            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                          APRIL SESSION, 1998



                                                                 FILED
STATE OF TENNESSEE,              )
                                 )   No. 02C01-9706-CR-00227           May 12, 1998
      Appellee                   )
                                 )   SHELBY COUNTY               Cecil Crowson, Jr.
                                                                 Appellate C ourt Clerk
vs.                              )
                                 )   Hon. Carolyn Wade Blackett, Judge
QUINCY L. HENDERSON,             )
                                 )   (Premeditated First Degree Murder)
      Appellant                  )



For the Appellant:                   For the Appellee:

Kathleen L. Caldwell                 John Knox Walkup
Taylor, Halliburton, Ledbetter       Attorney General and Reporter
  & Caldwell
44 North Second, Suite 200           Douglas D. Himes
Memphis, TN 38103                    Assistant Attorney General
                                     Criminal Justice Division
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493


                                     William L. Gibbons
                                     District Attorney General

                                     Reginald Henderson
                                     Asst. District Attorney General
                                     Criminal Justice Complex
                                     Suite 301, 201 Poplar Street
                                     Memphis, TN 38103



OPINION FILED:

REVERSED AND REMANDED



David G. Hayes
Judge
                                        OPINION



        The appellant, Quincy L. Henderson, was sentenced to a term of life

imprisonment following his conviction by a Shelby County jury for the premeditated first

degree murder of Demetrius Moten. In this appeal as of right, the appellant contends

that:

        I. The trial court erred by admitting photographs into evidence not
        disclosed during pre-trial discovery;

        II. The appellant’s pre-trial confession was obtained in violation of his
        Fifth Amendment rights and its admission constitutes reversible error;
        and

        III. The evidence is not sufficient to uphold a conviction for premeditated
        first degree murder.



        After a review of the record and the applicable law, we find the evidence

insufficient to support a conviction for premeditated first degree murder. Accordingly,

we vacate the judgment of conviction and sentence entered by the trial court. However,

we do find the evidence sufficient to support a conviction of second degree murder.

This case is remanded to the trial court for proceedings consistent with this opinion.




                                      Background



        On July 7, 1995, Demetrius Moten and her four children visited with family and

friends in the Dunnavant Street area of Memphis. Later that afternoon, Ms. Moten was

at the residence of her uncle, Orange Williams, who lived in the Dunnavant Manor

Apartments. At 7:00 p.m., she announced to her uncle and Jerry Herron, a friend, that

she was hungry and was going to get a sandwich. Orange Williams gave Demetrius

ten dollars and asked her to bring him back a cheeseburger. Shortly thereafter, she

was observed at a neighborhood bar and grill, known by the local residents as “Sam’s




                                          2
Club.”1 While in the club, Julius Moten, Demetrius’ father, saw his daughter drinking

a beer at the club with some of her cousins and friends. He recalled that he instructed

his daughter to go home to her children.



         Between 8:30 and 9:00 p.m., William Baker and Yolanda Cribbs each saw

Demetrius and the appellant leaving Sam’s Club together.2 The two were walking

toward the Dunnavant Manor Apartments. Demetrius was carrying a brown paper bag

in her left hand. “[The appellant] put his arm around her . . .like . . .hugging, but no .

. .she wasn’t hugging back.”                 From across the street, Baker overheard the two

discussing a ten dollar bill and observed that the appellant appeared to be attempting

to take the brown paper bag away from Demetrius. Ms. Cribbs stated that “they were

not fighting or struggling in any way.” She explained that it appeared as if the appellant

and Demetrius were hugging, and, because she knew they were friends, she did not

think anything about it. Baker also noticed that the appellant was wearing white, black,

and green Nike tennis shoes. Both Baker and Cribbs watched the two walk toward the

Dunnavant Manor Apartments, but neither noticed whether they ever entered an

apartment.



         When several hours had passed and Demetrius had not returned to Williams’

apartment, Williams and Herron began to look for her. A neighbor told Williams that

Demetrius and the appellant had walked toward the woods behind the apartment

complex. Williams and Herron went to the back of the apartment building and began

calling for Demetrius, but received no response. Williams then shouted, “If I start

shooting out there, somebody is gonna say something.” Williams and Herron then

heard what they thought to be someone running through the woods. Because it was


        1
          W e acknowledge c onflicts in the testimony of the witnesses presented at trial with regard
to the approximate time of events and other minor details. Rather than recite the testimony of
each individual witness, we summarize the facts surrounding this offense in the light most
favorable to the State.

