         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 14, 2009

                 STATE OF TENNESSEE v. BRANDON JOHNSON

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 07-01964    W. Otis Higgs, Jr., Judge



                      No. W2007-01655-CCA-R3-CD - Filed July 17, 2009


The defendant, Brandon Johnson, was convicted by a Shelby County jury of first degree felony
murder and second degree murder for shooting a man to death during an attempted robbery. The trial
court merged the second degree murder conviction into the felony murder conviction, for which the
defendant received a life sentence. In a timely appeal to this court, the defendant raises the following
issues: (1) whether the trial court erred in denying his motion to suppress his statement to police;
(2) whether the trial court erred in granting the State’s motion for a sequestered jury; (3) whether the
evidence was sufficient to sustain the convictions; and (4) whether the cumulative effect of the
various alleged errors deprived him of his constitutional rights to a fair trial. Following our review,
we affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and J.C.
MCLIN , JJ., joined.

Robert Wilson Jones, District Public Defender; Phyllis Aluko (on appeal) and Robert Felkner and
Kindle Nance (at trial), Assistant Public Defenders, for the appellant, Brandon Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L.
Gibbons, District Attorney General; and Ray Lepone and David Pritchard, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

        This case arises out of the March 10, 2003, shooting death of Richard McCuin at the hands
of the defendant, who admitted in a statement to police that he was responsible for the victim’s death
but claimed that the shooting occurred in self-defense when he went to retrieve cash and property
that the victim had stolen from him.
                                       Suppression Hearing

        Prior to trial, the defendant filed a motion to suppress his statement on the grounds that he
lacked the mental capacity to make a knowing and intelligent waiver of his Miranda rights. At the
suppression hearing, Sergeant Kenneth Shackleford of the Memphis Police Department testified that
he was assigned to the homicide bureau in 2003 and participated in the March 12, 2003 interview
with the defendant. He said that a uniformed police officer brought the defendant into the homicide
office for the interview, where Sergeant Tim Sims read him his rights from the advice of rights form.
The defendant appeared “very alert,” told the officers that he understood his rights, signed the advice
of rights form, and then gave the statement, which he initialed and signed. The defendant responded
directly and coherently to their questions, provided detail in his narrative account of the crime, and
did not appear to be confused by the questions or unsure of his responses. In addition, his account
of the crime was consistent with the evidence the officers had in the case.

        On cross-examination, Sergeant Shackleford testified that the advice of rights form and the
written statement reflected that the defendant was informed of his rights at 2:20 p.m., signed the
advice of rights form at 2:21 p.m, and signed and initialed the typewritten statement at 3:34 p.m.
He acknowledged that the defendant told them that he could not read very well and said that was the
reason that Sergeant Paula Harris read the defendant’s statement aloud to him after it had been
transcribed. He further acknowledged that they did not ask the defendant to explain his rights to
them in his own words and that no one noticed, at the time, that the defendant’s last name was
incorrectly typed as “Jackson” at the top of the statement. On redirect examination, he testified that
Sergeant Harris re-read the defendant’s Miranda rights to him before he signed and dated the
statement.

        Dr. Fred Steinberg, an expert in the field of forensic psychology, testified that he prepared
a report on the defendant based on his interview and psychological testing of the defendant as well
as his review of discovery, which included the defendant’s school records. He said that the
defendant’s full scale I.Q. scores from the age of nine though the present consistently fell below 70,
which placed him within the mild mental retardation range. In addition, the defendant’s achievement
tests revealed that he had never moved beyond the second grade reading level and that his listening
comprehension score was at the second grade, fifth month level.

        Dr. Steinberg testified that he had analyzed the advice of rights warnings read to the
defendant using the “Flesh Kincade [sic] Readability Index” and determined that the Miranda
warnings fell at the fourth grade, eighth month level. He, therefore, believed that there were
elements of the Miranda rights, as they were read to the defendant at the March 12 interview, which
the defendant had not been able to understand. For example, when he asked the defendant what the
phrase “[y]ou have the right to remain silent” meant, the defendant replied, “I don’t know. Break
it down. I don’t know. Be quiet.” The defendant also expressed confusion about the meanings of
the words “advice” and “coercion” and appeared to overlook the important concept that anything he
said could be used against him. In sum, Dr. Steinberg opined that the defendant was capable of



                                                 -2-
understanding the rights contained in the Miranda warnings, but that in order to do so, the rights
would have to be explained to him in a manner “[m]ore consistent with his verbal ability.”

