          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON               FILED
                            MARCH SESSION , 1999             June 3, 1999

                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                  )   C.C.A. NO. 02C01-9711-CR-00442
                                     )
            Appellee,                )
                                     )   SHELBY COUNTY
V.                                   )
                                     )
                                     )   HON. W. FRED AXLEY, JUDGE
OTIS J. WIC KFAL L,                  )
                                     )
            Appe llant.              )   (FIRST D EGRE E MU RDER )



FOR THE APPELLANT:                       FOR THE APPELLEE:

CRAIG V. MO RTO N, II                    JOHN KNOX WALKUP
200 Jefferson, Suite 725                 Attorney General & Reporter
Memphis, TN 38103
(On A ppea l)                            J. ROSS DYER
                                         Assistant Attorney General
A. C. WHARTON                            2nd Floor, Cordell Hull Building
District Public Defender                 425 Fifth Avenue North
(At Tr ial)                              Nashville, TN 37243

TRENT HALL                               JOH N W. P IERO TTI
Assistant Public Defender                District Attorn ey Ge neral

LESLIE MOZINGO                           EDG AR A. PE TER SON , IV
Assistant Public Defender                Assistant District Attorney General
Criminal Justice Center, Suite 201       Criminal Justice Center, Suite 301
201 Poplar Avenue                        201 Poplar Avenue
Memphis, TN 38103                        Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
      The Defe ndan t, Otis J. W ickfall, ap peals as of rig ht his co nviction for first

degree murder in the Shelby Coun ty Crimina l Court. D efenda nt was se ntence d to

life imprisonment. In this appeal, Defendant raises the following issues:

             I. Whether the trial court erred in denying Defe ndan t’s Motion for
             Judgment of Acquittal based on the evidence presented by the
             State;

             II. Whether the trial court erred in allowing the introduction
             of the victim’s blood-staine d shirt to show the trajectory
             and an gle of the b ullet;

             III. Whether the trial court erred in allowing the introduction
             of a photograph of a recording label depicting the slang
             term for mu rder;

             IV. Whether the trial court erred in taking judicial notice of
             California Penal Code section 187 defining murder; and

              V. W hether th e trial court e rred in its jury ins tructions.

After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court.



       The facts presented at trial reveal that on April 25, 1995, Keena Thomas spent

the day with two of her friends and her seven-month-old daughter. Between 8:00

and 8:30 that evening, the group arrived at the home of Ms. T hom as’ 19 -year-o ld

boyfriend, Robert Be ckley, the victim in this case. While at the victim’s home, Ms.

Thomas received six or seven messages on her pager from Defendant who was her

ex-boyfriend and father of her seven-month-old daughter. The messages were a

sequence of numbers which included the phone number of Defendant’s location

followed by 34, 911, and 187. Ms. Thomas knew it was Defendant paging her

because the number 34 was a code he used when he page d her. Ms. Thomas




                                             -2-
testified that 911 indicated the urgency of Defendant’s need to speak with her. The

following colloquy then took place regarding the number 187:

              State: 187, what significance is that? Wh at’s that m ean?

              Ms. Thomas: It mean -- it means -- well like in sla ng it
              means murder. I guess it meant he was mad or whatever.

              State: In sla ng it mea ns wha t?

              Ms. Thom as: Murder.

              State: What sort of slang does 187 mean murder in?

              Ms. Thomas: Just like rap songs.

              State: Are yo u fam iliar with a ny rap artists w ho us e 187 in
              their music?

              Ms. Thom as: Uh-huh (Affirmative respon se).

              State: Who?

              Ms. Thomas: Spice One.

              State: Do you know any recording that he has sp ecifica lly
              using 18 7 in it?

              Ms. Thomas: Yes.

              State: W hat?

              Ms. Thomas: He has a [sic] album titled 187 He Wrote.

              State: 187 He Wrote?

              Ms. Thom as: Uh-huh (Affirmative respon se).

              State: Have you ever heard that cd, that recording?

              Ms. Th omas : I heard so me of it.

              State: Have yo u ever seen the album c over?

              Ms. Thomas: Yes.


Ms. Thomas did not m entio n that she knew 187 to mean murder in her written

statem ents to po lice or durin g her tes timony a t the prelim inary hea ring.

                                            -3-
       After Ms. Thomas had been paged several times, the victim called Defendant

and told him that he could not speak with Ms. Thomas. About 15 to 20 minutes after

this conversation, the group inside the victim’s house all walked outside to Ms.

Thomas’ car.     W hile her friends and her daughter were sitting in the car, Ms.

