         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 2, 2004

                      STATE OF TENNESSEE v. ADAM BETTS

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 02-023911    J.C. McLin, Judge



                     No. W2003-01910-CCA-R3-CD - Filed July 20, 2004


The Defendant, Adam Betts, was convicted by a jury of first degree premeditated murder. In this
direct appeal, he argues that: 1) the evidence is insufficient to support his conviction; 2) the trial
court erred by admitting a photograph of the victim; and 3) the trial court erred by denying the
Defendant’s request for special jury instructions. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.
WEDEMEYER, JJ., joined.

Brett Stein and Robert Chamoun, Memphis, Tennessee, for the appellant, Adams Betts.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Paul Goodman and Mike Davis,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION


       On May 16, 2001, the victim, Debra Walker, was at her mother’s house on Hastings Circle
in Memphis. At around 9:30 that evening, the victim, her mother, Marlyn Walker, and her sister,
Lakesha Walker, were in the living room, talking. The telephone rang, and Lakesha answered it.
There was a knock on the door, and the victim opened the door. A man, later identified as the
Defendant, shot the victim twice through the glass storm door, then ran off. The victim died from
the gunshot wound she sustained.

       Lieutenant Tracy Grossett of the Memphis Police Department received a tip through Crime
Stoppers that the Defendant was the shooter and that he had admitted shooting the victim. On May
17, 2001, Lt. Grossett located the Defendant, who agreed to talk to the officers at the police station.
The Defendant waived his Miranda rights and gave a statement to the police. In his statement, he
admitted that he knocked on the door at 668 Hastings Circle and shot the victim twice when she
opened the door.

        Dr. O’Brian Cleary Smith, the Shelby County Medical Examiner, testified that he performed
the autopsy on the victim’s body. She died from a gunshot wound to her chest. The bullet, which
Dr. Smith determined to be from a .380 caliber pistol, passed through the victim’s heart and
esophagus.

        Several witnesses, including the victim’s mother, Marlyn Walker, as well as the Defendant
and his mother, Sherry Betts, described an incident that had occurred in August of 2000. A young
girl named Angel, who was a friend of the victim’s family, got into a fight with the Defendant’s
cousin, named Erica Perkins.1 As a result, several members of the Defendant’s family, including
Erica, got into a truck and went to Hastings Circle, where the victim’s family lived. The girls, who
were approximately ten or eleven years old, fought again, and Erica “won” the fight. According to
Ms. Walker, Erica and her group then left. However, the Defendant and his mother testified that
Angel then ran inside the house and retrieved a knife. The Defendant testified that Angel lunged at
Erica with the knife, but his mother omitted this detail in her testimony. They both testified that a
lady, who had been standing nearby, pulled a pistol out of her purse and fired it into the air at least
twice. At that point, the Defendant’s family left and returned to their home.

         According to Ms. Betts, later that evening, she saw a black van go by her house. She
recognized the driver as the lady who had fired the shots in the air earlier that evening. She also saw
Angel in the back seat. The Defendant testified that it was only ten minutes after they arrived at their
apartment when he saw what he described as a “black Blazer” go by their residence. He also saw
the little girl named Angel in the vehicle. The Defendant approached the vehicle, and shots were
fired out the passenger window. The Defendant estimated that between nine and twelve shots were
fired. One of the bullets grazed the Defendant’s face, and one of the bullets struck his mother in the
chest.

         Ms. Betts testified that, on a couple of occasions after the shooting, people that she could not
identify went by her house in a green Nissan. They pointed and laughed at her. She also said that
the little girl who had fought with her niece went by her apartment laughing. She testified that she
“felt threatened” by this and called the police a couple of times. The Defendant testified that,
beginning two days after Ms. Betts was shot, the black Blazer went by their residence several
different times, and the passengers were “looking and pointing and giggling.” According to the
Defendant, this went on for ten months. The Defendant testified that it was not always the same car,
but the driver was always the man that he had seen shoot his mother from the passenger seat of the
black vehicle.



         1
         The Defendant testified that Erica said that she had been “jumped.” Ms. Betts testified that Erica said that six
women had “jumped” her. In any event, the record is clear that Erica and Angel had been involved in an altercation with
one another.