        On cross-examination, Dr. Steinberg testified that he did not consider the defendant’s
extensive juvenile criminal record, which included eleven prior custodial arrests, in his determination
of whether the defendant had been able to comprehend the Miranda warnings at the March 12
interview because there was no record of how the rights had been explained to him in the past. He
acknowledged that the defendant had a full scale I.Q. of 68 and a verbal I.Q. of 69 and was possibly
malingering when he questioned him about his understanding of the phrases contained in the
Miranda warnings. Finally, he conceded that he had not realized that the word “coercion” was not
part of the Miranda warnings.

        Dr. John Hutson, the State’s expert forensic psychologist, testified that he had reviewed Dr.
Steinberg’s report, as well as the defendant’s psychiatric, school, and juvenile criminal records, and
disagreed with Dr. Steinberg’s opinion with respect to whether the defendant understood his rights
at the March 12, 2003, interview. He had no problem with the defendant’s classification as
borderline mentally retarded based on his I.Q. scores. He said, however, that much of Dr.
Steinberg’s extensive report, including his assessment of the defendant’s reading skills, was not
germane to the issue of whether the defendant could comprehend rights that were read to him. Based
on his review of the records, including the defendant’s responses to the officers’ questions and his
extensive juvenile record, he opined that the defendant had understood his rights at the March 12
interview. On cross-examination, he acknowledged that he did not know how the Miranda warnings
had been explained to the defendant in his prior juvenile contacts with the Memphis Police
Department. However, he believed that with the exception of the word “attorney,” the Miranda
warnings were couched in language that the average six or seven-year-old child could understand.

       At the conclusion of the hearing, the trial court found that under the totality of the
circumstances, which included the defendant’s responses to the officers’ questions, detailed
statement, and extensive experience with the criminal justice system, his waiver of rights was
knowing, intelligent and voluntary. Accordingly, the court overruled the defendant’s motion to
suppress his statement.

                                                Trial

       Troy Clay, the victim’s brother, testified that the victim died on March 11, 2003.

        Stephen Liggons testified that the victim had fathered a child with Liggons’ younger sister,
Shalita Jordan, and on March 10, 2003, was living with Jordan, their child, and Liggons’ and
Jordan’s mother, Cynthia Watson, at Watson’s Memphis apartment. At approximately 10:30 p.m.
that day, Liggons was talking on a payphone located five or six feet from his mother’s apartment
when the defendant approached and asked if he knew “Little Buck.” Although he knew that the
victim’s nickname was “Little Buck,” Liggons initially feigned ignorance because something about
the defendant aroused his suspicions. The defendant then asked whether he had a sister who lived


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in the apartment and, when he answered in the affirmative, inquired, “[D]oesn’t your sister have a
baby by a guy named Little Buck?”

        Liggons testified that Watson came to the door of the apartment at that point, and he
informed her that the defendant was looking for the victim. Watson allowed the defendant inside,
and two or three minutes later, Liggons heard a gunshot from the apartment. Almost simultaneously,
a blue Ford Thunderbird pulled up outside the apartment, and men whom Liggons recognized as
associates of the defendant’s emerged from the vehicle armed with guns. Watson then came running
out of the apartment saying that the defendant had just shot the victim. Two minutes later, Jordan
came out of the apartment and said, “He just shot [the victim]. He just shot [the victim].” The
defendant came out of the apartment immediately behind Jordan, looked to the right and left,
approached the passenger side of the blue Thunderbird as if about to get inside, and then went into
the home of a woman named “Flip.”

        Liggons testified that after the defendant left, he entered his mother’s apartment and found
the victim lying on the floor with a gunshot wound to the chest. On March 11, 2003, he identified
the defendant from a photographic array and gave an official statement to the police. He did not,
however, tell the police that the defendant had fled to Flip’s home because he feared for the safety
of his family.

