        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                           AT KNOXVILLE                          July 6, 1999

                                                             Cecil Crowson, Jr.
                         APRIL SESSION, 1999                 Appellate C ourt
                                                                 Clerk



STATE OF TENNESSEE,         )    C.C.A. NO. 03C01-9708-CR-00339
                            )
      Appellee,             )
                            )
                            )    WASHINGTON COUNTY
VS.                         )
                            )    HON. ARDEN L. HILL
JAMES E. GAYLES,            )    JUDGE
                            )
      Appe llant.           )    (Direct Appeal - First Degree M urder)




FOR THE APPELLANT:               FOR THE APPELLEE:

DONALD E. SPUR RELL              JOHN KNOX WALKUP
128 East Market Street           Attorney General and Reporter
Johnson City, TN 37604
                                 ERIK W. DAAB
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 DAVID CROCKETT
                                 District Attorney General

                                 JOE CRUMLEY
                                 KENT GARLAND
                                 Assistant District Attorn eys
                                 First Judicial District
                                 Jonesborough, TN 37659



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION



       On July 7, 1993, Appellant James E. Gayles was charged with one count

of first degree mu rder. After a jury trial on February 6–7, 1995, Appellant was

convicted of first degree murder and was sentenced to life imprisonment.

Appellant challenges his conviction, raising the following issues:

       1) whether the evidence was sufficient to support his conviction; and

       2) whethe r the State improperly failed to disclose a leniency agree men t it

       had with one of its witnesses.

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



                                      I. FACTS




       Officer Lisa Coppock of the Johnson City Police Department testified that

on May 2, 1993, she was dispatched to investigate a shooting in the parking lot

of Pro-Diesel in Johnson City. When she arrived, she found Darrell Sturdivandt

lying on his ba ck next to a blue veh icle. Sturdivandt was declared dead at the

scene. It appeared that he had a small caliber gunshot wound in the middle of

his back. There was also a spent .25 caliber shell casing on the gr ound n ext to

Sturdivan dt’s right foot.



       Doctor William McCormick testified that he examined Sturdivandt’s body

on May 2, 1993. Dr. McCormick determined that Sturdivandt had died as a re sult

of being shot in the back with a .25 caliber bullet.          Dr. McCormick further




                                           -2-
determined that Sturdivandt had a blood alcohol level of .058 and traces of

marijua na in his sy stem w hen he died.



       Patrick Hale testified that he was at the Black & Tan Club on May 2, 1993,

when he heard so me gun shots com ing from the vicinity of Pro-Diesel. When

Hale looked in the d irection of Pro -Dies el, he saw Appellant run and get in a van

driven by Steph anie B owm an. Ha le then heard Appe llant yell, “le t’s go, let’s go”

and the van acc elerated down th e street.



       Anthony Forney testified that he was a passenger in Bowman’s van when

Appellant jumped in the van and said, “let’s go.” Anthony Forney noticed that

Appellant smelled like firecrackers or gunpowder and appeared to be acting

paranoid and frightened. Forney could see the shape of a gun hidden under

Appe llant’s shirt.



       Dwight Forney testified that the night before the shooting, Appellant had

stated that “if people didn’t quit messing over him he was going to take somebody

out—so meone out, or, make a n examp le of someb ody.”



       Charles Dela pp tes tified tha t on Ma y 2, 199 3, he s aw Ap pellan t walk

toward a blue car in the Pro-Dies el parking lot. Shortly therea fter, Delapp he ard

a gunshot and saw Appellant jogging away from the area where the sound of the

gunshot originated. Appellant then got in a van and the van, drove away. Delapp

could se e that Ap pellant ha d wrapp ed a T -shirt arou nd his ha nd.




                                         -3-
          Jason Beam testified that he was a friend of Sturdivandt. He had seen

Sturdivandt steal cocaine from drug dealers by taking it out of their hands and

fleeing or b y giving them less mo ney than the coca ine was worth.



          Alonzo Norman testified that he witn esse d a dru g trans action in which an

individual gave one do llar to Appe llant for fifty dollars w orth of cocaine. Appellant

appeared to be upset and stated, “man, I seen him b efore a nd I’ll see him again.”



          According to Norman, on May 2, 1993, Appellant came to his residence

and told Norman that he wan ted to go to New York with him. Appellant stated,

“I think I shot som ebody.” Appellant also stated, “the man tried to pull something

out on me and I shot him.” When Norman asked Appe llant who h e had s hot,

Appellant stated that he had shot “the man that—that gave [me] the dollar for the

fifty.”



