         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  December 12, 2001 Session

       STATE OF TENNESSEE v. KENDRICK JERMAINE MERRITT

                     Appeal from the Criminal Court for Davidson County
                          No. 99-C-2215    J. Randall Wyatt, Judge



                     No. M2000-02363-CCA-R3-CD - Filed March 27, 2002

Kendrick Jermaine Merritt appeals from his Davidson County conviction of second degree murder
for the killing of Julia Lynn Baskette. He claims on appeal that the evidence at trial supports a guilty
verdict of no offense greater than voluntary manslaughter and that the trial court excessively
sentenced him to a maximum, 25-year term of incarceration. Because we disagree in both respects,
we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Kendrick Jermaine Merritt.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Sharon Brox, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

               This case arises from the homicide of Julia Lynn Baskette, also known as Julia
Matlock. At the time of the crime, the defendant worked as a truck driver. His occupation brought
him to Nashville, where he encountered the victim under circumstances that are not entirely resolved
by the evidence. The victim was struggling with drug addiction and was working as a prostitute.

                  According to the state’s theory, the defendant and the victim were alone in the
defendant’s truck when the defendant shot the victim without justification. The defendant claimed
at trial that the victim attacked him; they struggled, and the victim was shot when a weapon over
which they were struggling accidentally fired. Thus, the factual issues in this case required, in large
part, an assessment of the persuasiveness of the state’s circumstantial proof against the credibility
of the defendant’s testimony.
               The state’s evidence at trial demonstrated that on the afternoon of July 8, 1999, the
manager of a convenience store in the area of what would later become the crime scene saw the
defendant and the victim together in her store purchasing items. She was certain that the two of them
entered and departed the store together.

                Later that evening, emergency officials were called to an address on Dickerson Road
in Nashville. There, they discovered a badly injured woman lying on the ground. The woman, later
identified as the victim, was nude and lying face up in the grass about ten feet from the right side of
the cab of a tractor-trailer truck. Paramedics discovered that she had a pulse and loaded her onto a
stretcher. However, by the time they were able to load her into their ambulance, the woman’s pulse
had stopped. A heart monitor failed to reveal any electrical activity of the heart. Due to a large,
apparent gunshot wound to the head and the lack of vital signs, they determined that the victim had
suffered a “devastating injury” and ceased efforts to revive her.

                 Numerous police officers responded to the scene. They generally described seeing
a tractor-trailer truck parked in a dark parking area behind a business. There was another trailer
nearby, and a red pickup truck was parked near the tractor-trailer truck. A large crime scene area
was secured, and some civilians who were on the scene when the police arrived were secured outside
the crime scene perimeter.

               As these events were transpiring, Officer John Grubbs encountered the defendant at
a convenience store nearby. The defendant was shirtless, and his shorts, socks and shoes had blood
on them. The defendant came running up to Officer Grubbs and said that a girl had been shot in his
truck. Officer Grubbs then learned from his police radio of the discovery of the victim. Officer
Grubbs obtained the keys to the defendant’s truck from the defendant, and he later transported the
defendant to the crime scene. While the defendant was in Officer Grubbs’s police car, he told
Grubbs that he had stopped at a store to get a drink, and after he returned to his truck, a man armed
with a gun came out of the sleeper compartment of the truck and demanded money. A woman then
appeared from the sleeper compartment, and the male robber demanded that she give him all the
money she had earned that evening. The woman refused, and the male robber shot her. He
attempted to shoot the defendant, but the gun would not fire. The robber told the defendant he would
be blamed for the victim’s shooting, and he fled the truck, dropping the gun. The defendant picked
up the gun and attempted to fire it, but it would not fire.

