          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           SEPTEMBER 1999 SESSION
                                                    FILED
                                                    December 21, 1999

STATE OF TENNESSEE,                  )            Cecil Crowson, Jr.
                                     )           Appellate Court Clerk
                                          NO. W1998-00531-CCA-R3-CD
      Appellee,                      )
                                     )    TIPTON COUNTY
VS.                                  )
                                     )    HON. JOSEPH H. WALKER,
KENNETH A. ADAMS and                 )    JUDGE
JEREMIAH A. LEAVY                    )
                                     )
      Appellants.                    )    (First Degree Murder, Aggravated
                                     )    Robbery, Especially Aggravated
                                     )    Kidnapping)


FOR THE APPELLANTS:                       FOR THE APPELLEE:

GARY F. ANTRICAN                          PAUL G. SUMMERS
District Public Defender                  Attorney General and Reporter
(For Appellant Adams)
                                          R. STEPHEN JOBE
DAVID S. STOCKTON                         Assistant Attorney General
Assistant Public Defender                 Cordell Hull Building, 2nd Floor
P.O. Box 700                              425 Fifth Avenue North
Somerville, TN 38068-0700                 Nashville, TN 37243-0493
(For Appellant Adams)
                                          ELIZABETH T. RICE
FRANK M. DESLAURIERS                      District Attorney General
214 W Pleasant
P.O. Box 1156                             JAMES WALTER FREELAND
Covington, TN 38019                       Assistant District Attorney General
(For Appellant Leavy)                     302 Market Street
                                          Somerville, TN 38068




OPINION FILED:



AFFIRMED


JOE G. RILEY, JUDGE
                                      OPINION



        Upon transfer to circuit court for treatment as adults, juvenile defendants
Kenneth A. Adams and Jeremiah A. Leavy were convicted by a Tipton County jury

for the premeditated first degree murder, felony murder, aggravated robbery, and

especially aggravated kidnapping of James Terry, Sr.1 In this appeal as of right,
defendants challenge:

        1.     whether their pre-trial detention without bond rendered
               the subsequent prosecution, conviction and sentencing
               a violation of double jeopardy and/or due process; and
        2.     whether the evidence was sufficient to support the
               convictions for premeditated first degree murder and/or
               felony murder.

Upon our review of the record, we find no error and AFFIRM the judgment of the
trial court.




                                      I. FACTS



        On April 27, 1997, at approximately 11:00 a.m., juvenile defendants Adams

and Leavy, along with two adult co-defendants, entered the 71-year-old victim’s

home. They intended to steal a large amount of money rumored to be kept in the
house. After fruitlessly ransacking the residence, they sat down to watch basketball

on television and await the victim’s return. Sometime shortly before 2:00 p.m., the

victim returned from visiting his convalescent wife in a nursing home.


        When the victim entered the kitchen, the four young men ambushed him.

The adults bound the victim’s hands and feet with coat hangers and duct tape.
Then, he was placed in the bathtub, which the perpetrators previously filled with

water and kerosene. Before leaving, they covered the victim with various blankets,

drapes, and pieces of furniture. The victim died of asphyxia.



        The juvenile and adult defendants took twenty dollars from the victim’s wallet,

a microwave oven, and a kerosene space heater. They left in the victim’s car

shortly after 2:00 p.m. and spent the afternoon driving around eating snacks


   1
   At sentencing, the trial court properly merged the two murder convictions and
imposed a single life sentence upon each defendant.

                                           2
purchased with the victim’s money. They abandoned the car in a muddy field after

getting stuck and hitchhiked back home sometime between 4:00 and 4:30 p.m.



       Subsequently, both juvenile defendants gave statements admitting their

involvement in the crimes. Authorities took the juveniles into custody on April 28,

1997. The juvenile court entered a detention order on May 1, 1997. On June 3,
1997, the juvenile court conducted the first of two transfer hearings and transferred

the juveniles to circuit court on the charges of premeditated first degree murder,

felony murder, and aggravated robbery. The juvenile court ordered that both
juveniles be held without bond. At a second transfer hearing, conducted July 3,

1997, the juvenile court transferred the juveniles to circuit court on the charge of

especially aggravated kidnapping.2 At the close of the second hearing, the juvenile
court again refused to set a bond for defendants. However, at their appearance in

circuit court on July 18, 1997, the trial judge set $100,000 bonds for each.




