         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 11, 2005

          STATE OF TENNESSEE v. ANTHONY DWAYNE BROWN

                    Direct Appeal from the Circuit Court for Obion County
                           No. 3-338   William B. Acree, Jr., Judge



                     No. W2004-01139-CCA-R3-CD - Filed April 18, 2005


The defendant, Anthony Dwayne Brown, was convicted by jury of one count of first degree
premeditated murder, two counts of felony murder, one count of especially aggravated robbery, two
counts of especially aggravated burglary, and theft of property valued at less than $500. The trial
court merged the two felony murder counts into the first degree premeditated murder count and
merged the theft offense into the count of especially aggravated robbery. The trial court also merged
the two counts of especially aggravated burglary. The defendant was sentenced to life without the
possibility of parole for the first degree premeditated murder. The defendant was sentenced to sixty
years for especially aggravated robbery and to thirty years for especially aggravated burglary. The
trial court ordered all sentences to run concurrent with the sentence of life without the possibility of
parole. The defendant raises two issues on appeal: (1) whether the evidence was sufficient to support
his convictions; and (2) whether the trial court erred in excluding the testimony of a defense witness.
Following our review, we affirm the judgment of the trial court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ. , joined.

Joseph P. Atnip, District Public Defender, for the appellant, Anthony Dwayne Brown.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James Cannon, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                 I. Facts and Procedural History

       On the morning of May 1, 2003, Hilon Pruitt, the victim in this case, did not show up for
work. Concerned, Jerry Sherrill, Sr., and William Crowell (“Mustard”), two co-workers and friends
of the eighty-one-year-old victim, went to his residence where they discovered his body lying face
up in the living room. A console television was turned over and lying on his legs, butcher knives
were sticking out of his abdomen and neck, and an ice pick protruded from the center of his neck.
A portable television that had been smashed down on his head was lying beside his body. Sherrill
and Mustard lifted the television off the victim’s legs and called the police.

        Police officers, Tennessee Bureau of Investigation (T.B.I.) Agent Joe Walker, and the county
medical examiner, Dr. Allen C. Gooch, soon arrived at the scene. Inside the home, Agent Walker
searched for fingerprints left by the assailant, finding a blood pattern in the dining room and a palm
print on the back of the television. The pattern in the print on the television indicated that the
assailant had worn gloves. The unidentified assailant left the kitchen utensil drawer open and the
victim’s billfold lying beside his body. Although the billfold contained no cash, approximately $900
was found in the victim’s front right shirt pocket. A trigger guard and a firing mechanism also lie
next to the victim’s body, but no gun was ever recovered.

        Based upon the condition of the victim’s body, Dr. Gooch determined the time of death to
have been between 7:00 p.m. and 12:00 a.m. on the previous night of April 30, 2003. An autopsy
revealed that the cause of death was the result of multiple injuries, including eight major stab wounds
to the victim’s body as well as blunt injuries to his head and neck. Dr. O.C. Smith, who was
responsible for performing the autopsy, could not determine whether an unfound item may have
caused some of the injuries or whether more than one assailant perpetrated the crime.

        The defendant was charged with the crimes based upon the testimony of several witnesses.
However, initially, several other suspects were considered due to their histories, including Scott
Haynes. Haynes was stopped by police officers for questioning regarding a separate home invasion
that occurred in Crockett County two nights after the murder of the victim in this case. This home
invasion also involved the assault of an older man. When stopped, Haynes took off running. An
inventory search of Haynes’ vehicle uncovered a glove with a weave pattern similar to the weave
pattern in the print found at the victim’s home. However, the glove was a common “stock variety
glove,” and the palm print was never checked against that of Haynes. Because no physical evidence
connected Haynes to the crime, Agent Walker ultimately disregarded Haynes as a potential suspect.
Furthermore, Haynes had an alibi: his stepdaughter, Joyce Cavness, stated that Haynes was having
a cookout the night of April 30, 2003, and that she was there until 8:30 p.m. or 9:00 p.m.

