         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   February 7, 2006 Session

               STATE OF TENNESSEE v. JAMES LEON MILLER

                       Appeal from the Circuit Court for Gibson County
                           No. H-7665 Clayburn Peeples, Judge



                     No. W2005-01571-CCA-R3-CD - Filed April 12, 2006


On May 15, 2004, the victim, Charles Lawuary, was shot and killed in Humboldt, Tennessee in an
area known as “the crossing.” A bystander was grazed by a bullet. The defendant, James L. Miller,
and a co-defendant, Charles Lewis, were later arrested for the shootings. The Gibson County Grand
Jury indicted the defendant for criminal responsibility for first degree murder and criminal
responsibility for aggravated assault. Following a jury trial held on March 21, 2005, the jury found
the defendant guilty as charged. The defendant was sentenced to life in prison for the murder
conviction and six years for the aggravated assault conviction, to be served concurrently with the life
sentence. The defendant appeals, arguing that, the State failed to prove the venue of the crime, the
trial judge failed to charge the natural and probable consequences rule to the jury, there was juror
misconduct when one juror felt she was coerced into voting for a guilty verdict, and there was
insufficient evidence to support the defendant’s conviction. We have reviewed the record in this
case and affirm the judgment of the trial court.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE, JJ., joined.

Harold R. Gunn, Humboldt, Tennessee, for the appellant, James Leon Miller.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Gary Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                            OPINION


         Charles Lewis is the co-defendant in this case. He admitted shooting the murder victim on
May 15. He made a deal with the State to plead guilty to second degree murder and in exchange
would testify at the defendant’s trial. Around May 4, Charles Lawuary came up to Lewis and asked
Lewis if Lewis and the defendant were talking about robbing him for his money. Lewis called the
defendant, who was on his way back from Jackson. The defendant subsequently called Lawaury and
proceeded to argue with him on the phone. Lewis and the defendant then proceeded to the
defendant’s girlfriend’s house. Lawuary shot at the defendant and the co-defendant while they were
at the defendant’s girlfriend’s house. Lawuary fired four or five times, and the defendant fired back
with a .45 caliber weapon. The defendant claimed he accidentally shot his girlfriend’s car during
this altercation. Lewis and the defendant decided that if they ever saw Lawuary again there were
“going to get him.”

        On May 4, 2004, Sergeant Dennis Wright, who is in the Criminal Investigation Division of
the Humboldt Police Department, received a report of a shooting incident. The defendant reported
the May 4 incident. In the May 4 shooting investigation, the defendant reported to Sergeant Wright
that a man wearing a bandana around his face walked up to the house where he was and began
shooting. The defendant indicated to Sergeant Wright that Charles Lawuary was the shooter on May
4. Sergeant Wright found bullet holes in a vehicle in front of the house. Sergeant Wright found it
unusual that the entrances of these bullet holes were from a southernly direction, but the shooter
would have been shooting from a northerly direction. He found one spent .45 caliber shell casing
in the vehicle. There were no other bullet holes or spent shell casings found in the investigation.

        About one or two weeks later Lewis saw Lawuary. Lewis was riding in a car with Charles
Davis and Lawuary was riding in a car with Chris Lofton, also known as “Gorilla”. They stopped
the cars so that they could speak to each other. After Lewis saw Lawuary riding with Lofton, Lewis
told the defendant, also known as Red, that he had seen Lawuary. Lewis told the defendant about
Lawuary because Lawuary was “still running around Humboldt like – like he ain’t done nothing to
nobody.” Lewis then met up with the defendant near a barber shop. The defendant handed Lewis
a .45 caliber gun in a brown paper bag. Lewis saw the car in which Lawuary was riding.

        When the car stopped Lawuary got out of the car and walked toward the store. At this point,
Lewis began walking toward the store while carrying the .45 caliber weapon he had received from
the defendant. Lewis stated at trial that when the defendant gave him the gun, he and the defendant
had planned to kill Lawuary. Lewis stood outside the store between two cars. He saw Roy Turner
and informed him he was about to shoot Lawuary. When Lawuary came out of the store, Lewis
waited a few minutes and began shooting him. Lewis did not believe that Lawuary had any idea that
Lewis was at the scene or about to shoot him.




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        The victim did not put up any resistance or shoot back. After he shot Lawuary, Lewis began
to run. He met a police car and ran in the opposite direction. Lewis ran to a friend’s house, where
the defendant joined him and retrieved his gun.

