        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs April 14, 2015 at Jackson

              STATE OF TENNESSEE v. KENNY THOMASON
                   Appeal from the Circuit Court for Rutherford County
                           No. F-68230 David M. Bragg, Judge



                  No. M2014-00592-CCA-R3-CD – Filed January 28, 2016




JAMES CURWOOD WITT, JR., J., dissenting.

               I respectfully dissent from the majority view that the evidence supports a
verdict of first degree premeditated murder.

               In my view, the evidence fails to show premeditation. We know little about the
interaction between the defendant and the victim. They had been friends. Motive is not
really apparent, and the State showed no prior declarations of the defendant to kill the victim.
 No proof showed planning activities; indeed, the victim’s presence at the residence was not
previously known to the defendant. Although the defendant used a knife to kill the victim, he
apparently did not procure the weapon for this purpose and did not deploy it until just before
the fatal assault. I agree with the majority that generally the use of a knife to commit a
homicide requires proximity to the victim and somewhat more focus than using a firearm;
however, the defendant inflicted three stab wounds to the victim, two of which would not
have been lethal. The proof showed that the defendant was “cold” during his interview with
police, but a coldness does not really equate to calmness after the killing. I do not believe the
defendant’s post-homicide condition to be cogent enough to overcome the presumption of
innocence and the absence of other markers for premeditation. Nor do I see that the 911 call
adds anything of significance other than to show that the victim challenged the defendant and
that the attack occurred suddenly, the latter being a fact corroborated by Mr. Milligan.

               Although State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011), overruled that
portion of State v. Crawford, 470 S.W.2d 610 (Tenn. 1971), which allowed the trier of fact to
impose a conviction based upon mere circumstantial evidence only when the “facts and
circumstances [are] so closely interwoven and connected that the finger of guilt is pointed
unerringly at the defendant and the defendant alone,” see State v. Dorantes, 331 S.W.3d 370,
381 (Tenn. 2011), the court’s opinion did nothing to alter fundamentally the standard for
appellate review of the sufficiency of the convicting evidence. The Crawford court said, “A
web of guilt must be woven around the defendant from which he cannot escape and from
which facts and circumstances the jury could draw no other reasonable inference save the
guilt of the defendant beyond a reasonable doubt.” Id. (emphasis added). Rather, said
Dorantes, circumstantial evidence should be reviewed in the same manner as direct evidence
B to determine whether, upon considering 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. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307,
324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). Although
Dorantes instructs that review of evidence sufficiency does not “contemplate all plausible
inferences [of circumstantial evidence] in the Defendant’s favor, see State v. Sisk, 343
S.W.3d 60, 68 (Tenn. 2011), the polestar for reviewing the sufficiency of both direct and
circumstantial evidence, whether before Dorantes or after, is rationality, or reasonableness.
Dorantes is not an invitation for a reviewing court to rotely accede to a fact-finder’s
determination of the sufficiency of direct or circumstantial evidence however slight or
speculative the basis for the determination may be. The case clearly effects a difference in
the way juries are to be instructed on the handling of circumstantial evidence, but I am not
sure that it affects the basic function of judicial review.

              Although the emergence of Dorantes has denigrated in many minds the opinion
in Crawford, the Crawford court, writing prior to the filing of Jackson v. Virginia, must be
credited with acknowledging the peril in not holding the State’s evidence to a standard of
reasonableness:

              Mere suspicion and straws in the wind are not enough for
              circumstances take strange forms. Under our form of
              government and the administration of criminal justice, the
              defendant is clothed with a mantle of innocence and that
              presumption of innocence hovers over and protects him
              throughout the trial. Until this is overturned by strong proof of
              his guilt beyond a reasonable doubt, not an imaginary or
              captious doubt but an honest doubt engendered after a
              consideration of all the evidence so that the minds of the jurors
              cannot rest easy as to the certainty of guilt, he is entitled to an
              acquittal.

Crawford, 470 S.W.2d at 613 (emphasis added). If one assumes that the reference in this
quotation to “strong proof” equates to proof “beyond a reasonable doubt,” I see nothing in
the quotation that is wrong B even under the Dorantes formulation.
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             So, in my view, the evidence did strongly establish that the defendant
knowingly killed the victim but failed to show that he did so premeditatedly. Therefore, I
would reverse the first degree murder conviction and impose a conviction for the lesser
included offense of second degree murder.


                                                       JAMES CURWOOD WITT, JR.




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