Thomas stood in the open door of her car and continued talking to the victim. As the

two were talking, a car pulled up behind Ms. Thomas’ car. Ms. Thomas first noticed

the car when it came around the corner going extremely fast and “burning rubber.”

Ms. Tho mas testified that Defendant got out of that car and she told the victim,

“[t]here ’s my baby’s daddy.” Defendant had a silver gun in his hand, and according

to Ms. Thom as, he shot the victim without ever sa ying a word.                Th ree other

witnesses testified and confirmed Ms. Thomas’ recitation of the events, but one

witness did say that as Defendant began to walk towards Ms. Thomas and the

victim, that h e said, “[b]itch , I told you,” an d then sh ot and killed the victim.



       Ms. Thomas testified that she and Defendant had dated for approximately two

and one-half years before breaking up in September 1994. She said that the reason

for the break up was because Defendant had gotten another girl pregnant during the

course of their relationship and during the pendency of her pregna ncy. In January

1995, Ms. Thomas began a relationship with the victim. At the time she began

dating the victim, she and Defendant we re still ha ving co ntact a s a res ult of his

visitation with their da ughter.       She stated that she would see Defendant

appro ximate ly once every two weeks and this was usually at her hom e. Thes e visits

apparently took place up until the time of the shooting on April 25, 1995.



       Dr. O’Brian Clea ry Smith testified that the victim received a fatal gunshot

wound enterin g his lower back and exiting his left chest. He said he believed that

                                             -4-
the victim had either bee n bent o ver or lying o n the gro und at the time th e bulle t

struck him. In addition, Dr. Smith testified that the fatal bullet went through the

victim’s heart an d caus ed suc h significan t dama ge that th e heart could no longer

function, thereby causing his death.



             I. Denial of Defendant’s Motion for Judgment of Acquittal



      Defendant contends th at the trial court erred in overruling his motion for

judgment of acquittal at the close of the State’s proof. Specifically, he argues that

the evidence was insufficient to show premeditation, an element of first degree

murder. In denying Defendant’s motion, the trial court stated the following:

             [I]f the jury b elieves the pro of that h as be en ad duce d befo re it
             this last couple of days . They’re the finders of fact. It’s a
             question of fact for the jury to resolve whether it was
             premeditated or whether it was an act involving passion or no
             passion. A kno wing k illing, for in stanc e. The Cour t will allow it
             to go to the jury based on the [sic] as charged and the lesser
             offenses.


W e agree. When presented with a motio n for jud gme nt of ac quittal, the trial c ourt’s

only conside ration is the legal sufficie ncy of the evidenc e. State v. Blanto n, 926

S.W.2d 953 (Tenn. Crim. App. 19 96). Sufficie ncy of the evidenc e is the ap propriate

standard by which both trial and appellate courts evaluate the adequacy of the

evidenc e. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). The duty of the

trial judge and the review ing court on the determination of a motion for a judgment

of acq uittal is the same as for a motion for a directe d verdict. See State v. Torrey,

880 S.W.2d 710, 712 (Tenn. Crim. App. 1993). This duty is as follows:

             The rule for d eterm ining a motion for a directed verdict
             requires the trial judge and the reviewing court on appeal
             to look a t all of the evidence, to take the strongest
             legitimate view of it in favor of the opponent of the motion,

                                           -5-
             and to allow all rea sonab le inferenc es from it in its favor;
             to discard all countervailing evidence, and if th en, the re is
             any dispute as to any material determinative evidence, or
             any doubt as to the conclusion to be d rawn fr om th e who le
             evidence, the motion must be denied.


State v. Thompson, 549 S.W .2d 943, 946 (Tenn. 197 7) (citation omitted).



      Rule 29(a) of the Tennessee Rules of Criminal Procedure provides in pertinent

part as follows:

             The court on motion of a defe ndant . . . shall order the
             entry of judgment of acquittal of one or more offenses
             charged in the indictment or information . . . if the evidence
             is insufficient to sustain a conviction of such offense or
             offenses.

In the instant case, however, we find the evidence sufficient to sustain a conviction

for first degree murde r. At the time of the offense, first degree murder required the

“intentio nal, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-

13-202(a )(1) (Supp. 1994) (the element of “deliberation” was omitted as a

requirement from th is statu te on J uly 1, 1995). Premeditation necessitates “the

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

1994), requiring “a previous ly formed des ign or intent to kill.” State v. West, 844

S.W.2d 144, 147 (Tenn. 1992). Deliberation, on the other hand, is defined as an act

committed with a coo l purpose and witho ut passio n or provo cation. See State v.

