                                                                                             01/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 27, 2017

     STATE OF TENNESSEE v. CHRISTOPHER JERALD CROWLEY

                Appeal from the Criminal Court for Davidson County
                    No. 2013-A-678    Mark J. Fishburn, Judge


                             No. M2016-02263-CCA-R3-CD


The Defendant, Christopher Jerald Crowley, was convicted by a jury of premeditated first
degree murder and sentenced to imprisonment for life. See Tenn. Code Ann. § 39-13-
202. On appeal, the Defendant contends (1) that the trial court erred in excluding the
testimony of expert witnesses about the Defendant’s mental health that the Defendant
sought to present to establish that the killing was a voluntary manslaughter; (2) that the
trial court erred in failing to instruct the jury on voluntary manslaughter; (3) that the trial
court erred in admitting testimony from a witness about a statement the Defendant made
several months before the killing; and (4) that the evidence was insufficient to sustain the
Defendant’s conviction. Discerning no error, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jason M. Chaffin, Nashville, Tennessee (at trial); and David M. Hopkins, Murfreesboro,
Tennessee (on appeal), for the appellant, Christopher Jerald Crowley.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Brian Ewald and
Leandra Justus Varney, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

       During the early morning hours of October 18, 2012, the victim, Robert Mitchell,
was sleeping on a bench across the street from the Criminal Justice Center in downtown
Nashville. The victim’s aunt, Linda Cloyd, testified at trial that the victim typically lived
with family members, but that in October 2012 the victim was homeless and working at
the Nashville Rescue Mission.

        Mario Hambrick was the co-owner of a bail bonding company and was working at
his office near the Criminal Justice Center on October 18, 2012. Mr. Hambrick testified
that he was going to his car at approximately 3:00 a.m. when he heard a single gunshot.
After hearing the gunshot, Mr. Hambrick saw “a black Nissan Maxima with tinted
windows . . . [rush] down the street and bust[] through [a] stop sign.” Mr. Hambrick
called the Criminal Justice Center property guard, James Cathey, to tell him about the
gunshot. Mr. Hambrick also flagged down two Metropolitan Nashville Police
Department (MNPD) officers he saw leaving the Criminal Justice Center.

      MNPD Officer Charles Shaw was one of the officers flagged down by Mr.
Hambrick. Officer Shaw recalled that the bench was about “a half a block” away from
him when Mr. Hambrick flagged him down. When he got to the bench, Officer Shaw
saw the victim “slumped over” on the bench. The victim had a gunshot wound to his
head. The victim “was not responsive.” Officer Shaw “called for medical aid” and
began “secur[ing] the scene.”

       The victim was declared dead at the scene. The victim’s backpack containing his
belongs was found next to him. The investigating officers also found the victim’s wallet
and identification. A .380 caliber shell casing was found by a lamppost near the bench.
The Criminal Justice Center had several closed-circuit television cameras. The
investigating officers reviewed the surveillance footage with the Criminal Justice Center
property guard and the footage was played for the jury at trial.

       The surveillance footage showed a black sedan drive by the bench where the
victim was sleeping at 2:31 a.m. The black sedan returned at 2:33 a.m. and parked near
the bench with its headlights turned off before it drove away again. This pattern was
repeated several times over the next thirty minutes. The Criminal Justice Center property
guard became suspicious of the black sedan and zoomed in on its license plate.

       At 3:03 a.m., the black sedan returned, “pulled into oncoming traffic,” and parked
facing the wrong direction at the curb by the bench. The surveillance footage showed
that the sedan’s driver’s side door was open and that a person got out of the sedan. The
person walked toward the bench and out of view of the surveillance camera. The sedan
was left running with the driver’s side door “wide open.” The person was then seen
returning to the sedan at “a much faster pace,” and once the person was inside the sedan,
it “immediately sped away.”


                                             -2-
        The investigating officers ran the license plate number of the black sedan seen on
the surveillance footage. The sedan was registered to the Defendant. Officers were
dispatched to the apartment complex where the Defendant lived. The access gate to the
apartment complex showed that the Defendant had entered the apartment complex at 3:15
a.m. on October 18, 2012. However, the officers were unable to locate the Defendant’s
car. As the officers were searching for the Defendant, his car pulled into the apartment
complex. The Defendant was taken into custody at approximately 5:00 a.m. The
arresting officers described the Defendant as being “very calm,” “very compliant,” and
quiet. The Defendant did not ask the officers why he was being arrested and handcuffed.

