            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                           MAY SESSION, 1998         FILED
                                                      July 2, 1998

                                                Cecil W. Crowson
STATE OF TENNESSEE,         )
                                              Appellate Court Clerk
                            )    No. 01C01-9701-CR-00014
      Appellee              )
                            )    DAVIDSON COUNTY
vs.                         )
                            )    Hon. Thomas H. Shriver, Judge
MARIO HAWKINS,              )
                            )    (Premeditated First Degree Murder)
      Appellant             )



For the Appellant:               For the Appellee:

William P. Griffin, IV           John Knox Walkup
301 Realtors Bldg.               Attorney General and Reporter
306 Gay Street
Nashville, TN 37201              Ellen H. Pollack
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 Victor S. (Torry) Johnson III
                                 District Attorney General

                                 Kymberly Haas
                                 Asst. District Attorney General
                                 Washington Sq., Suite 500
                                 222-2nd Ave. N
                                 Nashville, TN 37201-1649



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                         OPINION



       The appellant, Mario Hawkins, was found guilty by a Davidson County jury of the

premeditated first degree murder of Cedric Mosley and was sentenced to life

imprisonment in the Department of Correction. In this appeal as of right, the appellant

challenges:

       I. The trial court’s denial of the appellant’s motion for judgment of
       acquittal and the sufficiency of the convicting evidence based upon the
       absence of corroborating proof;

       II. The trial court’s failure to instruct the jury as to the lesser offenses of
       voluntary manslaughter, criminally negligent homicide, and facilitation of
       murder; and

       III. The trial court’s admission of the autopsy report as offered by State’s
       witness Dr. Harlan.


       After a review of the record now before us, we affirm the judgment of conviction

entered by the trial court.




                                       Background



       At approximately 6:30 p.m. on January 11, 1995, Metro Police found fifteen year

old Cedric Mosley laying face down in a pool of blood on a sidewalk near the

Cumberland View housing project in North Nashville. The victim was transported to a

hospital where he died early the next morning as a “result of shotgun wounds to the

head and right hip, the primary contributor being shotgun pellet wound injuries to the

brain.” Earlier that afternoon, around 5:00 p.m., the victim and Lamont McDonald had

been involved in a heated argument over “a girl.”           The argument subsided and

McDonald left upset over the encounter. Shortly before 6:30 p.m., McDonald and three

associates, later identified as the appellant, Lamont Johnson, and Kevin Walker,

returned to the Cumberland View housing project to look for Mosley. As a result of the




                                           2
conduct which followed, all four men were subsequently indicted for the first degree

murder of Cedric Mosley.



        At trial, the State presented the testimony of co-defendants Kevin Walker and

Lamont Johnson. Also testifying as material witnesses for the State were Rodney

Walker, Otis Stewart, and Mario Gray. Both Rodney Walker and Kevin Walker

observed the initial encounter between Mosley and McDonald. Fifteen year old Rodney

Walker testified that neither Mosley nor McDonald was armed with a weapon. He

stated that the altercation was merely verbal, involving some swearing, but, no physical

interaction. Nineteen year old Kevin Walker, a co-defendant, testified that he also

witnessed the argument. During the altercation, Kevin Walker remained in McDonald’s

1995 green Ford Taurus. Although he did not see either party armed with a weapon

during the initial encounter, he stated that, shortly after this confrontation, he observed

Cedric Mosley with a gun. After the argument subsided, Lamont McDonald and Kevin

Walker left the area in McDonald’s car.



        Kevin Walker testified that, when McDonald returned to the car, he was very

angry. McDonald paged Lamont Johnson. Johnson testified that, during his telephone

conversation with McDonald, McDonald sounded “upset” and “furious.” McDonald then

proceeded to a house on Douglas Street in East Nashville, later determined to be the

home of the appellant, where the two young men joined Lamont Johnson. Shortly

thereafter, the appellant returned to his home on Douglas Street. Johnson, McDonald,

and the appellant engaged in a brief discussion, after which, the four men left the

appellant’s house armed with two twelve-gauge shotguns and one .32 caliber handgun.

McDonald was armed with the handgun, while the appellant and Johnson each were

in possession of a sawed-off shotgun.1




        1
         The proof at trial indicated that the shotgun carried by Lamont Johnson was not
functioning properly and could not be fired.

                                                3
       The group proceeded to a birthday party for Johnson’s younger sister, where

they ate birthday cake and ice cream. The weapons remained in McDonald’s vehicle.

The group then left the party and headed toward Cumberland View housing project.

