        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 27, 2013

        STATE OF TENNESSEE v. MICHAEL DEWEY ELLINGTON

                 Appeal from the Criminal Court for Monroe County
                         No. 09-270   Amy A. Reedy, Judge




                 No. E2012-00908-CCA-R3-CD - Filed August 13, 2013




J AMES C URWOOD W ITT, J R., J., dissenting.


              I respectfully disagree with the majority’s conclusion that the evidence
supports the verdict of first degree murder. In my view, the element of premeditation was
not established beyond a reasonable doubt.

               Applying the Bland litany of factors for evaluating the existence of
premeditation, see State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997), the evidence is lacking
on almost all points. Evidence of the parties’ relationship suggests volatility but does not
really suggest a motive; indeed, volatility is more suggestive of provocation than of motive.
No evidence showed that the defendant threatened or declared an intent to kill the victim.
No evidence showed planning activities. The shooting could have been instantly provoked,
and evidence showed that the victim was armed. Although the defendant’s demeanor after
the shooting was not distressed, we do not know the demeanor before the shooting except
that both parties had used methamphetamine. Accordingly, the Bland factors do not point
toward premeditation. See State v. Michael Lenard Hall, No. E2002-01834-CCA-R3-CD
(Tenn. Crim. App., Knoxville, Mar. 11, 2004).

                I know the jury rejected the claim of self-defense, but the jury’s rejection of
self-defense does not equate to establishing premeditation, which the State was obliged to
affirmatively prove beyond a reasonable doubt. With nothing more, the rejection of the
claim of justification through self-defense leaves us with an unjustified, knowing killing. See
State v. West, 844 S.W.2d 144, 148 (Tenn. 1992) (jury may reject defendant’s version of
events but may not accredit a theory that does not have an evidentiary basis).1

              Accordingly, I would reverse the conviction of first degree murder and impose
a conviction of second degree murder. The evidence warrants a finding that the homicide
was “knowing,” the predicate for second degree murder.



                                                          ___________________________________
                                                          JAMES CURWOOD WITT, JR., JUDGE




        1
        For the same reason, I do not see that we can make the inference that the knife was “planted” by the
defendant’s brothers.

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