       The Defendant consented to a search of his car. No gun was found in the
Defendant’s car or on his person. The clothing the Defendant was wearing was seized for
forensic testing and a gunshot residue test was administered on the Defendant’s hands.
Subsequent forensic testing by the Tennessee Bureau of Investigation revealed that
gunshot residue was present on the sweatshirt the Defendant was wearing when he was
arrested. The swabs of the Defendant’s hands were inconclusive for gunshot residue.

       An autopsy was performed on the victim and the victim’s cause of death was
determined to be “a gunshot wound to the back of his head.” The bullet entered the left
side of the victim’s head and came to rest near the front of the right side of the victim’s
brain. The bullet was recovered from the victim’s brain and placed into evidence. The
medical examiner testified at trial that the victim would have immediately become
unconscious upon being shot and died “fairly quickly thereafter.”

        Two of the Defendant’s friends testified at trial about interactions they had with
the Defendant in the months before the killing. Daniel Watkins testified that he was at a
New Year’s Eve party with the Defendant on January 1, 2012. Mr. Watkins recalled the
Defendant “was kind of [quiet]” that night, but that sometime between 1:00 a.m. and 2:00
a.m., the Defendant wanted to show Mr. Watkins something in his car. Mr. Watkins
testified that the Defendant was “a rambling mess” when they got to the Defendant’s car.
Mr. Watkins explained that the Defendant kept “swapping CDs out” and “plugging his
phone up [and then] unplugging it.”

      Mr. Watkins testified that, “out of the blue,” the Defendant “started talking about
homeless people.” Mr. Watkins recalled that the Defendant said homeless people were
“scum” and “referred to himself as like a vigilante.” Mr. Watkins also recalled that the
Defendant said something about “just wanna shoot [motherf--kers] in the head.” Mr.
Watkins testified that he took the Defendant’s statement as referring to homeless people.
Mr. Watkins further testified that he did not believe the Defendant’s statement was a
joke.


                                            -3-
       Mr. Watkins testified that he got away from the Defendant as quickly as he could
and told his wife not to leave him alone with the Defendant again. Mr. Watkins admitted
that he did not call the police that night, but he did call the MNPD when he heard that the
Defendant had been arrested for murder. Additionally, Mr. Watkins admitted that he had
been drinking at the party, but he denied that he was intoxicated or that his memory was
affected by the alcohol.

        Mr. Watkins was also asked about a change in the Defendant’s demeanor over five
years before the killing when they were both still in college. Mr. Watkins recalled that
the Defendant became “very quiet,” that the Defendant started keeping to himself, and
that the Defendant stated that he had been raped.

       Geoffrey Henderson testified that he was at a birthday party with the Defendant on
September 22, 2012. Mr. Henderson recalled that, “out of the blue,” the Defendant said
that he “had recently acquired a handgun.” Mr. Henderson testified that he asked the
Defendant “why would [he] need a handgun [because] there’s only one purpose for a
handgun.” Mr. Henderson explained that he believed handguns were only used for
“defense or attack.” Mr. Henderson testified that the Defendant “kind of like hung his
head” and responded, “Yes, you’re right.” Mr. Henderson further testified that neither he
nor the Defendant were intoxicated during this conversation.

       The Defendant admitted that he shot the victim and that it was his car seen in the
surveillance footage from the Criminal Justice Center. The Defendant testified that he
had been smoking marijuana on the night of October 17, 2012. The Defendant explained
that he had some friends come over to his apartment to watch the television show
Nashville1 because there was a chance that he might appear as an extra on the episode.
The Defendant testified that he had a “sudden emotional change” that night. The
Defendant explained that he started to feel “some sort of agitation, and [that] it just
increased throughout the night” causing his friends to leave “pretty abruptly.”

        The Defendant claimed that, after his friends left, he went downtown “to go play
some cards to try to cool [his] mind” because he felt the “beginnings of a panic attack.”
The Defendant testified that he returned to his apartment at approximately 1:30 a.m. and
that he began vomiting. The Defendant further testified that he felt “very agitated[,] very
panic-stricken[,]” and “became suicidal” at that time. According to the Defendant, he
took his gun and left his apartment because he was “fighting against [his] old self to not
injure [him]self.”


