, 1998, the parties again separated and the victim told the Appellant to leave
their residence. On September 8, 1998, the victim obtained an ex parte order of protection based
upon the following allegations:

       I have been divorced 2 years from [the Appellant]. I’ve tried to get him to leave me
       alone. I told him to leave Friday, September 4, 1998. I had to get my family to come
       so he would leave. He told me I had better get some insurance because I was going
       to need it. He has hit me before and threatened to hit me. He said I was going to be
       with him till I die. He stalks me and harasses me, calling all the time.

The Appellant left the parties’ residence and moved to Taccoa, Georgia, to live with his sister,
Valerie Murray. Ms. Murray described her brother during this period as “depressed and sad,”
explaining that he began “drinking heavily” and became “very resentful.” Murray testified that the
Appellant told her “more than once” that he was “going to buy a gun to kill [the victim].” On
September 27, 1998, the Appellant purchased the pistol which he later used to kill his ex-wife.

       Although the Appellant was aware of the protective order’s no-contact provision, he
continued to call, send packages, and contact the victim. On October 10, 1998, the Appellant
purchased ammunition for the murder weapon. On October 12, 1998, the Appellant “decided that
[he] would come to Tennessee and kill [the victim].”

        Early the next morning, on October 13, 1998, the Appellant awoke, dressed in a suit and tie
and drove 4 ½ hours from Taccoa, Georgia, to Kingston, Tennessee, where he entered the side door
of the Re/Max Realty Company. At trial, the Appellant admitted that he wore a suit and carried a
briefcase to conceal his pistol so he would not be noticed upon entering the building. As he entered
the office, the victim and her co-worker, Peggy Giffin, were discussing a package the victim had just
received by mail. The package contained cigarettes and a card signed by the Appellant. As the
Appellant walked through the door of the office kitchen, he set his briefcase on the table. The
Appellant removed the pistol from the briefcase and pointed it straight at the victim. In what Giffin
described as a “cold, calm, [and] determined” manner, the Appellant shot the victim three times as
the victim attempted to flee to her office. The autopsy report determined the cause of death to be
a gunshot wound to the victim’s right temple.

        As two other employees were calling for emergency assistance, the Appellant walked back
to the office kitchen, placed the gun in his briefcase, left the building, and drove approximately 1200
miles from Kingston to Memphis, Tennessee, then through Mississippi, Alabama, and back to
Georgia. As he drove, the Appellant disposed of his briefcase and the murder weapon in different
locations.

      The Appellant surrendered to law enforcement officers in Georgia and was returned to
Tennessee.




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                                             ANALYSIS

                                  I. Sufficiency of the Evidence

       The Appellant argues that the evidence presented at trial is insufficient to support his
conviction for premeditated first degree murder. Instead, he contends that the evidence presented
supports a conviction for voluntary manslaughter because the Appellant acted out of “passion and
provocation.” We disagree.

         A jury conviction removes the presumption of innocence with which a defendant is 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).
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this
court to revisit questions of witness credibility on appeal, that function being within the province of
the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison,
868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish that the
evidence presented at trial was so deficient that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
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). The State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113 S. Ct. 1368 (1993).

        As charged in the indictment in this case, in order to convict the Appellant of first degree
murder, the State was required to prove that the homicide was the result of “a premeditated and
intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation is defined as
follows:

       As used in subdivision (a)(1) “premeditation” is an act done after the exercise of
       reflection and judgment. “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.

Tenn. Code Ann. § 39-13-202(d); State v. Sims, 45 S.W.3d 1, 7-8 (Tenn. 2001). The Appellant
argues that the proof supports only a conviction for voluntary manslaughter, which is defined as “the
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).



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        On appeal, the Appellant contends that his “state of passion” was produced by the “adequate
provocation of financial and emotional ruin caused [him] by the victim.” He specifically argues such
provocation “triggered anger and helplessness [and blew] large holes in [his] reasoning ability.”
Again, in apparent support of this argument, the Appellant asserts that “from the beginning of [his]
relationship with the victim, and to its very end, [he] had been transformed from a man who was
financially sound to one in bankruptcy, in great part due to the action of the victim, ” whom he
characterized as “domineering.” We find the Appellant’s argument flawed for several reasons.

        First, the Appellant concedes on appeal that the victim’s death was premeditated and
intentional. Nonetheless, relying upon the authority of Toler v. State, 260 S.W.134, 137 (Tenn.
1923), he argues that a manslaughter conviction may be proper even though proof of premeditation
is found. In Toler, our supreme court held:

         It is not necessary to reduce killing to manslaughter that the passion should be so
         great as to render the defendant incapable of deliberation or premeditation. If the
         circumstances be such as are calculated to produce such excitement and passion as
         would obscure the reason of an ordinary man and induce him, under such excitement
         and passion, to strike the blow that causes the death of the deceased, this will reduce
         the killing to manslaughter. Seals v. State, 62 Tenn. 459, 461-62 (1874).