                The defendant was later questioned and gave three different versions of events
culminating in the victim being shot. First, he claimed that an unidentified man and the victim hid
in his truck and emerged after he returned from a convenience store. The man attempted to rob the
defendant, and the man then shot the victim with the defendant’s gun, around which he wrapped the
defendant’s shirt, when she refused to give him the money she had earned that evening. The man
then forced the defendant to undress the victim and move her body. The man told the defendant that
the defendant would be blamed for the shooting, told the defendant to move the victim’s body, and
threw the defendant’s gun at him. The man then left. The defendant’s second version of events was
that a man and the victim were in his truck when he returned to it from shopping in a convenience

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store. The man forced the defendant to drive, and he and the victim took turns holding the defendant
at gunpoint. During a struggle for the gun, the victim was accidentally shot. The third account the
defendant gave was that the unknown man and the victim held the defendant at gunpoint. The man
forced the defendant, at gunpoint, to submit to fellatio performed by the nude victim while the man
smoked crack cocaine. While holding a wooden club, the man handed the gun to the defendant and
demanded that the defendant shoot the victim. The man helped the defendant fire the gun at the
victim. The defendant was not the one who removed the victim from the truck.

                 Approximately four days after the victim’s death, a purse was discovered on top of
a trailer that had been parked near the defendant’s tractor-trailer on the date of the homicide. The
purse was identified as belonging to the victim. It was determined that the location on the trailer
where the purse was found was adjacent to where the cab of the defendant’s truck had been parked
on July 8.

                 An autopsy was performed on the victim’s body. The victim had been shot in the left
side of the face at close range. Although she may have lived briefly after being shot, any such period
would have been extremely short absent medical care. The victim had abrasions, contusions and
lacerations on various parts of her body, as well as a fractured finger. Some of the injuries were
consistent with the victim having been dragged across the floor of the truck, out the door, across the
steps and across the gravel parking lot. Other injuries were consistent with blows from a wooden
stick recovered from the truck. Hand injuries were consistent with defensive wounds. DNA
evidence collected from the victim’s vaginal and anal areas was consistent with the defendant’s DNA
profile.

                Police identification personnel recovered evidence from the scene and the defendant’s
truck. A handgun, which the defendant admitted owning, was recovered near a pay telephone in the
parking lot. Subsequent scientific evaluation revealed this to be the weapon with which the victim
was shot. There was a significant amount of blood throughout the truck’s interior, and there was
blood on the metal step on the exterior passenger side of the cab. Some of the blood had small wood
chips in it, and a damaged, bloody wooden club used for checking for flat tires was recovered. A
tooth fragment later matched to a second fragment found in the victim’s hair was discovered.
Women’s clothing, a broken piece of fingernail, and live .380 ammunition was also found in the
truck cab. Blood spatter was observed in the sleeper portion of the cab, as was blood transfer on the
curtain separating the front of the cab from the sleeper compartment.

                The defendant took the stand to rebut the state’s proof. He testified he met the victim
at a convenience store, and she asked him for a ride to another store nearby. Because he needed
directions to the interstate, he allowed her to accompany him in his truck and told her he would pay
her five dollars for her assistance in finding the interstate. He claimed that once inside the truck, the
victim climbed into the sleeper compartment of the truck, rummaged through some of the
defendant’s property, and disrobed. The defendant told her that he did not “mess around” and
demanded that she get out of the truck. The two began struggling. The defendant claimed that the
victim began assaulting him with a handled squeegee he had in the truck for cleaning windows, and

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he defended himself by hitting her about the legs with a wooden tire knocker. The defendant
testified that as the two struggled, a handgun that he had stored in the truck underneath a rag was
uncovered, and the victim grabbed it. He claimed that he grabbed the barrel of the gun and
attempted to wrest it from the victim’s grasp. However, the gun discharged, striking the victim. The
defendant panicked. He dragged the nude victim out of the truck. Although he had experience as
a certified nursing assistant, he did not attempt to aid the victim. He claimed that he had heard
someone outside the truck as he was struggling with the victim, and he was afraid this person would
harm him, so he took the gun with him when he left the truck. However, he dropped the gun near
a pay telephone. He went into the road and attempted to flag down a passing car. He asked the
occupants of a red pickup truck and a gray Buick to call the authorities. He was eventually able to
stop a taxi, which he had take him to a convenience store. At this store, the defendant approached
a police officer for assistance.

                 The defendant denied that he had been at a convenience store with the victim earlier
in the day. He also denied having had sexual relations with the victim. He said that he could not
explain why his sperm was inside her body and hypothesized that he might have had a “wet dream”
earlier in the day. He denied having placed the victim’s purse on top of a trailer. He acknowledged
his untruthfulness in the statements he had given shortly after the homicide.