        At trial, the victim’s daughter, Linda Brown, testified that her father would have been asleep
by 9:00 p.m. and that he did not leave her house on the night of April 30, 2003, until about 7:15 p.m.
Milton Snow testified that he received a call from his nephew, the defendant, around 8:40 p.m. on
the evening of the murder. Snow, who stated that he was babysitting at the time, testified that the
defendant confessed to killing the victim. Snow stated that the defendant admitted to stabbing the
victim and to pushing a television onto his head. Snow stated that the defendant showed him twelve
dollars stained with blood which he stated that he had stolen from the victim.




                                                 -2-
         Joshua McElrath testified that he saw the defendant on the basketball courts on Nash Street
at about 8:30 p.m. on the night of the victim’s murder. Contrary to Snow’s testimony that he was
babysitting, McElrath stated that Snow was at the basketball courts with him and the defendant. The
defendant looked “like he had just got out of the shower or something . . . he was nervous.”
McElrath testified that the defendant then confessed the crime to him, stating that “the old man
jumped on his back” and that he just “snapped and he killed him.” At first McElrath did not believe
the defendant, so he followed the defendant over to the victim’s house and saw “the old man laying
on the floor with some knives in him.” McElrath stated that the defendant did not implicate anyone
else in the crime.

        Robbie Walker testified that he saw the defendant coming from the side of the victim’s house
about four days prior to the murder and that he appeared nervous and sweating. She remembered
overhearing the defendant recount the murder while she pretended to be asleep. Walker stated that
the defendant admitted that “he got high off some pills, and he didn’t have nothing to do, so he went
over there and he beat the old man till his arms got tired, then he started sticking the old man.”
Walker stated that the defendant referred to the victim’s blood as red “Kool-Aid,” the defendant’s
favorite color. Contrary to Walker’s belief that the defendant was speaking to Snow and “Tie Dye,”
an alleged nickname for Stacey Parham, Parham denied ever being present. Parham stated it was
only later that he asked the defendant about the crime and was told “stay out of my business.”

        During the course of the trial, the State also introduced several witnesses who testified that,
while in jail, the defendant admitted his involvement in the crime. Timothy McPherson, who stated
that he was in the same jail pod with the defendant, testified that the defendant told other inmates
that he had messed up his life because he killed a man over twelve dollars.

        Joseph Isbell testified that the defendant was showing crime scene pictures that he had
received from his lawyer around in jail. Isbell stated that the defendant admitted to the crime, but
implicated a second assailant. Isbell testified that the defendant admitted to getting the knives out
of the victim’s drawer and that he was retaliating because the “man was calling the police and stuff
on him saying they was trafficking and stuff, a lot of trafficking.”

       Jerry Sullivan also testified to overhearing the defendant admit to the murder while in jail.
Sullivan stated:

       [The defendant] told about how they got together, him and this dude got high, snorted
       some powder, smoked some weed, and told the dude they was going to get him. So
       he snuck up on him in his house, and dude was bending over looking at the
       television, or doing something, and he snuck up on the dude and told the dude, “Hey,
       what did I tell you about what I was going to do to you?” So when the dude turned
       around - - see, I didn’t know it was an old man at that time. I thought it was a young
       dude about like our age, that he was trying to interfere with dude’s business out there
       on the street. . . . So when dude turned around, he said, “Didn’t I tell you what I was
       going to do to you,” the old man said, “Whatcha doing here,” and he stabbed him in


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       the stomach.

Sullivan also testified that the defendant implicated another assailant in the crime.

        Timothy Carr was also in the same jail pod with the defendant. Carr testified that the
defendant “admitted to doing some of it, but he said he didn’t act alone.” Carr stated that the
defendant implicated McElrath as the other assailant. Carr further testified that the defendant has
threatened him and asked him to ensure that Snow and Walker were not available to testify.
According to Lieutenant Rick Kelly of the Union City Police Department, the defendant is affiliated
with the Vice Lords, whereas Carr is affiliated with a rival gang, the Gangster Disciples.