          Steph anie Bowman testified that she was driving a van on May 2, 1993,

when Appellant came running across the street with a gun in his hand. Appellant

got in the van and yelled, “let’s go—let’s go.” Appellant stated, “what the hell are

you all doing . . . you all are riding around having fun while I just had to do a

man.” Bowman noticed that when Appellant got in the van, she could smell what

appea red to be the odo r of firecrack ers or gu npowd er.



          Teresa Gayles, Nico le Friday, Derrick Frida y, Denika H arper, and Jo Hazel

all testified that A ppellant w as in Ne w York o n May 2 , 1993.



                        II. SUFFICIENCY OF THE EVIDENCE

                                           -4-
      Appellant conten ds that the evidence w as insu fficient to supp ort his

conviction for first degre e murd er. Appe llant conc edes th at the evidence was

sufficient to support a conviction for second degree murder, but conte nds th at it

was insufficient to support a conviction for first degree murder becau se the S tate

failed to establish the elements of premeditation and deliberation.



      When an appellant challenges the sufficie ncy of th e evide nce, th is Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W .2d 253, 259 (Tenn. 199 4). Although an accused

is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this

presumption and rep laces it with o ne of gu ilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof res ts with Ap pellant to

demo nstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the

[S]tate is entitled to the strongest legitimate view of th e evide nce a s well a s all

reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere

the sufficiency of the evidence is contested on appeal, the relevant question for

the reviewing court is wh ether any rational trier of fact could have found the

accused guilty of every elemen t of the offense be yond a reaso nable d oubt.

Jackson v. Virgin ia, 443 U.S . 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979). In conducting our evaluation of the convicting evidence, this Co urt is

precluded from reweighing or recon sidering th e eviden ce. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996).            Moreover, this Court may not

substitute its own inferences “for those drawn by the trier of fact from

circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

                                          -5-
App. 1990). Finally, Rule 13(e) of the Te nness ee Ru les of Ap pellate Procedure

provides, “finding s of gu ilt in crim inal actions whether by the trial court or jury

shall be set aside if the evide nce is insufficient to sup port the findings by the trier

of fact beyo nd a rea sonab le doub t.”



        When Sturdivandt was killed in 1993, Tennessee’s first degree murder

statute provided that “[f]irst degree murder is: [a]n intentional, premeditated and

deliberate killing of another.”             Te nn. Code Ann. § 39-1 3-202 (199 3). 1

Premeditation requires a showing of a previously formed design or intent to kill.

State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). Deliberation requires that the

offense be committed with cool purpose, free of the p assions of the m omen t. Id.

Although premeditation “may be formed in an instant, deliberation requires some

period of reflection, during which the mind is ‘free from the influence of

excitem ent, or pas sion.’” State v. Brown, 836 S.W.2d 530, 538 (Tenn. 1992)

(citation omitte d). W hile it remains true that no specific length of time is required

for the formation of a cool, dispassionate intent to kill, more than a “split-second”

of reflection is required in order to satisfy the elements of premeditation and

deliberatio n. Id. at 543.



        The elements of premeditation and deliberation are questions for the jury

which may be established by proof of the circumstances surrounding the killing.

State v. Bland, 958 S.W .2d 651, 660 (Tenn. 199 7); State v. Bord is, 905 S.W.2d

214, 222 (Tenn. Crim. App. 1995). Tennessee courts have delineated several

circumstances that may be indicative of premeditation and deliberation, including


        1
         A 1995 ame ndm ent elim inated de liberation as an elem ent of first de gree m urder. See Tenn.
Code Ann. § 39-13-202(a)(1) (Supp. 1998) (“First degree murder is: A premeditated and intentional killing
of another.”).

                                                 -6-
facts from wh ich mo tive may b e inferred , Bord is, 905 S.W.2d at 222; declarations

by the defen dant of an intent to kill, State v. P ike, 978 S.W.2d 904, 914 (Tenn.

1998); the us e of a d eadly weapon upon a n unarm ed victim, Brown, 836 S.W.2d

at 841; an d facts ab out the na ture of the k illing, Bord is, 905 S.W.2d at 222.