Walker testified that, although he never heard any conversation about what the others

intended to do, he was under the impression that they planned to scare somebody,

namely Cedric Mosley. McDonald informed the others that he believed that Mosley

would be in the area of 25th Avenue North, because that is where he liked to “hang

out.” McDonald parked his car on 26th Avenue North. McDonald, Johnson, and the

appellant exited the vehicle, each armed with a weapon. Walker remained in the

vehicle with the doors locked. Outside the car, Johnson positioned himself behind a

tree, while McDonald and the appellant began looking for the victim.



       McDonald and the appellant encountered Cedric Mosley, who was talking with

Otis Stewart and Mario Gray.2 McDonald had his weapon pointed at Mosley. Mosley

and his companions were not armed. McDonald and Mosley argued briefly. Stewart

testified that Mosley begged him to tell McDonald, his cousin, to “quit and leave him

alone.” Stewart begged McDonald to put the gun down, but he refused. McDonald

then fired his weapon into the air. Mosley again told McDonald to leave him alone.

Mosley and Stewart began running. Lamont Johnson, who remained hiding behind a

tree, testified that the appellant then fired his shotgun, hitting Mosley in the upper body.

The appellant fired again, hitting Mosley, who had then fallen to the ground, a second

time. The appellant placed a “slug” in his shotgun and stated that “he wanted to put

this in the m-----f-----.” All three shots fired by the appellant struck the helpless Mosley.

While Mosley lay wounded on the pavement, the appellant, Johnson, and McDonald

ran back to McDonald’s vehicle.



       Once in the car, McDonald stated to the others, “He’s not dead, he’s not dead.

. . . Man, I’ve got to make sure he’s dead, you know.” The group then drove back to


       2
           Rodne y W alker wa s stand ing acros s the stre et during th is incident.

                                                    4
the appellant’s residence. Upon arriving at the appellant’s East Nashville residence,

the appellant unloaded the weapons from the vehicle and informed his mother that “[h]e

had smoked him a m-----f-----.”



         At the appellant’s trial, Otis Stewart, Rodney Walker, and Mario Gray, the three

non-accomplice eyewitnesses, testified that the individual that had shot Mosley three

times with a shotgun was wearing a black and purple Fila coat with the hood pulled over

his head. The proof revealed that the appellant was wearing a Fila coat on the night

of the murder and that neither Johnson nor McDonald were wearing such a coat.

Moreover, Mario Gray, while on the stand, identified the appellant as the shooter.



         Based upon this evidence, the jury returned a guilty verdict of premeditated first

degree murder.




                                   I. Sufficiency of the Evidence



         The appellant first contends that the trial court erroneously denied his motion for

judgment of acquittal at the conclusion of the State’s case-in-chief, and, that the proof

is not sufficient to support a verdict of premeditated first degree murder. 3 Specifically,

he alleges that the accomplice testimony of Kevin Walker and Lamont Johnson was not

independently corroborated because the testimony of Mario Gray does not “fairly and




         3
          As to the appellant’s challenge to the trial court’s denial of his Motion for Judgment of
Acquittal, the State contends that the appellant has waived this issue because he presented
evidence on his behalf after the motion was denied. (citing Mathis v . State, 590 S.W.2d 449, 453
(Tenn. 1979)). “Rule 29(c) of the Tennessee Rules of Criminal Procedure permits a motion for
judgment of acq uittal to be renewed within 30 days of the date of the order of the sentence.”
State v. Brewer, 945 S.W.2d 803, 805 fn 2 (Tenn. Crim. App. 1997). Defense counsel raised the
issue of the sufficiency of the evidence in his motion for new trial; thus, the issue has not been
waived. Id. W hen the tria l cour t is pre sen ted w ith a m otion for ju dgm ent o f acq uittal, th e only
conce rn is the lega l sufficienc y, as oppo sed to the weight, of th e eviden ce. State v. Blanton, 926
S.W .2d 953, 9 57 (Te nn. Crim . App. 199 6) (citation o mitted). A s these two issue s, i.e., judgment
of acquittal and sufficiency of the evidence, are inextricably linked, we elect to consider these
issues together . See Brewer, 945 S.W .2d at 805 fn 2.

                                                     5
legitimately . . . connect the defendant with the commission of the crime charge[d].” We

disagree.



       To determine whether the evidence is sufficient to sustain a conviction, this court

does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Moreover, the appellant bears the burden of demonstrating that the

evidence, viewed in the light most favorable to the State, is insufficient for any rational

trier of fact to have found the essential elements of the offense beyond a reasonable

doubt. See Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State

v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e). See also State

v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). If the appellant fails to carry his burden, it is the duty of the appellate

courts to affirm the challenged conviction.