        The defense argued that T.B.I. forensic scientists, Darrin Shockey and Donna Nelson, were
not able to match any physical evidence from the scene to the defendant. The only DNA present
under the victim’s fingernails and at the scene was either the victim’s own or matched to an
unknown person. The defense urged the jury to consider the possibility that the crime was
committed by one of the other initial suspects. Kay Perkins, who lived near the victim, testified to
seeing Haynes and another man riding up and down the streets in the neighborhood “a couple of days
to a week prior to the murder.” Nolan Simms also testified to seeing Haynes in the area near the
time of the murder, at Jerry Sherrill’s salvage yard. Ann Sellers, another neighbor, saw a “strange
car” pull into the neighborhood on the night of the victim’s murder. Sellers testified that two white
males “dressed like womens” exited the car and then, about twenty or thirty minutes later, “left like
they was in a hurry.”

        The defense also attempted to introduce the testimony of Pam Byrd, and the State requested
“a jury-out hearing on the relevance.” Byrd was stabbed about twelve years ago by her ex-husband,
Robert Kimmons,1 another initial suspect in this case. The defense sought to introduce her testimony
because “it demonstrates that one of the two suspects . . . had a tendency to use a knife.” The trial
judge sustained the State’s objection to the testimony, stating: “she will not be allowed to testify to
something that Mr. Kimmons did 12 years ago. There’s nothing to tie Mr. Kimmons to this case.”

       At the conclusion of the evidence, the jury found the defendant guilty of premeditated first
degree murder; two counts of felony murder, especially aggravated robbery, two counts of especially
aggravated burglary, and theft of property valued at under $500.

       During the sentencing phase of the trial, the State requested the trial court to impose a life
sentence without the possibility of parole. The trial court stated:

              Mr. Brown, you’ve been convicted of three different counts of first degree
       murder. Counts 2 and 3 shall be merged into Count 1, which is premeditated murder.
       In accordance with the verdict of the jury, you are sentenced to life imprisonment
       without the possibility of parole.


       1
           “Robert Kimmons” is one and the same as “Robert Kemmons,” as his name is later spelled in the record.

                                                       -4-
        A subsequent hearing for sentencing on the remaining charges was held on April 30, 2004.
The trial court stated:

         Mr. Brown, in addition to the homicide sentence, you have two Class A sentences - -
         two Class A felonies to be sentence[d]. The record is clear that you are a career
         offender. The mandatory sentence for a career offender who has been convicted of
         a Class A felony is 60 years. The only decision that the Court has about that is . . .
         whether to run them concurrently or consecutively. In view of your life without
         parole record, I don’t see any need to run these consecutively. I am going to run the
         two sentences concurrently.2

At the hearing, the defendant’s motion for new trial was also heard. The trial court denied the
motion and, alongside other grounds presented in the motion, addressed both issues which the
defendant now presents on appeal:
               Ground No. 1 is that the evidence contained in the record is insufficient, as
       a matter of law, to support the verdict of guilty - - of the jury finding the defendant
       guilty. The Court thinks that the evidence is sufficient, as a matter of law, to support
       the verdict of guilty. There were a number of witnesses who testified in this case. .
       . . Seven separate witnesses. All related conversations that they had with [the
       defendant] in which [he] made admissions of guilt. That is not the only testimony
       in the record of the guilt of [the defendant], but those are all people who [he] knew
       and talked with and admitted guilt . . . . [F]rom the testimony of those witnesses, the
       evidence is more than sufficient to convict him beyond a reasonable doubt.
               ....
               The second ground is, the Trial Court erred in not permitting the testimony
       of Ms. Pam Byrd to be admitted into evidence. That testimony was tendered to the
       Court. Basically, her testimony was that she was previously married to a man named
       Kemmons, that she was assaulted by him during their marriage. She was stabbed a
       number of times. The significance of Mr. Kemmons is that the defense argued that
       the jury might ought to consider him as having committed the crime rather than [the
       defendant], because he was a suspect at one time in the case. There was no evidence
       whatsoever in the case that . . . Mr. Kemmons was in any way involved with this
       murder. The defense was unable to produce any evidence to tie him in other than
       some investigation being made at the front-end of the case, or right after the crime
       occurred. The Court does not find it was error to [not] permit Ms. Byrd to testify,
       and I think it was completely irrelevant.
               ....
       The motion for new trial is denied.
       The defendant then filed notice of appeal.


