         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 November 21, 2000 Session

                 STATE OF TENNESSEE v. TRACIE KIRKLAND

                 Direct Appeal from the Criminal Court for Monroe County
                           No. 98-017    Carroll L. Ross, Judge



                                  No. E1999-01344-CCA-R3-CD
                                        January 9, 2001

Defendant was convicted by a Monroe County jury of first degree premeditated murder and given
a life sentence. In this appeal, defendant makes the following allegations of error: (1) the evidence
was insufficient to sustain her conviction; (2) the trial court erred in denying a continuance; (3) the
trial court improperly charged the jury on criminal responsibility for the conduct of another; and (4)
the trial court erred in refusing to grant a new trial based upon newly discovered evidence. Upon our
review of the record, we conclude the evidence was not sufficient to support a conviction for first
degree premeditated murder, and defendant's sentence should be reduced to second degree murder.
The other allegations of error are without merit. Therefore, the judgment of the trial court is
modified to reflect a conviction for second degree murder, and the case is remanded to the trial court
for a new sentencing hearing.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                          Modified; Remanded for Re-sentencing

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOSEPH M.
TIPTON, J., joined.

Steven B. Ward, Madisonville, Tennessee, for the appellant, Tracie Kirkland.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Jerry
N. Estes, District Attorney General; and William W. Reedy, Assistant District Attorney General, for
the appellee, State of Tennessee.


                                             OPINION

        Defendant was convicted by a Monroe County jury of first degree premeditated murder and
given a life sentence. In this appeal, defendant alleges: (1) the evidence was insufficient to sustain
her conviction; (2) the trial court erred in denying a continuance; (3) the trial court improperly
charged the jury on criminal responsibility for the conduct of another; and (4) the trial court erred
in refusing to grant a new trial based upon newly discovered evidence. The judgment of the trial
court is modified to reflect a conviction for second degree murder, and the case is remanded to the
trial court for a new sentencing hearing.


                                                FACTS

        The victim was employed as a truck driver. In the early morning hours of January 7, 1998,
the victim was preparing to pick up a load of cars in Lenoir City, when he encountered the defendant
at a local truck stop. According to the defendant’s statement to authorities, the victim asked
defendant to accompany him to Lenoir City and she agreed.

        At approximately 5:32 a.m., the Monroe County Sheriff's Department received a 911 call
from the residence of the Mike and Sheila Garrett regarding a shooting. Sheila Garrett is the
defendant’s sister, and the defendant sometimes stayed at the residence. When officers arrived at
the residence, the defendant was not present; however, they found the victim slumped over in the
cab of his truck outside the residence. He had been fatally shot in the head. In addition, the victim
was shot once in the face and once in the shoulder. High doses of methamphetamine and
phentermine were found in the victim's blood. Further medical examination of the victim revealed
a collar burn to the right side of his neck and multiple defensive wounds on the right forearm. The
defensive wounds were of the type ordinarily “inflicted with a whip or cane or a night stick or a tire
iron.” The pathologist further testified that the bullets entered the victim from the victim’s right,
which would be from the passenger side of the vehicle. However, the collar burn was likely caused
by force exerted from the left side of the victim, which would be the driver’s side of the vehicle.
Due to the location of the collar burn and the point of entry of the bullets, the pathologist opined that
two persons were likely involved.

        Two of the three bullets were recovered from the victim’s body, and forensic analysis
revealed that the victim was shot with a .32 caliber firearm. However, no weapon was recovered at
the scene and, due to the condition of the bullets, it was not possible to match the bullets to any
specific weapon.

         Later that morning, the distraught defendant appeared at her parents’ residence and told her
father, “I shot a man. He tried to rape me.” Her father carried her to the Monroe County Sheriff's
Department. The defendant was given Miranda warnings and executed a waiver of her rights.
Initially, the defendant told authorities that she agreed to accompany the victim to Lenoir City
because he offered her "crank." She further stated that she and the defendant ingested
methamphetamine during the entire trip.

         Defendant stated that on the way to her sister’s residence, the victim began to talk "nasty,"
tried to choke her, and stated that he was going to rape and kill her. She claimed she tried to get out
of the vehicle, but the defendant grabbed her arm and then put his hand under the seat. Defendant
stated that she believed the victim was reaching for his gun, so she pulled her gun from her


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waistband and shot him. She claimed she then fled the scene on foot and threw the weapon on the
side of the road.