               The defendant’s mother testified about the defendant’s good character and work ethic,
as did the defendant’s wife and a family friend.

                To rebut the defendant’s evidence, the state recalled a detective who testified that the
defendant had not reported any injuries to him, contrary to the defendant’s testimony that he had
reported injuries from the struggle with the victim to the detective.

                 The jury acquitted the defendant on the charged offense of premeditated murder and
instead found him guilty of second degree murder. Thereafter, the trial court conducted a sentencing
hearing at which the defendant, his wife and his first cousin testified that the defendant was a person
of good character and was capable of rehabilitation. The defendant continued to maintain the
veracity of his trial testimony. The state presented the testimony of the victim’s mother, brother and
friend regarding the impact of the victim’s death, the victim’s struggles to overcome drug addiction,
and the victim’s positive traits. After hearing the evidence, the court imposed a maximum, 25-year
sentence. Following an unsuccessful motion for new trial, the defendant perfected this appeal.

                                                   I

                In his first issue, the defendant challenges the sufficiency of the convicting evidence.
When an accused challenges the sufficiency of the convicting evidence, this court must review the
record to determine if the evidence adduced at trial is sufficient “to support the finding by the trier
of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to
findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and


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circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled
on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

                In determining the sufficiency of the convicting evidence, this court does not re-weigh
or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor
may this court substitute its inferences for those drawn by the trier of fact from circumstantial
evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this
court is required to afford the state the strongest legitimate view of the evidence contained in the
record as well as all reasonable and legitimate inferences which may be drawn from the evidence.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

                 Questions concerning the credibility of the witnesses, the weight and value to be
given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact, not this court. Id. at 835. In State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973), our supreme
court said, “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the state.”

                 Because a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused, as the appellant, has the burden in this court of illustrating why
the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guilt due to the sufficiency
of the evidence unless the facts contained in the record are insufficient, as a matter of law, for a
rational trier of fact to find that the accused is guilty beyond a reasonable doubt. Id. at 914.

               The defendant contends that the evidence does not support a verdict of second degree
murder. Rather, he claims, he is guilty of no crime greater than voluntary manslaughter, a lesser-
included offense of second degree murder. Second degree murder, as pertinent to this appeal, is
defined as a knowing killing. See Tenn. Code Ann. § 39-13-210(a)(1) (1997). Voluntary
manslaughter, on the other hand, “is the intentional or knowing killing of another in a state of
passion produced by adequate provocation sufficient to lead a reasonable person to act in an
irrational manner.” Tenn. Code Ann. § 39-13-211(a) (1997).

                 The defendant’s second degree murder versus voluntary manslaughter argument
focuses on the concept of malice. He claims that there is insufficient evidence of malice, that being
the distinguishing characteristic of second degree murder as compared with voluntary manslaughter.
Historically, malice was an element of second degree murder, whereas voluntary manslaughter was
distinguished by the absence of malice. See, e.g., State v. Williams, 38 S.W.3d 532, 536 (Tenn.
2001). However, with the enactment of the 1989 Criminal Code, second degree murder lost its
malice requirement. Id. Thus, the defendant’s argument regarding the presence or absence of malice
is ineffectual in resolving the sufficiency-of-the-evidence issue before us.

               Analyzing the facts of this case under the applicable law, we conclude that the
evidence sufficiently establishes the crime of second degree murder. Circumstantially, the evidence

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shows that the defendant had sexual relations with the victim and that the defendant, who was much
larger than the victim, had only a superficial cut on his finger, whereas the victim had numerous
contusions, abrasions and lacerations in addition to the fatal gunshot wound. Moreover, as the
victim was dying from her gunshot wound, the defendant removed her from his truck and left her
to die despite his certification as a nursing assistant and his admitted knowledge of cardiopulmonary
resuscitation. In attempting to explain the critical events, the defendant offered many different and
conflicting accounts, which the jury was free to, and obviously did, reject. The weapon with which
the victim was shot belonged to the defendant. It had a safety mechanism to prevent accidental
firing, and it required eight pounds of trigger pull pressure to fire. The defendant claimed in a pre-
trial statement that he was unable to start the truck after the victim was shot. The jury may
reasonably have concluded that he had initially planned to leave the scene after disposing of the
victim’s body and her purse, but when he was unable to start his truck he concocted the accounts he
gave law enforcement officers shortly after the crime. From all of this evidence, the jury was within
its province in determining that all of the defendant’s various explanations for the victim’s death
were incredible, and instead, the defendant committed a knowing killing of the victim.

