        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   April 11, 2001 Session

                STATE OF TENNESSEE v. EARL T. JEFFERSON

                 Direct Appeal from the Criminal Court for Shelby County
                         No. 98-06754    Joseph B. Dailey, Judge



                    No. W2000-00608-CCA-R3-CD - Filed June 12, 2001


The defendant was convicted by a Shelby County jury of premeditated first degree murder and
sentenced to life imprisonment without the possibility of parole. In this appeal, the defendant
challenges the admission of three alleged hearsay statements and the sufficiency of the evidence.
We affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.

A. C. Wharton, Jr., Shelby County Public Defender; Michael J. Johnson (at trial), Nelle W. Pallme
(at trial), and Tony N. Brayton (on appeal), Assistant Public Defenders, Memphis, Tennessee, for
the appellant, Earl T. Jefferson.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and James M. Lammey, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.


                                           OPINION

        The defendant appeals his premeditated first degree murder conviction challenging the
admissibility of three alleged hearsay statements and the sufficiency of the evidence. We conclude
that one of the three challenged statements was erroneously admitted into evidence; however, we
further conclude its admission was harmless. Since we also find the evidence to be sufficient to
support the conviction, the judgment of the trial court is affirmed.
                                              FACTS

        Erica Brown was the defendant’s cousin, and the defendant stayed at her residence from time
to time. On July 23, 1997, Brown and her three-year-old daughter were patronizing Comfort
Laundry. At approximately 9:45 p.m., the victim, Charles Cook, who lived primarily in his vehicle
which was often parked in close proximity to the laundry, entered the laundry. The victim proceeded
to Christy White, an employee of the laundry, and requested change for $1.00 in order to purchase
a beverage. White provided the victim with change, and he walked toward the vending machine.
Before reaching the machine, he stopped and inquired of Brown if he could purchase a drink for her
daughter. Brown granted the victim's request, and the victim purchased and delivered a grape soda
to Brown's daughter. The victim momentarily talked with the girl, then he exited the building.

       White testified that a couple of minutes after the victim exited the laundry, Brown ran to the
counter and stated, "Did you see what that guy did?" White further testified that Brown said

       [the victim] was down bending on his knees outside the door, the door cracked open,
       of the laundromat and he was beckoning for her child to come toward him; and when
       she turned around and saw her little girl walking toward the door and saw him at the
       door, he backed away.

White testified that this incident made Brown upset. Brown further stated to White, "[h]e don't [sic]
know what he's doing. He's messed up now. I need to make some phone calls." After Brown used
the telephone, she warned White, "[d]on't stick your head out the door about 10:30. We're going to
come back through spraying." White further testified that her [White’s] husband went to the nearby
Church's Chicken parking lot, where the victim was located, and told him to never again reenter the
laundry.

        Yarico Butler, a former girlfriend of the defendant, testified that she talked with him on the
phone concerning his involvement in the murder. She stated that the defendant requested she pick
him up because he was in “trouble.” The defendant then told her that Erica Brown, the defendant’s
cousin, came home and informed him of the incident at the laundry and demanded “something [be]
done” to the victim. Brown then drove him and an acquaintance to the laundry and waited in the car
while they shot the victim. On cross-examination, Butler conceded that she and Erica Brown were
having “problems” with each other when the incident occurred, and Butler pled guilty to a charge
of harassment of Brown.

       Junea Payton, a nurse, testified that on July 23, 1997, she was driving home from work with
her mother and saw the victim attempt to flee from two men and fall in the center of Airways
Boulevard. She then saw his two assailants kick him while he was on the street. The victim picked
himself up and crossed the street. Payton heard a shot, so she turned her vehicle around and
proceeded to the victim. By the time Payton returned, the two men were standing over the victim
kicking him. She also observed one of the men shoot the victim while the victim was on his side.
Payton was unable to positively identify the two men, but testified they had thin builds, and one was


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approximately 18, while the other was approximately 25. She testified that the younger man actually
did the shooting.1 The two men fled, and she and her mother administered CPR on the victim. The
victim died at the scene from a gunshot wound.

        Alvin Peppers, of the Memphis Police Department Crime Scene Unit, testified that when he
arrived on the scene, the victim’s vehicle was running. He further testified that the victim was found
at the scene in possession of $258.65.