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        On May 15, 2001, approximately nine months after the events in August of 2000, and one
day before the Defendant killed the victim, Ms. Betts was sitting outside her apartment. She testified
that a black van pulled up to her driveway and stopped. She recognized the little girl named Angel
in the van. A man got out of the van, and the Defendant, who was also outside, said, “[M]ama, that’s
the man right there that shot you.” Ms. Betts testified that the van left, and the Defendant called the
police, but they did not respond to the call.

        Ms. Betts testified that the next morning, a man drove up to her driveway in a gold car. He
got out, pulled a gun on her, and threatened her. She testified that she did not recognize this man,
as she had not seen him before. She went upstairs and told the Defendant, who had just gotten home
from work, what had just happened. The Defendant said, “I’m tired of these people fucking with my
mama.” However, Ms. Betts testified that the Defendant was calm, not agitated or upset.

         The Defendant also testified about the events of May 16, 2001. He recalled that his mother
woke him up at approximately 9:30 a.m., saying that a man who was looking for someone named
“Darrell” had just pulled a gun on her. The Defendant called and left a message for Prentiss Jolly
with the Memphis Police Department, then he went and got a state identification card.2 He called
several of his friends, including Cory Robeson, who was at a nearby pool hall. He met Mr. Robeson
at the pool hall at approximately 4:40 in the afternoon. There they each drank a quart of beer; then
they smoked a “blunt,” which is a cigar filled with marijuana. At 6:00 p.m. they left the pool hall
and went to the store to buy more beer and liquor. They went back to the Defendant’s house and
drank alcohol, smoked marijuana, and played dominoes. The Defendant testified that he then “told
Cory [he] needed to do something about this tonight.” Mr. Robeson agreed to let the Defendant
borrow his gun. This occurred at approximately 8:10 p.m. The Defendant said to Mr. Robeson,
“Let’s go on and go do this,” but Mr. Robeson said, “it’s too early right now.” They watched a video
until about 9:40 p.m. At that time, Mr. Robeson went outside, got his gun, and “oiled it down” for
the Defendant. They then went to the store to buy more beer, which they drank. The Defendant
testified that it was approximately “10:05 to 10:13” that evening. At this point in the trial, the
Defendant’s attorney asked him, “did the enormity about what you were about to do even enter your
mind?” The Defendant answered, “Yes, sir.” However, the Defendant said that he “was just at the
last breaking point.” He called the police several times, but he got “no type of cooperation from the
police.”

         Mr. Robeson drove the Defendant to Hastings Circle, where he put a ski mask over his face
and a black hood over his head. He knocked on the door where the victim’s mother lived, and the
victim answered the door. The Defendant testified, “I looked at her, and I put my head down. And
I just put the gun to the glass, and I fired two shots.” He said, “ I really wasn’t planning to kill her.
I just was trying to send a message to these people, you know, leave me and my family alone.” The
Defendant testified that he was scared, and he did not want anything else to happen to his family.



         2
             According to the Defendant’s statement to the police, he also did some laundry before he left to get his state
I.D. card.

                                                             -3-
After he shot the victim, he ran through a park and back to his house. As he ran, he threw the gun
away.

       On cross examination, the Defendant stated that he did not know the identity of the man who
threatened his mother on the morning of May 16; neither did he know where the man lived or to
whom he was related. The State’s attorney asked him whether he talked to Cory Robeson “about
what’s going to happen tonight,” and the Defendant replied that he had. Then the prosecutor asked,
“So you were planning this, weren’t you?” The Defendant responded, “Yes, sir.” The Defendant
admitted that he put a stocking on his face to conceal his identity. Then the prosecutor and the
Defendant had the following exchange with respect to what happened as he approached the victim’s
mother’s house:

        Prosecutor: You ran around there to the house. And you walked into the yard. But
        you stopped and started to turn around; is that right?
        Defendant: Yes, sir.
        Prosecutor: But something inside you told you to go on and do it?
        Defendant: Yes, sir.
        Prosecutor: Go and do what?
        Defendant: Go on, go ahead and do this.
        Prosecutor: Okay. So when you got to the yard, you had second thoughts?
        Defendant: Yes, sir.
        Prosecutor: But you thought about it again and decided to go ahead and commit the
        shooting?
        Defendant: Yes, sir.

Finally, the State’s attorney asked the Defendant, “So you spent all day long on Wednesday, May
16th, you spent all day planning and working up the courage to go to that house on Hastings and
shoot somebody, didn’t you?” The Defendant answered, “Yes, sir.”

       The Defendant’s cousin, Katisha Ivy, testified that the Defendant was very upset about his
mother being shot in August of 2000. She stated that he often talked about wanting to find out who
had shot her.

