          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE                FILED
                              AUGUST SESSION, 1998            January 22, 1999

                                                            Cecil W. Crowson
                                                           Appellate Court Clerk
STATE OF TENNESSEE,                  )   C.C.A. NO. 01C01-9711-CC-00521
                                     )
             Appellee,               )
                                     )   COFFEE COUNTY
V.                                   )
                                     )
                                     )   HON. GERALD L. EWELL, SR., JUDGE
PARKS A. BRYAN,                      )
                                     )
             Appe llant.             )   (FIRST D EGRE E MU RDER )



FOR THE APPELLEE:                           FOR THE APPELLANT:

B. CAMPBELL SMOOT                           JOHN KNOX WALKUP
District Public Defe nder                   Attorney General & Reporter

RACH EL E. W ILLIS                          KAREN M. YACUZZO
Assistant Pu blic Defende r                 Assistant Attorney General
603 East Carroll Street                     2nd Floor, Cordell Hull Building
Tullahoma, TN 37388                         425 Fifth Avenue North
                                            Nashville, TN 37243

                                            C. MICHAEL LAYNE
                                            District Attorn ey Ge neral

                                            STEPHEN E. WEITZMAN
                                            Assistant District Attorney General
                                            P.O. Box 147
                                            Manchester, TN 37355




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

                                 OPINION
       The Defe ndan t, Park s A. Br yan, ap peals as of right following his con viction in

the Coffee C ounty C ircuit Cou rt. Following a jury trial, Defendant was convicted of

preme ditated first-degree murder and was sentenced to life imprisonment without

parole. Defendant appeals both the sufficiency of the evidence and the admission

of certain photo graph s of the victim which he argues were more prejudicial than

probative . We affirm the ju dgme nt of the trial co urt.



       When an accused challenges the sufficiency of the convicting evidence, the

standa rd is whe ther, after rev iewing the evidenc e in the light m ost favora ble to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 307, 31 9 (1979).

On appe al, the State is entitled to the strongest legitimate view of the evidence and

all inference s therefro m. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

Because a verdic t of guilt removes the presumption of innocen ce and replaces it with

a presum ption of gu ilt, the ac cuse d has the bu rden in this court of illustrating why the

evidence is insufficient to support th e verdict re turned b y the trier of fac t. State v.

Tug gle, 639 S.W.2 d 913, 9 14 (Te nn. 198 2); State v. Grace, 493 S.W.2d 474, 476

(Tenn . 1973).



       Questions concerning the credibility of the witnesse s, the weig ht and va lue to

be given the evidence, as well as all factual issues raised b y the evidence, a re

resolved by the trier of fact, not this c ourt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court

reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835 . A jury verdict

approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts

in favor of the State. Grace, 493 S.W.2d at 476.

                                             -2-
       Rebecca Nickerson worke d with th e victim , Helen Bryan , at PC A Ap parel in

1984. She also knew the Defendant and thought the two would make a good match.

After “matchmaking,” the two began a relationship and Helen and the Defendant

event ually married . Nickerso n continu ed to socialize with them for several years and

knew th eir marria ge was unstab le.



       Abbie Wa lker wa s a frien d of the victim and kn ew her m arriage to be “volatile.”

They talked almost daily, but Walker did not often see her in person. In May 1995,

she took the vic tim to Alabama to Restoration Ranch, a nondenominational Christian

rehab center. The victim went to this shelter to escape her hus band’s abuse and to

recover from her own alcoholism. The day after Walker drove the victim to the

shelter, the Defendant cam e to he r hom e requ esting the victim ’s location. Walker

recalled that sh e lied a nd told him th at she did not know. Defendant then stated that

he believed the victim was driving to California to see her sister, but that her car

would not make it and would probably break down before she reached the

Mississippi River. W hile Defe ndant b elieved the victim wou ld have to call him to

come to get her, he stated that he would go after “the car and the dog, but . . . not

. . . after her.” When Walker asked the Defendant if he would leave her on the side

of the road , Defend ant resp onded , “If I brought the bitch b ack he re, I would k ill her.”

Walker described the Defendant’s expression when he stated that he would kill the

victim as “very serious , just dead set.”



       The victim c alled th e Def enda nt two (2 ) days la ter and aske d him to come and

pick her up at Restoration Ranch. Defendant brought the victim home. Following

the victim’s return home, Walker did not speak with her as frequently because she

was afraid of the victim’s husband. They spoke every few weeks. On August 17,

                                             -3-
1995, the victim called Walker. Walker recalled that the victim was not able to get

her breath very well and had a “shuddery” voice. Walker never spok e with th e victim

again, and lea rned that she h ad been k illed two (2) days later.