                    A. Corroboration of Accomplice Testimony

       A felony conviction may not be based solely upon the uncorroborated testimony

of an accomplice. State v. Maddox, 957 S.W.2d 547, 554 (Tenn. Crim. App. 1997)

(citations omitted).   Moreover, where there are multiple accomplices, additional

corroboration is necessary, because accomplices cannot corroborate each other. State

v. Green, 915 S.W.2d 827, 830 (Tenn. Crim. App. 1995) (citation omitted).



       To corroborate the testimony of an accomplice, “there should be some fact

testified to, entirely independent of the accomplice’s evidence, which, taken by itself,

leads to the inference, not only that a crime has been committed, but also that the

defendant is implicated in it.” State v. Billingsley, No. 01C01-9506-CC-00166 (Tenn.

Crim. App. at Nashville, May 16, 1996), perm. to appeal denied, (Tenn. Oct. 28, 1996)

(citing Clapp v. State, 30 S.W. 214, 216 (Tenn. 1895)). “This corroboration must




                                          6
consist of some fact or circumstance which affects the identity of the defendant.”4 Id.

In other words, the corroborative evidence must be inconsistent with the innocence of

the accused and do more than raise a mere suspicion of guilt.                           However, the

corroboration need not be conclusive. Green, 915 S.W.2d at 831 (citations omitted).

The corroboration is sufficient “if this evidence, standing alone, tends to connect the

defendant with the commission of the offense, although the evidence be slight and

entitled, when standing alone, to little consideration.” Id. (citations omitted); see also

State v. Henley, 774 S.W.2d 908, 913 (Tenn. 1989); McKinney v. State, 552 S.W.2d

787, 789 (Tenn. Crim. App. 1977). Furthermore, the jury is to determine the degree of

evidence necessary to corroborate the testimony of an accomplice. Billingsley, No.

01C01-9506-CC-00166 (citation omitted); see also Sherrill v. State, 321 S.W.2d 811,

815 (Tenn. 1959).



        Three non-accomplice eyewitnesses to Mosley’s murder identified the

perpetrator as a young man wearing a black and purple Fila coat with the hood covering

his head. The proof revealed that the appellant was the only individual present at the

scene wearing such a coat. Additionally, one of the eyewitnesses, Mario Gray, made

a physical identification of the appellant during the trial. The appellant challenges

Gray’s identification as being an “illegitimate” accusation. Specifically, he questions the

credibility of Gray’s testimony because (1) Gray has prior juvenile adjudications, (2) he

admitted that he only saw the shooter’s complexion and height, and (3) he failed to

inform law enforcement officials of his identification of the shooter until testifying at trial.

During his testimony, Gray admitted that he knew McDonald and that McDonald was

not the shooter. He stated that the shooter was wearing the Fila coat. He testified that

he had been in juvenile detention at the same time as the appellant and recognized the

appellant as the shooter during this time.



        4
          The term “identity” refers not to an identification of the accused, but rather, to the
accused’s association with the crime. “[T]he corroborative evidence must at least confirm the
accom plice as to the accused’s actual participation in the crime (or “connection with the offense”),
or (thus it sometimes put) as to the accused’s identity with the participators . . . .” FT W igmore,
Evidence in Trials at Common Law § 2059, at 423 (Rev. 1978).

                                                  7
            We reiterate that the jury is the primary instrument of justice to determine the

weight and credibility to be given to the testimony of the witnesses and not this court.

Cabbage, 571 S.W.2d at 835.                 Although we agree that Mario Gray’s in-court

identification of the appellant is weak, when considered with the testimony of the two

other eyewitnesses, Gray’s testimony constitutes sufficient corroboration to sustain the

appellant’s conviction. See, e.g., State v. Duncan, No. 03C01-9511-CC-00367 (Tenn.

Crim. App. at Knoxville, Mar. 18, 1997), perm. to appeal denied, (Tenn. Jan. 5, 1998).

The appellant’s allegation that the accomplice testimony was not sufficiently

corroborated is without merit.



