         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 4, 2001

                     STATE OF TENNESSEE v. JAMES SMITH

                     Appeal from the Criminal Court for Shelby County
                         No. 00-02772    W. Otis Higgs, Jr., Judge



                     No. W2000-02315-CCA-R3-CD - Filed April 4, 2002


The defendant, James Smith, was convicted of one count of first degree murder. The trial court
imposed a sentence of life imprisonment with the possibility of parole. In this appeal, the defendant
argues (1) that the evidence was insufficient to support his conviction and (2) that the trial court
erred by admitting certain photographs of the victim. The judgment of the trial court is affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and DAVID G.
HAYES, JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, James Smith.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
and Jerry Kitchen and Greg Gilluly, Assistant District Attorneys General, for the appellee, the State
of Tennessee.

                                            OPINION

        At approximately 9:00 P.M. on July 21, 1999, Derrick Landford was walking in his
neighborhood in Memphis when he encountered several people having an argument. According to
Landford, Michael Jones, whom he knew as “Pepper,” passed his handgun to another individual and
then struck the victim, Steven Cooks. The two men then fought each other, “one on one,” meaning
that no weapons would be used, rolling down an embankment and onto a grassy area near the street
curb.

        By then, the defendant, who was driving a red, four-door Cutlass automobile, had arrived at
the scene. According to Landford, the defendant parked his vehicle on the “wrong” side of the street
and stepped quickly out of the car, leaving the driver’s side door open. Eric Adams approached the
defendant, who was carrying a black automatic weapon, and informed him that Pepper and the victim
were fighting “one on one.” The defendant responded by “slapping” Adams in the head with his
gun, causing Adams to fall to the ground. According to Landford, the defendant then approached
from the back of the victim, who was on his knees. The defendant shot the victim, quickly returned
to his car, and backed down the street with the headlights off.

        Demario Holmes, the victim’s cousin, also witnessed the shooting. On the day of the
shooting, Demario Holmes, the victim, and some other cousins were walking through the
neighborhood looking for the victim’s bicycle, which had been stolen. Unable to find the bicycle,
the group stopped at the In and Out Market, a grocery store located at the corner of Chelsea and
Pearce streets, where they encountered Pepper, who was “talking bad stuff.” At trial, Demario
Holmes testified that Pepper hit the victim first and the two then “started tussling.” He recalled that
the defendant arrived soon after the altercation began and parked on the opposite side of the street.
Demario Holmes saw the defendant step out of his car and strike a young man in the head with a gun.
He remembered the defendant first shouting, “Get off my people, get off my nigga,” and then
shooting the victim one time. The victim responded by saying only, “He shot me.”

        Quenton Holmes, the victim’s twelve-year-old cousin, provided essentially the same account
as his older brother, Demario Holmes. He testified that Pepper was carrying a gun but passed it to
another individual before striking the victim. Quenton Holmes also recalled that a young man who
was watching the fight left the scene on a bicycle so as to notify the defendant of the altercation.
Quenton Holmes remembered that the victim said, “I got shot,” and that the victim then vomited
blood.

         The altercation began when Marco Lyles, who was on his way to the In and Out Market to
buy some food, met Billy Irby. The two argued and Irby threatened “to get Pepper.” Afterward,
when Pepper approached Lyles and pointed a gun in his direction, the victim intervened, according
to Lyles, attempting to ascertain the reason for the dispute. Pepper then struck the victim and the two
began to fight “one on one.” During the altercation, Lyles noticed a car “flying down” the street on
his left. When the car came to a stop, the defendant stepped out of his car, leaving the door open and
the engine running, and hit Eric Adams in the head with a gun. Lyles testified that the defendant
then walked over to the victim, said “step off them,” and shot the victim once in the back.

       Kevin Dewalt, who was working at the In and Out Market on the day of the shooting,
witnessed the fight. He testified that the defendant arrived at the scene, struck Eric Adams in the
head, and then shot the victim in the back.

        Beverly Bradshaw, whose daughter, Renata, is engaged to the defendant, testified that the
defendant arrived at her house between 10:30 P.M. and 11:00 P.M on the night of the shooting and
spent the night with her daughter. A Memphis police officer discovered the murder weapon hidden
just over the fence from the Bradshaw residence.

