       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE           FILED
                    SEPTEMBE R SESSION, 1997       January 7, 1998

                                                Cecil W. Crowson
STATE OF TENNESSEE,        )                  Appellate Court Clerk
                               C.C.A. NO. 01C01-9610-CR-00421
                           )
     Appellee,             )
                           )   SUMNER COUN TY
                           )
V.                         )
                           )   HON. JANE WHEATCRAFT, JUDGE
GEROME J. SMITH,           )
                           )
     Appe llant.           )   (FIRST DEGREE MURDER)



FOR THE APPELLANT:             FOR THE APPELLEE:

LIONEL R. BARRETT              JOHN KNOX WALKUP
Washington Square Two          Attorney General & Reporter
Suite 417
222 Second Avenue, North       LISA A. NAYLOR
Nashville, TN 37201            Assistant Attorney General
                               2nd Floor, Cordell Hull Building
                               425 Fifth Avenue North
                               Nashville, TN 37243

                               VICTOR S. JOHNSON
                               District Attorney General Pro Tem

                               KYM BERL Y HAAS
                               Assistant District Attorney General

                               SHARON BROX
                               Assistant District Attorney General
                               Washington Square Two
                               Suite 500
                               222 Se cond A venue, N orth
                               Nashville, TN 37201


OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION

       The Defendant, Gerome J. Smith, appeals as of right from a conviction of

first degree murder following a jury trial in the Sumner Cou nty Crimina l Court.

Defendant was s ubse quen tly sente nced to life im prison men t. In this a ppea l,

Defendant argues that the evidence is insuffi cient as a matter of law to allow a

rational trier of fact to conclude that the D efenda nt com mitted pr emed itated first-

degree murde r. We affirm the ju dgme nt of the trial co urt.



       W hen an accuse d challenges the sufficiency of the co nvicting evidence,

the standard is whether, after reviewing the evidence in the light most favora ble

to the pros ecution, a ny rationa l trier of fact could have found the essential

eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U.S.

307, 319 (1979). On appeal, the State is en titled to the strongest legitimate view

of the evide nce an d all inferen ces there from. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn . 1978).     B ecaus e a verdic t of guilt rem oves the presumption of

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

burde n in this court of illustrating why the evidence is insufficient to support the

verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.

1982); State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3).



       Questions concerning the credibility of the witnesses, the weight and value

to be given the evidence, as well as all factual issues raised by the evidence, are

resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may this cou rt



                                          -2-
reweigh or reevaluate the evidenc e. Cabbage, 571 S.W.2d at 835. A jury verdict

approved by the trial judge acc redits th e State ’s witne sses and re solves all

conflicts in fa vor of the S tate. Grace, 493 S.W.2d at 476.



      The State presented several witnesses during its case-in-chief. Benny K.

Adams, a police officer with the Gallatin Police Department, was on duty on

February 23, 1995. Earlier in the evening, shots had been fired in the area of

Blakem ore Street in Gallatin, and he responded to that call from the police

dispatcher. He was on Red River Road in Gallatin, in front of the street known

as South Blakemore, at 1:02 a.m. wh en he hea rd more shots fired. When asked

to describe the sho ts, Adam s testified tha t he hea rd severa l direct sho ts

appa rently coming from a semi-automatic, small caliber weapon. Imm ediate ly

prior to hearing the second set of sho ts, Adam s had se en a wh ite Coug ar turn off

Red River Road onto Blakemore. When he drove closer to investigate, he saw

the car turn off onto West Eastland and observed a black male run inside a

nearby h ouse b elonging to Bailey T urner.



      Adams and an other officer went to Bailey Turner’s house to further

investigate. The driver of the w hite Couga r gave Adams perm ission to sea rch his

vehicle, but no we apons were fou nd. W hile they we re at Tu rner’s ho use, they

heard anothe r relay of sho ts fired. The shots sounded as if they came from the

Broo k’s Alley area, but Adams did not go to investigate as he was still on the

scene at Blake more. A dams recalled th at he he ard betw een six to e ight shots

fired this time from a s emi-au tomatic, s mall calibe r weapo n.