        Carl Wade, Jr., was at “the crossing” on May 15 standing in front of Joe’s Pool Room talking
to his cousin. He heard three shots, then realized that he had been shot. There was no argument or
disturbance before the shooting. Mr. Wade required six stitches to his head and was released.
Fortunately, he did not have any residual problems related to the injury.

        Anthony McKnight was at his mother-in-law’s house on May 15. He knew the defendant
enough to recognize him. When he left the house, he saw the defendant coming out of a house
talking on a cell phone and sticking a brown paper bag into the waistband of his pants. The object
in the bag was black and had a handle. Mr. McKnight thought it looked like a gun. Mr. McKnight
overheard the defendant talking on the cell phone and telling the person on the other end of the line,
“Do what you’ve got to do.”

        Claude Thomas was at the barber shop near the crossing on May 15. Mr. Thomas and
Gorilla, who is Mr. Lofton, were waiting for haircuts at the barbershop. Mr. Thomas and Gorilla
were standing outside smoking and the defendant came over and talked to Gorilla. The defendant
told Gorilla to, “keep that guy out of your car.” Mr. Thomas then heard shots. Then he heard the
defendant say, “There’s the guy laying on the ground now.” Thomas saw a police car and went over
to see what had happened.

        Roy Turner was a witness to the May 15 shooting. Mr. Turner was going to the store when
he saw the co-defendant Charles Lewis, also known as “Smokey”, cross the railroad track. When
Lewis approached Mr. Turner he told him to get out of the way because he was going to shoot
Lawuary. When Lawuary came out of the store, the co-defendant started shooting him. Lawuary
never flinched, looked back or attempted to run. Lewis fired five shot striking Lawuary in the head.
Then Lewis ran, but had to turn around when he was approached by the police. Mr. Turner did not
see the defendant at “the crossing” that day.

         Mr. Pledge is the defendant’s nephew and lives in Iowa. A few days after the May 15
shooting, the defendant went to Iowa. The defendant was in the area about two weeks until he was
arrested at a hotel in Illinois. When Mr. Pledge went to pick up his uncle, he saw that the defendant
had a .45 caliber gun in his possession. While riding in the car, the defendant told Mr. Pledge not
to stop the car if the police arrived because the defendant was “on the run.” Mr. Pledge was also told
that the defendant was supposed to be up on a murder charge.

        On May 15, 2004, Sergeant Wright investigated the shooting death of Lawuary. The victim
died from a gunshot wound to the head. Sergeant Wright completed an investigation of the area of
the shooting known as “the crossing.” He described street names as well as business names on a
diagram of the area of the shooting. Sergeant Wright found four spent .45 caliber shell casings near
the body of the victim. There was no evidence of any return fire by the victim. Sergeant Wright also


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found an additional victim who had been standing outside of a business near where the victim was
shot. Sergeant Wright believed that a bullet ricocheted off the wall of the building and struck Carl
Wade, the other victim, in the back of the head. This bullet caused a grazing injury. Sergeant
Wright recovered a bullet from Lawuary’s head that was taken out during surgery at the hospital.

        At the time of the May 15 shooting, an Officer Brad York of the Humboldt Police
Department was looking for Charles Lawuary. He received a call from a female that the individual
involved in the shooting on May 4 was in a trailer on Calhoun Street. Officer York did not find the
individual. Officer York heard shots from the direction of “the crossing” and he ran there. York
called in that there was a man lying on the street. Officer York saw a black male subject running
away from the scene. A police car headed toward the subject, and Officer York saw the subject
remove a gun from his waistband and point it toward the police car. The subject then turned and
began running again.

       Bill Baker is the Assistant Chief of Police at Humboldt. He transported a bullet removed
from Lawuary’s head and a bullet removed from the car involved in the May 4 shooting to the
Tennessee Bureau of Investigation Crime Lab. Steve Scott of the TBI tested the bullets and
concluded that they were both fired by the same gun.

        After the May 15 shooting, Sergeant Wright found the defendant in Iowa after hearing several
reports that he had left the state. The defendant was arrested in Rock Island, either Illinois or Iowa.
The defendant’s arrest and the return to Tennessee occurred within about a month of the shooting.