         2
         The proo f esta blishe d tha t the th irty-fou r year o ld De me trius a nd th e eigh teen year o ld
appellant were friends and had known each other their entire lives as they grew up in the same
neighbo rhood.

                                                       3
dark, the two men decided not to go into the woods and returned to Williams’

apartment.



        The next morning, between 7:30 and 8:30 a.m., Jerry Herron and Orange

Williams renewed their search for Demetrius when they realized that she had never

returned from Sam’s Club. The two men found the lifeless body of Demetrius Moten

in the woods behind the Dunnavant Manor Apartments.                         The Memphis Police

Department was then notified.



        Officer Sheryl Stanback was the first officer to arrive at the scene. Officer

Stanback, who was later joined by Sergeant Richard Roleson, proceeded to secure the

crime scene and interviewed available witnesses.                      Although there were no

eyewitnesses to the apparent homicide, the information provided by the witnesses

placed the appellant as the last person seen with Demetrius Moten the previous

evening. Based upon this information, Memphis police officers proceeded to the

appellant’s residence.



        Upon obtaining a consent to search by the appellant’s mother, Addie Henderson,

police officers found a pair of white, green and black Nike tennis shoes soaking in a

bucket of bleach and dishwashing liquid in the sink.3 They also discovered a bloody

sock in a garbage can.4 The appellant was then transported to the homicide bureau

of the Memphis Police Department.



        After waiving his constitutional rights, the appellant provided a statement to the

police in which he confessed to the murder of Demetrius Moten. In his confession, the

appellant explained that he had asked Demetrius if she wanted to have sex and she



        3
        The appellant’s mother testified that she routinely soaked the appellant’s shoes in bleach
water because of a foot odor problem.

        4
         The appellant’s mother also explained that the substance which appeared to be blood on
his sock was ac tually rust.

                                                4
responded that she did. The two then went into the woods behind the Dunnavant

Manor Apartments.               After engaging in sexual intercourse, the appellant asked

Demetrius for a dollar, to which she responded, “Ain’t fixing to give you shit.” The

appellant asked again, and this time, Demetrius gave the appellant what she thought

was a one dollar bill, but was actually a ten dollar bill. When she realized her mistake,

Demetrius asked the appellant to return the ten dollar bill. A fight ensued between the

two.

         That’s when I took the stick -- the first time I hit her with the stick. And
         after I hit her with the stick, I got scared, and I didn’t know what to do.
         That was about all by then. I got scared, continuously hitting her. So,
         when I heard this dude -- I heard some guy holler “Peaches,” and I ran
         home.

He explained that, at the time of the encounter with Demetrius, he was under the

influence of “ [a] lot of alcohol, just a little weed.” The appellant, at some point later in

the evening, purchased “some weed” with the money he took from the victim. In his

statement, the appellant also informed the detectives of the location of the “stick” used

in the murder.5 Subsequent police investigation confirmed the location of the “stick.”6



         An autopsy was performed on the victim’s body at 11:25 a.m. on July 8, 1995.

Despite information from the police that the victim had been shot, Dr. O.C. Smith’s

examination revealed no gunshot wounds. Rather, he determined that the five foot four

inch eighty-six pound victim had suffered “blunt trauma to her head and neck,” resulting

in her death.7 He explained that

         Miss Moten had injuries over many areas of her body. The most severe
         injury was limited to the head and neck region. It included multiple
         bruises, multiple skin scrapes or abrasions, multiple lacerations or skin
         tears to the scalp and face. These were fairly extensive -- predominately
         on the right side of the face and scalp. They were as a result of blows



         5
         Prior to the a ppellant’s c onfess ion, the police were un der the b elief that the vic tim’s de ath
had res ulted from a gun sh ot woun d.

         6
         A ph otog raph of the stick was introd uce d at tria l. Altho ugh no de scrip tion o f the “ stick ” is
contained in the record, the photograph depicts a small tree limb, slightly larger than a broom
han dle. T he ap pellan t state d tha t the “s tick” brok e in tw o dur ing his attac k of t he vic tim.

         7
         Dr. Smith estimated that, at a minimum, approximately ten separate blows were inflicted
to the head and neck region.

