           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                          OCTOBER 1999 SESSION
                                                             FILED
STATE OF TENNESSEE,                      *    No. W1998-02116-CCA-R3-CD
                                                           March 2, 2000
      Appellee,                          *    SHELBY COUNTY Crowson, Jr.
                                                          Cecil
                                                        Appellate Court Clerk
V.                                       *    Hon. James C. Beasley, Jr., Judge

BYRON A. PEETE,                   *      (Second Degree Murder)

      Appellant.                         *



For Appellant                                 For Appellee

Gerald S. Green                               Paul G. Summers
147 Jefferson Avenue, Suite 404               Attorney General and Reporter
Memphis, TN 38103                             425 Fifth Avenue North
                                              Nashville, TN 37243-0493

                                              J. Ross Dyer
                                              Assistant Attorney General
                                              425 Fifth Avenue North
                                              Nashville, TN 37243-0493

                                              Thomas Henderson
                                              Dawn Doran
                                              Assistant District Attorneys General
                                              Criminal Justice Complex, Suite 301
                                              201 Poplar Avenue
                                              Memphis, TN 38103


OPINION FILED:



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                          OPINION

              The appellant, Byron A. Peete, appeals his conviction in the Shelby

County Criminal Court of second degree murder. Pursuant to the appellant’s
conviction, the trial court sentenced the appellant to thirteen years and six months

incarceration in the Tennessee Department of Correction. On appeal, the appellant

challenges the sufficiency of the evidence underlying his conviction. Although not
clearly articulated, his argument appears to encompass the following specific

contentions: (1) the evidence presented at trial concerning his low intellectual

quotient (I.Q.) precluded a finding that the killing was knowing as required by Tenn.
Code Ann. § 39-13-210(a)(1) (1997); (2) alternatively, in light of the evidence

concerning the appellant’s low I.Q., the record demonstrates the provocation

required by Tenn. Code Ann. § 39-13-211(a) (1997); or (3) in light of the evidence
concerning his low I.Q., the record demonstrates that the appellant killed the victim,

Terrance Baker, in self-defense within the meaning of Tenn. Code Ann. § 39-11-

611(a) (1997). Following a thorough review of the record and the parties’ briefs, we

affirm the judgment of the trial court.



                                 I. Factual Background

              The evidence adduced at trial established that, on the evening of

March 24, 1997, the appellant, who was almost eighteen years old, stabbed
nineteen year old Terrance Baker in the neck. The knife cut through Terrance’s

jugular vein and penetrated his left lung. As a result of the stab wound, Terrance

died en route to the hospital.


              The evidence further revealed that, prior to the stabbing, both the

appellant and Terrance lived on Breedlove Street in Shelby County. According to

Terrance’s mother, Shirley Baker, the appellant and Terrance “grew up together,
went to school together,” and were “real close.” Ms. Baker additionally recalled that,

although the two friends “teased” one another and occasionally argued, they always

reconciled. Indeed, Darnell Deener, a five year acquaintance of both the appellant
and Terrance, testified that the two friends enjoyed “checking” or exchanging insults.


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Darnell and other acquaintances or friends asserted that neither individual

possessed a reputation for violence.



              On the evening of the stabbing, the appellant and Terrance

encountered one another on Breedlove Street. They began exchanging insults, but

the verbal exchange soon escalated into a pushing match. Following the argument,
the appellant walked home and obtained a knife before returning to the street in

search of Terrance. The appellant quickly located Terrance, who stated that he did

not wish to fight with the appellant. Nevertheless, the appellant swung his fist at
Terrance and, when Terrance attempted to return the punch, stabbed Terrance in

the neck.



              The appellant testified on his own behalf at trial. He claimed that

Terrance threatened to kill him on the day of the stabbing and that he obtained the

knife from his house solely for the purpose of defending himself. However, he

conceded that, upon obtaining the knife, he went in search of Terrance, “looking for

trouble.” The appellant also asserted that, immediately prior to the stabbing, he
observed Terrance attempt to reach into his pocket and believed that Terrance was

attempting to secure a weapon. However, he conceded that he never observed

Terrance carrying any weapon on the day of the stabbing and that, to his
knowledge, the police did not recover any weapon from Terrance or the scene of the

stabbing. Finally, the appellant acknowledged that he was physically larger than his

former friend.


              John Robert Hutson, a clinical psychologist, also testified on the

appellant’s behalf. Dr. Hutson stated that he had been asked by the trial court to

conduct an evaluation of the appellant’s intellectual ability and also the appellant’s
competence to stand trial and his mental condition at the time of the offense.

Accordingly, he interviewed the appellant for approximately one hour, during which

interview he administered the Wechsler Adult Intelligence Scale. On the basis of
this interview, he determined that the appellant was competent to stand trial.