                                                  II

                The defendant also takes issue with the maximum, 25-year sentence ordered by the
trial court. He claims that the court improperly enhanced his sentence via an inapplicable
enhancement factor and failed to reduce the sentence in consideration of several mitigating factors
that the court declined to apply.

               When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d) (1997).
This presumption is "conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).

                 In felony sentencing, the trial court has an affirmative duty to state on the record,
either orally or in writing, which enhancement and mitigating factors it found and its findings of fact.
Tenn. Code Ann. §§ 40-35-209(c), - 210(f) (Supp. 2000); State v. Troutman, 979 S.W.2d 271, 274
(Tenn. 1998); State v. Russell, 10 S.W.3d 270, 278 (Tenn. Crim. App. 1999).

               The defendant's crime is a Class A felony, and his Range I classification mandates
a sentence of fifteen to 25 years. See Tenn. Code Ann. § 39-13-210(b) (1997) (Class A felony);
Tenn. Code Ann. § 40-35-112(a)(1) (1997) (range of fifteen to 25 years). For Class A felony
sentencing where there are both enhancement and mitigating factors, the sentencing determination
begins at the midpoint within the range, and the sentence is enhanced as appropriate for the
enhancement factors and then reduced as appropriate for the mitigating factors. Tenn. Code Ann. §
40-35-210(e) (Supp. 2001).


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               The trial court found that the length of the defendant’s sentence should be enhanced
because the victim was treated with exceptional cruelty and the crime involved the use of a firearm.
See Tenn. Code Ann. § 40-35-114(5), (9) (Supp. 2001). The court mitigated the sentence based upon
the defendant’s lack of a prior criminal record. Tenn. Code Ann. § 40-35-113(13) (1997).

                The defendant concedes that the firearm enhancement factor is appropriate. He
complains, however, that the court should not have applied the exceptional cruelty factor. The
precise language of that factor is, “The defendant treated or allowed a victim to be treated with
exceptional cruelty during the commission of the offense.” Tenn. Code Ann. § 40-35-114(5) (Supp.
2001). This was, as the trial court noted, a brutal crime. The victim was beaten with a wooden club
so violently that splinters of wood broke off the club, was shot in the face, and during her last living
minutes was dragged nude out of the cab of a tractor-trailer truck, down metal stairs, and across a
gravel surface. The defendant claims that the blows were inflicted in self-defense and the dragging
was attendant to removal of the body after the crime. However, both the jury at trial and the judge
at sentencing rejected the defendant’s self-defense theory. Furthermore, the victim was still alive
when she was dragged from the cab of the truck. We are unpersuaded that this factor should not
have been applied.

               Turning to the defendant’s argument relative to mitigating factors, we are
unpersuaded that the court should have allowed additional mitigation based upon strong provocation,
the defendant’s age of 24, any assistance to authorities, lack of sustained intent to violate the law,
and self-help rehabilitative efforts.

                The court allowed some mitigation based upon the defendant’s lack of a prior
criminal record, although it afforded this factor less than substantial weight because the crime was
a serious, brutal one. See Tenn. Code Ann. § 40-35-113(13) (1997).

                The court rejected the strong provocation mitigating factor based upon the brutality
of the crime. See Tenn. Code Ann. § 40-35-113(2) (1997). In this regard, it is noteworthy that the
judge and the jury rejected the defendant’s claim of self-defense. Moreover, the defendant had a
very minor finger injury in contrast with the victim’s devastating injuries. State v. Edwin Jesperson,
No. 03C01-9206-CR-00212, slip op. at 25 (Tenn. Crim. App., Knoxville, Aug. 11, 1993) (jury’s
rejection of defendant’s claim of adequate provocation required for voluntary manslaughter militates
against his sentencing bid for mitigation based upon strong provocation), perm. app. denied (Tenn.
1993).