                                                       5
       applied by a moving object against the face. This caused bruising of the
       brain internally.

Dr. Smith testified that the “stick” found at the crime scene could have caused the

injuries to the victim’s head and neck. Additionally, he stated that a “crushing force”

was applied to the victim’s chest wall, inhibiting the victim’s breathing. This injury could

not be caused by a stick; but would be consistent with someone kneeling on the victim’s

chest. He determined that death occurred between 5:25 p.m. and 11:25 p.m. on July

7, 1995. Dr. Smith further testified that “[the victim] had a blood alcohol level of .29

grams per deciliter of ethyl alcohol,” “a very high level.” He interpreted the level to

mean that “Miss Moten would have diminished capacities in regard to her judgment and

her reaction time. She would definitely be impaired for almost all of the major physical

and mental processes that a person would have to undertake.” Dr. Smith was unable

to either confirm or dispute the appellant’s statement that he and the victim had

engaged in sexual intercourse immediately preceding her death. No evidence of any

defensive or offensive type of injuries were observed on the victim.



       Notwithstanding the appellant’s previous confession to the police, at trial the

appellant denied ever making such statement. In fact, his testimony at trial, offers a

completely different version of the events. The appellant stated that he first saw

Demetrius around 7:00 p.m. when she informed him that she was going to Sam’s Club

to get a sandwich. He accompanied Demetrius to the club, but did not enter the club

with her. Rather, the appellant remained outside talking with “O.W.” for about an hour

and one-half. The appellant maintains that the last time he saw Demetrius was when

she entered the club.        Additionally, although their testimony was somewhat

contradictory, the appellant’s mother and brother attempted to establish an alibi for the

appellant. The appellant’s mother and brother recalled that the appellant was present

in his mother’s house from 9:00 p.m. on the night of the murder until the next morning

when the police arrived.




                                           6
        Based upon this evidence, the jury found the appellant guilty of premeditated

first degree murder.




                 I. Failure to Produce Photograph’s During Discovery



        The appellant argues that the trial court erred by permitting introduction of

photographs not disclosed by the State prior to trial.8 Consequently, he states that, due

to the nature of the photographs, he was prejudiced by the discovery violation. The

State asserts that no discovery violation occurred.



        The appellant contends that, although defense counsel timely requested,

pursuant to Rule 16, all photographs in the possession of the State, the prosecution

never disclosed the photographs prior to trial. 9 In response to this allegation, Assistant

District Attorney Henderson stated that defense counsel

        was set to receive discovery in my office on September the 5th, 1996.
        [Defense counsel] did not show up. We got in further contact -- had
        another date several weeks later. [Defense counsel] did not show up, but
        she sent her, at that time, law clerk. And he received the discovery from
        me.

The prosecutor, in arguing the State’s position, explained:

        Your Honor, there’s no duty for me to produce this photograph. This is
        not discoverable. She can go to the photo lab and get this photograph
        just like I can. There’s no duty to do that. And she can’t show me where
        there is. We have never done that in any trial due to photographs, you


        8
          At trial, the State sought admission of photographs taken at the crime scene and at the
appellan t’s hom e, i.e., Exhibits 2 - 9, 13, and 19-22. Defense counsel made a continuing
obje ction to the phot ogra phs at trial.

        9
         Rule 16 , Tenn . R. Crim . P., provides in pertinent p art:
        (1) Information Subject to Disclosure
        ...
        (C) Documents and Tangible Objects. --- Upon request of the defendant, the
        state shall permit the defendant to inspect and copy or photograph books,
        papers, documents, photographs, tangible objects, buildings or places, or copies
        or portions thereof, which are within the possession, custody or control of the
        state, and which are material to the preparation of the defendan t’s defense or are
        intended for use by the state as evidence in chief at the trial, or were obtained
        from or belong to the defe ndant.

                                                 7
         know, ahead of time. We just say, “Okay, there are photographs. Now,
         if you want to go there and get them produced fine.” But there’s no duty
         to produce photographs.

         Sometimes we have hundreds of photographs, and that’s why -- and
         Your Honor, I’m sure, has been in trial where we show a photograph to
         an attorney in a trial, and sometimes we’ll come up to the bench and
         argue about the photograph. But what we do is we just let the attorney
         know that there’s photographs.

