        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                     SEPTEMBE R SESSION, 1998
                                                        FILED
                                                        December 10, 1998
STATE OF TENNESSEE,        )   C.C.A. NO. 02C01-9708-CC-00325
                                                     Cecil Crowson, Jr.
                           )                            Appellate C ourt Clerk
      Appellee,            )
                           )
                           )   HAYWOOD COUNTY
VS.                        )
                           )   HON. DICK JERMAN, JR.
RATHAL PERKINS,            )   JUDGE
                           )
      Appe llant.          )   (First Degree M urder)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF HAYWOOD COUN TY


FOR THE APPELLANT:             FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR.        JOHN KNOX WALKUP
113 North Court Squ are        Attorney General and Reporter
P.O. Box 26
Wa verly, TN 37185             CLINTON J. MORGAN
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243

                               CLAYBURN L. PEEPLES
                               District Attorney General
                               109 East First Street
                               Trenton, TN 38382



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION
       The Defendant, Rathal Perkins, was convicted of first degree murder and

sentenced to life imprison ment. He no w app eals h is conv iction, p ursua nt to R ule

3 of the Te nnes see R ules o f Appe llate Pro cedu re. Th e Def enda nt pres ents o nly

one issue on appea l: whether the evidence is sufficient to support a finding of

premeditation to sustain his convic tion for first degree murder. We affirm the

judgm ent of the tria l court.



       On August 10, 1995, police officer Shawn Williams was dispatched to a

field in Brownsville, Tennessee to investigate what he believed was an

autom obile accident with injuries. When he arrived at the field, he encountered

a greatly upset young man named Courtney Jones and discovered a vehicle with

a shattered back window . The officer noticed a man’s leg hanging out of the

driver’s side of the vehicle and upon further investigatio n, recognized the man

inside the ca r as De noatu s Mur phy, the victim in this case.1 The victim, who had

a gunsh ot woun d in his side , was vom iting and u nable to speak. Another police

officer arrived shortly after Officer Williams, and the two officers place d the vic tim

on the gro und a nd ad minis tered C PR to him u ntil an a mbu lance arrived. The

victim wa s then tak en to the h ospital, wh ere he w as pron ounce d dead .



       At the hospital and briefly while the victim was in the car, Officer Williams

had the opportunity to observe the victim’s injuries, which he described as an

entrance woun d on th e victim ’s right side and an exit wound on his left side. He

also examined the victim’s car and searched the field where it was found.

       1
           The officer was acquainted with Murphy before the night of the murder.

                                             -2-
Although the officer found a bullet lodged in the driver’s seat and a .380 caliber

shell casing in the back floorboard on the driver’s side, he did not find any type

of weapon in or around the vehicle. The officer also noted a stain on the driver’s

seat that appeared to be blood.



       Rathal Perkins, the Defendant, was implicated by a number of witnesses

as the shooter. At trial, the Defendant testified and admitted to shooting the

victim. Ho wever, oth er facts su rroundin g the incid ent are in d ispute.



       Courtney Jone s, the vic tim’s cousin, testified that on August 10, 1995, the

victim picked him up and they drove to a convenience store in Brownsville called

The Mark etplac e, whe re they arrived around eight o’clock p.m. When they

arrived at the store, the victim told his cousin he was there to look for Rodney

Johnson, for whom the victim had recently sig ned a c riminal wa rrant. 2               Mr.

Johnson arrived shortly a fter the v ictim and pulled his car along side th e drive r’s

side of the victim’s car. He and the victim began to discuss the warrant. During

this discussion, the Defendant pulled his vehicle alongside the passenger side

of the victim’s car.



       At this point, the testimony of those present at The Marketplace that night

differs markedly. Courtney Jones testified as follows: When the Defendant pulled

alongside the vic tim’s car, the victim “asked [the Defendant] what was the

problem ,” to which the Defendant responded, “I’m with my nigger.” By this, the

Defendant apparently meant that he was there to side with his friend, Rodney


       2
            The warrant, which was for aggravated assault, also covered Tracy Taylor,
apparently a friend of Rodney Johnson. It alleged that Rodney Johnson had fired a gun at the
victim.

                                            -3-
Johnson. Johnso n told the victim to ignore the Defenda nt, and words were

exchanged.3



       At Johnson’s suggestion, Johnson and the victim moved their cars across

the parking lot; the Defendant followed. Johnson and the victim resumed their

discu ssion. Again , the victim a sked the Defen dant, “W hat’s the p roblem . . . .

