                     IN THE SUPREME COURT OF TENNESSEE
                                AT KNOXVILLE
                             (HEARD IN NASHVILLE)

              STATE OF TENNESSEE v. DENNIS WADE SUTTLES

                      Appeal from the Criminal Court for Knox County
                         No. 60819 Mary Beth Leibowitz, Judge



                    No. E1998-00088-SC-DDT-CD - Decided June 26, 2000



JUSTICE BIRCH, dissenting.

       In contrast to the view of my colleagues, I would hold that the evidence of premeditation
adduced against the defendant in this case is insufficient to support the conviction of first degree
premeditated murder. This view finds partial support in the following excerpt from the majority
opinion:

               When Christina approached, the defendant said, “Get back or I’ll kill
               her.” Christina stepped back, and the victim told the defendant to put
               the knife away and she would go with him. The defendant put the
               knife in his pocket, apologized, and released the victim. When the
               victim fled toward the restaurant, the defendant followed, tackled the
               victim, pulled out his knife, slashed her throat and stabbed her
               multiple times.

       The above excerpt amply indicates, in my opinion, that Suttles clearly and unequivocally
abandoned any thought about harming the victim. (This intent was, however, unfortunately reignited
when the victim fled toward the restaurant.)

       To convict upon unpremeditated murder (second degree murder), the State must prove
beyond a reasonable doubt that the defendant unlawfully killed the alleged victim and that the
defendant acted knowingly. Tenn. Code Ann. § 39-13-210 (1997).

        On appellate review of evidentiary sufficiency, the proper inquiry is whether “considering
the evidence in a light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” State v. Hall, 8 S.W.3d 593, 599
(Tenn. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)).

       For the reasons expressed herein, and especially upon analysis under the criterion above-
described, I am unable to approve the conviction for first degree premeditated murder. I would
vacate the conviction and enter in its place a conviction for second degree murder with a remand for
resentencing.




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