                                         -3-
       Jerry Lee H ickma n, also an officer with the Gallatin P olice De partme nt,

testified that he was assigned to the Brook’s Alley area of Gallatin and was on

duty on February 23, 1995. He received a “shots-fired” call at 12:25 a.m., and

drove into that are a. Several people he spoke to in Brook’s Alley said that they

had seen a couple of guys running and shooting at each other.                 Hickman

remained in that general area until he heard a sequence of shots. There we re

six (6) to eight (8) shots , one right a fter anoth er. He dro ve to Ch urch Stre et,

which parallels Brook’s Alley, and parked. A man came across the street and

told him that someone had shot into his house. Hickman went inside the man ’s

house and saw a place on the bathtub where the enam el had be en kno cked o ff.

After completing a search of the house and the immediate area surrounding the

house, Hickman left. He was later called back to Brook’s Alley to help with an

ongoing investigation. When he got there, he saw the body of Chuckie Vaughn,

the victim, lying beside the house he had earlier search ed. Hick man h elped to

secure the area . During h is investiga tion, he sa w a sho tgun lying to the right side

of the victim along w ith some unfired sh otgun s hells.



       Ronald Parker, shift commander at the Gallatin Police Department, was

also on duty on February 23, 1995, w hen he respon ded to a call that sho ts had

been fired in the area of South Blakemore at approximately 11:04 p.m. There

was another report of shots fired at 12:25 a.m., and again at 1:02 a.m. At the

occurrence of shots at 1:02 a.m ., Parker h eard eig ht (8) to twe lve (12) sh ots

being fired in ra pid su cces sion, p robab ly from a .22 c aliber wea pon. He and

other officers began searching in that area for the source of the shots, and a man

came out of h is hou se on Chur ch Stre et and said th at som eone had s hot into his

house. Parker returned to the area at approximately 6:15 a.m. and secured the

                                          -4-
scene where the victim ’s body had b een found . He also secu red a single-shot

shotg un lying besid e the vic tim’s body. One (1) shell was found in the gun and

two (2) other shells were lying unde rneath the victim’s body. The shotgun was

in a loaded position, cocked and ready to be fired. Parker recalled that during the

early morning h ours when he had heard gunshots, he never heard the sound of

a shotgun being fired. Parker also found some empty .22 shell casings across

the alley.



       Edward Hesson was a patrol officer at the time the victim’s body was

found. He was dispatched to the general area of Brook’s Alley because of

several complaint calls of sho ts fired in the a rea. He prepared a diagram of the

scene where the victim’s body was found. Upon first arriving at the scene, he

saw the body of the victim . There was no evidence in the immediate area of the

victim that a shotgun had been fired, but .22 caliber sh ell casings were

discovered within a thirty (30) feet area next to the victim. Hesson did not see

any signs of a struggle. He noted in his diagram that there were some trees in

the area, but he did not note the small shrubbery there. However, Hesson

described the shrubbery in his testimony as full, such that someone could

possibly h ave hidd en beh ind it.



       Kenn eth Fitts, a resident of Gallatin, testified that he grew up with the

victim. On February 23, 1995, he was residing at 145 South Blakemore, located

appro ximate ly fifty (50) to seventy-five (75) feet from where the victim’s body was

found.   At approximately 12:30 a.m., Fitts heard some shots fired in the

neighborhood. The shots sound ed like the y came from the area of 2 22 Sou th

Blakemore. Five min utes later, th e victim arrive d at Fitts’ home, out of breath,

                                         -5-
scared and holding a shotgun. Fitts begged the victim not to leave, b ut the vic tim

left about five (5) minu tes after he had arrive d.



      Sherita Bennett had known the Defendant all of his life. She testified that

she was livin g in Gallatin on February 23, 1995, and that she was in the area of

South Blake more and C hurch Stree t during the ea rly morning h ours on that day.

She was with a friend walking through an alley when she saw the Defendant who

was holding either a long stick or a gun. The Defendant told her “move . . . go

through there. There had been trouble.” The object in the Defendant’s hand was

three (3) or three and one-half (3 ½) feet long and was either dark brown or black

in color. She had not heard any gunshots fired prior to that time, nor did she see

the victim that night. The Defendant appeared scared when he spoke to her. On

cross-examination, Bennett admitted that she was under the influence of alcohol

at the time of these e vents.