        On July 26, 2004 the Grand Jury of Gibson County indicted the defendant for one count of
criminal responsibility for first degree murder and one count of criminal responsibility of aggravated
assault. A jury trial was held on March 21, 2005. At the conclusion of the trial, the jury found the
defendant guilty of both counts. The trial court then sentenced the defendant to life imprisonment
without possibility of parole on the criminal responsibility for first degree murder conviction. The
trial court held a sentencing hearing on July 1, 2005 for the second count of criminal responsibility
for aggravated assault. The trial court sentenced the defendant to six years to run concurrently to the
life sentence. The defendant filed a timely notice of appeal.



                                            ANALYSIS

        The defendant argues four issues on appeal: (1) whether the State proved the venue of the
crime; (2) whether the trial judge charged the natural and probable consequences rule to the jury; (3)
whether there was juror misconduct when one juror felt she was coerced into voting for a guilty
verdict; and (4) whether there was sufficient evidence to support the defendant’s conviction.




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                                     VENUE OF INCIDENT

         The defendant’s first issue is that the State did not prove the venue of the crime by a
preponderance of the evidence. After citing Tennessee Code Annotated section 39-11-201(e), which
states that “venue [must] be proven by a preponderance of the evidence,” the defendant states, “The
State made references to the Crossing and Humboldt, but never showed by a preponderance of the
evidence that the crime occurred in Humboldt, Gibson County, Tennessee.” This is the defendant’s
argument in its entirety. The State argues that the venue of the crime was proven by a preponderance
of the evidence.

        Article I, Section 9 of the Tennessee Constitution states that an accused must be tried in the
county in which the crime is committed. Proof of venue is necessary to establish the trial court’s
jurisdiction. See Harvey v. State, 376 S.W.2d 497, 498 (Tenn. 1964); Hopson v. State, 299 S.W.2d
11, 14 (Tenn. 1957). However, venue is a question for the jury and is not actually an element of the
offense charged. The State only needs to prove by a preponderance of the evidence that the charged
offense was committed in the county in which the defendant is being tried. See Tenn. Code Ann.
§ 39-11-201(e); State v. Bennett, 549 S.W.2d 949, 949-50 (Tenn. 1977); State v. Anderson, 985
S.W.2d 9, 15 (Tenn. Crim. App. 1997). Venue may be proven by circumstantial evidence, and even
slight evidence is sufficient if it is uncontradicted. Bennett, 549 S.W.2d at 950. In determining
venue, the jury is entitled to draw reasonable inferences from the evidence. State v. Johnson, 673
S.W.2d 877, 882 (Tenn. Crim. App. 1984).

       Sergeant Wright testified that the shooting occurred in Humboldt and that he was a member
of the Humboldt Police Department. In addition, he prepared a diagram of the downtown area
known as “the crossing” to help explain his testimony. Other witnesses also referred to the fact that
the shooting occurred in Humboldt. This proof was never contradicted during the trial. We
conclude that based on these facts a reasonable trier of fact could reasonably have found by a
preponderance of the evidence that the offenses occurred in the town of Humboldt in Gibson County,
Tennessee.

       Therefore, this issue is without merit.

                NATURAL AND PROBABLE CONSEQUENCES CHARGE

        The defendant also argues that the jury was not instructed on the natural and probable
consequences rule. The defendant makes no references to the jury instruction. Although the heading
in the defendant’s brief is that the trial court did not properly instruct on the natural and probable
consequences rule. The defendant’s argument, in its entirety, is as follows:


             The defendant was charged with Criminal Responsibilities for First Degree
       Murder. For the jury to find defendant guilty based on the natural and probable
       consequences rule, the State must prove beyond a reasonable doubt and the jury must


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       find the following: (1) the elements of the crime or crimes that accompanied the
       target crime; (2) that the defendant was criminally responsible pursuant to Tennessee
       Code Annotated section 39-11-402; and (3) that the other crimes that were committed
       were natural and probable consequences of the target crime. State v. Howard, (Tenn.
       2000), 30 S.W.3d 271 at p. 276.

       “.... we’re going to get him. That was it.” This phrase can not equate to premeditated
       murder. “I had followed Lawuary toward the store.” This phrase can not equate to
       premeditated murder.

              Because the jury was not properly instructed on the natural and probable
       consequences rule and did not have the opportunity to determine whether this
       element was proved, defendant’s conviction for premeditated murder must be
       reversed.


        In actuality, the defendant’s argument appears to be an argument concerning the sufficiency
of the evidence to support the verdict. We will address that issue later in the opinion.