                           B. Elements of Premeditated Murder

        As we have determined that the accomplice testimony is sufficiently

corroborated, we further find the proof sufficient to support a conviction for

premeditated first degree murder.               First degree murder not committed in the

perpetration of a crime requires the “intentional, premeditated and deliberate killing of

another.” Tenn. Code Ann. § 39-13-202(a)(1) (1994 Supp). 5 A death caused by the

intentional act of another is presumed to be second degree murder. State v. Brown,

836 S.W.2d 530, 543 (Tenn. 1992). Thus, the State must prove premeditation and

deliberation to raise the offense to first degree murder. Id. Premeditation necessitates

“the exercise of reflection and judgment,” Tenn. Code Ann. § 39-13-201(b) (1991),

requiring “a previously formed design or intent to kill.” State v. West, 844 S.W.2d 144,

147 (Tenn. 1992). Deliberation, on the other hand, is defined as a “cool purpose . . .

formed in the absence of passion.” Brown, 836 S.W.2d at 538 (citations and internal

quotations omitted). Deliberation also requires “some period of reflection, during which

the mind is free from the influence of excitement.” Id.; see also Tenn. Code Ann. § 39-

13-201(b)(2) (1991) (deleted 1995).




        5
         Effective July 1, 1995, deliberation is no longer an element of first degree murder not
comm itted in the perpetration of a crime. Tenn. Code Ann. § 39-13 -202(a)(1) (1995 Supp.).

                                                 8
       The elements of premeditation and deliberation are questions for the jury and

may be inferred from the circumstances surrounding the killing. The proof introduced

at trial established that Lamont McDonald and the victim, Cedric Mosley, engaged in

a heated argument over a girl. McDonald retreated to his vehicle and contacted

Lamont Johnson and the appellant. Prior to the shooting, the victim was unknown to

the appellant. The appellant secured two shotguns and a handgun from his residence,

as the group made plans to locate Cedric Mosley. Upon locating the victim, McDonald,

armed with the handgun, confronted Mosley. Mosley pleaded for McDonald to put the

weapon away. During this confrontation, the appellant ran out from behind McDonald

brandishing a shotgun and proceeded to fire the weapon at Mosley. Although Mosley

attempted to run away, the appellant fired at him again, causing him to fall to the

ground. The appellant then loaded his weapon with a “slug,” and, again, shot the

victim. Upon returning to his residence, the appellant notified his mother that “[h]e had

smoked him a m-----f-----.”   From these facts, we conclude that the proof was more

than sufficient to support the elements of premeditation and deliberation. Tenn. R.

App. P. 13(e). See also State v. Bland, No. 02C01-9412-CR-00281 (Tenn. Crim. App.

at Jackson, Mar. 27, 1996), reh’g denied, (Tenn. Crim. App. May 1, 1996), aff’d by, 958

S.W.2d 651 (Tenn. Dec. 1, 1997), cert. denied, -- U.S. --, 118 S.Ct. 1536 (Apr. 20,

1998). Accordingly, this issue is without merit.




                                 II. Lesser Offenses



       In his next issue, the appellant complains that the trial court erred in failing to

charge the applicable lesser offenses, including facilitation of a felony and all degrees

of criminal homicide including manslaughter and criminally negligent homicide. In

support of his argument, he contends that the testimony of Kevin Walker established

that it was the group’s intent to scare Cedric Mosley, not to kill him. Moreover, the




                                          9
appellant argues that because the appellant furnished the weapons, a charge of

facilitation of a felony is warranted.



       A trial court must fully instruct the jury on the general principles of law relevant

to the issues raised by the evidence, including instructions on lesser offenses included

in the indictment. See Tenn. Code Ann. § 40-18-110(a)(1990). However, before an

instruction on a lesser offense is warranted, two preliminary determinations must be

made. First, the trial court must determine the lesser offenses of the offense charged

in the indictment. See State v. Elder, No. 03C01-9702-CR-00053 (Tenn. Crim. App.

at Knoxville, Apr. 23, 1998) (citing State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996);

see also U.S. CONST . amend. VI.; Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct.

417, 418-419 (1932)). Second, after determining the lesser offenses, the court must

determine whether such an instruction on any of the lesser offenses is warranted by the

evidence. Elder, No. 03C01-9702-CR-00053 (citing State v. Vance, 888 S.W.2d 776,

780 (Tenn. Crim. App. 1994)). Where there is no proof in the record to support the

instruction, no jury instruction on the lesser offense need be submitted. Elder, No.

03C01-9702-CR-00053 (citing Trusty, 919 S.W.2d at 311). In Keeble v. United States,

the United States Supreme Court held that “[a] defendant is entitled to an instruction

on a lesser . . . offense if the evidence would permit a jury to rationally find him guilty

of the lesser offense and acquit him of the greater.” Keeble, 412 U.S. 205, 208, 93

S.Ct. 1993, 1995 (1973) (internal footnote omitted) (emphasis added); see also

Trusty, 919 S.W.2d at 311; Fed. R. Crim. P. 31(c). Thus, the “trial court must

determine whether the evidence, when viewed in the light most favorable to the

defendant’s theory of the case, would justify a jury verdict in accord with the

defendant’s theory, and would permit a rational trier of fact to find the defendant guilty

of the lesser offense and not guilty of the greater offense.” Elder, No. 03C01-9702-

CR-00053 (citations and footnote omitted) (emphasis in original).