        Cythnia Watson testified that she heard her son talking to someone outside and opened her
apartment door to encounter the defendant, who told her that he was looking for the victim, whom
he claimed was his brother. She said she let him in to the front room of the apartment, which had
a direct line of sight to the bedroom where the victim was resting with Jordan and their baby. The
victim, who was dressed in boxer shorts and lying on a mattress on the floor, raised up and, when
he saw the defendant, said, “Oh, what’s up dog pound?” The defendant responded by asking if he
could talk to the victim, and the victim told him he would not talk to him there but would meet him
outside. At that point, Watson went outside to talk to her son for a moment.

         When Watson returned to the apartment, the defendant was in the bedroom standing on the
mattress and the victim was standing in the doorway with his hands raised over his head. Watson
testified that she heard the victim plead for his life, saying, “Please don’t kill me because I’ve got
a baby in the house.” She also heard the defendant ask the victim where the money was and the
victim reply that he had no money. The defendant then shot the victim. Afterwards, the defendant
picked up the victim’s pants from the floor and went through the pockets but found nothing other
than a Medicaid card. During that time, Watson grabbed her grandchild from the room and fled the
apartment. Watson testified that the victim still had his hands raised in the air and had not made any
moves toward the defendant at the time the defendant shot him.

        Shalita Jordan testified that she and the victim were lying down in the bedroom with their
infant son when the defendant came in and asked the victim if he could talk to him for a minute. She
said that the victim answered “no” and said, “Do what you do when you see me in the street.” The
victim then jumped up, stood against the wall, and said, “Don’t do it in front of [the] baby.” Jordan


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stated that the defendant pulled a gun out and twice asked the victim where the money was. Both
times the victim answered that he had no money. The defendant then shot the victim, causing him
to fall to the floor, before picking up the victim’s pants and going through the pockets.

         Jordan testified that the defendant next placed his gun against her head and asked her where
the money was. She said that she initially told him that she did not know but then said it was
outside. He directed her to take him to the money, and she led him to the front door of the apartment
and pointed down the sidewalk. He started in the direction she had indicated, and she retreated into
the apartment and shut and locked the door. Jordan testified that the victim was unarmed and had
not made any aggressive moves toward the defendant at the time the defendant shot him. She further
testified that she had no knowledge of the victim’s having robbed the defendant earlier that day and
knew nothing about any money.

       Officer David Galloway of the Memphis Police Department’s Crime Scene Unit identified
the photographs he had taken of the crime scene early on the morning of March 11, 2003.

        Dr. Teresa Campbell, the forensic pathologist who performed the autopsy of the victim’s
body, testified that the cause of death was a gunshot wound in which the bullet entered at his right
upper abdomen, passed through his liver, perforated his aorta, and came to rest in the soft tissues and
muscles of his back. She said that the victim was 66 inches tall and weighed 159 pounds and that
his blood tested negative for the presence of drugs and alcohol.

       The State’s final witness was Sergeant Kenneth Shackleford of the Memphis Police
Department, who described his interview with the defendant and identified the defendant’s
statement, which reads in pertinent part:

               About two three [sic] weeks ago I got jumped by [the victim] and three of his
       partners. They took my money and my rocks. So I [sic] night I did it[.] I had seen
       him go in one of the houses, but I didn’t know what house he went in. So I asked
       somebody who knew and they told me. Me and a dude name Twone went to the
       door. I knocked on the door they open the door and I asked for [the victim] and the
       lady let me in. I told him let me holla at him outside and he was like what you need
       to holla at me for. So I kept asking him let me holla at him outside. Then he told the
       lady, that let me in, show this weak ass nigga to the door. Why [sic] we were talking
       I was standing in the hallway and when he said that I went in the room w[h]ere he
       was. He jumped up and when he got up, he grabbed me. I pushed him up off me,
       turn my head, and shot him. I kept asking his girlfriend where the shit at. She was
       like I don’t know. So I flip over the bed, grabbed his pants, and checked his pants.
       It wasn’t nothing in his pants so his girl start screaming and I ran out. Then I seen
       Roderick when I was coming out of the apartments and I asked him to drop me off
       down the street. He was taking to[o] long so I ran down there myself. And he called
       and was like where the gun at? I told him where the gun was at and he came and got
       it.