1
  Nashville was a “musical drama” airing from 2012 to 2018 that was filmed on location in Nashville.
Nashville (2012 TV series), Wikipedia, http://en.wikipedia.org/wiki/Nashville_(2012_TV_series) (last
visited Dec. 4, 2017).
                                                -4-
       The Defendant explained that he had “stopped caring about [him]self and stopped
caring about other people” and that he had “decided to use the weapon” when he left his
apartment. The Defendant claimed that as he drove around the Criminal Justice Center
that morning, he was having “an argument” in his mind between shooting himself or
shooting someone else. The Defendant also claimed that the “thought of suicide was in
[his] mind” when he got out of his car.

        However, the Defendant testified that when he arrived at the Criminal Justice
Center, he “was pretty confident” that he “was not going to [injure] [him]self.” The
Defendant further testified that he “knew [he] was not going to shoot [him]self when [he]
got out of the car” and that upon seeing the victim, he “knew [he] was going to shoot [the
victim].” The Defendant admitted that he did not know the victim and that the victim did
not move or say anything to him before he shot the victim. The Defendant denied
targeting the victim because he was homeless. However, the Defendant admitted that the
fact that the victim was homeless “was maybe a thought.”

       The Defendant testified that he went back to his apartment after shooting the
victim. The Defendant claimed that he saw that the shooting “was already on the TV”
and that he “knew [he] was going to be arrested at that moment.” The Defendant further
claimed that “an emotion came over” him and that he “knew that [he] needed to get rid of
the gun.” The Defendant testified that he left his apartment and threw the gun into Percy
Priest Lake. The gun was never recovered. The Defendant testified that he was arrested
when he returned to his apartment and that he was still feeling suicidal when he was
arrested.

       The Defendant testified that he was raped in 2006 and that his life had “been
different ever since.” The Defendant also testified that he was “really, really intoxicated”
on methamphetamine when he talked to Mr. Watkins at the New Year’s Eve party. The
Defendant denied that he told Mr. Watkins that he was a vigilante who shot homeless
people. The Defendant claimed that he told Mr. Watkins “if you’re gonna worry about
the welfare of a homeless man, you should be worried about shooting a homeless man.”

      The Defendant testified that he “was in rehab about two months” after his
conversation with Mr. Watkins. The Defendant was released from rehab in April 2012,
but he admitted that he started using narcotics again shortly after his release. The
Defendant claimed that he got the handgun as payment for fixing someone’s computer.
The Defendant admitted that he told Mr. Henderson about the gun, but he denied that Mr.
Henderson got angry with him or said anything to him about the gun.

       Based upon the foregoing, the jury convicted the Defendant of premeditated first
degree murder. The Defendant was sentenced to imprisonment for life. This timely
appeal followed.
                                            -5-
                                       ANALYSIS

                               I. Voluntary Manslaughter

       The Defendant contends that the trial court erred in excluding the testimony of
expert witnesses regarding the Defendant’s mental health. The Defendant also contends
that the trial court erred by not instructing the jury on voluntary manslaughter. The
Defendant argues that the killing was committed in “a state of passion produced by
adequate provocation” due to the fact that he was suffering from a mental illness at the
time of the killing and that this would have been established by the testimony of the
expert witnesses. The State responds that a voluntary manslaughter instruction was not
warranted by the facts of this case and that the testimony of the proposed expert
witnesses was not relevant because a murder will only be reduced to voluntary
manslaughter when the provocation was caused by the victim.

       Prior to trial, the Defendant sought to present two expert witnesses to testify about
his mental health. Both experts had concluded that there was insufficient evidence to
support an insanity defense. The trial court ruled that the experts’ testimony was
inadmissible because neither of the experts had opined that the Defendant’s mental illness
negated the requisite culpable mental state for premeditated first degree murder. See
State v. Hall, 958 S.W.2d 679, 690 (Tenn. 1997) (holding that “psychiatric testimony
must demonstrate that the defendant’s inability to form the requisite culpable mental state
was the product of a mental disease or defect” and that “[i]t is the showing of a lack of
capacity to form the requisite culpable mental intent that is central to evaluating the
admissibility of expert psychiatric testimony on the issue”). One of the experts did not
address the issue and the other opined that the Defendant’s mental illness did not affect
his ability to form the requisite culpable mental state for premeditated first degree
murder.