       Brian Harris, patrolman with the Gallatin Police Department, was called out

to Lock 4 Road at Town Creek on March 2, 1995, to locate evidence concerning

the homicide. T here is a creek under the roadway there, and when he arrived a

woman was pointing to something in the water. He saw the object and retrieved

it. It was a .22 caliber rifle with a string tied fro m it to a rock which prevented the

rifle from going downstream.



       Stanley Hilgadiack, a detective with the Gallatin Police Department, was

called to investiga te the sce ne of the v ictim’s hom icide. Detective Hilgadiack first

went to Sumner Region al Med ical Ce nter wh ere he saw th e bod y of the v ictim

and took photographs. He observed several injuries to the victim, including a

                                          -6-
bullet wound below a nd to the le ft of the victim’s navel, two (2) bullet en tries into

his side and two (2) more entries in his back and left sides. After his investigation

at the hospital, Hilgadiack began to seek out witnesses involved in the shooting.

The Defendant immediately became a suspect. The Defendant was lo cated in

Indian apolis, Indiana, and he was interviewed by telephone on February 24,

1995.    During this phone conversation, the Defendant denied having any

knowle dge or in volveme nt whats oever reg arding th e hom icide.



        On March 9, 1995, Hilgadiack asked the D efenda nt and h is brother to

come to the police department for an interview. During the course of this

interview, the Defendant stated that he did not shoot the victim and denied having

any knowledge of who shot him. Again, on March 14, 1995, the Defendant was

interviewed after two other individuals had advised Hilgadiack that Defendant was

the one who shot and killed the victim. During this interview, Defendant advised

Hilgadiack that he was the only one who knew what happened the night of

February 23, 1995. He admitted to shooting the victim, and agreed to allow

Hilgadiack to record his stateme nt.       Th e tape record ing of th e Def enda nt’s

statement was played to the jury. After Defendant gave the statement, a warrant

was issued for his arrest on the ch arge of first-degree m urder.



        In his statement on March 14, 1995, the Defendant acknowledged that on

the night of the homicide, he and friends went to a house belonging to one Ella

Jo following the shooting on “Magnolia.” The victim was seen “snooping up”

behind Ella Jo’s hou se. Defendant was watching the victim and claimed that the

victim started sh ooting at a nother h ouse. D efenda nt then retrieved the .22

caliber rifle which he had previously thrown on the ground because police had

                                          -7-
arrived in the n eighb orhoo d, and shot a t the victim who w as ap proxim ately fifty

(50) yards away. Defendant was not sure whether or not he hit the victim at that

time.    Ella Jo wa s scared becau se of the s hooting and wo uld not let th e

Defendant and his frie nds ba ck inside . He state d that the victim ran in one

direction w hile Defe ndant ra n in anoth er direction .



        Defendant admitted that he was “stooped down” between a house and a

shed hiding when he saw two women. He told them to go on because they had

been shooting and the police were in the area. W hen Defe ndant hea rd footsteps

coming in his direction, he peeped around a corner of the building, and saw the

victim and immediately shot h im.        Defe ndant c laimed the nece ssity of self-

defen se in his statement by explaining that if he had run, the victim w ould have

shot him in the back. The Defendant stated that he immediately ran down an

alley and placed the .22 caliber rifle behind a friend’s house. Defendant denied

that he was hiding in order to ambush the victim, instead claiming that he was

hiding from the police. He also claimed that the victim had been shoo ting at h im

and his friends previous ly that ev ening . Wh en as ked if th e victim had fire d his

weapon at him prior to the fatal shots being fired, the Defendant stated “I, I didn’t

give him a ch ance to.”



        Imm ediate ly prior to giving the tape re corded statem ent, Defe ndant had

spoken to Detective Hilgadiack. Detective Hilgadiack further testified that the

Defendant and the victim had been involved in a “shoot out” earlier in the evening

prior to the h omicide .




                                          -8-
         Tommy Heflin, ass igned to the Firearms Identification section of the

Forensic Services Crime La boratory of the Tennessee Bureau of Investigation,

examined the semi-automatic rifle used by the Defendant.                      The rifle was

functional for shooting, and its safety features were functional as well. Heflin also

examined the six shell casings found at the scene of the homicide and

determined that they w ere fired from this particula r rifle. He examin ed the b ullets

removed from the body of the victim and found that while each bullet had been

fired from th e sam e rifle, it wa s difficu lt to ma tch the se co nsiste ntly to the rifle in

evidence because it had a significant amount of rust due to being submerged in

water.     Heflin also examined the shotgun found with the victim, and he

determined that it wa s a “sin gle shot” shotgun, meaning that it can only be loaded

with one shell. Each time the shotgun is fired, anoth er she ll has to be m anua lly

loaded into the ch ambe r. This sh otgun w as also fu nctional.