                     II. DOUBLE JEOPARDY / DUE PROCESS


       In their first issue, defendants claim the trial court erred by failing to dismiss

the indictment against them for violation of their double jeopardy and due process
rights. Defendants contend the juvenile court was required to set bond upon their

transfer to circuit court. See Tenn. R. Juv. P. 24(b)(7). Defendants argue that their

pre-trial detention without bond constituted punishment for the charged offenses
which rendered subsequent prosecution, conviction, and sentencing a violation of

double jeopardy and due process.



       Authorities took defendants Adams and Leavy into juvenile custody on April
28, 1997. It appears from the record that the juvenile court held a “detention

   2
    After hearing the proof on June 3, 1997, the state filed an additional juvenile petition
charging defendants with especially aggravated kidnapping, under the incorrect
assumption that the Grand Jury could indict defendants only on the offenses for which
they were transferred. Although we note the juvenile court judge erred in re-asserting
jurisdiction for purposes of the July 3, 1997, transfer hearing, see Tenn. Code Ann. § 37-
1-134(c), any issue in this regard is moot since the Grand Jury indicted, and the
defendants were convicted on all charged offenses.

                                             3
hearing” soon thereafter. The record is silent as to whether the setting of bond was

an issue at the detention hearing, but does reveal that defendants were on juvenile

court probation in another county for aggravated burglary at the time of the present
offenses.



         The juvenile court denied defendants’ request for a bond at both transfer
hearings. In June, it refused because “the moment that they are transferred it

terminates the jurisdiction of the Juvenile Court . . . it is now a Circuit Court matter.”

In July, it refused “because it is a first degree murder case and extremely heinous
in nature.”



         On July 18, 1997, the circuit court set $100,000 bonds for each defendant.


                                 A. Double Jeopardy

         Constitutional provisions against double jeopardy protect an accused from
the peril of a second punishment and a second trial for the same offense. Whitwell

v. State, 520 S.W.2d 338, 341 (Tenn. 1975); State v. Taylor, 912 S.W.2d 183, 185

(Tenn. Crim. App. 1995); State v. Carter, 890 S.W.2d 449, 452 (Tenn. Crim. App.

1994).     However, jeopardy does not attach in a pre-trial proceeding unless

defendant is “subject to ‘criminal prosecution’ and put to trial.” State v. Johnson,
980 S.W.2d 414, 420 (Tenn. Crim. App. 1998)(citations omitted); see also State v.

Pennington, 952 S.W.2d 420, 422-24 (Tenn. 1997).



         Pre-trial detention does not result in the attachment of jeopardy barring

prosecution on the charged offenses. Pennington, 952 S.W.2d at 423. If the

detention’s purpose is remedial rather than punitive, then double jeopardy is not
implicated at all. Johnson, 980 S.W.2d at 420 (citations omitted).



         We conclude that jeopardy did not attach as a result of the defendants’ pre-

trial detention. Furthermore, we note that the proper recourse for bond denial was
to seek relief in circuit court. See Tenn. Code Ann. § 40-11-144(b).



         In any event, this issue is without merit and does not warrant dismissal of the
indictment against defendants.




                                            4
                                  B. Due Process

       Defendants next contend their pre-trial detention violates due process.

Procedurally, authorities arrested defendants on April 28, 1997, one day after the
offense. The juvenile court conducted a detention hearing on or about May 1, 1997.

The first mention of any question regarding bail comes at the June 3, 1997, transfer

hearing; the next is at the July 3, 1997, transfer hearing. Fifteen days later, the
circuit court set a bond.



       Due process prohibits punitive pre-trial detention, but permits remedial pre-
trial detention provided the individual is afforded sufficient procedural due process.