                                          10
         The evidence, in this case, even when reviewed in the light most favorable to the

appellant, is not sufficient for a rational trier of fact to find the elements of voluntary

manslaughter, criminally negligent homicide, or facilitation of murder. Moreover, the

proof supports no conclusion other than that the appellant, armed himself and his

associates with weapons, and in the exercise of reflection and judgment calmly and in

cold-blood executed the unarmed Cedric Mosley.                    Accordingly, the trial court was

under no duty to instruct on these challenged lesser offenses. This issue is without

merit.




                             III. Introduction of Autopsy Report



         In his final issue, the appellant complains that the trial court improperly permitted

the introduction of the autopsy report as evidence in the State’s case-in-chief through

the testimony of Dr. Charles Harlan. Specifically, he argues that the autopsy report

could only be entered into evidence under three provisions, i.e., records of a regularly

conducted activity, Tenn. R. Evid. 803(6); public records and reports, Tenn. R. Evid.

803(8); or as authorized by Tenn. Code Ann. 38-7-110 (1994 Supp).6 He contends

that, since Dr. Harlan was not the Chief Medical Examiner for the State of Tennessee

at the time of the trial and because Dr. Harlan did not participate in the actual post-

mortem examination, the autopsy report was never properly qualified under any of

these provisions. We disagree.



         At trial, the State established Dr. Harlan as the custodian of the records and

proceeded to introduce the autopsy report under the business record exception. See



         6
         Tenn. Code Ann. § 38-7-110 provides that
        (a) The records of the division of post-m ortem exam ination, the county medical examiner,
or transcripts thereof certified to by the chief medical examiner . . . shall be received as competent
evidence in any court of this state of the facts and the matters therein contained.
        ...
        (c) The . . . autopsy reports shall be public documents.



                                                 11
Tenn. R. Evid. 803(6). Business records are admissible as an exception to the rule

against the introduction of hearsay evidence. See Tenn. R. Evid. 803(6). A business

record may be introduced by the custodian of those records or any other qualified

witness. See State v. Baker, 842 S.W.2d 261, 264 (Tenn. Crim. App. 1992). The

custodian of the record to be introduced must be able to testify as to the identity of the

record, the mode of preparation, and whether the record was made in the regular

course of business at or near the time of the recorded event. Id. Dr. Harlan testified

that, in January 1995, he held the position of Chief Medical Examiner for the State of

Tennessee. He explained that the “primary function of the Chief Medical Examiner .

. . is being [the] custodian of the records,” and, by law, the custodian of autopsy reports.

See Tenn. Code Ann. 38-7-103(1994 Supp.). He continued that, “[a]s part of [his]

duties as Chief Medical Examiner, [he] reviewed all autopsies which came to [him]” and

he maintained all autopsy reports as the custodian of the records. He stated that the

autopsy reports must be prepared as a part of the business practices of the Medical

Examiner’s Officer and the reports are prepared contemporaneously or as near as

possible to the actual performance of the autopsy. He testified that he was the keeper

of the record for the autopsy belonging to Cedric Mosley. Based upon Dr. Harlan’s

qualifications and testimony, we conclude that the trial court properly admitted the

autopsy report and Dr. Harlan’s contemporaneous testimony into evidence.



       In addition to admission under Tenn. R. Evid. 803(6), the autopsy report was

also admissible under Tenn. R. Evid. 803(8), as the record constitutes a public record

or report. See also Tenn. R. Evid. 901(b)(7). Rule 803(8) permits the admission of a

record of a public official acting under an official duty to report accurately. See State

v. Wingard, 891 S.W.2d 628, 635 (Tenn. Crim. App. 1994). Pursuant to Tenn. Code

Ann. § 38-7-109 (Supp. 1994), the medical examiner is under the duty to immediately

investigate the circumstances of the death and record his findings in triplicate, a copy

of this report must be forwarded to the Chief Medical Examiner of the State.

Additionally, Tenn. Code Ann. § 38-7-110 establishes that autopsy reports are to be


                                          12
perceived as public documents which shall be received as competent evidence in any

court of this state. This issue is without merit.




                                      Conclusion



       For the reasons set forth herein, the judgment of the trial court is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




CONCUR:




____________________________________
GARY R. WADE, Presiding Judge



____________________________________
JERRY L. SMITH, Judge




                                          13
