        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                        AUGUST SESSION, 1998          November 4, 1998

                                                   Cecil W. Crowson
STATE OF TENNESSEE,           )                  Appellate Court Clerk
                                  C.C.A. NO. 01C01-9709-CR-00438
                              )
      Appellee,               )
                              )
                              )   WILSON COUNTY
VS.                           )
                              )   HON. J.O. BOND
WILLIAM D. STOCKWELL,         )   JUDGE
                              )
      Appe llant.             )   (Direct Appeal - First Degree M urder)




FOR THE APPELLANT:                FOR THE APPELLEE:

B. F. LOWERY                      JOHN KNOX WALKUP
Public Square, Lowery Bldg.       Attorney General and Reporter
Lebanon, TN.. 37087
                                  TIMOTHY F. BEHAN
                                  Assistant Attorney General
                                  425 5th Avenu e North
                                  Nashville, TN. 37243

                                  TOM P. THOMPSON, JR.
                                  District Attorney General

                                  ROBERT HIBBETT
                                  Assistant District Attorney
                                  111 Cherry Street
                                  Lebanon, TN. 37087



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

       On Decem ber 19, 1 996, a W ilson Co unty jury found Appella nt, William D.

Stock well, guilty of first degree murder in the death of his newborn son. The trial

court immediately imp osed a sen tence of life im prison men t. Appe llant ap peals

from his conviction, raising three issues:



       1) whether the evidence was sufficient to support a conviction for first
degree m urder;
       2) whether the trial court erred in failing to make a conclusive determination
of the voluntariness and admiss ibility of Appellan t’s alleged c onfess ion prior to
the submission of the statement to the jury; and
       3) whether the trial court erred in allowin g the Sta te to introdu ce into
evidence the involun tary statem ent of Appellant as well as the testimony of
Detective David K enned y at the trial con cerning the taking of the state ment.


       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                        FACTS




       On Thursday, May 11, 1995, Appellant received a call from his girlfriend,

Lisa Murphy, at approximately 6:45 in the morning. Ms. Murphy, who Appellant

knew to be pregnant with his child, called to say that her water had broken.

Appellant went to Ms. Murphy’s house and picked up Ms. Murphy and her

younger sister. T he co uple transported Ms. Murphy’s sister to school. Appellant

then took Ms. Murphy to a farm that his parents owned on Sherrilltown Road. He

left her the re in an old decrepit travel trailer, and returned home so that no one

would notice that Ms. Murphy did not go to school. He returned to the farm,

repor tedly around 9:00 am, to find Ms. Murphy in labor. The couple delivered the

baby in the floor of the trailer.


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       Accord ing to Ms. Murph y, the baby was born alive, tho ugh A ppella nt told

her the cord was around the infa nt’s neck during delivery. Ms. Mu rphy tied o ff the

child’s cord with thread and cut the cord with scissors she had with her. She

reported that the child cried as it was delivered and w as a purplish-red dish color.

She further testified that Appellant took the child from her, wrap ped it in a jac ket,

and took it to his truck, where there was a heater. He came back to the trailer and

helped her to the truck where she sat and held the infant. She testified that the

infant cried and slept, breathing normally. The couple discussed what to do with

the child; they co nsidere d taking it so mew here an d leaving it, but de cided it would

event ually be traced back to them. Ms. Murphy reported that Appellant several

times mentioned the possibility of burying the child. The two discussed their

dilemma for 15 to 20 minutes, and then Appellant got out of the truck, took a

shove l, and we nt into the barn. When Appellant returned from the barn, he took

the baby fr om M s. Mur phy an d carrie d it into the barn. Ms. Murphy testified that

the baby cried as Appellant carried it. Appellant returned in a few minutes without

the baby, telling Ms. Murphy that the baby had died.



       The couple spent the rest of the day together, acting as if nothing out of the

ordinary had occurred. T hey went shopping and then had dinner with Ms.

Murph y’s family.



       According to Appellant, the baby was born with the cord around its neck.

In a statement made at the time of his arrest, he stated that he thought that

perhaps the child moved a little. He said that it seeme d that the baby w as alive

when Ms. M urphy cut the cord, b ut it was blue in color. He testified at trial that he

attempted to revive the infant by placing his finger in the baby’s mouth and trying

                                           -3-
to clear its throat. He stated that both he and Ms. Murphy determined that the

baby was dead, and that they jointly decided that the baby should be buried.

Appe llant adm itted to digg ing a gra ve and b urying the baby.



       When Ms. Mu rphy return ed to sch ool the M onday fo llowing the birth, a

teacher noticed th at she w as no lon ger preg nant. The teacher asked a friend of

Ms. Murphy’s, Judy Williams, if Ms. Murphy had delivered the baby. Ms. Williams

responded that the baby had died after being born with the cord around it’s neck.