Pennington, 952 S.W.2d at 423; Johnson, 980 S.W.2d at 421.                 We find no

procedural due process violation. Again, the proper remedy for the juvenile court’s
denial of bond was to seek relief in circuit court. Tenn. Code Ann. § 40-11-144(b).

Furthermore, an erroneous bail determination does not give rise to a dismissal of

the indictment. Johnson, 980 S.W.2d at 421.



       This issue is without merit.




                      III. SUFFICIENCY OF THE EVIDENCE


       Next defendants aver the evidence was insufficient to support convictions for

premeditated murder and felony murder.


       In determining the sufficiency of the evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A jury verdict approved by the trial judge accredits the state's witnesses and

resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803

(Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state

is entitled to the strongest legitimate view of the evidence and all legitimate or
reasonable inferences which may be drawn therefrom. Id. This Court will not disturb

a verdict of guilt due to the sufficiency of the evidence unless the defendant

demonstrates that the facts contained in the record and the inferences which may
be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to

find the accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d


                                           5
1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court's duty to affirm

the conviction if the evidence, viewed under these standards, was sufficient for any

rational trier of fact to have found the essential elements of the offense beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317,

99 S.Ct. 2781, 2789, 61 L. Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259

(Tenn. 1994).


                      A. Premeditated First Degree Murder

       Defendants argue that there is no evidence of a premeditated design to kill
the victim in this case. The applicable definition of first degree murder in this case

is, “[a] premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-

202(a)(1). Premeditation necessitates “a previously formed design or intent to kill,”
State v. West, 844 S.W.2d 144, 147 (Tenn. 1992)(citations omitted), and “an act

done after the exercise of reflection and judgment. . .[meaning] that the intent to kill

must have been formed prior to the act itself.” Tenn. Code Ann. § 39-13-202(d).
It also requires that the accused be “sufficiently free from excitement and passion

as to be capable of premeditation.” Id.



       Although the jury may not engage in speculation, it may infer premeditation

from the manner and circumstances of the killing. State v. Bland, 958 S.W.2d 651,

660 (Tenn. 1997); State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995).

Our Supreme Court delineated several circumstances that may be indicative of

premeditation, including “the particular cruelty of the killing . . . preparations before
the killing for concealment of the crime, and calmness immediately after the killing.”

Bland, 958 S.W.2d at 660 (citations omitted).



       A defendant is criminally responsible for the conduct of another when

“[a]cting with intent to promote or assist the commission of the offense, or to benefit

in the proceeds or results of the offense, the person solicits, directs, aids, or

attempts to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-
402(2).



       In this instance, all four defendants broke into the victim’s house with the
intent to steal. Rather than leave when their search proved fruitless, they prepared

for the elderly victim’s return, filled the bathtub with water and kerosene, and


                                           6
watched basketball on the victim’s television. Upon the victim’s return, the young

men essentially hog-tied the victim, binding his hands and feet with coat hangers

and duct tape, and connected his hands and feet with a leather belt. They placed
him in the tub filled with water and kerosene and covered him so completely that

several witnesses failed to see him when they looked directly at the tub. Afterward,

the young men spent the day joyriding in the victim’s car and hitchhiked home when
it got stuck in the mud.



         Taken in the light most favorable to the state, this evidence amply supports
the conviction for premeditated first degree murder.



                                  B. Felony Murder
         Next, defendants argue that the evidence is insufficient to support their

conviction for felony murder since: (1) there is no showing that they acted

“recklessly” within the meaning of the felony murder statute; (2) there is no evidence
that the homicide occurred during the perpetration of burglary as alleged in the

indictment; (3) the indictment alleges murder in the perpetration of a “burglary”

rather than an “aggravated burglary;” and (4) the felony murder statute does not

encompass aggravated burglary. We consider defendants’ arguments to be without

merit.


                                1. Reckless Behavior

         Defendants claim they cannot be found to have engaged in reckless behavior
since there was no proof that they were “aware of but consciously disregard[ed] a

substantial and unjustifiable risk that the circumstances exist[ed] or the result

[would] occur.” This issue is without merit for two reasons.