Brown, 836 S.W.2d 530, 54 3 (Ten n. 1992 ); see also Tenn. Code Ann. § 39-13-

201(b)(1) (Supp. 199 4). Deliberation also requires “some period of reflection, during

which the m ind is ‘fre e from the influ ence of excite men t, or pas sion.’” Brown, 836

S.W.2d at 540 (citation omitted). The elements of premeditation a nd deliberation a re

questions for the jury and may be inferred from the circumstances surrounding the

killing. State v. Gentry, 881 S.W .2d 1, 3 (T enn. C rim. App . 1993).


                                           -6-
       On the night of the murder, Defendant paged Ms. Thomas six to seven times.

 He inclu ded the numb ers 34, 9 11, and 187 in the pages . Ms. Thomas testified that

34 was his personal code, 911 meant that the matter was urgent, and th at 187 “in

slang . . . means murder.” The victim called Defendant and told him to stop paging

Ms. Thomas. About 20 minutes after this phone call, Ms. Thomas and the victim

were standing outside when a car being driven by Defendant came very fast around

the corner and stopped just a short distance from w here th e victim and Ms. Thomas

were standing. Defenda nt got out of the car, pointed a silver gun at the victim, and

according to one witness, said, “Bitch, I told you,” and then shot the victim.

Defendant contends on appeal that this was a killing o f pass ion an d there fore it

cannot be classified as first degree murder. However, from the record, it is clear that

the eviden ce is su fficient to supp ort the tr ial cou rt’s refusal to grant this motion . We

find that the trial court properly concluded that there was adequate evidence for the

jury to determine that Defenda nt was guilty of firs t degre e mu rder. T his issu e is

without m erit.




                    II. Admissibility of Victim’s Blood -Stained Sh irt



       Defendant contends in this issue that draping the victim’s clothing over a

man nequ in to prove the trajectory and angle of the bullet was done solely to inflame

the jury. He argues that this amou nted to cum ulative evidence and was prejud icial.

Howeve r, Defe ndan t did no t objec t to this eviden ce at tria l, and th is issue is therefore

deem ed waive d. See Tenn. R . App. P. 36(a).




                                              -7-
       Even if not waived, this issue is without m erit. Wh ether to admit this evidence

is within the discretion of the trial court and will not be reversed absent a clear

showing of an abu se of discretion app earing o n the face of the reco rd. See e.g.,

State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993). The shirt was used

to corrobo rate the State’s witness who tes tified to the traje ctory and line of the bu llet.

Even though Defendant conceded these facts, the State still had a right to prove its

case. The trial court did no t abuse its discretion in a llowing the shirt into evidence.

This issu e is withou t merit.



                             III. Admissibility of Photograph



       Defendant argues that the introduction of a photograph of a recording label

was irrelevant an d prejud icial to Defe ndant. Specifically, the photograph of the label

depicts a male holding a gun with the word s “187 He Wrote” on it. Ms. Thomas

testified that it w as a rap album by the gro up “Sp ice One .”



       Rule 403 of the Tennessee Rules of Evidence states that relevant evidence

may be excluded if its prob ative va lue is su bstan tially outwe ighed by dan ger of u nfair

prejudice. How ever, R ule 401 states that evidence is relevant if it has a tendency

to mak e the e xistenc e of an y fact tha t is of consequence to the determination of the

action more proba ble or le ss pro bable than it would without the evidence. Tenn. R.

Evid. 401. W hethe r to adm it this is within the discretionary authority of the trial court

and will not be reversed absent a clear showing of an abuse of discretion appearing

on the fac e of the rec ord. See, e.g., Dickerson, 885 S.W.2d at 92.




                                             -8-
         Ms. Thomas testified that Defendant paged her with a sequence of numbers,

one being the number 187. When asked what 1 87 m eant, s he sa id, “W ell, like in

slang it means murder.” The photograph admitted was a rap group’s album cover

entitled “187 He Wrote.” The label is probative in that it corroborates the testimony

of Ms. T hom as tha t 187 is unde rstood by som e peo ple to be slang for murder. The

trial court did no t abus e its disc retion in adm itting this into evid ence . This is sue is

without m erit.



                IV. Judicial Notice of California Penal Code Section 187



         Defendant contends that the trial c ourt er red in ta king ju dicial no tice of a nd in

allowing the introduction of Californ ia Pena l Code s ection 18 7 into evide nce. As with

the introduction of the recording label photograph, Defendant argues that the

introdu ction o f this penal code section was irrelevant an d prejud icial to Defe ndant.



         Rule 202 of the Tennessee Rules of Evidence states in pertinent part that the

trial court “sha ll take judicial n otice of . . . the constitutions and statutes of the United

States and of every state, territory, and other jurisdiction of the United States. . . .”