The teacher went to the school principal who called law enforcement. The

detective assigned to the case wired Ms. Williams in order to tape a conversation

between her and Ms. Murphy regarding what had occurred. The taped

conversation was o nly par tially aud ible, bu t Ms. W illiams reported that Ms.

Murphy told her that the baby boy wa s buried in a barn in Cherry Valley. O fficers

determined that Appellant’s parents owned the property described and obtained

permis sion to se arch the property. T he officers located th e buried infant.



       An autopsy performed by the County Medical Examiner revealed that the

child was full term and properly developed. The child’s esophagus, trachea, and

stomach containe d liquefied brown ish gre y dirt. Th e child ’s lung s floate d very w ell

in water, which the medical examiner testified indicated that the chid had been

born alive. The bronchi of the child’s lungs were blocked with a brown mate rial,

and the alveoli contained “brown amorphous aspirated material,” which was

consistent with the mate rial in the child’s s toma ch. Th e me dical examiner

determined that the ca use of de ath was “mech anical airw ay obstru ction due to

inhalation and ingestion of dirt.” The Federal Bureau of Investigation lab




                                            -4-
determined that the soil recovered from the infant was consistent with soil from

the child’s grave.



       Detective Kennedy observed the autopsy of the baby, after which he

returned to the Sheriff’s office and re-read the statements by Ms. Murphy and

Appe llant. Upon reading them, he decided to again qu estion A ppellant a s to

whether the baby had been alive. At app roximately 1:00 in the morning, D etective

Kennedy awoke Appellant and led him to an interrogation room for further

questioning. Appella nt signed a rights wa iver. Detec tive Kenn edy testified that

Appellant then told him he wished to change his statement to reflect that the baby

was alive at the time he buried it. Detective Kennedy stated that he wrote out the

statement for Appellant, but Appellant refused to sign the stateme nt. Detective

Kennedy testified that he told Appellant that he, Detective Kenne dy, would testify

as to wh at Appe llant had to ld him ev en if App ellant did n ot sign the statem ent.



       Appellan t’s version of that night’s eve nts differed from tha t of Detective

Kennedy significantly. He testified that Detective Kennedy asked him if he wanted

to change any part of his statement and that he responded that he did not. He

said that Detective Kennedy wrote a statement and read it back to him , again

asking if he wanted to change his statement. Appellant testified that he

uneq uivoca lly told the de tective th at he d id not w ish to ch ange his statements and

that he asked for an attorney. Appellant further testified that Detective Kennedy

told him that he, Detective Kennedy, was studying to be an attorney and that in

his opinio n Appe llant shou ld sign the statem ent.




                                           -5-
                          I. Sufficiency of the Evidence

       Appe llant initially contends that the State failed to present evidence

sufficient to support the jury’s conviction of murder in the first degree, alleging

spec ifically that the S tate failed to prove the elements of premeditation and

deliberation. When an ap pellan t challe nges the su fficienc y of the e videnc e, this

Court is oblige d to rev iew tha t challe nge a ccord ing to c ertain w ell-settle d

principles. A verdict of guilty by the jury, approved by the trial judge, accredits the

testimony of the Sta te’s witnes ses an d resolve s all conflicts in the te stimo ny in

favor of the Sta te. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally

cloaked with a presum ption of innocen ce, a jury verdict removes this presumption

and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.

1982). Hence, on app eal, the bu rden of p roof rests w ith Appe llant to dem onstrate

the insufficienc y of the con victing evide nce. Id. On appeal, “the [S]tate is entitled

to the stro nges t legitim ate view of the e videnc e as w ell as all reasonable and

legitimate inference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage,

571 S.W .2d 832 , 835 (T enn. 1978)) . W here th e suffic iency o f the evid ence is

contested on appeal, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reason able do ubt. Harris , 839 S.W .2d 54, 75 ; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or recons idering the evidenc e. State v. Morgan, 929 S.W.2d 380, 383

(Tenn . Crim. A pp. 199 6); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). More over, th is Court may not substitute its own inferences “for those

drawn by the trier of fa ct from circ umsta ntial eviden ce.”Id. at 779. Finally, the

                                          -6-
Tennessee Rules of Appellate Procedure, Rule 13(e) provides, “finding s of gu ilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by th e trier of fact beyond a

reasonab le doubt.” See also State v. Mathews, 805 S.W.2d at 780.



       In State v. Brown, 836 S.W .2d 530 (Tenn .1992) and State v. West, 844

S.W.2d 144 (Tenn.1992), our Supreme Court discussed the then existing

eleme nts of first degree murder. In Brown, the Supreme Court acknowledged

that the Tennessee courts have often blurred the distinction between the

eleme nts of premeditation and deliberation. The Court relied upon the following

historical definitions:



              "Premeditation" is the process s imply of thinking
       about a proposed killing before engaging in the homicidal
       condu ct; and "deliberatio n" is the proce ss of ca refully
       weighing such ma tters as the wisdom of going ahead with
       the proposed killing, the manner in which the killing will be
       accomplished, and the consequences which may be
       visited upon the killer if and when apprehended.
       "Deliberation" is present if the thinking, i.e., the
       "preme ditation," is being done in such a cool mental state,
       under such circumstances, and for such a period of time
       as to perm it a "careful weighing" of the proposed decision.