         One, the felony murder statute in effect at the time of this offense did not

require a finding of recklessness. As amended in 1995, Tenn. Code Ann. § 39-13-

202(b) now provides: “[n]o culpable mental state is required for conviction under
subdivision (a)(2) [felony murder] . . . except the intent to commit the enumerated

offenses or acts . . . .” Id. In this case, defendants admitted their intent to break

into the victim’s home to take money, i.e., the intent to commit aggravated burglary.
This is sufficient to support a conviction for felony murder. The inclusion of

“recklessly” in the indictment was surplusage. State v. Hopper, 695 S.W.2d 530,


                                           7
535 (Tenn. Crim. App. 1985).



         Two, we reject the defendants’ claim that the victim’s pre-existing medical
conditions, which contributed to his demise, insulated them from a homicide

conviction. The victim’s physical condition is no defense. “One who unlawfully

inflicts a dangerous wound upon another is held for the consequences flowing from
such injury, whether the sequence be direct or through the operation of intermediate

agencies dependent upon and arising out of the original cause.” State v. Ruane,

912 S.W.2d 766, 775 (Tenn. Crim. App. 1995)(quoting Odeneal v. State, 157 S.W.
419, 421 (1913)). Regardless, the evidence clearly reveals active, and apparently

willing, participation by the defendants in the activities which lead to the victim’s

death.


                       2. Killing In Perpetration of Burglary

         Next, defendants claim that the evidence fails to show the homicide occurred
during the perpetration of a burglary.          We find defendants’ argument overly

technical, and are in accord with the state’s argument that “the fact that the killing

occurred after the burglary was technically completed does not make the killing

collateral to the burglary.” The killing may be considered “in perpetration of” the

felony “so long as there is a connection in time, place, and continuity of action.”
State v. Buggs, 995 S.W.2d 102, 106 (Tenn. 1999). The intent to commit the

underlying felony must exist prior to, or concurrent with, the act causing the victim’s

death. Id. at 107.


         Here, the intent to commit aggravated burglary clearly existed prior to the

acts causing the victim’s death. Furthermore, there was a sufficient connection in
time, place, and continuity of action. After unlawfully entering the residence, the

defendants remained in the residence, awaited the victim’s return, took money from

his wallet and other property, and placed him in the bathtub.



         This issue is without merit.



                                        3. Variance
         Defendants next claim there is a fatal variance between the underlying felony

offense charged in the indictment, “burglary,” and the underlying felony offense


                                            8
proven at trial, “aggravated burglary.” Again we find this argument overly technical

and without merit.



       A variance between indictment and proof is fatal if:        (1) defendant is

insufficiently informed of the charges against him, such that he is unable to prepare

adequately for trial; and (2) defendant is not protected against a subsequent
prosecution for the same offense. State v. Mayes, 854 S.W.2d 638, 640 (Tenn.

1993)(citing State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984)).



       The indictment more than sufficiently advised defendants that the location

of the burglary and the murder were the same location: the victim’s home.

Furthermore, the trial transcript clearly reveals defense counsel was able to
adequately prepare for trial. Defendants were amply protected against subsequent

prosecution for the same offense. Any alleged variance between the indictment and

the proof at trial was not fatal.


                 4. Aggravated Burglary - An Underlying Felony

       Finally, we also reject defendants’ argument that the felony murder statute

does not include “aggravated burglary” as an underlying felony since it only lists

“burglary.” See Tenn. Code Ann. § 39-13-202(a)(2). Aggravated burglary is a type
of burglary and supports a felony murder conviction. Cf. State v. Langford, 994

S.W.2d 126 (Tenn. 1999)(affirming felony murder conviction based on underlying

felony of aggravated burglary).




                                    IV. CONCLUSION


       Based upon the foregoing, we AFFIRM the judgment of the trial court.




                                                ____________________________
                                                 JOE G. RILEY, JUDGE



CONCUR:

                                          9
____________________________
DAVID G. HAYES, JUDGE



____________________________
THOMAS T. WOODALL, JUDGE




                               10