       Agent Shelly Betts of the Tennessee Bureau of Investigation examined the defendant's gun.
She explained that the gun was a single action weapon, meaning that the gun had to be cocked before
it would fire. Additionally, she testified that the safety had to be depressed completely before the


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gun would fire. According to Betts, the gun required four and three-quarter pounds of pressure to
fire.

        Medical testimony established that the victim died as the result of a gunshot wound to the
abdomen. The bullet entered the right side of the abdomen and pierced the stomach wall, the liver,
the vena cava, and the aorta, lodging just above the victim’s hip bone. According to Dr. O’Brien
Cleary Smith, the bullet traveled downward, right to left, over a total distance of five inches. It was
Dr. Smith’s opinion that the bullet was fired from a distance of greater than two feet. Dr. Smith
stated that the wound was consistent with the victim’s being shot while on his knees, as contended
by the state. He conceded that the wound was also consistent with the defense theory that the gun
was fired accidentally as the defendant struck Eric Adams in a downward motion.

         Billy Irby, as a defense witness, testified that on the day of the shooting Marco Lyles picked
a fight with him, but before there was any exchange of blows, the victim arrived and baited Pepper
into a fight. Irby claimed that Pepper had instructed the victim not to intervene in the fight and the
victim responded by challenging Pepper to “get dirty.” According to Irby, the victim then stepped
into the street and Pepper struck him. Irby testified that he then rode Pepper’s bicycle to the
defendant’s cousin’s house, informed the defendant that some people were “jumping” Pepper, and
watched the defendant speed away in his car. Irby then heard a gunshot and left.

       Antwan Holmes, another defense witness, testified that when the victim challenged Pepper
to a “one on one” fight, Pepper declined, explaining the Lyles/Irby dispute was none of their
business. He claimed that when the defendant arrived in his car, some of those watching the fight
approached the car saying, “It ain’t your business, stay out of it.” Antwan Holmes testified that he
then heard a smack closely followed by a gunshot.

        Michael “Pepper” Jones testified that on the day of the shooting, he was walking through the
neighborhood when he saw Billy Irby being accosted by three young men. Jones, suspecting that the
young men intended to “jump” Irby, stepped in to protect Irby. He claimed that the victim was the
agitator in their fight. Jones contended that during their altercation, he saw an individual named
“Gino,” who was standing over him with his hand in his pants, directing the victim to move. Jones
claimed that he thought Gino was going to shoot him. Just as the defendant arrived, Gino pulled out
a chrome plated gun and pointed it at Jones. Jones then heard “pow!”

        Zedrick Smith testified that he was with his brother, the defendant, at their aunt’s house when
Billy Irby arrived claiming that “some guys were jumping Pepper up the street.” Smith stated that
he and the defendant drove to the scene and upon their arrival, “a mob of guys rushed towards
[them].” According to Smith, the defendant drew a gun and when he swung at a young man standing
in front of him, the weapon discharged. Smith stated that the crowd then dispersed and that he left
without realizing that anyone had been shot.

      Eric Adams, testifying for the defense, recalled that on the day of the shooting he was at
home when “his little associates” arrived and informed him that “some Vice Lords [were] trying to


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jump on them.” He claimed that there were forty or fifty Vice Lords at the scene. Adams stated that
he spoke briefly with Pepper before the defendant arrived in a burgundy Cutlass. He testified that
he ran toward the defendant explaining that the fight was "one on one” when the defendant struck
him with a gun and said, “Get out of the way, bitch.” Adams testified that he dropped to the ground
because he was afraid the defendant was going to shoot him. While on the ground, he saw the
defendant aim the gun at the victim and fire more than once. At trial, Adams testified that he did not
give a statement to the police because he was hiding from police at the time of the shooting.