        James Holder, a latent fingerprint examiner with the Memphis Police Department, testified
that a palm print lifted from the victim’s vehicle matched the defendant’s palm print.

         The defense offered the testimony of the defendant’s grandmother, Juanita Jefferson, who
testified that Yarico Butler phoned her from jail and stated that the defendant killed someone. Butler
then stated, “[h]e going [sic] to pay for what he done [sic] to me . . . [h]e left me alone.” Butler
further stated that she and Erica Brown got in a fight, and “it had a whole lot to do with Earl
[defendant].” Jefferson further testified that after she advised Butler to “straighten this stuff out”
with the defendant, Butler replied, “[n]o, I’m going to hurt both of them anyway I can. I don’t care.
I’m going to get my revenge.”


                                       I. WITNESS TESTIMONY

       Erica Brown did not testify at the defendant’s trial. The defendant challenges the
admissibility of the following three statements made by Brown, which were introduced through the
testimony of Comfort Laundry employee Christy White:

        (1) [the victim] was down bending on his knees outside the door, the door cracked
        open, of the laundromat and he was beckoning for her child to come toward him; and
        when she turned around and saw her little girl walking toward the door and saw him
        at the door, he backed away;

        ....

        (2) [h]e don't [sic] know what he's doing. He's messed up now. I need to make
        some phone calls; and

        ....

        (3) [d]on't stick your head out the door about 10:30. We're going to come back
        through spraying.


        1
          According to the judgment, the defendant was born on December 12, 1975, making him 21 years of age at the
time of the offense.

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        The trial court allowed all three statements holding they were relevant, non-hearsay because
they showed motive and were not offered for the truth, and if hearsay, admissible under the excited
utterance exception. Defense counsel also claimed the prejudicial effect of the testimony
substantially outweighed any probative value. The trial court rejected this ground, finding the
testimony was highly probative and outweighed any prejudicial effect. We shall address each
statement in the order they were uttered.

A. First Statement

        The trial court properly held that the first statement was non-hearsay. Hearsay constitutes
“a statement, other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c); State v. Belser, 945
S.W.2d 776, 784 (Tenn. Crim. App. 1996). The first statement was not offered to prove that the
victim was, in fact, attempting to lure Brown’s child out of the laundromat. As the trial court found,
it was admissible to show that “[Brown] felt that he had,” thus showing why Brown took action.
Furthermore, this relevant testimony was not unfairly prejudicial to the defendant.

B. Second Statement

        The trial court properly admitted the second statement. The first two portions of the second
statement are “[h]e don't [sic] know what he's doing,” and “[h]e's messed up now.” These two
assertions were not hearsay since they were not admitted to prove that the victim was unaware of the
consequences of his actions or that he, in fact, did “mess up.” The final portion of Brown’s second
statement was “I need to make some phone calls.” We conclude it was offered to prove the truth of
the matter asserted; namely, that Brown intended to call some person or persons to get assistance.
Accordingly, this portion of her second statement was improperly admitted, unless it fell within a
hearsay exception. See Tenn. R. Evid. 802.

         The rules of evidence provide for an excited utterance exception to the hearsay rule; namely,
“[a] statement relating to a startling event or condition made while the declarant was under the stress
of excitement caused by the event or condition.” Tenn. R. Evid. 803(2). The following criteria must
be proven for a statement to be admitted under the excited utterance exception:

       (1) there must be a startling event or condition that causes the stress of excitement;

       (2) the statement must relate to the startling event or condition; and

       (3) the statement must be made while the declarant was under the stress of
       excitement from the event or condition.

State v Gordon, 952 S.W.2d 817, 820 (Tenn. 1997).



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         We can think of few greater startling events than a parent’s perception that her young
daughter was almost kidnapped or molested. Accordingly, we conclude the first element was
proven. When read in context, Brown’s statement that she needed to make phone calls obviously
related to the startling event. Accordingly, the second element was proven. White testified that
Brown “came running” to her, which occurred immediately prior to this statement. Furthermore, she
testified that Brown “was upset” when she made the statement. The statement was made while
Brown was under the stress of excitement of the event; thus, the third element was sufficiently
established. The trial court properly admitted this statement under the excited utterance exception
to the hearsay rule.