We find the Appellant’s reliance on Toler misplaced.1 As previously noted, premeditation, as
required for a conviction for first degree murder, is defined in part as requiring “[t]he mental state
of the accused at the time the accused allegedly decided to kill . . . be . . . sufficiently free from
excitement and passion.” Tenn. Code Ann. § 39-13-202(d). Thus, under current law, premeditation
by definition, excludes acts resulting from passion and excitement. Logically, a defendant who
premeditates a homicide cannot be convicted of manslaughter. If the proof establishes that the
homicide is both premeditated and intentional, the crime is first degree murder.

        Second, passion on the part of the slayer, no matter how violent, will not relieve the slayer
of responsibility for the homicide unless it is produced by “adequate provocation.” If no provocation
is found, the crime is murder. Anger which would reduce an unlawful homicide to the degree of
voluntary manslaughter, must be anger produced by adequate provocation. Hargrove v. State, 281
S.W.2d 692, 698 (Tenn. 1955). The issue of what constitutes adequate provocation is a question of
fact which must be decided under the particular facts of each case by the jury. State v. Johnson, 909
S.W.2d 461, 464 (Tenn. Crim. App. 1995). When the evidence is conflicting, the jury must resolve
these conflicts under proper instructions, and decide whether the homicide is murder or
manslaughter. Thus, in this case, it was for the jury to determine whether the killing of the victim
by the Appellant occurred in a state of passion produced by provocation or whether the Appellant


         1
          The supreme court’s review in Toler involved an analysis of manslaughter which, at the time, was defined
as “the unlawful killing of another without malice, either express or implied, but upon a sudden heat of passion.” Toler,
260 S.W. at 137. Following adoption of the 1989 Criminal Code, the element of malice was deleted from the definition
of man slaughter.

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simply meant to violently end a long-standing hostility. In this case, evidence of premeditation is
overwhelming: (1) the use of a deadly weapon upon an unarmed victim; (2) declarations by the
Appellant of an intent to kill; (3) procurement of a weapon; (4) preparations before the killing for
concealment of the crime; and (5) calmness immediately after the killing. State v. Suttles, 30 S.W.3d
252, 261 (Tenn. 2000); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Accordingly, we
conclude that a rational trier of fact could have found beyond a reasonable doubt that the Appellant’s
acts were premeditated and intentional. This issue is without merit.

                                     II. Motion for New Trial

        The Appellant asserts that the trial court failed to exercise its role as the thirteenth juror
before denying his motion for new trial. We disagree. The purpose of the thirteenth juror rule is to
provide a “safeguard . . . against a miscarriage of justice by the jury.” State v. Moats, 906 S.W.2d
431, 434 (Tenn. 1995). Tennessee Rule of Criminal Procedure 33(f) provides:

       The trial court may grant a new trial following a verdict of guilty if it disagrees with
       the jury about the weight of the evidence. If the trial court grants a new trial because
       the verdict is contrary to the weight of the evidence, upon request of either party the
       new trial shall be conducted by a different judge.

In State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995), our supreme court established the standard
for determining whether the trial judge has performed his or her role as thirteenth juror as follows:

       [No] explicit statement on the record is required by the trial judge that the duty has
       been performed. Accordingly, where a motion for new trial is denied without a
       statement, an appellate court may presume that the trial judge approved the jury’s
       verdict as the thirteenth juror. Nonetheless, where the record contains statements by
       the trial judge expressing dissatisfaction or disagreement with the weight of the
       evidence or the jury's verdict, or statements indicating that the trial court absolved
       itself of its responsibility to act as the thirteenth juror, an appellate court may reverse
       the trial court's judgment.

Here, the trial court made no comments "expressing dissatisfaction or disagreement with the weight
of the evidence or the jury's verdict" during the trial or in its written order denying the motion for
new trial. To the contrary, the trial court found in its written order that the evidence was sufficient
to support the jury’s verdict and, thus, approved the verdict. This issue is without merit.




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                                         CONCLUSION

       After review, we find that the evidence presented at trial, taken in the light most favorable
to the State, overwhelmingly supports the Appellant’s conviction for premeditated first degree
murder. Moreover, we find the trial court properly exercised its role as required by Rule 33(f),
Tennessee Rules of Criminal Procedure. Accordingly, the judgment of the Roane County Criminal
Court is affirmed.



                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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