       Debra Luttrell is an E MT w ith the Co ffee Cou nty Amb ulance Service. She was

called to the scene of the Defendant and the victim’s home on Roy Bryan Road on

August 18, 1995, at approximately 8:30 to 9:00 p.m. When Luttrell arrived, deputies

were already present at the scene. Defendant met Luttrell and her partner in the

doorway, then they found the victim lying on the bed on her back with no signs of life.

Luttrell recalled that the victim “looked like she had been beat from her head down

to her feet. T here w as [sic] n ew bru ises on top of o ld bruis es tha t just co vered all of

her body.” She n oted th at it was one of the worst beatings she had ever seen. The

victim’s body was cool in temperature, and she was not yet stiff, indica ting to L uttrell

that the victim had been dead over fifteen to twenty minutes. They attempted to

revive the vic tim, but the re was n o respo nse.



       Various officers testified that they were present at the scene and that the

victim had bruises over the entire length of her body, suffering one of the worst

beatings they had ever seen. The Defendant advised the police that the victim had

fallen on a pro pane b ottle in the living roo m, bu t no pro pane bottles were fo und in

the house. All the officers testified as to the filth of the living conditions, with alcohol

bottles and tras h strewn about the home . Bloody to ilet paper w as foun d in the

Defendant’s yard and blood stains were on the floor near the victim’s be d. Also, a

partially empty vodka bottle was found in a brown paper bag, and scie ntific tests

confirm ed that the paper b ag had the victim’s b lood on it.




                                              -4-
       Dr. David Florence observed the victim in the emergency room and

determined she was both medically and legally dead upon arriv al at the hosp ital.

After performing an exam ination of her bod y, Dr. Florenc e found in excess of sixty

(60) or seventy (70) bruises on the victim’s body, with some less than forty-eight (48)

hours old and some approximately seven (7) days old. She had also suffered eleven

(11) fractured ribs, causing six (6) puncture wounds in her lung, inflicted between a

few minutes to forty-eight (48) hours prior to her death. While the victim may have

been able to walk, talk, and breathe after thes e injurie s were inflicted , she w ould

have been in pain and would have had difficulty speaking. Dr. Florence testified that

the victim’s voice would have s ound ed cra ckly or lik e a wh isper. T he ba ck of h er rib

cage also had multiple fractured ribs, likely inflicted at least three (3) months prior

to her death. In addition, she had a large laceration on the back of her head which

was inflicted shortly before her death as she was still bleeding from that laceration

upon her arr ival at the hosp ital.



       Dr. Charles Harlan testified regarding the results of the vic tim’s autopsy. Her

death was caused by multiple blows to the chest which produ ced “b lood a nd air in

the space around the lungs compressing the lungs and ca using he r to be un able to

breathe .” After the fractured ribs punc tured he r lungs, the victim slow ly bled to

death, struggling to breathe and having a “very tough way to die.” From the

examination it appeared that the victim had been beaten over a period of time, and

it was likely that she died “ove r many ho urs or a coup le of days.”



       Depu ty Mike Jarvis was gua rding the victim’s bod y prior to her transpo rt to the

medical examiner’s office when the Defendant entered the room and asked to see

the victim. After approaching her body, the Defendant turned his back and removed

                                            -5-
the victim’s bloodstained shirt and then hid it unde rneath his jack et. W hen J arvis

confronted the Defe ndan t, the D efend ant rep lied tha t it was th e victim ’s favorite shirt

and he wanted to keep it in remembrance of her.                Jarvis refused to allow the

Defendant to keep the shirt, and the shirt was admitted into evidence.



       Investigator Alexander recorded the Defendant’s statement regarding the

victim’s death. In his statement, Defendant recalled that he had been to the grocery

store after work on August 18, 1995. When he pulled into his driveway, he blew the

horn but received no response from the victim. This angered the Defendant who

was drinking alcohol at the time. He then picked up the groceries and carried them

into the kitche n, returning to the car to drink m ore alcoh ol.          In his state ment,

Defendant admits he was “furious,” and went inside, leaning over to “thu mp” his wife

with the vodka bottle on the back of the head. They had a few drinks together, but

Defendant was s till angry and told the victim to go to bed. When the victim rose, she

fell down. Having to help the victim up made him so mad that he kicked her in the

side, possibly more than once. Defendant then drug her to bed by the armpits .