       The Defendant then sought a jury instruction on voluntary manslaughter and to
have the experts’ testimony admitted in order to show that he was acting under a delusion
that provoked him to kill the victim. The trial court denied the Defendant’s request. On
appeal, the Defendant argues that his mental illness caused him to act in a state of
“passion excited by inadequate provocation.”

       Voluntary manslaughter “is the intentional or knowing killing of another in a state
of passion produced by adequate provocation sufficient to lead a reasonable person to act
in an irrational manner.” Tenn. Code Ann. § 39-13-211(a). It has long been held under
Tennessee law that a murder will only be reduced to voluntary manslaughter when the
provocation was caused by the victim. See State v. Tilson, 503 S.W.2d 921 (1974); State
v. Antonius Harris, No. W2001-02617-CCA-R3-CD, 2002 WL 31654814 (Tenn. Crim.
App. Nov. 7, 2002); State v. Khristian Love Spann, No. 1230, 1989 WL 86566 (Tenn.
                                            -6-
Crim. App. Aug. 3, 1989); see also Commonwealth v. LeClair, 840 N.E.2d 510 (Mass.
2006) (providing a history of the rule at common law and citing supporting cases from
other jurisdictions); 40 C.J.S. Homicide § 114 (2010); 40 Am. Jur. 2d Homicide § 53
(2010).

        Here, there is no evidence that the victim provoked the Defendant. The Defendant
did not know the victim. The Defendant testified that the victim did not move or say
anything to him prior to the killing. The victim was asleep and unarmed when the
Defendant shot him in the back of the head. Based upon these facts, an instruction for
voluntary manslaughter was not warranted. Additionally, we reject the Defendant’s
argument on appeal that voluntary manslaughter can occur when a person acts in a state
of “passion excited by inadequate provocation.” The voluntary manslaughter statute is
clear that the state of passion must be produced by adequate provocation. The testimony
of the expert witnesses was not relevant to the issue of voluntary manslaughter because
the provocation must have been caused by the victim. Again, there was no evidence that
the victim did anything to provoke the Defendant. Accordingly, we conclude that these
issues are without merit.

                            II. Defendant’s Prior Statement

       The Defendant contends that the trial court erred in admitting Mr. Watkins’s
testimony about the Defendant’s statements at the New Year’s Eve party. At trial, the
Defendant argued that the statements were “so far removed from the [killing] in question
that they [were] rendered irrelevant.” On appeal, the Defendant argues that the
statements were irrelevant and offered “to improperly attack the character” of the
Defendant. The Defendant also argues that Mr. Watkins “was drinking” at the time he
heard the Defendant make the statements and that likely affected his memory. The State
responds that the trial court did not err in admitting Mr. Watkins’s testimony.

       Tennessee Rule of Evidence 401 defines “relevant evidence” as “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Generally, relevant evidence is admissible, while irrelevant evidence is
inadmissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if its
probative value is “substantially outweighed by the danger of unfair prejudice.” Tenn. R.
Evid. 403. A determination regarding the relevancy of evidence “is a matter within the
trial court’s discretion and will not be reversed on appeal absent an abuse of that
discretion.” State v. Biggs, 218 S.W.3d 643, 667 (Tenn. Crim. App. 2006) (citing State
v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997)).

       This court has long held that while “a lapse of time may . . . affect [the relevance
of evidence], it is the rational connection between events, not the temporal one, that
                                            -7-
determines whether the evidence has probative value.” State v. Haun, 695 S.W.2d 546,
550 (Tenn. Crim. App. 1985). Put another way, the remoteness of the evidence goes to
the weight of the evidence, not its admissibility. See State v. Smith, 868 S.W.2d 561,
575 (Tenn. 1993). Likewise, the use of alcohol by a witness affecting “the witness’s
ability to observe and recall the events about which he testified” would also go to the
weight of the evidence rather than its admissibility. State v. Blair, 634 S.W.2d 627, 635
(Tenn. Crim. App. 1982).

       Here, the Defendant told Mr. Watkins that homeless people were “scum” and
described shooting them in the head on January 1, 2012. Ten months later, the Defendant
shot the homeless victim in the head as he slept on a bench. These statements were
highly probative on the issues of premeditation and intent. Any questions about the
remoteness of the statements or Mr. Watkins’s ability to correctly recall the statements
went to the weight of the statements and not their admissibly.