       Initially, we conclude that when the evidence is viewed in the light most

favora ble to the State, the evid ence was c learly sufficient for a rational jury to find

beyond a reasonable doubt that Appellant was the person who killed Sturdivan dt.

Hale and Delapp both saw Appellant run away from the scene of the murder and

get in a van shortly after they heard gunshots. Bowman and Anthony Forney

both smelled the odor of firecrackers or gunpowder when Appellant got in the

van. Further, Antho ny Forney could see the shape of a gun hidden under

Appellant’s shirt, and Bowman actually saw a gun in Appellant’s hand.                  In

addition, Appellant told Bowman that he “just had to do a man.” Finally, Appellant

told Norman on the night of the shooting that he had just shot the man who had

previously given him one dollar for fifty dollar’s worth of cocaine.



       W e also co nclud e that w hen th e evide nce is v iewed in the light most

favora ble to the State, the evidence was sufficient for a rational jury to find

beyond a reas onab le dou bt that A ppella nt inten tionally killed Sturd ivandt with

premeditation and deliberation.         First, the State presented evidence that

Appellant had a motive to kill Sturdivandt beca use S turdiva ndt ha d che ated h im

during a drug transaction. Norman witnessed an individual pay one dollar to

Appellant for fifty dollar’s worth of cocaine and Norm an heard Appellant say that

he had seen that individual before and he would see him again. Norman also

believed that Appellant appeared to be u pset a t the tim e. Furth er, Ap pellan t told

                                           -7-
Dwight Forney the night b efore the shooting that “if people didn’t quit messing

over him he was going to take somebody out—someone out, or, make an

exam ple of somebody.” Shortly after the shoo ting, Ap pellan t told Norman that he

had shot the individual who had paid him one dollar for fifty dollar’s worth of

cocaine .



      Second, while there was no evidence that Appellant had previo usly

expressed an intent to kill Sturdivan dt, there was clearly evidence that Appellant

had expressed an intent to get revenge on Sturdivandt. As previously stated,

Appellant told Norman that he would see the person who had cheated him in the

drug transaction again and told Dwight Forney that he was going to make an

exam ple out of s omeo ne.



      Third, the evidence showed that Sturdivandt was unarmed when Appellant

shot him. Beam testified that he had never known Sturdivandt to carry a gun or

a knife and Coppock testified that Sturdivandt did no t have a ny wea pons on his

person and no weapo ns were found a t the scen e of the sh ooting.




      Fourth, the natur e of the killing indicates that it was deliberate and

premeditated. Indeed, the evidence showed that Appellant shot Sturdivandt

when Sturdivandt was facing away from him. Further, the fac t that Ap pellan t did

not kill Sturdivandt until sometime after the drug transaction indicates that he had

time to refle ct on his d ecision to take reve nge on Sturdivan dt.




                                         -8-
       In short, we conclude that this evidence was sufficient for a rational jury to

find the essential elem ents of first degree m urder beyon d a reasonable doubt.

This issu e has n o merit.



                             III. LENIENCY AGREEMENT




       Appellant contends that he is entitled to a new trial because the State failed

to disclose that it had an implicit agreement with Norman that it would drop

certain charg es ag ainst h im an d wou ld be lenient with respect to other charges

if he testified a gainst A ppellant.



       In Brady v. Maryland, 373 U.S . 83, 83 S .Ct. 1194, 10 L.Ed.2d 21 5 (1963),

the United S tates Suprem e Court held that the prosecution has a constitutional

duty to furnish the accused with exculpatory evidence pertaining to either the

accu sed’s guilt or innocence and the potential punishment that may be imposed.

Failure to reveal exculpatory evidence violates due process where the evidence

is materia l either to guilt or punishment, irrespective of good faith or bad faith of

the prosec ution. Id. 373 U .S. at 87, 83 S.Ct. at 1196–97. The prosecution must

also disclose evidence which may be used by the defense to impeach a witness.

Giglio v. United States, 405 U.S. 150, 154–55, 92 S.Ct. 763, 766, 31 L Ed.2d 104

(1972); Wo rkman v. State, 868 S.W.2d 705, 709 (T enn. Crim. A pp. 1993).

Because promises the State makes to a witness in exchange for his or her

testimony relate directly to the credibility of the witness, th e State h as a du ty to

disclose evidence of any promises it has m ade to a pros ecutio n witne ss in

exchange for his or her testimon y. Hartm an v. State , 896 S.W.2d 94, 101 (Tenn.