       Following the initial interview, the defendant was transported to a local hospital for
examination. When asked by the emergency room doctor what had transpired, defendant stated, "he
[victim] started talking nasty to me. He [victim] wanted me to go to Cleveland and I said, no. You
know how men are. They are all pigs. They are all pigs." She reiterated that the victim tried to rape
her. The examination revealed that the defendant had not been sexually assaulted, had no
appreciable bruising or lacerations, but did have the presence of methamphetamine and phentermine
in her system. No gunshot residue testing was done, and no scrapings were taken from the
defendant's fingernails.

        In a subsequent interview with Agent Jordan of the Tennessee Bureau of Investigation, the
defendant stated that the gun she used belonged to Charles Lee. She told Agent Jordan that Lee's
girlfriend gave her the gun to trade for drugs. Defendant also changed her previous story and
claimed she dropped the weapon in the cab of the truck before fleeing the scene. No guns were
found in the cab of the truck.

        In her final statement to authorities, defendant claimed that on the night of the murder she
gave Charles Lee's 0.32 caliber revolver and holster to Ricky Hooper in exchange for drugs. She
claimed that later in the evening she was coming out of the restroom at the truck stop and witnessed
Hooper climbing down from the driver's side of the victim's truck. Defendant told them that Hooper
had a gun in his hand; however, she was not sure if it was the weapon she had given him in exchange
for the drugs. She claimed that Hooper put a gun to her head and told her that, if she did not take
the blame for the murder, he would kill her and her children. Additionally, the defendant claimed
that the victim and Hooper had a verbal altercation earlier in the evening, but she did not know the
reason for the altercation.

        Hooper could not be found at the time of trial. By consent, the taped interview of Hooper
was played for the jury. Hooper told authorities that the defendant left the truck stop with the victim
at approximately 10:00 p.m., and he never saw her again. He further claimed that, thereafter, the
victim returned to the truck stop alone. Hooper denied any involvement in the murder.

         Defendant was convicted by the jury of first degree premeditated murder and sentenced to
life in prison. This appeal followed.


                            I. SUFFICIENCY OF THE EVIDENCE

       Defendant contends the evidence is insufficient to support a verdict of first degree
premeditated murder. Defendant claims the only evidence connecting her to the murder are her own
statements to the police, which fail to establish premeditation.



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        In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury
verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee,
885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view
of the evidence and all reasonable inferences which may be drawn therefrom. Id.; State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of
innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this
presumption of guilt. Id.

        Where sufficiency of the evidence is challenged, the relevant question for an appellate court
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 or crimes beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the
witnesses' testimony are matters entrusted exclusively to the jury as the triers of fact. State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.
1996).

        The applicable definition of first degree murder is “[a] premeditated and intentional killing
of another.” Tenn. Code Ann. § 39-13-202(a)(1). Premeditation necessitates “a previously formed
design or intent to kill,” State v. West, 844 S.W.2d 144, 147 (Tenn. 1992)(citations omitted), and
“an act done after the exercise of reflection and judgment . . . [meaning] that the intent to kill must
have been formed prior to the act itself.” Tenn. Code Ann. § 39-13-202(d). It also requires that the
accused be “sufficiently free from excitement and passion as to be capable of premeditation.” Id.

        Although the jury may not engage in speculation, it may infer premeditation from the manner
and circumstances of the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis,
905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Our Supreme Court delineated several
circumstances that may be indicative of premeditation, including the use of a deadly weapon upon
an unarmed victim, the fact that the killing was particularly cruel, declarations of the intent to kill
the victim by the defendant, the making of preparations before the killing for the purpose of
concealing the crime, and calmness immediately after the killing. See Bland, 958 S.W.2d at 660.
We reject the state’s argument that premeditation is established based upon defendant’s statement
that “I pulled my gun out and killed him.”

        Tennessee law has long recognized that once a homicide has been established, it is presumed
to be second degree murder with the state having the burden to elevate the offense to first degree
murder. State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992). Viewing the evidence in the light most
favorable to the state, the state failed to present sufficient evidence to elevate the offense to first
degree premeditated murder.