         2
           In contrast to this statement, the record reflects that the defendant was being sentenced on only one Class A
felony, especially aggravated robbery. The second offense, especially aggravated burglary, is a Class B felony.
However, the record reflects that the judgments were entered properly and in accordance with the sentencing guidelines.

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                                             II. Analysis

                                    Sufficiency of the Evidence

        The defendant contends that the evidence was insufficient to support any of his convictions.
When the sufficiency of the convicting evidence is challenged, the relevant question of the reviewing
court 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); see also Tenn. R. App. P. 13(e) (“Findings
of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”). We do
not reweigh the evidence but presume 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
involving the credibility of witnesses, the weight and value to be given the evidence, and all factual
issues are resolved by the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). “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. Moats,
906 S.W.2d 431, 433 (Tenn. 1995) (citation omitted). The Tennessee Supreme Court has stated the
rationale for this rule:

                This well-settled rule rests on a sound foundation. The trial judge and the
        jury see the witnesses face to face, hear their testimony and observe their demeanor
        on the stand. Thus the trial judge and jury are the primary instrumentality of justice
        to determine the weight and credibility to be given to the testimony of witnesses. In
        the trial forum alone is there human atmosphere and the totality of the evidence
        cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on
appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

         First degree murder can be defined as the “premeditated and intentional killing of another.”
Tenn. Code Ann. § 39-13-202(a)(1) (2003). 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). “‘Intentional’ refers to a person who
acts intentionally with respect to the nature of the conduct or to a result of the conduct 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) (2003).




                                                  -6-
        Whether an act was done with premeditation is a question for the jury and may be inferred
from the manner and circumstances surrounding the killing. State v. Gentry, 881 S.W.2d 1, 3 (Tenn.
Crim. App. 1993). Since the trier of fact cannot speculate as to what was in the defendant’s mind,
the existence of facts of premeditation must be determined from the defendant’s conduct in light of
the surrounding circumstances. See State v. Hall, 958 S.W.2d 679, 704 (Tenn. 1997). Several
relevant circumstances have been held to provide the requisite indicia of premeditation:

       [T]he 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; and calmness
       immediately after the killing.

State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998).

         Taken in the light most favorable to the State, the evidence reveals that the defendant entered
the victim’s home and killed the victim with premeditation. The trial court noted that seven separate
witnesses “related conversations that they had with [the defendant] in which [he] made admissions
of guilt.” The defense argues that inconsistencies in some of the witnesses’ testimonies shed doubt
upon their validity and contends that some of the witnesses are gang-affiliated and therefore biased.
However, such questions involving the credibility of witnesses and the factual issues underlying the
alleged inconsistencies are to be determined by the jury. The jury accredited the testimony of the
State’s witnesses.

         The factors that provide the indicia for premeditation are established by the evidence and
could be found by a rational trier of fact. No evidence indicates that the elderly victim was armed
at the time that he was beaten and stabbed. Based upon the cause of death and instrumentalities
used, a jury could have found that the nature of this murder was particularly cruel. Furthermore, a
jury could find premeditation after hearing the testimony of Isbell: the defendant was retaliating
because the “man was calling the police and stuff on him saying they was trafficking and stuff, a lot
of trafficking.” Consequently, the evidence is clearly sufficient to sustain the defendant’s conviction
for first degree premeditated murder.

        In order to sustain the jury’s findings of guilt for each of the defendant’s two first degree
felony murder convictions, we must first find that the evidence is sufficient to support the underlying
felony convictions. Especially aggravated robbery underlies the defendant’s first felony murder
conviction. Tennessee Code Annotated section 39-13-401(a) (2003) defines robbery as “the
intentional or knowing theft of property from the person of another by violence or putting the person
in fear.” Especially aggravated robbery is a robbery “[a]ccomplished with a deadly weapon” and
“[w]here the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a) (2003).