         This is not discoverable -- the photograph. The only thing of it is, is that
         you just let them know that there are photographs. But the photograph
         itself, no, because we have no duty to develop the photograph. We may
         never develop the photograph, or we may. But, I mean, she can also go
         up to the photo lab and do it.


         After hearing argument of counsel, the trial court concluded that Rule 16 does

not specifically require that the photographs be given to the defendant as part of

discovery. The trial court’s ruling does little to resolve the issue before us. Clearly, the

Rule does direct the State to permit inspection and copying of any photographs

intended to be used in the State’s case-in-chief or useful to the development of a

defense.10 However, the issue remains whether the State violated the discovery rules

by only providing notification of the photographs.



         Initially, we find that the appellant has waived this issue for failure to raise the

issue prior to trial. See Tenn. R. Crim. P. 12(b)(4). Arrangements were made by which

defense counsel was permitted complete access to the State’s file. Thus, every

discoverable item was available for inspection.                        General Henderson stated that,

although the photographs were not developed, notification of the existence of the

photographs was contained in the file. Upon examining the property receipts for the

photographs contained in the discovery file, defense counsel did not initiate further

inquiry as to the nature of the photographs nor did counsel further pursue acquiring or

         10
            While we fail to find any authority expressly prohibiting the Shelby County District
Attorney General’s Office practice of delaying development of photographs until immediately prior
to trial, we note that other jurisdictions have expressed the opinion that such practice by the State,
although not techn ically a discove ry violation, is not to b e enco uraged . See State v. Bizzle , 608
S.W .2d 111, 1 13 (Mo . App.), cert. denied, (Mo. 1980). Likewise, we fail to conclude that the
benefits to the State accruin g from the delay of d evelopm ent outw eigh the d efenda nt’s right to
inspect and copy the photographs. Additionally, we cannot sanction the prosecutor’s proffered
rem edy in the pre sent ca se that de fense c ounse l has the o bligation to de velop the p hotogra phs.
It is the obliga tion o f the S tate, p ursu ant to Rule 16, to perm it insp ectio n of p hoto grap hs w hich it
intends to use as evidenc e in its case -in-chief.

                                                       8
inspecting the actual photographs. The State is not obliged to determine whether

defense counsel is aware of each and every item in the file. That is the function of

defense counsel to whom the file is opened. Failure to complain of the alleged

discovery violation and to seek a remedy as soon as the defense learns of it may be

treated as waiver.11 See Bolton v. State, 617 S.W.2d 909 (Tenn. Crim. App. 1980);

State v. Renner, No. 03C01-9302-CR-00034 (Tenn. Crim. App. at Knoxville, Sept. 12,

1994), aff’d by, 912 S.W.2d 701 (Tenn. 1995).



        Notwithstanding the appellant’s waiver of this issue, and assuming, arguendo,

that a discovery violation did occur, the trial court did grant the appellant a recess after

opening statements during which to review the challenged photographs. The appellant

complains that the appropriate remedy is exclusion of the photographs from evidence.

Initially, we note that prohibiting the introduction of evidence is not the exclusive means

to remedy a discovery violation. The trial court has the discretion to permit inspection

of the photographs or decide whatever remedy is just under the circumstances. See

Tenn. R. Crim. P. 16(d)(2). See also State v. Smith, 926 S.W.2d 267, 270 (Tenn.

Crim. App. 1995). Whether an exclusionary sanction is appropriate depends upon

whether the defendant has actually been prejudiced in the development and

presentation of his case by the prosecution’s failure to make a proper and timely

disclosure of the evidence in question and whether that prejudice cannot be otherwise

eradicated by a continuance or means other than suppression. See State v. Garland,

617 S.W.2d 176, 185 (Tenn. Crim. App. 1981).



        The appellant argues that the introduction of the photographs was extremely

prejudicial as there were “numerous gory photographs of the decedent victim, and

guns and other evidence obtained at Defendant’s home.” The appellant is mistaken

as to the standard for determining prejudice. The inquiry is what prejudice has resulted

        11
            The appellant does not dispute that the receipt for the photographs was contained in the
disc over y file. Cle arly, de fens e cou nse l was given notic e of th e pos sibility of phot ogra phic
evidenc e at trial. Acco rdingly, the m ost prud ent action would ha ve been for defen se cou nsel to
file a mo tion to com pel disco very with the c ourt.