1995) (citation om itted).

                                          -9-
       Before a reviewing court may find a due proce ss violation under Brady, all

of the following four prerequisites must be satisfied:

       1) The defendant must have requested the information (unless the
       evidence is obviously exculpatory, in which case the S tate is bou nd to
       release the inform ation whethe r requested o r not);
       2) The State must have suppressed the information;
       3) The information must have been favorable to the accused; and
       4) The informa tion mu st have b een m aterial.

State v. Evans, 838 S.W .2d 185 , 196 (T enn. 19 92). In Kyles v. Whitley, 514 U.S.

419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995), the United States

Supreme Court stated that in determining whether information is material, “[t]he

question is not whether the defendant would more likely than not have received

a different verdict with the evidence, but whether in its abs ence he rec eived a fair

trial, understood as a trial resulting in a verdict worthy of co nfidence.”



       During the hearing on Appellant’s motion for a new trial, Norman testified

that when he tes tified at tria l, he was sca red bec ause h e had b een ch arged w ith

coercion of a witness, being an accessory after the fact to first degree m urder,

and multip le drug offens es. No rman also te stified th at his a ttorney s told him that

the prose cutor c ould n ot ma ke an y deals with him before he testified, but if he did

testify, the prosecutor would have to drop the charges for being an accessory

after the fact and coercion of a witness and the prosecutor would also be lenient

with respec t to the drug charge s. Howe ver, Norman ad mitted that he had o nly

met with the prosecutor one time before he testified and expressly stated that the

prosecutor h ad never offere d him anything in return for his testimon y.



       Mike Kellum, one of Norman’s attorneys, provided an affidavit in which he

stated that the prosecutor had approached him and said that if Norman testified



                                          -10-
truthfu lly in Appellant’s trial, the “testimony would be appreciated and considered

in any future plea offers regarding” the charges against Norman of being an

accessory after the fact and coercion of a witness. However, Kellum did not

testify du ring the hearin g on th e mo tion for a new tria l.



        Deborah Huskin s, anothe r of Norm an’s attorneys, testified during the

hearing on the motion for a new trial that she had believed that if Norman testified

truthfu lly at Appe llant’s trial, it would make a difference in any sentence he

subs eque ntly received in the drug case. However, Huskins also testified that

although she be lieved it would benefit Norman to testify truthfully, “we had

abso lutely no agreement as to what plea if any we would be entering, the number

of years, ranges, we—we did not discuss an y specifics like that, not an ything.”

Further, Huskins testified that she and Kellum had explained to Norman that the

prosecutor had not made any definite offer of leniency in return for his tes timony.



        The trial court found that there was no merit to Appellant’s claim that he

was entitled to a new trial because the State had failed to disclose that it had a

leniency agreement with Norman. Although the trial court made no express

findings of fact, th e cou rt did no te that N orma n’s credibility was qu estionab le. In

addition, the court’s ruling necessarily implies a finding that there had been no

implic it leniency agreement between the State and Norman. The evidence does

not preponderate against that finding. Indeed, Appellant failed to introduce any

evidence that the prosecutor promised Norman anything definite in return for his

testimony. 2 At mos t, Appellant merely established that the prosecutor would take


        2
          Appellant contends that the subsequent dismissal of the charges against Norman for being an
acces sory after th e fact an d coerc ion of a witne ss prov es that N orm an did ha ve a lenien cy agree men t with
the State. However, the record indicates that the charge for being an accessory after the fact was

                                                     -11-
Norm an’s decision to testify truthfully into “conside ration” in any future plea

negotiations. An indefinite offer of “consideration” falls far short of constituting an

agreem ent. In addition, although Norman may well ha ve belie ved tha t he wo uld

receive leniency in return for his testimony, the unilateral belief o f one p erson is

insufficient to create an agreement. In short, Appellant had failed to show that

there was an y agreem ent betw een the State and N orma n in regard to Nor man ’s

testimon y. This issu e has n o merit.



        Accordingly, the judgment of the trial court is AFFIRMED.



                                          ____________________________________
                                          JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




dismissed because there was insufficient evidence to support a conviction, and the charge for coercion of
a witness was dismissed because the victim did not want the case to be prosecuted. Further, the
prosecutor expressly informed the jury that if Norman testified truthfully, the charge for being an accessory
after the fa ct would b e dropp ed.



                                                  -12-