        The jury instructions are in the record and, we have found that the trial court did indeed
instruct the jury on the natural and probable consequences rule. Therefore, the defendant’s position
on appeal is not only puzzling it is without merit.

                                     JUROR MISCONDUCT

        The defendant also argues that there was juror misconduct because a juror stated that she was
“maybe pressured” or “coerced.” The State argues that the defendant has been unable to prove that
there was any extraneous influence on the jury deliberations, and, therefore the trial court did not
abuse its discretion in denying the defendant’s motion for new trial.

        The juror in question testified at the hearing on the motion for new trial. She stated that
following the trial, she called the defendant’s attorney and informed him that she was unhappy with
the verdict in the defendant’s case. The trial court asked the juror what her concerns were about the
verdict. The following is her reply:

       A.      I didn’t agree with the verdict. When we went in, we were discussing the
       verdict. I mean, what we was going to come up with. The – I feel like my first mind
       was to go with not guilty and after we discussed it and went on and they were reading
       over the documents that we had in front of us, which the first degree murder or the
       second degree, and we discussed that and I asked, you know, about the second degree
       murder – was conspiracy or – because I didn’t feel like Red was – he didn’t pull the
       trigger. He didn’t kill the guy that was killed, so – but, instead of going with my first
       mind and speaking up and saying that I didn’t agree with them – I feel like there was


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so much commotion in there and so many – you know, well, this was going on and
this was going on. I should have just spoken up and changed my vote, that I wanted
to go with not guilty of first degree murder, but I didn’t, and then after I got home I
couldn’t sleep. I had been worried and that’s when I called Mr. Gunn and talked to
him about that and I didn’t question while I was in the jury room with the rest of
them of my decision.

Q.      All right. You will recall, I’m sure, after the jury came back out I did what
they call poll the jury and I asked each of you if that was your verdict.

A.     Yes, sir.

Q.     And you agreed to that verdict at that time.

A.     Yes, I did.

Q.      Did you feel you were under any sort of coercion or threat or pressure to vote
guilty as opposed to not guilty?

A.      I would say being in the room with, you know, with everybody, just – I don’t
know if I could say coerced or pressured or maybe pressured. It was – I don’t know.
It was more or less just sort – of just went with – just looked at one thing, the first
thing to go with – first degree, and I guess you could say pressured.

Q.     Would it be – did you feel under any sort of threat?

A.     No.

Q.      Would it be correct to say that after you returned home you felt that you had
voted incorrectly?

A.     Yes.

Q.      But at the time you delivered the verdict, that was, in fact, your verdict. Is
that correct?

A.      Yes, that was my verdict, but I didn’t feel comfortable with it. Even after I
voted and put it in the – went with the rest of them, I felt like then I should have
changed my mind. I should have went with my first mind to say, no, I don’t want to
go this way, but I just –

Q.     So you felt you should act one way but you did not act that way?



                                         -7-
       A.      Correct.


       A trial court’s decision as to whether to grant a motion for a new trial based on juror
misconduct is within the sound discretion of the trial court and will not be overturned absent an
abuse of discretion. State v. Dellinger, 79 S.W.3d 458, 494 (Tenn. 2002). Rule 606(b) of the
Tennessee Rules of Evidence states:


                       (b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry
       into the validity of a verdict or indictment, a juror may not testify as to any matter or
       statement occurring during the course of the jury’s deliberations or to the effect of
       anything upon any juror’s mind or emotions as influencing that juror to assent to or
       dissent from the verdict or indictment or concerning the juror’s mental processes,
       except that a juror may testify on the question of whether any outside influence was
       improperly brought to bear upon any juror, or whether the jurors agreed in advance
       to be bound by a quotient or gambling verdict without further discussion; nor may
       a juror’s affidavit or evidence of any statement by the juror concerning a matter about
       which the juror would be precluded from testifying be received for these purposes.


        In Walsh v. State, 166 S.W.3d 641, 649 (Tenn. 2005), the Tennessee Supreme Court held
that Rule 606(b) of the Tennessee Rules of Evidence permits juror testimony to establish the fact of
extraneous information or improper influence on the juror; however, juror testimony concerning the
effect of such information or influence on the juror’s deliberative processes is inadmissible.
However, a juror is not permitted to testify about anything occurring during deliberations, including
the juror’s own internal thoughts, motivations or emotions. Id.