        The defendant testified to essentially the same account as his brother, Zedrick Smith. He
added that he was immediately confronted by Eric Adams when he arrived at the scene. When
Adams warned him to “stay out of [his] folks’ business,” the defendant then pulled a Colt .45, which
belonged to a friend, and struck Adams in the head. The defendant contended that the gun
discharged accidentally when he struck Adams. He claimed that he did not know that the gun was
loaded and contended that he could not see what was going on because he was not wearing his
glasses. The defendant testified that he left quickly because he believed he had shot Adams. While
acknowledging that he drove to Renata Bradshaw’s house and spent the night there, he contended
that he returned the gun to his friend and denied hiding it in the Bradshaw’s backyard.

                                                    I
         Initially, the defendant challenges the sufficiency of the evidence. On appeal, of course, the
state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which
might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility
of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact. Byrge v. State, 575 S.W.2d 292, 295
(Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant question
is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App.
P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility
of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859
(1956). Because a verdict of guilt removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

       First degree murder is defined as follows:

              (a) First degree murder is:
              (1) A premeditated and intentional killing of another;
              (2) A killing of another committed in the perpetration of or attempt to
       perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping,
       aggravated child abuse or aircraft piracy; or
              (3) A killing of another committed as a result of the unlawful throwing,
       placing or discharging of a destructive device or bomb.


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Tenn. Code Ann. § 39-13-202(a).

        Here, the evidence presented by the state established that the defendant, upon being informed
of an altercation involving the victim and one of his friends, drove to the scene. Upon his arrival,
the defendant struck Eric Adams in the head with his gun and then shot the victim once in the back,
causing his death. After the shooting, the defendant got into his car, backed away with his headlights
turned off, and traveled to the residence of his girlfriend, where the murder weapon was later found
by police. The defendant claimed that the gun accidentally discharged when he struck Adams. The
jury rejected the defendant’s theory, as was its prerogative, and accredited the witnesses for the state.
In our view, the evidence was sufficient to support the defendant’s conviction.

                                                  II
        The defendant next contends that the trial court erred by admitting two photographs of the
victim taken at the morgue. The admissibility of photographs is governed by Tennessee Rule of
Evidence 403. See also State v. Banks, 564 S.W.2d 947 (Tenn. 1978). The evidence must be
relevant and its probative value must outweigh any prejudicial effect. Tenn. R. Evid. 403; Banks,
564 S.W.2d at 950-51. Whether to admit the photographs rests within the sound discretion of the
trial court and will not be reversed absent a clear showing of an abuse of that discretion. State v.
Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v. Allen, 692 S.W.2d 651, 654 (Tenn.
Crim. App. 1985).

         Photographs made during or after an autopsy should be scrutinized and examined prior to
being shown to the jury. See generally State v. McCall, 698 S.W.2d 643 (Tenn. Crim. App. 1985).
If other considerations substantially outweigh the probative value of the evidence, it should be
excluded. In Banks, our supreme court recognized “the inherently prejudicial character of
photographic depictions of a murder victim.” 564 S.W.2d at 951. In adopting Federal Rule of
Evidence 403 as the test for admissibility, our high court suggested a variety of factors for
consideration by the trial judge. The “value of photographs as evidence, . . . their accuracy and
clarity . . . whether they were taken before the corpse was moved . . . [and] the inadequacy of the
testimonial evidence in relating the facts to the jury” are appropriate factors. Id.

        Two photographs were admitted which depicted the nature of the injuries the victim suffered
as a result of the gunshot wound. The first is a close up shot of the entrance wound. The second
is a side view of the victim lying on his back in the morgue. While unpleasant, these photographs
are not overly graphic. The photograph of the wound is probative of the distance between the
defendant and the victim because it showed the absence of powder burns or stippling. The second
photograph, which indicates both the location of the entrance wound and the location from which
the bullet was removed, was utilized by Dr. Smith to established the downward path taken by the
bullet.

       The defendant asserted at trial that the photographs had no probative value because Dr. Smith
had used a mannequin to explain the nature of the victim’s injuries. The trial court ruled that the
photographs were relevant and that their probative value was not outweighed by the danger of unfair


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prejudice. In our view, each of the photos was probative. While somewhat prejudicial, the
photographs were not overly so.

      Accordingly, the judgment of the trial court is affirmed.



                                                    ___________________________________
                                                    GARY R. WADE, PRESIDING JUDGE




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