                                                   9
from the discovery violation, not simply the prejudicial effect the evidence, otherwise

admissible, has on the issue of a defendant’s guilt. State v. Mitchell, No. 02C01-9702-

CC-00070 (Tenn. Crim. App. at Jackson, Sept. 15, 1997) (citing State v. Cottrell, 868

S.W.2d 673, 677 (Tenn. Crim. App. 1992); Garland, 617 S.W.2d at 186). This court

will not presume prejudice from a mere allegation. Moreover, prejudice arising from a

discovery violation will not be found if it is shown that the defense was otherwise aware

of the undisclosed evidence. The appellant cannot dispute that defense counsel

reasonably should have known that the photographs did exist. In fact, defense counsel

filed a motion to exclude photographs of the victim, which necessarily included some

of the challenged photographs on October 16, 1996, approximately one month prior to

trial. The appellant has failed to establish that he was prejudiced by the State’s failure

to timely disclose the actual photographic prints. Thus, considering that defense

counsel was provided adequate time to examine the photographs before the State’s

case-in-chief, we are unable to conclude that the trial court abused its discretion by

denying the appellant’s request that the photographs be excluded. This issue is without

merit.



                                      II. Motion to Suppress



         A hearing on the motion to suppress the appellant’s statement to the police was

held on November 12, 1996, which was the first day of the appellant’s scheduled trial. 12

The appellant testified that he was asleep on the couch at his mother’s house when

         12
            In addition to the motion to suppress, defense counsel apparently filed numerous
motions one hour before the trial was to commence. Again, defense counsel’s failure to raise
these issues prior to trial resulted in waiver pursuant to Tenn. R. Crim. P. 12(b). Prior to the
hearing , the State a rgued th at the app ellant’s m otions ha d been dismis sed or w ithdrawn due to
defens e coun sel’s failure to appea r at the prev ious m otion date . The he aring on th e mo tion to
suppress was originally scheduled for hearing on October 18, 1996. On that date, defense
counsel stated that she appeared in court, however, both the trial judge and the prosecutor were
in trial. Defense counsel explained that the court clerk agreed to reset the hearing date for the
motions. Defense counsel conceded that she was never able to confirm the date. Defense
couns el also adm itted that she mad e no effo rt to contac t the court w ith regard to these m atters.
Although not entirely clear from the record, it appears that the motions were reset for November 7,
1996. Again, defense counsel failed to appear. Defense counsel explained that the clerk’s office
informed her that this date was a motion deadline and not a date to be heard, and therefore, she
felt that she did not have to appear. Apparently, defense counsel had her secretary and a law
clerk involved to some extent in these matters. We join in the trial court’s admonition of trial
counsel’s conduct in her management of pre-trial motions.

                                                 10
police officers entered the home and took him into custody. He stated that he was not

advised of his Miranda rights during this initial encounter. The appellant was then

transported to the jail and questioned about the murder, but again, was not advised of

his rights. He testified that one detective made repeated attempts to persuade him to

sign some papers; implying that “it would be easier” if he signed the papers. The

detectives also informed the appellant that he would not be able to telephone his

mother until he signed the papers. The appellant testified that, over a two and one-half

hour period, the detective made racial comments, “grabbed him around his throat,” “spit

in his hand,” and “really just terrorized me.” He also recalled one detective telling

another that “since [the appellant] knew [his] rights, there wasn’t no sense of just telling

me.” The appellant again was refused permission to telephone his mother. He stated

that he was disturbed, upset and scared.          Despite the fact that the detectives

subsequently obtained a written waiver of rights and a transcribed statement by the

appellant, the appellant maintains that he was not advised of his rights and that the

answers provided on the statement were not his own. The appellant conceded that this

was not the first time he had ever been arrested.



       Detective John Botting testified that, on July 8, 1995, the appellant was brought

to his office and, after being formally advised of his Miranda rights, executed a written

waiver acknowledging that he understood his rights. Botting explained that the

appellant was interrogated in an interview room and then was moved to the

transcriptionist’s office when he was ready to give a typed statement. Botting described

the transcriptionist’s office as being a small office with a computer screen. In describing

the standard interview procedure, Botting explained that the subject sits down facing

the computer screen while the interrogating officers stand beside the subject. An

officer asks a question, and the transcriptionist types the question and then types the

answer as given. Botting refuted the appellant’s claims of coercion and further testified

that at no time during “custodial interrogation” did the appellant indicate any concern

or distress. Additionally, he denies that any racial comments were made and stated


                                          11
that the appellant never asked to call his mother until after he had given his statement.