When he put her in bed, Defendant noticed some blood on her pillow and he got

some toilet pape r to place o n the cut o n her he ad.



       Some time after he returned to the living room to watch television, Defendant

heard the victim fall out of bed. When he went to check on her, he noticed that she

had fallen and “messed on hers elf.” Defen dant pu lled off her pink shorts and then

cleaned her off, throw ing her sh orts on the po rch. W hen D efenda nt returne d to her

room, the victim had “messed on herself again,” and this made him so mad that he

hit her with his fists. Defendant stated he was “nice enough to clean her up a gain,”

then went back to watching television. Later he got worried about his wife, so he

                                              -6-
went to check on her and discovered she was pale. When he checked for her pulse,

he thought he heard a small heartbeat and he shook her to wake her up. When he

again checked for a pulse and could not find one, he called 911 and started CPR.



       Defendant argues that the evidence was insufficient to support a conviction

for first-degree murder. Defendant suggests that his case is similar to State v.

Brown, 836 S.W.2d 530 (Tenn. 1992), in which a conviction for first degree murder

was reversed and modified to a second degree murder conviction. Defendant

sugge sts that because the abuse of his wife had existed for an extended period of

time, he should not have expected the abuse occurring on Augus t 17, 18, an d 19 to

have killed the victim. Therefore, Defendant argues if he had no expectation of her

death, h e could n ot have c omm itted first degre e murd er.



       In order to convict the Defendant in the case sub judice, the State was

required to prove that he committed an unlawful killing, both inten tionally and with

premeditation. Tenn. Code Ann. § 3 9-13-20 2(a)(1). Premeditation requires that the

act be committed after the exercis e of reflection and judg ment, b ut the pur pose to

kill is not required to have pre-existed in the mind of the defendant for any de finite

period of time. Id. at (d). Whether a defendant has acted with premeditation is a

question for the jury to determine, and it may be inferred from the manner and

circumstances of the killing. State v. Ge ntry, 881 S.W.2d 1, 3 (Tenn. Crim. App.

1993). The use of a deadly weapon upon an unarmed victim, the declarations of a

defendant of his inte nt to kill, th e inflictio n of m ultiple wounds, the defendant’s prior

relation ship with the victim, and the fact that the killing was particularly crue l are all

factors which the jury may consider in determining whether the murder was




                                             -7-
premeditated. Brown, 836 S.W.2d at 541-4 2; State v. Bland, 958 S.W.2d 651, 660

(Tenn . 1997).



       In the light most favorable to the State, there is more than sufficient evidence

that the Defend ant comm itted the first degree m urder of the victim.              When

questioned regarding his actions after the victim “disappeared” from their home in

May 1995, only three (3) months prior to her death, the Defen dant state d, “[i]f I

brought the bitch back here, I w ould k ill her.” This declaration by the Defendant of

his intent to kill the victim was made when Defendant was “very serious.” In addition

to this threat to kill the victim, when he did k ill the victim multiple wound s were

inflicted upon her. In add ition to nea rly seventy (70) br uises on he r body , the victim

had numerous broken ribs and her lungs were punctured. Also, she had a large

laceration on her head as a result of a wound admittedly inflicted by the Defe ndant.

In his statement to the police, the Defendant admitted to both hitting and kicking the

victim on mu ltiple occas ions. Th e Defe ndant’s p rior relations hip with the victim was

filled with turmoil, as two witnes ses te stified to the “vo latile” na ture of th eir

relationship. Finally, the jury could have inferred from the circumstances of the

killing that the D efenda nt was p articularly cru el. Medical evidence demonstrated that

the victim’s injuries may have been inflicted up to forty-eight (48) hours prior to her

arrival to the hos pital, following which she had a painful, slow death, described by

Dr. Harlan as a “very tough way to die.” Even the Defendant’s own statement

indicates his cruelty in his actions toward his own wife, in which he describes kicking

and hitting her for having to help her walk and to clean her up although he indicated

he was “nice en ough to clean her up aga in.” The evidence demonstrated that some

of the victim ’s wounds were inflicted nearly two (2) days prior to her death, during

which the Defend ant admittedly be came a ngry with her and beat her repe atedly.

                                            -8-
The Defe ndan t’s actio ns ca used the victim to have difficulty s tandin g, walking,

remaining cons cious, and maintaining control of her bodily functions, yet he

continue d to abu se her.



       Defe ndan t’s declarations of his inte nt to kill the victim, th e inflictio n of m ultiple

wounds, the nature of their relationship and th e partic ularly cr uel na ture of h is

conduct are all circumstances from which the jury properly inferred premeditation.