        With respect to the Defendant’s argument that Mr. Watkins’s testimony
improperly attacked his character, the Defendant did not raise this argument at trial and
makes no mention of the applicable rule, Tennessee Rule of Evidence 404(b), in his
appellate brief. As such, the Defendant has waived our review of that argument. See
Tenn. R. App. P. 36(a); Tenn. Ct. Crim. App. R. 10(b). Accordingly, we conclude that
the trial court did not err in admitting Mr. Watkins’s testimony about the Defendant’s
prior statements.

                             III. Sufficiency of the Evidence

       The Defendant contends that the evidence was insufficient to sustain his
conviction for premeditated first degree murder. The Defendant argues that there was
insufficient evidence of premeditation because “[t]he evidence established that . . . [he]
was acting under extreme emotional and psychological distress” at the time of the killing.
The State responds that the evidence was sufficient to sustain the Defendant’s conviction.

       An appellate court’s standard of review when the defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). This court does not reweigh the evidence, rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

                                            -8-
      A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.

       The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Both “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this
court “on appeal of a conviction is not to contemplate all plausible inferences in the
[d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor of
the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

       Premeditated first degree murder is defined as “[a] premeditated and intentional
killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). A person acts intentionally
“when it is the person’s conscious objective or desire to engage in the conduct or cause
the result.” Tenn. Code Ann. § 39-11-302(a).

       Premeditation is an act done after the exercise of reflection and judgment.
       Premeditation means that the intent to kill must have been formed prior to
       the act itself. It is not necessary that the purpose to kill pre-exist in the
       mind of the accused for any definite period of time.

Tenn. Code Ann. § 39-13-202(d) (internal quotations omitted).

        The element of premeditation only requires the defendant to think “about a
proposed killing before engaging in the homicidal conduct.” State v. Brown, 836 S.W.2d
530, 541 (Tenn. 1992). The presence of premeditation is a question for the jury and may
be established by proof of the circumstances surrounding the killing. Bland, 958 S.W.2d
at 660. Our supreme court has held that factors determining the existence of
premeditation include, but are not limited to, the following: the use of a deadly weapon
upon an unarmed victim, the particular cruelty of the killing, declarations by the
defendant of an intent to kill, evidence of procurement of a weapon, preparations before
the killing for concealment of the crime, destruction or secretion of evidence of the
killing, and calmness immediately after the killing. See State v. Davidson, 121 S.W.3d
                                            -9-
600, 614 (Tenn. 2003); Bland, 958 S.W.2d at 660. Additional factors cited by this court
from which a jury may infer premeditation include the lack of provocation by the victim
and the defendant’s failure to render aid to the victim. See State v. Lewis, 36 S.W.3d 88,
96 (Tenn. Crim. App. 2000).

       The Defendant’s argument on appeal views the evidence in the light most
favorable to him while ignoring the overwhelming evidence of his guilt. The Defendant
referred to homeless people as “scum” and mentioned shooting them in the head to Mr.
Watkins ten months prior to killing of the victim. The Defendant acquired a gun prior to
the victim’s killing. The Defendant drove around the Criminal Justice Center for
approximately thirty minutes observing the victim before he exited his car and shot the
victim in the back of the head. The victim was sleeping and unarmed when the
Defendant shot him. The Defendant did not know the victim and the victim had done
nothing to provoke the Defendant. The Defendant then fled the scene and threw the
murder weapon in a lake. The Defendant was described as being “very calm,” “very
compliant,” and quiet when he was arrested.

       The Defendant testified that the “thought of suicide was in [his] mind” when he
got out of his car. However, the Defendant testified that upon seeing the victim, he
“knew [he] was going to shoot [the victim].” The Defendant also testified that he “was
pretty confident” that he “was not going to [injure] [him]self” when he arrived at the
Criminal Justice Center and that he “knew [he] was not going to shoot [him]self when
[he] got out of the car.” The Defendant further testified that the fact that the victim was
homeless “was maybe a thought” he had when he shot the victim. Accordingly, we
conclude that the evidence was sufficient to establish that the Defendant premeditatedly
and intentionally killed the victim.

                                    CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.



                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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