         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                      SEPTEMBER 1997 SESSION
                                                     FILED
                                                    September 16, 1997

                                                    Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )                Appellate C ourt Clerk
                                    )   NO. 02C01-9610-CR-00352
      Appellee,                     )
                                    )   SHELBY COUNTY
VS.                                 )
                                    )   HON. JAMES C. BEASLEY, JR.,
CEDRIC DAVIS,                       )   JUDGE
                                    )
      Appellant.                    )   (First Degree Murder)



FOR THE APPELLANT:                      FOR THE APPELLEE:

W. MARK WARD (on appeal)                JOHN KNOX WALKUP
147 Jefferson, Suite 900                Attorney General and Reporter
Memphis, TN 38103
                                        KAREN M. YACUZZO
WILBUR C. RULEMAN, JR. (at trial)       Assistant Attorney General
251 Adams Avenue                        450 James Robertson Parkway
Memphis, TN 38103                       Nashville, TN 37243-0493

                                        WILLIAM L. GIBBONS
                                        District Attorney General

                                        JAMES M. LAMMEY
                                        Assistant District Attorney General
                                        201 Poplar Avenue, Suite 301
                                        Memphis, TN 38103




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The defendant, Cedric Davis, was convicted by a Shelby County jury of

murder in the first degree. He was sentenced to life in prison. On appeal, he

challenges the sufficiency of the convicting evidence by arguing that (1) the state

did not establish his identity beyond a reasonable doubt, and (2) the state failed to

establish beyond a reasonable doubt that the homicide was intentional,

premeditated and deliberate. After a thorough review of the record, we find that the

evidence is sufficient to sustain his conviction. The judgment of the trial court is

affirmed.



                                      FACTS



       The state’s proof at trial showed that at approximately 5:30 p.m. on April 30,

1993, defendant, Kedrick Crutcher (“Pokey”) and Kavious Jenkins (“Teddy Bear”)

were traveling in an automobile looking for Phillip Thomas. Both defendant and

Jenkins were carrying weapons. They asked a group of people if Phillip Thomas

lived in the home at 219 Silver Maple. One person in the group, Marcel Pratcher,

identified the defendant as the person who was armed with what appeared to be a

TECH-9 weapon and who stated, “tell Phillip I’m going to kill his momma and then

he’s going to be next.”

       Defendant, Crutcher and Jenkins pulled into the driveway at 219 Silver

Maple. Two of the men jumped out of the car and began shooting. Laura Warren,

Phillip Thomas’ grandmother, was shutting the front door when she was hit by one

of the bullets.   She died of a gunshot wound to the chest.            The victim’s

granddaughter and another person in the neighborhood identified the defendant as

one of the gunmen.

       Defendant offered an alibi defense at trial. His wife, Teresa, testified that

defendant was with her at the Wilson Inn on American Way at the time of the

incident. She presented a receipt from the hotel which showed a check-in time of



                                         2
5:54 p.m. on the day of the shooting. Furthermore, Yolanda Aikens testified that

defendant hit her car as she was leaving the hotel at approximately 5:30 p.m. on

April 30.

       Jenkins also testified on behalf of the defense. He claimed that defendant

was not involved in the incident and insisted the shooting was carried out by

Crutcher, himself and a man named “Butter.”

       On rebuttal, the state presented a letter written to Crutcher. In the letter, the

writer asks Crutcher to assist, along with “Teddy Bear,” in a plan to blame the

shooting on a man named “Butter.” A handwriting expert testified that the writing

in the letter was consistent with that of the defendant’s. Additionally, Cindy

Mahoney, an employee of Wilson Inn, testified that there was no record of

defendant’s staying at that hotel on April 30.

       Defendant testified on surrebuttal. He denied writing the letter to Crutcher.

The state then asked defendant about ten (10) prior felony convictions for

impeachment purposes.

       The jury returned a verdict of guilty of murder in the first degree. Defendant

was sentenced to life imprisonment. From this conviction, defendant brings this

appeal.



                        SUFFICIENCY OF THE EVIDENCE



       When an accused challenges the sufficiency of the evidence, this court must

review the record to determine if the evidence adduced during the trial was sufficient

“to support the findings by the trier of fact of guilt beyond a reasonable doubt.”

Tenn. R. App. P. 13(e).

       In determining the sufficiency of the evidence, this court does not reweigh or

re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Nor may this court substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859

(1956). To the contrary, this court is required to afford the state the strongest



                                           3
legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914

S.W.2d 926, 932 (Tenn. Crim. App.1995). “A guilty verdict by the jury, approved by

the trial judge, accredits the testimony of the witnesses for the State and resolves

all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973).

       Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the trier

of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493

S.W.2d at 476.

                            A. Identity of the Defendant

       Defendant asserts that the state failed to prove his identity beyond a

reasonable doubt. Specifically, he claims that there is insufficient evidence to justify

a finding that he was one of the assailants involved in the shooting of Warren. He

bases this contention on the fact that several witnesses testified that he was not

present during the shooting. As a result, he argues that the evidence is insufficient

to support a finding of guilt beyond a reasonable doubt.