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         Examining the Bland factors, there was no evidence indicating a previously formed intent
to kill after reflection and judgment. Although the defendant admitted to using a deadly weapon to
shoot the victim, there was no evidence that the defendant made declarations indicating an intent to
kill the victim. The state produced no evidence regarding preparations for the concealment of the
murder. Furthermore, the defendant’s parents said that the defendant was extremely distraught when
she informed them she had shot the victim, and Deputy Kile testified that the defendant appeared
“very upset” when she arrived at the Sheriff’s Department. The true circumstances surrounding the
homicide remain somewhat of a mystery. Viewing the evidence in a light most favorable to the state,
the jury could reasonably conclude that the defendant was involved in the homicide; however, the
evidence was insufficient to establish that the defendant acted with reflection and judgment.

        However, we conclude that the evidence was sufficient to establish the lesser-included
offense of second degree murder; namely, that the defendant knowingly killed the victim. See Tenn.
Code Ann. § 39-13-210(a)(1). Thus, the defendant’s conviction is reduced to second degree murder,
and the case is remanded to the trial court for re-sentencing.


                                         II. CONTINUANCE

        The defendant contends the trial court erred in denying her motion for a continuance. She
claims that shortly before trial, defense counsel learned of two additional potential witnesses. She
alleges the two men gave statements to authorities in which they claim to have been with the
defendant on the night of the murder. Additionally, defendant alleges the men confirmed that she
traded the gun to Ricky Hooper for drugs on the night in question. Defendant further argues the state
had a duty to disclose this information to her, and that the state’s open file policy does not negate that
responsibility. Defendant asserts that, due to the exculpatory nature of the statements, the trial
court’s refusal to grant a continuance denied her a fair trial.

        The day before trial was to begin defendant by oral motion sought a continuance. Defendant
argued these two persons had not been located. Defendant further argued these men could provide
exculpatory evidence. The trial court denied the motion, but allowed defendant to file a copy of the
audio-taped statements as an exhibit to the hearing on the motion. At trial, the state offered to allow
the defendant to play the audio-taped statements for the jury, but the defendant declined.

        The grant or denial of a motion for continuance is a matter entrusted to the sound discretion
of the trial court . State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995). This court will not interfere
with the exercise of this discretion unless it appears that (a) the trial court abused its discretion, and
(b) prejudice enured to the accused as a direct result of the trial court’s ruling. State v. Cazes, 875
S.W.2d 253, 261 (Tenn. 1994).

        The state contends it maintained an open file policy, and the tape recorded statements of the
witnesses were available to the defendant long before trial. However, it appears the statements were
in the possession of the Sheriff’s Department. Although defense counsel earlier obtained certain


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photographs from the Sheriff’s Department file, it is unclear whether the open file policy extended
to the Sheriff’s Department file.

        Regardless, we are unable to conclude that the defendant was prejudiced. We have reviewed
the taped interviews of these two potential witnesses. Our review indicates that one did not know
whether the defendant had the gun when she came out of the room after allegedly making the drug
deal. However, contrary to the defendant’s argument, the other stated he saw her with the gun after
she left the room.

        Finding no prejudice, we conclude that this issue is without merit.


                                        III. JURY CHARGE

        Defendant contends the trial court erred in instructing the jury on criminal responsibility for
the conduct of another. Defendant argues that the only evidence of the involvement of someone
other than herself was her statement to police that Ricky Hooper committed the crime without her
assistance. Defendant further argues this charge authorized a non-unanimous verdict since some
jurors could find the defendant to be the actual perpetrator, whereas others could find that she was
criminally responsible for the conduct of another.

        A defendant is criminally responsible for the criminal act of another if, “acting with the intent
to promote or assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense.”
Tenn. Code Ann. § 39-11-402(2). According to defendant’s last statement, she gave the gun to
Hooper, who subsequently committed the crime. Furthermore, the pathologist testified that, due to
the nature and location of the wounds, it was likely that more than one person was involved. Based
upon this evidence, the trial court properly charged criminal responsibility for the conduct of another.


       We also reject defendant’s argument that the charge authorized a non-unanimous verdict.
“An accused’s constitutional right to a jury necessarily entails a right that the jury be unanimous as
to which offense constitutes the crime for which defendant is convicted.” State v. Williams, 920
S.W.2d 247, 257 (Tenn. Crim. App. 1995). Questions regarding a unanimous jury verdict may arise
when the state fails to elect among different offenses; however, criminal responsibility under the
Code is not a separate offense, but rather a legal theory of criminal liability by which a defendant
may be convicted for an offense based upon the conduct of another person. State v. Lemacks, 996
S.W.2d 166, 170 (Tenn. 1999).