The appellant’s initial interview commenced at 11:45 a.m. and concluded sometime

before 12:37 p.m. The typed interview began at 12:37 p.m. and was completed by 1:00

p.m. Elise Flowers, a civilian transcriptionist for the Memphis Police Department,

confirmed the interview procedure and stated that she did not observe any evidence

of coercion during the custodial interview.



         At the conclusion of the hearing, the trial court determined that, “based on the

evidence and the statements that have been given in this proceeding,” the appellant

voluntarily waived his Miranda rights and gave a statement to the detectives absent

government coercion. The appellant contests this ruling.



         The trial court’s determination that a confession has been given voluntarily and

without coercion is binding upon the appellate court unless the evidence preponderates

against the ruling. 13 See State v. Odom, 928 S.W.2d 18, 22 (Tenn. 1996); State v.

Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994).                              Under this standard, matters

regarding the credibility of witnesses, the weight and value to be afforded the evidence,

and resolution of conflicts in the evidence are matters entrusted to the trial court as the

trier of fact. Odom, 928 S.W.2d at 23. On appeal, the appellant bears the burden of

demonstrating that the evidence preponderates against the trial court’s findings. See

State v. Tate, No. 02C01-9605-CR-00164 (Tenn. Crim. App. at Jackson, Dec. 3, 1997)

(citation omitted).



         The trial court obviously accredited the testimony of Detective Botting and Elise

Flowers in finding a valid and knowing waiver of rights. Their testimony is supported

by both the signed waiver of rights form and the appellant’s subsequent signed

statement. Considering the totality of the circumstances, see Stephenson, 878 S.W.2d


         13
           Although the trial court’s articulated findings regarding the motion to suppres s are
mea ger, we fin d that the c ourt’s rec itation is m inimally suff icient to acc redit its findings . See, e.g.,
State v. T ate, No. 02C01-9605-C R-00164 (Te nn. Crim. App. at Jacks on, Dec. 3, 1997).

                                                      12
at 545, the evidence shows that the appellant was properly advised of his rights, had

the capacity to understand those rights, and the statement was not the product of

coercion.    Berkemer v. McCarty, 468 U.S. 420, 434, 104 S.Ct. 3138, 3147 (1984);

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966); State v.

Middlebrooks, 840 S.W.2d 317, 216 (Tenn. 1992), cert. dismissed, 510 U.S. 124, 114

S.Ct. 651 (1993). After a review of the evidence presented at the suppression hearing,

we conclude that the appellant has failed to meet his burden of demonstrating that the

evidence preponderates against the trial court’s finding. Thus, the motion was properly

denied. This issue is without merit.




                                 III. Sufficiency of Evidence



        In his final issue, the appellant contends that the evidence presented at trial was

insufficient to enable a rational juror to find him guilty of premeditated first degree

murder. Specifically, he asserts that there is no evidence to show planning or a

previous formed design or intent to kill. 14 He argues that, at best, the evidence supports

a charge of voluntary manslaughter. The State contends that the number of blows

inflicted upon the victim, the absence of defensive and offensive wounds on the victim,

and the appellant’s confession establish that the appellant “lured the victim into the

woods with the preconceived intention to kill her for ten dollars.”



        A jury conviction removes the presumption of innocence with which a defendant

is initially 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). It is the appellate court's duty to affirm the

conviction if the evidence viewed under these standards was sufficient for any rational



        14
         Because we have found the appellant’s confession adm issible, we reject his alternative
argumen t that there is no evidence that “linked” the appellant to Demetrius Moten’s m urder.

                                               13
trier of fact to have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v.

Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, -- U.S. --, 115 S.Ct. 743

(1995); Tenn. R. App. P. 13(e).           On appeal, the State is entitled to the strongest

legitimate view of the evidence and all legitimate or 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).



         Once a homicide is established it is presumed to be second degree murder.

State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992). The State, then, has the burden

of proving the element of premeditation to elevate the offense to first degree murder.15

Id. Premeditation necessitates “the exercise of reflection and judgment,” requiring a

“previously formed design or intent to kill.” State v. West, 844 S.W.2d 144, 147 (Tenn.

1992).