[W]hy are you bothering me?” This time the Defendant jumped out of his car

holding a gun, saying, “What? What’d you say? What?” He pushed Jones, who

was sitting in the passen ger seat of the victim ’s car, out of the w ay and s hot into

the victim’s car, s triking the victim in the side . The victim im med iately started his

car and sped away while the Defendant kept firing at the c ar, sha ttering th e car’s

rear windshield. The victim eventually passed out and lost control of the car, and

Jones took control of the vehicle, steering it into the field where the vehicle and

the victim were found by Officer Williams.



       Katanya Smith, a teenager who was at The Marketplace at the time of the

shooting, testified that she heard a gunshot while sitting in her parked car just

outside of the store. She then turned and saw a man, whom she could not

identify, standing outside a car shooting. The car pulled away, and the man shot

twice more. The man’s car had been parked next to that of the victim.



       Witnesses for the defense presented an entirely different version of the

events on the night that the victim was killed. Julius Wynder, a friend of the

Defendant from M emp his, tes tified that he was riding in the backseat of the


       3
          It is unclear from Jones’ testimony whether the victim exchanged words with Johnson
or the Defendant. However, other witnesses testified that the victim and the Defendant argued
on the night of the shooting.

                                            -4-
Defend ant’s car on the night of August 10, 1995. He testified that when the

Defendant arrived at The Marketplace and pulled alongside the victim’s car, the

victim 4 said to the Defe ndant, “W hat are you in ou r conversation for? . . . Man,

you ain’t even in this thing.” Wynder testified that this “shocke d” the De fendan t,

who had no t provoke d the victim . He further testified that when the three cars

moved to the other side of the parking lo t, the victim sa id to the Defendant, “Man,

I- I’ll blast your ass” and leaned down as if to grab something under th e seat,

presu mab ly a gun. Wynder then testified that w hen the victim “wen t for the gun ,”

Wynder dropped to the floorboard, heard two shots and then heard the

Defendant get back into the car before the D efendant dro ve out of the p arking lot.

He did not see the gun for which he believed the victim reached and did not know

who fired the shots that he heard. He never spoke with police about the incident,

claiming that he was not aware at the time of the shooting that anyone had been

shot and that he did not know he was involved in the investigation.



       David Wo ods, who w as evidently the front-seat passenger in the

Defe ndan t’s car on the night of the murder, presented a similar story. He testified

that the victim h ad threa tened to “blast” the D efenda nt, to which the Defendant

responded, “Don’t reach for your gun.” He claimed that the victim then reached

under his seat, and Woods saw the victim’s right hand coming up holding a gun

as Woods ducke d down. Like Wynder, Woods testified that he never saw sh ots

fired, but unlike Wynder, he testified that he and Wynder discussed the fact that

“the boy h ad died .”



       4
             Wynder used the term “dude” throughout his testimony and never specifically
identified the person to whom he referred as the victim, although at one point Wynder did call
the person “[t]he dude that’s dead right now.” Based upon his testimony as a whole and the
other facts of this case, it is clear that by “dude,” Wynder meant the victim.

                                             -5-
       Rodney Johnson, the man with whom the victim met on August 10, 1995,

testified that the victim initiated the confrontation with the Defendant. He testified

that he heard two or three sho ts fired. However, he stated that he never saw a

gun, that he did not know who fired the shots, and that he did not know anyone

had be en hit.



       At trial, the Defendant claimed that he shot th e victim in self-defense. He

testified that the victim told him, “I’ll blow your ass off.”         According to the

Defen dant, as the victim reache d down and ca me up with a gun, “I jumped out

running fearing for m y life shooting . . . . It wasn’t intentional. . . . I wasn’t trying

to kill him. I d idn’t even k now I h it him.” T he De fenda nt also adm itted tha t his

gun wa s a .380 c aliber pisto l and that h e threw it aw ay after the shooting .



       After the murde r, the police searched the parking lot of The Marketplace.

They were u nable to find any weapons, but they did find two spent shell casings

beside the gas p umps which ap peared to match the ca sing fo und in the victim ’s

car. There was also a large amo unt of ve hicle glass sc attered in th e parking lot.

It appeared to stem from the area where the casings were found, near the gas

pump s, and ex tended onto the s treet.



       The State p resen ts the th resho ld issue of whe ther this Cour t shou ld waive

the Defendant’s untimely filing of the notice of appeal and accept the appeal of

this case. T he case contains a rathe r lengthy and un usual proce dural history.