                With respect to the defendant’s age, the court found that at the age of 24, he was “old
enough to have a little judgment.” In order for this mitigating factor to apply, the court must find
that “[t]he defendant, because of youth or old age, lacked substantial judgment in committing the
offense.” Tenn. Code Ann. § 40-35-113(6) (1997). The evidence did not demonstrate that the
defendant had any age-related judgment deficit. See State v. Adams, 864 S.W.2d 31, 33 (Tenn.
1993) ("In determining whether this factor is to be applied, courts should consider the concept of
youth in context, i.e., the defendant's age, education, maturity, experience, mental capacity or

                                                  -7-
development, and any other pertinent circumstance tending to demonstrate the defendant's ability
or inability to appreciate the nature of his conduct."). To be sure, the evidence demonstrated that the
defendant had been a responsible, hard-working, well-respected young man in his teens and early
twenties.

                The defendant also argues that the court should have assigned mitigating value to
evidence of the assistance he provided to the authorities. See Tenn. Code Ann. § 40-35-113(10)
(1997). The court observed that the defendant had assisted the authorities in locating the victim;
however, it balanced that fact with the fact that the defendant was untruthful with the authorities
about his role in the crime. We believe that the defendant’s initial attempts to lay blame for the
victim’s death on an unidentified third person and other misrepresentations negate any real
consideration to which he might otherwise be entitled for bringing the crime to the attention of the
authorities. See State v. Ricky A. Burks, No. M2000-00345-CCA-R3-CD, slip op. at 30 (Tenn. Crim.
App., Nashville, May 25, 2001) (mitigating factor (10) afforded no more than de minimus weight
when defendant made initial report to authorities about location of victim’s body and voluntarily
came to police station but did so as part of plan to thwart his discovery as perpetrator of crime).

                The defendant also bids for mitigation based upon a claim that the offense was
committed under such unusual circumstances that it is unlikely that he was motivated by a sustained
intent to violate the law. See Tenn. Code Ann. § 40-35-113(11) (1997). We believe that the only
possible “unusual circumstances” raised by the evidence in this case is the possibility of self-defense.
Unfortunately for the defendant, the court rejected that theory, and we are not positioned to revisit
that factual determination. The evidence accredited by the jury at trial and the judge at sentencing
demonstrated a brutal beating and killing followed by the defendant’s efforts, albeit unsuccessful,
to deflect blame from himself. We acknowledge, as the defendant advocates, that the defendant’s
background is unmarred by prior criminal convictions or known criminal behavior. However, we
do not consider a young defendant’s lack of a prior criminal record, standing alone, indicative that
a crime was committed under unusual circumstances justifying the application of this mitigating
factor. Moreover, the court allowed the defendant some mitigation for his lack of a prior criminal
record.

               Finally, the defendant claims that he should be allowed mitigation because he has
attempted to rehabilitate himself and to help others since the crime. See Tenn. § 40-35-113(13)
(1997). The defendant testified that he has taken classes while incarcerated and tutored other
prisoners toward passing the G.E.D. examination. Significantly however, the defendant testified at
the sentencing hearing that his trial testimony was truthful and continued to characterize the victim’s
death as accidental. His failure to accept responsibility for the crime speaks loudly about his
prospects for rehabilitation.

               Thus, we conclude that the trial court properly applied enhancement and mitigating
factors. In balancing these factors, the court found that the enhancement factors “very heavily
outweighed” the mitigating factor. Remembering that the court began with the mid-point of the


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fifteen to 25-year range applicable to the defendant, see Tenn. Code Ann. § 40-35-210(e) (Supp.
2001), we conclude that the court did not err in imposing a maximum, 25-year sentence.

              In conclusion, the evidence is sufficient to support the defendant’s second degree
murder conviction, and the defendant was properly sentenced to a maximum, 25-year term. The
judgment of the trial court is affirmed.



                                                    ___________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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