While Defendant may argue to the contrary, there is no evidence that he killed the

victim while suffe ring from a sudd en and uncon trollable rag e. Rath er, he re peate dly

beat, kicked and otherwise abused the victim until her body could no longer

withstand the lethal a buse. T his issue has no merit.



       Defendant argues that the trial court improperly admitted evidence of

photographs of the victim during her autopsy. He asserts that the photographs’

probative value wa s substa ntially outwe ighed b y the preju dice they c reated. T he trial

court ruled the photographs were admissible with the following explanation:

       The issue is whether or not the probative value outweighs the
       prejudicial effect that might be incurred as a result of this but
       notwithstanding Dr. Harlan’s graphic verbal testimony, I think these
       photographs will show to the jury more than can ever be described
       verbally by testimo ny of anyo ne and are prob ative to the e xtent that,
       according to the defendant over here, she fell and hit her head on a
       propane tank, and for that and various reasons, to show the jury what
       the injury exactly was to the head and to the rib cage.



The admissibility of photographs falls within the sound disc retion of the trial court,

whose ruling will not be overturned except upon a clear showing of an abuse of

discretion. State v. Cazes, 875 S.W.2d 253, 262-63 (Tenn . 1994), cert. denied, 513

U.S. 1086, 1 15 S.C t. 743, 13 0 L.Ed.2 d 644 (1 995); State v. Zirkle, 910 S.W.2d 874,


                                               -9-
888 (Tenn. Crim. App. 1995). A photo must be relevant to an iss ue that the jury

must decide and the probative value of the photograph must outweigh any prejudicial

effect that it may have upon the trier of fact before a photograph may be admitte d

into evidenc e. State v. Auco in, 756 S.W.2d 705, 71 0 (Ten n. Crim. A pp. 198 8), cert.

denied, 489 U .S. 1084 (1989); State .v Braden, 867 S.W.2d 750, 758 (Tenn. Crim.

App. 1993 ).



      Banks v. State, 564 S.W.2d 947 (Tenn. 1978), sets forth the factors to be

taken into co nside ration in determ ining w hethe r the inh erently prejudicial character

of the photographs outweighs their probative value. These factors are as follows:

(1) their accu racy and clarity; (2) whe ther they w ere take n before the corpse was

moved, if the position and location of the body when found is material; (3) the

inadequacy of testimonial eviden ce in relating the facts to the jury; and (4) the need

for the evidence to establish a prima facie case of guilt or to reb ut the d efend ant’s

conten tions. Id. at 951.



      The accuracy an d clarity of these photo s is not contested , but the photos w ere

adm ittedly made after the victim’s body had been moved. Photographs of a corpse

are admissible in murder prosecutions , if they ar e relev ant to is sues on trial,

notwithstanding their gruesome and horrifyin g chara cter. Banks, 564 S.W.2d at 951.

W hile photographs made during or after an autopsy are often condemned, they are

not rendered inadmissible m erely becaus e they are cumu lative to the testimony at

trial. See Collins v. S tate, 506 S.W.2d 179, 185 (Tenn. Crim. App. 19 73); State v.

Stephenson, 878 S.W .2d 530, 542 (Ten n. 1994). Ob viously these pho tos are

relevant to this case due to the issue of wheth er the De fendan t intentiona lly and with

premeditation killed the victim or whether she hit her head on a propane bottle as he

                                           -10-
first stated to the police. The Defendant admitted to kicking the victim, possibly more

than once, and hitting the victim in the head, also perhaps more than once.

Howeve r, the photogra phs dem onstrate that the victim ’s extensive injuries could not

have been caused by only a few punches or kicks.               The medical testimony

demonstrated that the force of these blo ws was sufficient to result in a compound

fracture of the victim ’s ribs, caus ing the pu ncture o f her lungs . Admitte dly, these

photos are some what graph ic and grueso me. How ever, this court has p reviously

uphe ld the trial cour t’s decision to allow the admis sion of gruesome autopsy

photographs of the victim when other State’s witnesse s had d escribed the subje cts

of the pho tograph s. State v. Terre nce D avis, C.C.A. No. 02C01-9511-CR-00343,

Shelby Coun ty (Tenn . Crim. A pp., at Jac kson, Ju ne 2, 19 97), perm. to appeal denied

(Tenn . 1998). T his issue is without m erit.



      We affirm the ju dgme nt of the trial co urt.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JOE G. RILEY, Judge




                                          -11-