       Brown, 836 S.W.2d at 540-41 (quoting C. Torcia, Wharton's Criminal Law

§ 140 (14th ed.1979) (emphasis in original)); see also State v. Gentry, 881

S.W .2d 1 (Tenn . Crim. App.1 993).



       Premeditation as define d by the S uprem e Cou rt requires evidenc e of a

"previo usly formed design or intent to kill," and deliberation requires "some period

of reflection, during which the mind is free from the influence of excitement or

                                         -7-
passion ." West, 844 S.W.2d at 147. More over, to insure that the elem ents w ould

be considered separately, in Brown the Court decided to aba ndon the co mm only

given instruction that prem editation c ould be "formed in an insta nt." Brown, 836

S.W.2d at 543. In State v. Gentry, while holding that the jury may infer

premeditation and delibe ration from the circumstances surrounding the killing, the

Supreme Court, outlined the proof from which a jury might rationally infer the

elements o f first degree murd er:



      (1) facts about how and w hat the defen dant d id prior to the
      actual killing which show he was engage d in activity
      directed toward the killing, that is, planning activity;

      (2) facts about the defendant's prior relationship and
      conduct with the victim from which motive may be inferred;
      and

      (3) facts about the nature of the killing from which it may
      be inferred that the manner of killing was so particular and
      exacting that the defen dant m ust ha ve inten tionally killed
      accord ing to a pre conce ived des ign.


      State v. Gentry, 881 S.W .2d 1, 4-5 (Ten n. Crim. App . 1993) (quoting 2 W.

LaFave and A. Scott, Substantive Criminal Law, § 7.7 (198 6)); see also State v.

Hall, 1997 W L 769174 ,118-119 (T enn. 1997 ).



      In the matter sub judice, proof w as pre sente d that A ppella nt wan ted rid of

the baby “someway, anyway.” Further proof showed that Appellant refus ed to

take Ms. Mu rphy to a h ospital, bu t rather too k her to a re mote location to give

birth so that no one would find out about the child. Because premeditation and

deliberation are elements are mens rea eleme nts, elem ents which pertain to the

mental state o f the pe rpetra tor, the o nly way a jury ca n find s uch e leme nts is

usua lly through circumstantial evidence, through examining Appellant’s actions

                                         -8-
for evidence of what was in his mind as he acted. The evidence showed that the

Appellant left Ms. Murphy at the abandoned trailer for over an hour during which

her labor started. The child was born alive and Appellant took a shovel and dug

a shallow grave before taking the baby from its mother. All of this evidence

suppo rts the finding of preme ditation an d delibera tion. This is sue is with out me rit.



     II. Determination of Voluntariness and Admissibility of Statement




       Appellant also argues that the trial court erred in refusing to determine

pretrial whether Ap pellant’s stateme nt to Detective Ke nnedy wa s voluntary.

Detective Kennedy and Appellant both testified at a pretrial hearing regarding

Appe llant’s motion to suppress the statement. The trial court overruled

Appe llant’s motio n and allowed the State to presen t the statemen t to the jury

through the testimony of Detective Kennedy. The trial court ruled that Appe llant’s

contention that he never m ade the statem ent was a fact q uestion for the jury

rather than a question of volu ntariness for the trial court to determine. We agree.

Appellant has not contested the rights waiver which he signed. Neither has he

indicated that he was mistreated or threatened into making a statement. He

mere ly contests the authe nticity of the sta temen t. The qu estion of w hether

Appellant actually made the statement at all is a relevant fact question to be

resolved by the trier of fact, the jury.



                           III. Introduction of Statement




       Appe llant further alleg es that the trial court erre d in allowin g the Sta te to

present the contested statement to the jury through the testimony of Detective

                                            -9-
Kenned y. W e disagree. Appellant’s argument seems to be based on the lack of

verification of the stateme nt allegedly ma de by App ellant to Detective Kenned y.

Appellant was allowed to cross-examine Detective Kennedy at length regarding

the authenticity of the document, the conditions under which it was authored, and

whether the detective was truthful in his version of the events. Questions

concerning the credibility of witnesses, the weight and value to be given to the

evidence, and w ell as factual issues raised by the evide nce are resolved by the

trier of fact and not this Cou rt. State v. Cabbage, 571 S.W.2d 832, 835(Tenn.

1978). T he jury ha s spoke n. This iss ue is witho ut merit.



      Accordingly, the judgment of the trial court is affirmed.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




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