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        The twenty-two-year-old defendant testified that the victim and two companions, one of
whom was armed with a gun, stole $200 in cash and two $25 rocks of crack cocaine from him on
March 10, 2003, the day of the shooting. He explained that he did not report the robbery to the
police because he was a drug dealer, but instead went to the victim’s apartment because he believed
he could “talk to him and get [his] money back.” His description of his encounter with the victim
at the apartment was consistent with his statement to police. Specifically, he stated that the victim
jumped him the moment he entered the room and that he pulled out his gun, turned his head to see
who was behind him, and shot. The defendant denied that he intended to kill or rob the victim and
repeated that he went to the victim’s apartment to talk to him. He said he had a gun with him
because he lived in a dangerous neighborhood. He also said that he told the police in his March 12
statement that the victim had robbed him two or three days previously, but the information was not
transcribed accurately.

        On cross-examination, the defendant testified that had he intended to rob the victim, he
would have drawn his gun upon entering the house. He stated that he pulled the gun out because he
did not know how else to react when the victim grabbed him. He acknowledged that the victim was
unarmed and that he had pushed him off him before he fired the shot, but he claimed that everything
happened in an instant and that the shooting was an accident. Finally, he stated that he pointed the
gun at Jordan “to get her scared enough to tell [him] where [his] money was.”

                                             ANALYSIS

                                 I. Denial of Motion to Suppress

        As his first issue, the defendant contends that the trial court erred by denying his motion to
suppress his statement to police. The defendant argues that his statement should have been
suppressed because his mental retardation, combined with the officers’ failure to explain the Miranda
warnings in simple terms he could understand, rendered him incapable of making a knowing and
intelligent waiver of his rights. In support, he cites Dr. Steinberg’s testimony about his limited
reading and listening comprehension skills and the fact that the Miranda warnings, as they were read
to him, were calculated to be at the fourth grade, eighth month level. The defendant contends that
his prior experiences with the Miranda warnings cannot compensate for his intellectual deficits
because there was no proof presented as to how the warnings had previously been administered to
him in juvenile court. In his reply brief, the defendant further contends that there was no actual proof
presented that he was provided with Miranda warnings during his juvenile arrests, but instead only
the unsworn statements of the prosecutor, who characterized the defendant’s eleven arrests as
“approximately thirteen prior contacts with the criminal justice system and in eleven of those taken
into custody by the Memphis Police Department where he was read his Miranda rights.”

        When this court reviews a trial court’s ruling on a motion to suppress evidence, “[q]uestions
of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in
the evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). Moreover, the party prevailing at the suppression hearing is afforded the


                                                  -6-
“strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be
drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). Thus, the findings
of a trial court in a suppression hearing are upheld unless the evidence preponderates against those
findings. See id. However, the application of the law to the facts found by the trial court is a
question of law and is reviewed de novo. See State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

        In Miranda v. Arizona, 384 U.S. 436, 471-75, 86 S. Ct. 1602, 1626-28 (1966), the United
States Supreme Court held that a defendant’s statements made during a custodial interrogation are
inadmissible at trial unless the State establishes that the defendant was informed of his right to
remain silent and his right to counsel and that he knowingly and voluntarily waived those rights.
Whether the defendant made a voluntary, knowing, and intelligent waiver of those rights depends
“‘upon the particular facts and circumstances surrounding that case, including the background,
experience, and conduct of the accused.’” Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880,
1884 (1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)). The
waiver must be “‘made with full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.’” State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000)
(quoting State v. Stephenson, 878 S.W.2d 530, 544-45 (Tenn. 1994)).