        Our supreme court has held that “extraneous information” is information from a source
outside the jury. State v. Coker, 746 S.W.2d 167, 171 (Tenn. 1987). Thus, intra-jury pressure or
intimidation, State v. Hailey, 658 S.W.2d 547, 553 (Tenn. Crim. App. 1983), premature jury
deliberations contrary to the trial court’s instructions, State v. Frazier, 683 S.W.2d 346, 353 (Tenn.
Crim. App. 1984), and speculation about a verdict’s consequences, State v. Workman, 667 S.W.2d
44, 51-52 (Tenn. 1984), have been found to be internal matters that do not involve extraneous
information or outside influence.

       When the defendant has shown that a juror has been “exposed to extraneous prejudicial
information or subjected to improper influence,” the burden then shifts to the State to prove that the
conduct was harmless because a rebuttable presumption of prejudice arises. Walsh, 166 S.W.3d at
647.

        In the case sub judice, the juror testified concerning her questioning of the verdict after the
verdict had been rendered. She did not testify regarding any extraneous influence on her decision


                                                 -8-
or that of the jury. She, in effect, testified that she was influenced by her assumption that the other
jurors were going to vote guilty. As we set out above, a juror may not testify concerning her own
thought process or even the jury’s process regarding the jury’s deliberation. Clearly, under Rule
606(b), such evidence is not admissible. The juror’s testimony at the defendant’s hearing on his
motion for new trial is exactly the kind of evidence which should have been excluded by Rule
606(b).

       This issue is without merit because the defendant was unable to prove that there was
extraneous influence on the juror in question.

                              SUFFICIENCY OF THE EVIDENCE

        The defendant argues that the State did not prove that he was an “accomplice.” When a
defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim
according to certain well-settled principles. A verdict of guilty, rendered by a jury and “approved
by the trial judge, accredits the testimony of the” State’s witnesses and resolves all conflicts in the
testimony in favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris,
839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked with a
presumption of innocence, the jury verdict of guilty removes this presumption “and replaces it with
one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of
proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The
relevant question the reviewing court must answer is whether any rational trier of fact could have
found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning
the credibility of the witnesses and the weight and value to be given to evidence, as well as all factual
issues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State
v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

        The defendant was convicted of criminal responsibility for first degree murder and criminal
responsibility for aggravated assault. “A person is criminally responsible for an offense committed
by the conduct of another if . . . [a]cting with 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). First
degree murder is “[a] premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-
202(a)(1). Aggravated assault, as indicted, is the intentional and knowing commission of an assault
by the use of a deadly weapon. Tenn. Code Ann. § 39-13-102(a)(1)(B).



                                                  -9-
       In our review, we must determine whether a reasonable trier of fact could conclude that the
defendant acted with intent to aid or assist the co-defendant in the shooting of Lawuary and the
aggravated assault victim.

        When viewing the evidence in favor of the State and keeping in mind that the jury is the sole
arbiter of the credibility of witnesses and weight to be given to the testimony, we conclude that the
evidence presented at the trial is sufficient to support the defendant’s convictions. The evidence
showed that there was an altercation between the victim and the defendant on May 4, prior to the
murder of the victim. The co-defendant admitted that he and the defendant planned to get the victim
following the May 4 shooting. The co-defendant testified he saw Lawuary on May 15 and called the
defendant. He met with the defendant and the defendant gave him a .45 caliber gun in a brown paper
bag. Another witnesses testified that he saw the defendant leave a house and stick a brown paper
bag into the waistband of his pants on May 15. Witnesses at the scene of the murder stated that they
saw both the defendant and the co-defendant at the scene prior to the shooting. Following the
shooting, the co-defendant ran away and later met the defendant who retrieved the gun. The
defendant’s nephew testified that the defendant came to Iowa a few days after the murder. The
defendant told his nephew that he was on the run. The defendant had a .45 caliber gun in his
possession when he was with his nephew. In addition, tests run by the State on a bullet removed
from the victim’s head and a bullet removed from an SUV involved in the May 4 shooting were from
the same weapon, a .45 caliber gun.

        Clearly, a trier of fact could reasonably conclude that the defendant aided the co-defendant
by giving him the gun and leaving the State with a weapon that a jury could reasonably conclude was
the murder weapon.

       Therefore, this issue is without merit.

                                         CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.



                                                 ___________________________________
                                                 JERRY L. SMITH, JUDGE




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