        Furthermore, we conclude that this testimony was relevant because it shows that Brown, by
making phone calls, intended to take action against the victim. This, in turn, makes it “more
probable” that Brown returned with someone else. See. Tenn. R. Evid. 401. Therefore, whether or
not the defendant was the person actually called is not determinative of its admissibility. Other
evidence, including the defendant’s admission to Butler, indicated that it was the defendant who
returned with Brown. This testimony was not unfairly prejudicial to the defendant.

C. Third Statement

       The third statement was a warning by Erica Brown to Christy White, after Brown made a
phone call or calls, that she should not “stick [her] head out the door about 10:30. We're going to
come back through spraying.” This statement was offered for its truth; namely, that Brown and
another or others would be coming back and shooting. Accordingly, the statement was hearsay and
inadmissible unless it fell within a hearsay exception. See Tenn. R. Evid. 802.

        The prosecutor asked White the following question: “Okay. Do you recall if she [Brown]
came back to the scene, yourself; or did she say – indicate that she would?” White responded that
Brown warned her they would come “through spraying.” There was no testimony concerning the
length of time that elapsed during Brown’s phone call or calls, nor was there testimony concerning
her demeanor when she made the statement. Although it may have been a very short time, we are
unable to speculate. Accordingly, the state failed to establish the proper foundation for the excited
utterance exception to apply.

        The state additionally argued at trial and on appeal that this testimony was admissible under
the co-conspirator exception. The rules of evidence except from the general prohibition against
hearsay testimony “a statement by a co-conspirator of a party during the course of and in furtherance
of the conspiracy.” Tenn. R. Evid. 803(1.2)(E). However, there was no testimony concerning the
identity of the person or persons whom Brown called. The testimony of Yarico Butler, another state
witness, indicated that the defendant was informed of the incident by Brown when Brown returned
home. Accordingly, the state failed to establish that a conspiracy existed at the time this statement
was made.




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           It is arguable that this third statement is admissible under the state of mind exception to the
hearsay rule, which is “[a] statement of the declarant’s then existing state of mind . . . (such as intent
. . .)...” Tenn. R. Evid. 803(3). If so, the statement could only be used to establish Brown’s “intent”
to return with someone else, and not that the defendant acted in accordance with Brown’s statement
of intent. Tenn. R. Evid. 803(3), Advisory Commission Comments; N. Cohen et al., Tennessee
Law of Evidence § 8.08 [5][c] (4th ed. 2000). However, the state did not argue this exception at trial
or on appeal. Thus, we decline to address whether this statement was admissible under the state of
mind exception to the hearsay rule.

        Regardless, we conclude the admission of this third statement to be harmless error at most.
The identity of the person or persons whom Brown phoned was never established. The testimony
concerning the defendant’s involvement in the shooting was properly admitted through Yarico
Butler, who testified that the defendant told her that he and an accomplice shot the victim while
Brown waited in the getaway car. Additionally, the defendant’s palm print was found on the
victim’s vehicle, which was still running when officers arrived at the scene. We, therefore, conclude
that the admission of the third statement did not affect the conviction. See Tenn. R. App. P. 36(b).


                            II. SUFFICIENCY OF THE EVIDENCE

        The defendant alleges the evidence was insufficient to sustain his conviction. More
specifically, he contends the evidence does not sufficiently establish that he was the perpetrator of
this homicide. We disagree.

A. Standard of Review

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient "to support the findings
by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim.
App.1996).

        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). Nor may this court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the
state the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926,
932 (Tenn. Crim. App.1995).

      Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is


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insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

B. Analysis

        The testimony established the victim was shot within a short distance of his vehicle, which
was still running when officers arrived. The defendant’s palm print was found on the victim’s
vehicle. Junea Payton witnessed the shooting and, although she was unable to view the face of either
assailant, the defendant fit the general physical description of one of them. Furthermore, Yarico
Butler, the defendant’s former girlfriend, testified that the defendant confessed involvement in the
crime. Although the defendant attacked the credibility of Butler, it was within the jury’s province
to determine credibility. State v. Oody, 823 S.W.2d 554, 558 (Tenn. Crim. App.1991) (the
credibility of the witnesses is entrusted to the sound discretion of the jury as the trier of fact). The
evidence was more than sufficient to support the conviction.


                                          CONCLUSION

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


                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE




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