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Moreover, the appellant “really had no significant psychiatric history either of

treatment or of known psychiatric or psychological problems which would be

sufficient to substantiate a defense of insanity.” Finally, he testified that the
Wechsler Adult Intelligence Scale revealed a full scale I.Q. of seventy-four (74).



              Dr. Hutson conceded that the appellant is not mentally retarded.
Moreover, Dr. Hutson agreed that the appellant’s thought processes are normal, and

the appellant exhibits no indications of delusions, hallucinations, or other “disorders

of perception.” Nevertheless, he opined that the appellant would be “somewhat
more limited in his ability to interpret either other’s communications or other’s

behavior toward him.” He further observed that

              [i]n any situation in which [the appellant] had to make a
              choice - whether it’s a matter of danger or not, you would
              have a limited - a more limited range than a normal
              person in terms of what he perceived his possible
              responses could be.

Finally, Dr. Hutson acknowledged that the appellant would be fully capable of

understanding the words, “I don’t want to fight you.”




                                      II. Analysis

              When the sufficiency of the evidence is challenged on appeal, our
standard of review is whether any “reasonable trier of fact” could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). In other
words, the appellant carries the burden of demonstrating to this court why the

evidence will not support the jury’s findings. State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). In contrast, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefore. State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility

of witnesses and the weight and value to be given the evidence, as well as all

factual issues raised by the evidence, are resolved by the trier of fact and not the
appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). These rules


                                            4
are applicable to findings of guilt predicated upon direct evidence, circumstantial

evidence, or a combination of both. State v. Nesbit, 978 S.W.2d 872, 898 (Tenn.

1998), cert. denied,    U.S.    , 119 S.Ct. 1359 (1999).


              The appellant first argues that Dr. Hutson’s testimony established the

appellant’s inability or “diminished capacity” to form the mental state required for
second degree murder. See State v. Hall, 958 S.W.2d 679, 688 (Tenn. 1997); State

v. Profitt, No. 03C01-9712-CC-00530, 1999 WL 349699, at *3 (Tenn. Crim. App. at

Knoxville, June 2, 1999). Second degree murder requires the “knowing” killing of
another. Tenn. Code Ann. § 39-13-210(a)(1). Tenn. Code Ann. § 39-11-106(a)(20)

(1996) provides the following definition of “knowing”:

              “Knowing” refers to a person who acts knowingly with
              respect to the nature of the conduct or to circumstances
              surrounding the conduct when the person is aware of the
              nature of the conduct or that the circumstances exist. A
              person acts knowingly with respect to a result of the
              person’s conduct when the person is aware that the
              conduct is reasonably certain to cause the result.



              Again, Dr. Hutson testified that the appellant, although not mentally
retarded, possesses a low I.Q. and a “somewhat limited” ability to interpret another

individual’s communications or conduct and to comprehend a full range of potential

responses to those communications or that conduct. We note that this testimony by
itself in no way precluded a finding that the appellant knowingly killed Terrance

Baker. Moreover, in contrast to this testimony, Ms. Baker testified that she had

known the appellant since he was a baby and had never noticed “anything wrong
mentally” with the appellant. Other longtime friends or acquaintances similarly

testified that they had never noticed anything wrong with the appellant. A jury is not

bound to accept the testimony of an expert to the exclusion of other testimony

Nesbit, 978 S.W.2d at 886 (citing State v. Sparks, 891 S.W.2d 607, 616

(Tenn.1995)). Thus, we must defer to the jury’s determination that the appellant

was capable of forming the requisite mental state. State v. Durham, No. 03C01-

9802-CR-00063, 1999 WL 528726, at *11 (Tenn. Crim. App. at Knoxville, July 26,
1999), perm. to appeal denied, (Tenn. 2000).


                                           5
             The appellant also argues that the evidence adduced at trial

concerning his low I.Q. warranted either a finding of the lesser included offense of

voluntary manslaughter under Tenn. Code Ann. § 39-13-211(a) or, alternatively,
self-defense under Tenn. Code Ann. § 39-11-611(a). However, this court has

previously held that, in order to establish the provocation required by Tenn. Code

Ann. § 39-13-211(a) or self-defense pursuant to Tenn. Code Ann. § 39-11-611(a), a
defendant’s mental state must meet an objective standard of reasonableness. See

State v. Bult, 989 S.W.2d 730, 732 (Tenn.Crim.App. 1998), perm. to appeal denied,

(Tenn. 1999)(self-defense); State v. Skidmore, No. 03C01-9502-CR-00039, 1997
WL 199061, at *8 (Tenn. Crim. App. at Knoxville, April 24, 1997)(voluntary

manslaughter). In sum, the evidence adduced at trial amply supports the jury’s

verdict, and the appellant’s contentions are without merit.


                                   III. Conclusion

             For the foregoing reasons, we affirm the judgment of the trial court.




                                                       Norma McGee Ogle, Judge


CONCUR:


John H. Peay, Judge




Alan E. Glenn, Judge




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