The trial took place on November 9, 1995. The Defendant filed a Motion for New

Trial on December 7, 1995; a hearing on the motion was held , and the motion

was overruled on May 13, 1996. Trial counsel for the Defendant withdrew on

                                           -6-
June 3, 1996. Th e Defend ant, evidently fearing th e loss o f his righ t to app eal,

filed some pro se documents, including a Motion for Leave to File Belated Notice

of Appe al, a Petition for Post-Conviction Relief, and a Motion to Appoint Counsel

for Appe al. 5 The Public Defender was appointed to represent the Defendant on

August 22, 1997; on tha t same da y, the Defendant filed a Notice of Appeal from

the final judgment entered on December 12, 1995 and from the order of May 13,

1996 denyin g the D efend ant a n ew trial. 6 A Notice of Appeal was filed in the

Court of Crim inal Ap peals on Aug ust 29, 19 97. Sub seque ntly, due to a conflict

of interest, the Public Defender withdrew from the case; and on October 13,

1997, substitute couns el Clifford McGown was appointed to represent the

Defendant on appeal.          The Defendant, through appointed counsel, filed an

Amended Motion for Ne w Tria l on December 1, 1997, which was denied on

January 5, 1998.        On January 8, 1998, the Defendant then filed a Notice of

Appeal from the final judgmen t entered on December 12, 1995 and from the

order entere d on J anua ry 5, 19 98 de nying th e Def enda nt a ne w trial.



       Rule 4 of the Tennessee Rules of Appellate Procedure states that

       [i]n an app eal as of rig ht to the . . . Co urt of Criminal Appeals, the
       notice of appea l required b y Rule 3 s hall be filed w ith and received
       by the clerk of the trial court w ithin 30 days after the date of entry of
       the judgment appealed from; however, in all criminal cases the
       “notice of appeal” document is not jurisdictional and the filing of such
       document may be waived in the intere st of justice. T he app ropriate
       appellate court shall be the court that determines wheth er such a
       waiver is in the interest of justice.




       5
             Two of the three pro se documents contained in the record are unsigned. The
Defendant, through present counsel, Clifford McGown, later moved the trial court to dismiss his
Petition for Post-Conviction Relief as having been mistakenly and untimely filed. The trial court
dismissed the petition on January 5, 1998.
       6
           The actual Notice of Appeal incorrectly states that the order denying the Defendant
a new trial was entered on May 31, 1996.

                                              -7-
Tenn. R. App. P. 4(a). Due to the unusual circum stanc es in this case, we wa ive

the untime ly filing of the no tice of app eal in the interes t of justic e. W e will

therefore proceed to discuss this case on the merits.



       The Defendant argues that the proof presented by the State is insufficient

to sustain the De fendant’s con viction for first degree mu rder. He contends that

the State failed to adequately prove the element of premeditation. He argues that

the Defe ndan t’s con viction fo r first deg ree m urder shou ld therefore be modified

to a conviction for sec ond degre e murde r.



       Tennessee Rule of Appellate Procedure 13(e) prescribes that “[findings]

of guilt in criminal action s whe ther by the trial c ourt or jury sha ll be set aside if the

evidence is insufficient to support the finding by the trier of fact beyond a

reaso nable doubt.” T enn. R . App. P. 1 3(e). “Qu estions c oncern ing the cre dibility

of the witn esse s, the w eight a nd valu e to be given th e evide nce, a s well a s all

factual issues raised by the evid ence , are res olved b y the trie r of fact, n ot this

Court.” State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) (citing

State v. Grace, 493 S.W.2d 474, 476 (T enn. 1 973)) . Nor m ay this Court re-weigh

or re-evalua te the evide nce in the record b elow. State v. Evans, 838 S.W.2d

185, 191 (Tenn. 1992) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn.

1978)).



       A jury verd ict app roved by the tr ial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. Grace, 493 S.W.2d at 476 (citing

State v. Williams, 657 S .W .2d 40 5, 410 (Ten n. 198 3)). On appe al, the S tate is

entitled to the strongest legitimate view of the evidence and all inferences

                                            -8-
therefrom. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982) (citing Cabbage,

571 S.W .2d at 835). Because a verdict of guilt removes the presumption of

innocence and replaces it with a presumption of guilt, the accused has the

burden in this Court of illustrating why the evidence is insufficient to support the

verdict returned by the trier of fa ct. McBe e v. State, 372 S.W.2d 173, 176 (Tenn.

1963); see also Evans, 838 S.W.2d at 191 (citing Grace, 493 S.W.2d at 476);

Tug gle, 639 S.W .2d at 914 .



       Tennessee Code A nnotated § 3 9-13-202 defines first degree murder as

“[a] premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-

202(a)(1). 7 Premeditation is defined as

       an act done after the exercise of reflection and judgment.
       “Premeditation” means that the intent to kill must have been formed
       prior to the act itself. It is not necessary that the purpose to kill pre-
       exist in the mind of the accused for any definite period of time. The
       mental state of the accused at the time the accused allegedly
       decided to kill must be carefully considered in order to determine
       whether the accused was sufficiently free from excitement and
       passion as to be capable of premeditation.