       Especially aggravated burglary underlies the defendant’s second felony murder conviction.
A person commits aggravated burglary when he or she enters a habitation without the effective
consent of the owner and “commits or attempts to commit a felony, theft or assault” or enters with


                                                  -7-
the “intent to commit a felony, theft or assault.” Tenn. Code Ann. § 39-14-402(a), -403(a) (2003).
Especially aggravated burglary is the above accompanied by serious bodily injury to the victim.
Tenn. Code Ann. § 39-14-404 (2003).

        The defendant’s conduct obviously constituted especially aggravated burglary because the
jury concluded that he entered the victim’s home without consent and committed theft and a murder.
The evidence is also sufficient to support a conviction for especially aggravated robbery. The
victim’s billfold was found devoid of money lying near his body. At trial, McPherson testified that
the defendant had told people that he had messed up his life because he killed a man over twelve
dollars. Snow stated that the defendant showed him twelve dollars stained with blood which he had
stolen from the victim. A jury could have easily found that the defendant instilled fear into the
eighty-one year old victim and committed the theft and murder using deadly weapons: knives and
an ice pick. Thus, the evidence supports the defendant’s convictions for especially aggravated
robbery and especially aggravated burglary. Upon finding that the evidence supports the commission
of these felonies during the course of the murder, we hold that the evidence was sufficient to enable
a rational trier of fact to find the defendant guilty of first degree felony murder.

       The final conviction that the jury imposed was for theft of property valued at under $500.
The same above-stated reasons that the evidence supports the especially aggravated robbery charge
under which this offense was merged support this conviction.

                              Exclusion of the Defendant’s Witness

        The defendant raises in his motion for new trial and on appeal that the trial court erred in
excluding the testimony of Pam Byrd. During an offer of proof at trial, Byrd testified that Kimmons
was her ex-husband and that he had stabbed her about twelve years ago. The defendant sought to
introduce this evidence to show that Kimmons, who was once a suspect in this case, had a history
of stabbing and may have committed this murder.

        In Tennessee, the determination of whether evidence is relevant in accordance with
Tennessee Rule of Evidence 402 is left in the sound discretion of the trial judge. State v. Kennedy,
7 S.W.3d 58, 68 (Tenn. 1999). A trial court’s ruling on the admissibility of evidence will be
disturbed only upon a clear showing of abuse of discretion. See State v. DuBose, 953 S.W.2d 649,
652 (Tenn. 1997). An abuse of discretion exists when the trial court “applied an incorrect legal
standard, or reached a decision which is against logic or reasoning that caused an injustice to the
party complaining.” See State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997). In determining
admissibility, a trial court must first decide if the evidence is relevant. “‘Relevant evidence’ means
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.”
Tenn. R. Evid. 401.

       In this case, the trial court followed the proper procedure of determining whether the
evidence was relevant before excluding the witness’ testimony. The trial court conducted a jury-out


                                                 -8-
hearing in which it carefully considered the relevance and remoteness of the proffered testimony.
The trial court concluded, “she will not be able to testify to something that Mr. Kimmons did 12
years ago. There’s nothing to tie Mr. Kimmons to this case.” When the trial court addressed this
issue at the hearing on the defendant’s motion for a new trial, it stated: “[t]here was no evidence
whatsoever in the case that . . . Kemmons was in any way involved with this murder. The defense
was unable to produce any evidence to tie him in other than some investigation being made at the
front-end of the case, or right after the crime occurred. . . . I think it was completely irrelevant.”

        Applying the foregoing principles, we conclude that the trial court did not abuse its discretion
by disallowing Byrd to testify at trial. The trial court conducted a jury-out hearing and determined
the evidence to be irrelevant. Nothing in the record indicates that the trial court “applied an incorrect
legal standard, or reached a decision which is against logic or reasoning that caused an injustice to
the party complaining.” Accordingly, this issue is without merit.

                                           III. Conclusion

        Following our review of the record, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        J.C. McLIN, JUDGE




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