         The element of premeditation is a question for the jury and may be inferred from

the circumstances surrounding the killing. State v. Gentry, 881 S.W.2d 1,3 (Tenn.

Crim. App. 1993), perm. to appeal denied, (Tenn. 1994). Because the trier of fact

cannot speculate as to what was in the killer’s mind, the existence of facts of

premeditation must be determined from the appellant’s conduct in light of the

surrounding circumstances. State v. Wright, No. 01C01-9503-CC-00093 (Tenn. Crim.

App. at Nashville, Jan. 5, 1996). Although there is no strict standard governing what

constitutes proof of premeditation, several relevant circumstances are helpful, including:

the use of a deadly weapon upon an unarmed victim; the fact that the killing was

particularly cruel; declarations by the defendant of his intent to kill; and the making of

preparations before the killing for the purpose of concealing the crime. State v. Bland,

958 S.W.2d 651, 660 (Tenn. 1997) (citing Brown, 836 S.W.2d at 541-542). Additional


         15
         First degree murder, not committed in the perpetration of a crime, requires the
“premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1995
Supp.).

                                               14
factors from which a jury may infer premeditation include planning activities by the

appellant prior to the killing, the appellant’s prior relationship with the victim, and the

nature of the killing. Gentry, 881 S.W.2d at 4-5 (citation omitted).



        The State concedes that “[t]he fact that repeated blows were inflicted on the

victim is not sufficient, by itself, to establish first degree murder.” Brown, 836 S.W.2d

at 542; see also State v. Darnell, 905 S.W.2d 953, 962 (Tenn. Crim. App. 1995).

“Repeated blows can be delivered in the heat of passion, with no design or reflection.”

Brown, 836 S.W.2d at 542. Nonetheless, the State argues that the repeated blows

inflicted on the victim coupled with his confession to police support a finding of

premeditation. We disagree.



        The proof established that the appellant and the victim were life-long family

friends. Witnesses testified that, immediately prior to the incident, the victim walked

with the appellant toward the Dunnavant Manor Apartments. No hostility between the

two was observed. Ms. Moten made no attempt to flee nor did she call for help as the

pair walked toward the wooded area. The appellant was unarmed at the time the

couple entered the woods. The appellant’s confession reveals that, after engaging in

consensual sexual intercourse, the appellant and the victim began to argue over a ten

dollar bill. The appellant hit the eighty-six pound victim with a stick, striking her

approximately ten times. Both the appellant and the victim were highly intoxicated at

the time of the incident. Although it was the State’s position at trial that the appellant

lured the victim into the woods for the purpose of killing her for ten dollars, there is

simply no proof to support this theory, and it remains just that, a theory. 16 Based upon

these facts, we conclude that there is insufficient evidence to support the jury’s finding

that the blows to the victim were a “previously formed design” and were inflicted in “the




        16
           Clearly, the S tate’s theo ry of the app ellant’s m otive for the murd er was ro bbery. W e
note that th e appe llant was no t charge d with the ro bbery of the victim, no r was he charge d with
mur der com mitted in th e perpe tration of a ro bbery.

                                                   15
exercise of reflection and judgment.” West, 844 S.W.2d at 147. Absent the element

of premeditation, the appellant’s conviction for first degree murder cannot stand.



       Notwithstanding this conclusion, again, a homicide is presumed to be second

degree murder. Brown, 836 S.W.2d at 543. Second degree murder is “a knowing

killing of another.” Tenn. Code Ann. § 39-13-210(a)(1) (1995 Supp.). Under the facts

of this case, we find that the proof establishes that the appellant acted “knowingly” with

an awareness that his repeated and forceful blows to the head and body of the victim

were reasonably certain to produce death. See Tenn. Code Ann. § 39-11-106(20)

(1995 Supp.). We conclude that there is evidence to support “knowing” conduct, and,

therefore, a conviction for second degree murder.




                                      Conclusion



       For the reasons set forth above, we reverse the appellant’s conviction and

vacate the accompanying sentence for first degree murder. The judgment of the trial

court is modified to reflect a conviction of murder in the second degree. This cause is

remanded to the trial court for entry of a judgment of conviction in accordance with this

opinion and for re-sentencing consistent with the principles of sentencing.




                                         16
                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:




__________________________________
WILLIAM M. BARKER, Judge



__________________________________
JOE G. RILEY, Judge




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