        The State called Lieutenant Prentiss Jolly of the Memphis Police Department as a rebuttal
witness. He testified that he investigated the shooting of Ms. Betts in August of 2000. He stated that
the Betts family did not give him an identification of any of the passengers of the vehicle from which
the shots came. He also testified that he did not receive any complaints from the Defendant about
people driving by his house, laughing and pointing.

        Based on this evidence, the jury convicted the Defendant of first degree premeditated murder,
and he argues that the evidence is insufficient to support his conviction. Tennessee Rule of
Appellate Procedure 13(e) prescribes that “[f]indings 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


                                                    -4-
of guilt beyond a reasonable doubt.” A convicted criminal defendant who challenges the sufficiency
of the evidence on appeal bears the burden of demonstrating why the evidence is insufficient to
support the verdict, because a verdict of guilt destroys the presumption of innocence and imposes
a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers,
35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the evidence if,
after considering the evidence in a light most favorable to the prosecution, we determine that any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

         On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

       First degree murder is defined in pertinent part as “[a] premeditated and intentional killing
of another.” Tenn. Code Ann. § 39-13-202(a)(1). A premeditated killing is one “done after the
exercise of reflection and judgment.” Id. § 39-13-202(d). Our statute further provides:

       “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. The mental state of the accused at the time the
       accused allegedly decided to kill must be carefully considered in order to determine
       whether the accused was sufficiently free from excitement and passion as to be
       capable of premeditation.

Id. A person kills another intentionally when it is the person’s conscious objective or desire to
engage in conduct that results in the victim’s death. See id § 39-11-302(a).

       In arguing that the evidence is not sufficient to sustain his conviction, the Defendant does not
contend that he did not kill the victim. Rather, he maintains that the killing was not done with
premeditation. He asserts that he should have been convicted of voluntary manslaughter, which our
criminal code defines as “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.” Id.
§ 39-13-211(a). The Defendant argues that the events that occurred in August of 2000 and the
ongoing harassment of people driving by his house, making threats, laughing, and pointing produced



                                                  -5-
in him a state of passion that was sufficient to lead a reasonable person to act in an irrational manner
and which consequently rendered him incapable of premeditation.

        A defendant’s state of mind at the time he or she commits a homicide may be inferred from
circumstantial evidence surrounding the crime, including the manner and circumstances of the
killing. See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998). “Whether premeditation is present
in a given case is a question of fact to be determined by the jury from all of the circumstances
surrounding the killing.” State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Circumstances that
may warrant the trier of fact to infer premeditation include the defendant’s procurement of a deadly
weapon and the use of that deadly weapon on an unarmed victim. See id. at 615. The defendant
taking preparations to conceal the crime before its commission is another circumstance from which
the jury may infer premeditation. See State v. Keough, 18 S.W.3d 175, 181 (Tenn. 2000). The lack
of provocation on the part of the victim and the defendant’s failure to render aid to the victim are
additional circumstances probative of premeditation. See State v. Lewis, 36 S.W.3d 88, 96 (Tenn.
Crim. App. 2000). Destruction or secretion of evidence of the murder may also be indicative of
premeditation. See State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000).

        The evidence in this case certainly supports the jury’s finding that the Defendant killed the
victim with premeditation. The Defendant procured a pistol from Cory Robeson, who oiled the
pistol for him. With that pistol, the Defendant shot the victim, who was unarmed. Prior to shooting
the victim, the Defendant covered his face with a stocking and his head with a hood in order to
conceal his identity. The victim in no way provoked the Defendant, and not only did he fail to render
aid to her, he fled. As he did so, he attempted to conceal his crime by throwing the gun down. Each
of these factors is relevant to premeditation. Furthermore, the Defendant’s own testimony evidences
premeditation. He testified that he and Cory Robeson planned the shooting. He also testified that
he had second thoughts about the shooting while he was in the victim’s yard, and he even physically
turned around. However, he ultimately decided to proceed with his plan. Finally, the Defendant
admitted that he spent the day of May 16 “planning and working up the courage” to shoot somebody.
Therefore, the evidence is sufficient to support the jury’s finding of premeditation and the
Defendant’s conviction for first degree murder.3 This issue is without merit.

       Next, the Defendant asserts that the trial court erred by admitting a photograph of the victim,
which was taken while she was alive. He argues that the photograph was irrelevant and unfairly
prejudicial because it elicited an emotional response from the victim’s father.