       “The defense of alibi and the question of identification present issues of fact

determinable by the jury as the exclusive judges of the credibility of the witnesses

and the weight to be given their testimony.” State v. Cate, 746 S.W.2d 727, 729

(Tenn. Crim. App. 1987); see also State v. Strickland, 885 S.W.2d 85, 87 (Tenn.

Crim. App. 1993); State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982).

The state presented two eyewitnesses to the shooting who testified that defendant

was one of the men who fired his weapon at the house and its occupants. Although

other witnesses testified that the defendant was not present during the shooting,

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 fact, not this court. State v. Tuttle, 914 S.W.2d at 932. We find that

there is sufficient evidence from which a reasonable trier of fact could conclude that



                                            4
defendant was involved in the shooting. This issue is without merit.

                   B. Intentional, Premeditated and Deliberate

       Defendant also contends that the state failed to prove that the homicide was

intentional, premeditated and deliberate. He argues that because the state did not

prove these elements, he is merely guilty of second degree murder. Therefore, he

claims that the evidence is insufficient to support a conviction for murder in the first

degree.

       The law is well-established in Tennessee that all homicides are presumed

to be murder in the second degree. State v. West, 844 S.W.2d 144, 147 (Tenn.

1992); State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992). The state bears the

burden to prove premeditation and deliberation in order to elevate the offense to

murder in the first degree. Id.

       At the time the offense was committed, first degree murder was defined as

the “intentional, premeditated and deliberate killing of another.” Tenn. Code Ann.

§ 39-13-202(a)(1)(1991).1 A deliberate act is one “performed with a cool purpose,”

whereas a premeditated act is one “done after the exercise of reflection and

judgment.” Tenn. Code Ann. § 39-13-201(b)(1991). As our Supreme Court noted

in State v. West, “[t]he element of premeditation requires a previously formed

design or intent to kill. Deliberation, on the other hand, requires that the killing be

done with a cool purpose -- in other words, that the killer be free from the passions

of the moment.” 844 S.W.2d at 147 (citations omitted).

       The elements of premeditation and deliberation may be established by the

circumstances surrounding the offense. State v. Bordis, 905 S.W.2d 214, 221

(Tenn. Crim. App. 1995); State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993).

Indeed, in State v. Brown, supra, our Supreme Court recognized:

       there may be legitimate first-degree murder cases in which there is no
       direct evidence of the perpetrator's state of mind. Since that state of
       mind is crucial to the establishment of the elements of the offense, the
       cases have long recognized that the necessary elements of


       1
         As a result of the 1995 amendment to Tenn. Code Ann. § 39-13-202(a)(1),
“deliberate” is no longer a required element of first degree murder. See 1995 Public Acts,
Chapter 460. Since the instant offense was committed prior to this amendment, “deliberate”
was a required element of first degree murder.

                                            5
       first-degree murder may be shown by circumstantial evidence.
       Relevant circumstances recognized by other courts around the
       country have included the fact “that a deadly weapon was used upon
       an unarmed victim; that the homicidal act was part of a conspiracy to
       kill persons of a particular class; that the killing was particularly cruel;
       that weapons with which to commit the homicide were procured; that
       the defendant made declarations of his intent to kill the victim; or that
       preparations were made before the homicide for concealment of the
       crime, as by the digging of a grave.”

836 S.W.2d at 541-42 (quoting C. Torcia, Wharton's Criminal Law § 140 (14th ed.

1979)(emphasis added).

       In the case sub judice, we find that the state provided sufficient proof that the

defendant acted with premeditation, deliberation and the intent to kill. Defendant,

along with Crutcher and Jenkins, armed themselves with weapons and proceeded

to the home where Thomas lived. They asked a group of people if Thomas lived

in that home. Defendant stated that he intended to kill Thomas and his mother.

After they drove into the driveway of the home, two of the men fired numerous

shots. Defendant was identified by eyewitnesses as one of the gunmen. Thirteen

(13) 9mm shell casings were found in the immediate area of the shooting. Although

Jenkins testified that they did not intend to hurt anyone,2 a rational trier of fact could

choose to disbelieve this testimony. Furthermore, the fact that Warren was killed

instead of Thomas or his mother makes the defendant no less culpable. See State

v. Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995); State v. Bryant

Dewayne Millen, C.C.A. No. 02C01-9602-CR-00049 (Tenn. Crim. App. filed March

7, 1997, at Jackson). This issue has no merit.




                                      CONCLUSION



       We find that there is sufficient evidence from which a rational trier of fact

could determine that the defendant was one of the perpetrators involved in the


       2
         Jenkins testified that “Butter” was the dominant perpetrator in the shooting and that
the defendant was not with them at the time. In his testimony he stated that they were “trying
to shoot the house up. We wasn’t [sic] trying to shoot no individual.”

                                              6
shooting of Warren. Additionally, we find sufficient evidence that the homicide was

intentional, premeditated and deliberate. Accordingly, we affirm the judgment of the

trial court.




                                                JOE G. RILEY, JUDGE



CONCUR:




JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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