       Jury unanimity was not affected by the instruction in the present case. The jury was not
required to make findings from among several possible criminal events to determine whether the
defendant was guilty of murder. See Lemacks, 996 S.W.2d at 170. The jury was to make one
determination of guilt either based upon evidence that the defendant shot the victim herself or that


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she was responsible for the conduct of another. Therefore, the trial court properly instructed the jury
on both theories of guilt.

       This issue is without merit.


                           IV. NEWLY DISCOVERED EVIDENCE

       The defendant contends the trial court abused its discretion in failing to grant a new trial
based on newly discovered exculpatory evidence. We disagree.

        At trial, Mike and Sheila Garrett, the latter being defendant’s sister, attempted to avoid
testifying by invoking their right against self-incrimination. However, after speaking with their
attorney, they agreed to testify. Subsequently, the state chose not to call them; however, by
agreement of Mike and Sheila Garrett’s attorney and defendant’s counsel, the state introduced Sheila
Garrett’s 911 call and her video-taped statement to the authorities. Neither party called Mike Garrett
as a witness.

        After trial, defendant submitted an affidavit by Mike Garrett stating that on the morning of
the murder he heard a gunshot, looked out the window, and saw Ricky Hooper climbing out of the
driver’s side of the victim’s car-hauler. He stated that Hooper then got into a blue/silver truck.

          In seeking a new trial based on newly discovered evidence, there must be a showing that
defendant and her counsel exercised reasonable diligence in attempting to discover the evidence, and
that neither the defendant nor her counsel had knowledge of the alleged newly discovered evidence
prior to trial. State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994); State v. Caldwell, 977 S.W.2d
110, 117 (Tenn. Crim. App. 1997). In addition, there must be a showing of the materiality of the
testimony, and the trial court must determine whether the result of the trial would likely be changed
if the evidence were produced. Nichols, 877 S.W.2d at 737; State v. Singleton, 853 S.W.2d 490, 496
(Tenn. 1993). The granting or refusal of a new trial on the basis of newly discovered evidence rests
within the sound discretion of the trial court. State v. Walker, 910 S.W.2d 381, 395 (Tenn. 1995);
Caldwell, 977 S.W.2d at 117.

        First, we note that the record on appeal does not contain the contents of the hearing on the
motion for new trial. Nevertheless, the transcript does indicate that no evidence was presented. We
find no abuse of discretion in the denial of a new trial based solely upon this affidavit and the record
before us.

       The only indication relating to the timing of the discovery of this information is in Garrett’s
affidavit relating “[t]he only reason that I am coming forward now is because Tracie Kirland should
not go to prison for a crime she did not commit.” The affidavit further states he had hoped the
defendant would “be found not guilty without me having to testify,” and that he feared for his
family’s safety since Hooper had intimidated him. No details were related as to the alleged


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intimidation. There is no affidavit from the defendant or defense counsel indicating they had no
reason to anticipate this alleged evidence. Nor is there any indication what Garrett allegedly told the
defendant and defense counsel prior to trial. Thus, the defendant has failed to show due diligence
regarding this evidence.

        We further note that even if Garrett observed Hooper exit the driver’s side of the truck after
the shot, that does not necessarily exonerate the defendant. The pathologist testified the shots were
fired from the victim’s right and the collar burn was caused by force exerted from the victim’s left,
thereby indicating the possible participation of two perpetrators. The alleged new evidence does not
establish that the defendant was not present, aiding in the crime. Furthermore, the alleged new
evidence is inconsistent with the defendant’s statement that Hooper shot the victim at the truck stop.
Thus, we are unable to conclude that the result of the trial would likely be different even with this
evidence.

        A motion for new trial based upon the alleged discovery of new evidence should be viewed
with caution. See Evans v. State, 557 S.W.2d 927, 938 (Tenn. Crim. App. 1977) (citing Ross v.
State, 130 Tenn. 387, 394, 170 S.W. 1026 (1914)). We consider this especially true when the
alleged new evidence is from a person in the defendant’s family who was available as a witness
during trial.

       Based upon these considerations, we are unable to find error in the denial of the motion for
new trial.


                                          CONCLUSION

        Upon a thorough review of the record, we conclude the evidence was insufficient to sustain
a conviction for first degree premeditated murder. The conviction of the defendant is reduced to
second degree murder. We find no error regarding the remaining issues. Thus, the judgment of the
trial court is affirmed as modified, and the case is remanded to the trial court for re-sentencing for
second degree murder.




                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




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