         Dr. Charles Harlan performed the autopsy on the victim. Harlan identified

pictures taken of the victim in which several gunshot wounds were visible. Harlan

testified that all of the wounds occurred within minutes of each other. A total of

six (6) bullets hit the victim. Three (3) of the gunshot wounds damaged internal

structures, namely the liver, the right lung, spleen and stomach. Each of these

three (3) woun ds, in and of them selves, co uld have cause d the victim’s death.

The death w ould ha ve occu rred within five (5) to ten (10) minutes following the

shooting. None of the wo unds h ad any “s tippling” effec t to the body as the re was

no injury to the skin. This indicated that the distance from the muzzle of the gun

to the skin was greater than twenty-four (24) inches. Also, the absence of

powder indicated that these gunshot wounds were distant gunshot wounds.




                                              -9-
There was a presence of alcohol and drugs in the victim’s body, but neither

affected th e results o f the finding s as to the victim’s cau se of dea th.



         The Defe ndan t did no t prese nt any p roof at tr ial.



         At the time of this offense, first degree murder required proof of the

“intentio nal, premed itated and deliberate killing of ano ther.” Ten n. Cod e Ann.

§ 39-13-202(a)(1) (1991). A death caused b y the inte ntiona l act of a nothe r is

presumed to be second degree murde r. State v. Brown, 836 S.W.2d 530, 543

(Tenn. 1992). To raise the offense to first degree murde r, the State must prove

premeditation and deliberatio n. Id. Premeditation necessitates “the exercise of

reflection and judgment.” Tenn. Code Ann. § 39-13-201(b)(2) (1991)(repealed

July 1, 1995). This includes instances of homicide committed by poison or lying

in wait, and re quires a p reviously for med d esign or in tent to kill. Id. Deliberation

is defined as a “cool purpose . . . formed in the absence of passion.” Brown, 836

S.W.2d at 539 (citations and internal quotations omitted).            Some period of

reflection, during wh ich the “mind is free fro m the influen ce of e xcitem ent” is

required for delib eration. Id. at 540. Both the elements of premeditation and

deliberation are jury questions which may be inferred from the circumstances

surrounding the killing. State v. Gentry, 881 S.W .2d 1, 3 (T enn. C rim. App.

1993).



         There is sufficient proof in the record to support the conviction. Reviewed

in the light m ost favora ble to the State, the evidence in this case reflected that

Defendant and vic tim had been involved in a shoot out in the neighborhood some

one and one-half (1½) to two (2) hours prior to the homicide. The Defendant

                                            -10-
knew that police officers were in the area, as evidenced by his statement that he

was hiding from the police just prior to the fatal shooting. However, he did not

seek the assistance of the police. He had earlier thrown down his rifle when the

police first arrived in the neighborh ood. W hen he later observed the victim

“snooping up” behind a house, he retrieved his previously discarded rifle and shot

at the victim who was approximately fifty (50) yards away. The proof indicates

that these shots missed the victim. Defendant then hid himself, lying in wait for

the victim, and when he observed the victim walking nearby he immediately fired

at least six (6) shots which hit the victim. The jury could reasonably have inferred

from Defendant’s actions, as well as his warning to the two women who passed

nearby to leave the area because there had been trouble, that Defendant was

acting with premeditation and with deliberation, having a cool purpose.

Defe ndan t’s actions in running from the scene, hiding the rifle, and leaving the

State of Ten ness ee afte r the sh ooting , while not necessarily proof of

premeditation and deliberation, discredited his theory of self-defen se as se t forth

in his statem ent to polic e. State v. West, 844 S.W .2d 144 , 148 (T enn. 19 92).



       Having foun d that there were sufficient fac ts to support the conviction for

premeditated and de liberate first d egree murder, we affirm the judgment of the

trial court.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:




                                        -11-
___________________________________
GARY R. WA DE, Judge


___________________________________
J. CURWO OD W ITT, JR., Judge




                             -12-