        It is well-settled that the admissibility of photographs is a matter entrusted to the discretion
of the trial court and a trial judge’s decision to admit a photograph into evidence will not be
overturned on appeal absent a clear showing of an abuse of that discretion. See State v. Carter, 114

         3
           Further evidence against the Defendant’s claim that he was in a state of “passion” when he shot the victim are:
Ms. Betts’ testimony that the Defendant was calm when she informed him of how she had been threatened on the morning
of May 16; the fact that the Defendant waited approximately twelve hours from the time that he learned of the threat to
the time that he shot the victim; and his failure to show any connection between the man who had threatened his mother
and the people who lived in the apartment on Hastings Circle.

                                                           -6-
S.W.3d 895, 902 (Tenn. 2003); State v. Porterfield, 746 S.W.2d 441, 450 (Tenn. 1988); State v.
Banks, 564 S.W.2d 947, 949 (Tenn. 1978).

         The challenged photograph, which depicted the victim while she was still alive, was
introduced through the testimony of her father, Joseph Walker, who became emotional when the
photograph was presented to him. The photograph was relevant because the State had to prove that
the life of a human being had been taken, and that the person killed was the same person named in
the indictment. See State v. Nesbit, 978 S.W.2d 872, 901-02 (Tenn. 1998). The trial court did not
abuse its discretion by finding that the danger of unfair prejudice resulting from the admission of the
photograph and from the father’s emotional response to the photograph did not substantially
outweigh the probative value of the photograph. See Tenn. R. Evid. 403. Therefore, this issue is
without merit.

        Finally, the Defendant maintains that the trial court erred by denying his special request for
jury instructions. Specifically, the Defendant requested the trial court give the following instruction:

               Ladies and Gentlemen of the jury, I further instruct you that the Defendant’s
       theory in this case is that he could not be guilty of Murder in the First Degree or
       Murder in the Second Degree because he did not possess the pre-requisite intent to
       be guilty of either Murder in the First or Second Degree.

               In this connection, I further instruct you that if the Defendant’s state of mind
       under all the facts and circumstances was so clouded with passion, which can be
       defined as “any of the emotions of the mind known as anger, rage, sudden resentment
       or terror, rendering the mind incapable of cool reflection,[”] you may consider these
       facts in reducing the charge of Murder in the First Degree to the lesser included
       charge of Voluntary Manslaughter. [State v. Phipps, 883 S.W.2d 138, 147 (Tenn.
       Crim. App. 1994)].

The Defendant argues that, by denying his special request, the trial judge did not properly “outline
[his] theory of the case.”

        The record reflects that the trial court did instruct the jury as follows: “‘PASSION’ means
any of the emotions of the mind known as rage, anger, hatred, furious resentment, or terror, rendering
the mind incapable of cool reflection.” Furthermore, the court gave the following instruction on the
lesser-included offense of voluntary manslaughter:

               Any person who commits voluntary manslaughter is guilty of a crime.

              For you to find the defendant guilty of this offense, the state must have
       proven beyond a reasonable doubt the existence of the following elements:
              (1) that the defendant unlawfully killed the alleged victim; and
              (2) that the defendant acted intentionally or knowingly; and


                                                  -7-
               (3) that the killing resulted from a state of passion produced by adequate
               provocation sufficient to lead a reasonable person to act in an irrational
               manner.

                The distinction between voluntary manslaughter and second degree murder
       is that voluntary manslaughter requires that the killing result from a state of passion
       produced by adequate provocation sufficient to lead a reasonable person to act in an
       irrational manner.

The trial court also defined the mental states of “knowingly” and “intentionally.” Finally, the court
instructed the jury on the State’s burden of proving every element of the crime charged beyond a
reasonable doubt, each juror’s duty to find the Defendant not guilty if he or she determined that the
State had not met its burden, and the presumption of innocence to which the Defendant was entitled.

        “Where the trial court’s instructions on a matter are proper, its denial of a special request is
not error.” State v. Vann, 976 S.W.2d 93, 114 (Tenn. 1998); see also State v. Mann, 959 S.W.2d
503, 521 (Tenn. 1997). We conclude that the trial court’s jury instructions were sufficient to counter
the Defendant’s request for special instructions that, if he were acting under “passion,” he could not
be convicted of first degree murder. This issue is without merit.

       Accordingly, the judgment of the trial court is affirmed.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




                                                  -8-