Tenn. R. Evid. 202(a). In order to explain to the jury that 187 is a common slang

term for murd er, the Sta te had to show som e evidence from where that term came.

Penal code section 187 provides in pertinent part that murder is “the unlawful killing

of a human being, or a fetus, with malice aforethought.” We find the evidence to be

highly relevant to a material issue. Furthermore, the trial court was required to take

judicial notice of s uch an item. See Tenn. R. Evid. 202(a). This issue is without

merit.




                                               -9-
                                  V. Jury Instructions



      Defendant claims that the trial court’s jury instruction pertaining to range of

punishment and parole eligibility was error. Defendant contends that although the

issues are identical to the issues decided by our supreme court in State v. King, 973

S.W.2d 586 (Tenn. 1998), he can nonetheless distinguish his case from King.



      In King, the defendant challenged the constitutionality of Tenn. Code Ann. §

40-35-201(b)(2), claiming the statute violated separation of powers and due process.

The court upheld the statute and stated the following:

               W e conclude that Tenn. Code Ann. § 40-35-201(b)(2)
               does not violate the Separation of Powers Clauses of the
               Tennessee Constitu tion.        Neith er is the statute
               impe rmiss ibly vague, nor does it require a misleading jury
               instruction. Additionally, we are satisfied that the jury
               based its verdict upon the law an d evide nce, in
               accordance with the instructions of the trial court. Thus,
               we find that neither the Due Process Clause of the United
               States nor the Tennessee Constitution was violated by the
               jury instruction given pursuant to the statute.


Id. at 592. Howe ver, the court was careful to limit its holding to the circumstances

of the case:

               Significantly, [the jury mem bers] w ere ad ditiona lly
               instructed that they were not to attempt to fix punishment
               for the offense and that the sentencing information was
               ‘for your information only.’ When the trial court explains,
               as it did here, that the sentencing, parole, and e arly
               release information is not to be considered in the
               determination of guilt or innocence, then certainly no due
               process violation has occurred.

Id.; but see State v. Jason M. Weiskopf, No. 0201-9611-CR-00381, Shelby Coun ty

(Tenn. Crim. App., Jackson, Dec. 4, 1998) (Rule 11 application filed by the State on

Feb. 3, 1999) (finding plain error in the jury charge because the jury was instructed


                                           -10-
they could “weigh and consider the meaning of a sentence of imprisonment”). The

jury instruction in the case sub judice, which was substantially the same as the one

in King, reads in p ertinent pa rt as follows :

              The jury will not attem pt to fix any punishment or sentence
              for these offense s. Howeve r, for your informa tion only,
              you are info rmed [of] the ra nges of pun ishment as to the
              offense s . . . .


The supreme court in King found the ab ove ins truction did no t violate a defen dant’s

constitution al rights.



       First, Defen dant co ntends that King does not apply to his case because the

defendant in King was convicted of a property offense, while he has been convicted

of murder.    This argum ent is without merit as the statute does not distinguish

between offenses. Second, Defendant argues that his case is distinguishable from

King because the defendant there was charged as a persistent offender and

Defendant was n ot. Ho weve r, again there is not a different stan dard depending on

the offend er’s sta tus. T hird, D efend ant alle ges th at his ca se is dis tinguis hable

because he raises new issues with regards to due process. Defendant contends

that the jury was given erroneo us calcu lations an d that the ju ry was m isled into

believing if Defendant was convicted of second d egree m urder that he w ould serve

the minimum amount of time. However, we find the trial court’s calculations and

instructions to have be en acc urate un der the a pplicable law. Defendant also argues

that the instructions were ambiguous and vague. However, this particular issue was

decided in King, and we are bound by the supreme court’s ruling.




                                            -11-
      Finally, Defendant argues that the constitutional principle of separation of

powers was violated. Aga in, this issue was de cided by our su preme co urt in King.

Specifically, the court stated the following in regards to this issue:

              Admittedly, the statute constitutes an overlapping of the
              legislative power w ith that of the judiciary, and it may
              indeed be close to an improper infringement. Yet, having
              already ackno wledge d the au thority of the le gislature to
              provide a range of punishment instruction, we must also
              acknowledge that an explanation of the reality of early
              release and p arole is no further an encroachment into the
              judicial function. The jury must still decide the issue of
              guilt or innocence, and the trial court must still decide the
              ultimate sentence to be imposed. Therefore, we conclude
              that Tenn . Code Ann. § 4 0-35-20 1(b)(2) do es not viola te
              the Separation of Powers Clauses of the Tennessee
              Cons titution.

Id. at 589.




      Based on all the foregoing, the judgment of the trial court is affirmed.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JOSEPH M. TIPTON, Judge



                                          -12-