        A defendant’s mental retardation is but one of a number of different factors to be considered
in the determination of whether the waiver of Miranda rights was knowing and voluntary. In
Blackstock, 19 S.W.3d at 208, our supreme court observed:

                Although there is likely to be a level of deficiency so great that it renders a
       defendant unable to make a knowing and intelligent waiver, nearly every court to
       consider the issue has held that mental impairments or mental retardation are factors
       that must be considered along with the totality of the circumstances. As one court
       has said, “no single factor, such as IQ, is necessarily determinative in deciding
       whether a person was capable of knowingly and intelligently waiving, and do [sic]
       waive, the constitutional rights embraced in the Miranda rubric.” Fairchild v.
       Lockhart, 744 F. Supp. 1429, 1453 (E.D. Ark. 1989). Among the circumstances
       courts have considered are the defendant’s age, background, level of functioning,
       reading and writing skills, prior experience with the criminal justice system,
       demeanor, responsiveness to questioning, possible malingering, and the manner,
       detail, and language in which the Miranda rights are explained. As a result, courts
       tend to reach results that are somewhat fact-specific.

Id. (footnote omitted). The State has the burden of proving the waiver by a preponderance of the
evidence. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997).

       The trial court’s extensive ruling states in pertinent part:

               I find, frankly, that this young man understood the Miranda warning based on
       the totality of circumstances. I don’t find that any threats exist or any coercion. I


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       think, clearly, that he demonstrated an understanding that he didn’t have to say
       anything if he didn’t want to. And that’s basically what this whole thing is about.

               ....

                This young man here, in spite of all that I’ve seen here about his intelligence
       level, if you read his statement, he knows how to communicate -- he knows how to
       relate his experiences. He knows how to understand. And his answers to these
       questions, in my judgment, fall short of the standard necessary for this court to
       determine that he did not understand his rights.

        The totality of the circumstances supports the trial court’s findings that the defendant
knowingly, intelligently, and voluntarily waived his Miranda rights. The defendant’s lengthy
juvenile record, regardless of the manner or number of times in which he was advised of his Miranda
warnings, reflects his extensive prior experience with the criminal justice system. In addition,
Sergeant Shackleford testified that the defendant gave direct and coherent responses to the officers’
questions, indicated that he understood his rights, and evidenced no confusion or hesitation in his
responses or in his detailed narrative of the crime. Finally, Dr. Hutson, while acknowledging the
defendant’s borderline mental retardation, disagreed with Dr. Steinberg’s opinion that the defendant
would not have been able to understand the Miranda warnings at they were read to him.

         On this latter point, we note that Dr. Steinberg based his conclusion that the defendant would
have been unable to understand the rights on having run the Miranda warnings through the “Flesh
Kincade [sic] Readibility Index,” and determining that they included concepts that required a fourth
grade, eighth month reading level. Later in his testimony, however, he acknowledged that he had
mistakenly believed that the word “coercion” was part of the Miranda warnings, which calls into
question the reliability of the “readability index” score he obtained. Moreover, as Dr. Hutson noted
in his testimony, the defendant’s reading skills were not at issue in a case in which he was not
required to read the rights himself but instead had them read aloud to him. Accordingly, we
conclude that the trial court did not err in denying the defendant’s motion to suppress his statement.

                                     II. Sequestration of Jury

         The defendant next contends that the trial court erred by granting the State’s motion for a
sequestered jury. He argues that the trial court erroneously believed that it had no discretion in the
matter and that it failed to take into consideration the defendant’s concern that the jurors might infer
from their sequestration that he posed a physical threat to them. The State responds by arguing that
the trial court clearly considered a number of factors in its decision and acted within its discretion
in granting the motion. The State further argues that the defendant has not shown that he was
prejudiced by the court’s decision to sequester the jury.

        Tennessee Code Annotated section 40-18-116 provides that “[i]n all criminal prosecutions,
except those in which a death sentence may be rendered, jurors shall only be sequestered at the sound


                                                  -8-
discretion of the trial judge[.]” The prosecutor in this case, while acknowledging that the decision
rested solely within the discretion of the trial court, argued that the jurors should be sequestered “out
of an abundance of precaution,” citing, among other things, the seriousness of the charges, the fact
the killing occurred “in an apartment complex with numerous citizens around,” and the potential
publicity surrounding the case. The trial court agreed, ruling as follows:

                Well, as a factual matter in a murder in the first degree case, when one party
        request[s] sequestration the Court grants it. It is a very serious case, to say the least.
        A lot of different factors involved in sequestering a jury in a murder case. But, I am
        going to overrule the defense’s motion and sequester the jury, out of an abundance
        of precaution and any number of factors that I can consider in a serious case like this.