Id. § 39-1 3-202 (d). “‘Pre med itation’ is the proc ess sim ply of thinking about a

proposed killing before engaging in the homicidal co nduct . . . ,” State v. Brown,

836 S.W.2d 530, 540-41 (Tenn. 1992) (quotin g C. To rcia, W harton ’s Crim inal

Law § 140 (14th e d. 1979)).



       Premeditation is a question of fact to be resolved by the jury. State v.

Anderson, 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992). “As is usually the

case, a dete rmina tion of a culpa ble mental state, such as premeditation, must be



       7
            Tennessee Code Annotated § 39-13-202 also presents two other types of first
degree murder which are not at issue in the present case. See Tenn. Code Ann. § 39-13-202
(a)(2)-(3).

                                          -9-
inferen tially made from the circumstances surrounding the killing.” State v.

Burlison, 868 S.W .2d 713 (Tenn . Crim. A pp. 199 3); see State v. Gentry, 881

S.W.2d 1, 3 (Tenn. Crim. App. 1993). Thus, premeditation may be shown by

circum stantial evid ence. Brown, 836 S.W .2d at 541 .



       The following circumstanc es have been re lied upon in Tenn essee courts

to prove premeditation: “(1) the victim was retreating or attempting to escape

when shot; (2) the victim was unarmed and offered no provoc ation,” State v.

Martin , 702 S.W.2d 560, 562-63 (Tenn. 1985 ) (citations o mitted), overruled on

other grounds, Brown, 836 S.W.2d at 543; and (3) the victim “sustained repeated

blows or shots.” Hous ton v. State , 593 S.W .2d 267 , 273 (T enn. 19 80), overruled

on other grounds, Brown, 836 S.W.2d at 543.8 The procure ment o r use of a

deadly weapon may also be relevant to the question of prem editation. State v.

Bush, 942 S.W.2d 489, 501 (Tenn. 1997 ); Burlison, 868 S.W .2d at 718 ; see

Brown, 836 S.W.2d at 541.9


       8
                 In Houston v. State . . . the only circumstance relied upon by
               the majority to establish premeditation and deliberation was the
               fact that the victim had sustained “repeated shots or blows” . . .
               Logically, of course, the fact that repeated blows (or shots) were
               inflicted on the victim is not sufficient, by itself, to establish first-
               degree murder. Repeated blows can be delivered in the heat of
               passion, with no design or reflection. Only if such blows are
               inflicted as the result of premeditation and deliberation can they
               be said to prove first-degree murder. . . . Certainly, more than
               the mere fact of “repeated blows” must be shown to establish
               first-degree murder, and to the extent that the opinions in
               Houston and Martin can be read to hold otherwise, they are
               expressly overruled.

Brown, 836 S.W.2d at 542, 543 (citations omitted). We read this to mean that repeated shots,
standing alone, are not sufficient to support a finding of premeditation; however repeated shots
may be considered in conjunction with other circumstances to support a finding of
premeditation. We note incidentally that the requirement of deliberation is now abolished under
our current first degree murder statute. See Tenn. Code Ann. § 39-13-202.
       9
             Specifically, our supreme court stated in State v. Brown that “[r]elevant
circumstances recognized by other courts around the country have included the fact ‘that a
deadly weapon was used upon an unarmed victim; [and] . . . that weapons with which to commit
the homicide were procured . . . .” Brown, 836 S.W.2d at 541 (emphasis added).

                                                -10-
      W e will now review the facts of the case before us. The Defendant arrived

at the scene of the crime with a g un in h is vehic le. His p urpos e was appa rently

to assist his friend who was involved in a dispute with the victim. He got out of

his vehicle holding his gun. He shot at least two times into or at the victim’s car

and fired at least one of those shots at the victim’s car as the victim s ped awa y.

In addition, police could find no weap on wh ich be longe d to the victim at the crime

scene, in the vic tim’s ca r, or in the field where the victim was discovered.

Whether these facts show premeditation is a classic question of fact for

consideration by the jury. Upon review of the testimony presented at trial, the jury

eviden tly concluded that the testimony of the Defendant and other witnesses for

the defense w as dubious . We w ill not disturb this conclusion on app eal. W e

believe that the evidence presented to the jury was sufficient to support a finding

of prem editation.



      The jud gmen t of the trial cou rt is accord ingly affirme d.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOE G. RILEY, JUDGE

                                         -11-
