            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                              AT JACKSON          Nov. 19, 1996
                           MAY SESSION, 1996
                                                 Cecil Crowson, Jr.
                                                                 Appellate Court Clerk



STATE OF TENNESSEE,                 )
                                    )      No. 02C01-9511-CR-00336
       Appellee                     )
                                    )      SHELBY COUNTY
vs.                                 )
                                    )      Hon. L. T. Lafferty, Judge
MALUNDA L. MYERS,                   )
                                    )      (First Degree Murder)
       Appellant                    )



                              DISSENTING OPINION

       I must respectfully dissent from the opinion of my learned colleagues,

Judge Hayes and Judge Summers. I believe that the majority has stretched the

case of State v. Brown, 836 S.W.2d 530 (Tenn. 1992), too far. In my view, the

prosecution proved that the appellant committed the murder with premeditation

and deliberation. If the majority is correct as to its interpretation of Brown, I

would ask our Supreme Court to revisit the issue based upon this factual

scenario.



       Dr. Jerry Francisco testified that the death of Joseph Curtis “was due to

multiple injuries to the head and body. . . .” The medical examiner testified that

the victim had been beaten to death. The victim sustained bruises, scrapes, and

multiple injuries to the face and head. His nose was broken. There was

hemorrhage to the scalp and bleeding on the surface of the brain. The base of

the skull was fractured. The victim suffered broken teeth. He had bruises to his

lips. His chest was scraped and bruised. The victim’s chest also revealed “two

patterned injuries. . . that had the appearance of footprints.” The left third rib

was broken in the same area of the patterned footprints. In sum, Dr. Francisco

testified that the victim’s injuries were consistent with having been beaten,

stomped, and kicked. It is clear that the appellant used both his fists and his feet

on Mr. Curtis.



       The appellant confronted the victim twice. He had plenty of time to cool
down assuming he was mad. The proof showed that the appellant kicked and

beat the victim while the victim was on his hands and knees. He continued to

beat the victim even after he knew that the victim would not pay him any money.

The appellant beat and kicked the victim repeatedly. Curtis pleaded for help

during the multiple assaults. The appellant concealed and tried to cover up his

crime by hiding his jacket and his shoes after the murder.



       I agree that State v. Brown, states that “the fact that repeated blows were

inflicted on the victim is not sufficient, by itself, to establish first-degree murder.”

Brown, 836 S.W.2d at 542. That is not to say, however, that repeated blows

negate premeditation and deliberation. I believe that premeditation and

deliberation can be inferred and proven when a victim is on the ground, asking

for help and pleading for mercy; and the appellant continues to beat, kick, and

assault. A murderer may deliberate and premeditate prior to his act. Then,

during the perpetration of the fatal act he or she may commit it with hot blood

and violent passion. This would not negate the prior premeditation and

deliberation so as to absolve the murderer of a first-degree murder conviction.



       I simply do not believe that under these facts, the Brown test dictates the

majority’s results. The appellant killed Mr. Curtis in a cool state of blood. He had

a fixed design. He wanted to accomplish his unlawful purpose, and he knew

what he was doing. The facts show, in my view, that he was not under the

influence of violent passion or sudden arousal by legal provocation. He

committed the murder of Mr. Curtis by premeditating in advance, deliberating

upon his contemplated act, and willfully carrying it to fruition.



       I would affirm the conviction of murder in the first degree. For these

reasons, I dissent.


                                            ________________________________
                                            PAUL G. SUMMERS, Judge