               I am not going to do a lot of elaborating on it. I just think that it is better to
        sequester the jury on a murder first degree case.

         The defendant interprets the trial court’s initial statement above as an indication that the court
believed it had no discretion in the matter. We believe, however, that the court was simply stating
that its established practice was always to grant a sequestered jury whenever requested in a first
degree murder case. Although the court did not elaborate on the additional factors that led it to order
sequestration, we note that the record reflects that the defendant was by his own admission a member
of a gang. The defendant’s statement was redacted to prevent the jury from knowing of his gang
affiliation, but, given that the record reflects that the “gang unit” was prosecuting the case, the trial
court was almost certainly aware of the defendant’s status as a gang member at the time it granted
the State’s motion to sequester the jury. We, therefore, agree with the State that the trial court
properly acted within its discretion in sequestering the jury. The defendant is not entitled to relief
on the basis of this issue.

                                   III. Sufficiency of the Evidence

        As his next issue, the defendant challenges the sufficiency of the convicting evidence,
arguing that the State failed to prove beyond a reasonable doubt that he had the requisite mens rea
for either felony or second degree murder. In considering this issue, we apply the rule that where
sufficiency of the convicting evidence is challenged, the relevant question of the reviewing court is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e)
(“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable
doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,
604 (Tenn. Crim. App. 1992).

       All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d


                                                   -9-
620, 623 (Tenn. Crim. App. 1987). “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.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:

               This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of justice
       to determine the weight and credibility to be given to the testimony of witnesses. In
       the trial forum alone is there human atmosphere and the totality of the evidence
       cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)).

       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. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982).

        To sustain the conviction for felony murder, the State had to prove beyond a reasonable doubt
that the defendant killed the victim during an attempt to perpetrate a robbery. See Tenn. Code Ann.
§ 39-13-202(a)(2) (2006). The mental state required for the conviction was the defendant’s intent
to commit the underlying offense, which in this case was “the intentional or knowing theft of
property from the person of another by violence or putting the person in fear.” Id. §§ 39-13-202(b),
39-13-401(a). To sustain the conviction for second degree murder, the State had to prove beyond
a reasonable doubt that the defendant committed a knowing killing of the victim. See id. §
39-13-210(a)(1).

        The defendant asserts that “[t]he facts . . . suggest that [he] . . . went to the victim’s house
to talk him into returning [his] property[,]” and that the shooting was a “reflex triggered by fear.”
Relying on his version of the events, he argues that the State failed to prove either that he had the
intent to rob the victim or knowingly committed the shooting. However, when viewed in the light
most favorable to the State rather than the defendant, the evidence established that the defendant had
the intent to rob the victim and knowingly committed the shooting. The State presented two
eyewitnesses to the crime who described the defendant’s pulling a gun on the victim, demanding
money, and then shooting the victim when he said he had no money. Both the eyewitnesses testified
that the unarmed, semi-dressed victim had made no aggressive moves toward the defendant at the
time of the shooting and that the defendant went through the victim’s pants pockets after the
shooting. In addition, the defendant admitted in his statement to police that he went to the victim’s
apartment to try to retrieve his property while armed with a gun, that he shot the unarmed victim
during the attempt, and that he placed a gun to the victim’s girlfriend’s head after the shooting in an



                                                 -10-
effort to scare her into telling him where the money was. We conclude, therefore, that the evidence
was more than sufficient to sustain his convictions for felony and second degree murder.

                            IV. Cumulative Effect of Alleged Errors

       Finally, the defendant contends that the cumulative effect of the various alleged errors
deprived him of his state and federal constitutional rights to a fair trial. Having found no errors, we
conclude that the defendant is not entitled to relief on the basis of this issue.

                                          CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




                                                 -11-
