         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     May 3, 2005 Session

          STATE OF TENNESSEE v. DARNELL LAVELLE WELCH
                        AKA "PLATINUM"

                   Direct Appeal from the Circuit Court for Tipton County
                          No. 4773 Joseph H. Walker, III, Judge



                 No. W2004-01515-CCA-R3-CD - Filed September 15, 2005


The defendant, Darnell Lavelle Welch, was indicted for premeditated first degree murder. A jury
convicted the defendant as charged, and he was sentenced to life in prison. The defendant now
appeals his conviction, alleging that the evidence was insufficient to support the conviction in two
respects: (1) that self-defense was not rebutted beyond a reasonable doubt; and (2) that
premeditation was not proven. Upon review, we conclude that the jury was justified in rejecting self-
defense and in finding that the defendant acted with premeditation in killing the victim. Therefore,
the defendant’s conviction is affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID H. WELLES, J., joined.

Gary F. Antrican, District Public Defender, and David S. Stockton, Assistant Public Defender, for
the appellant, Darnell Lavelle Welch aka “Platinum.”

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and David S. Stockton, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        This case stems from the fatal shooting of the victim, Jeffrey Somerville, by the defendant
in the early hours of July 13, 2003, in Covington.
        Courtney Somerville was a cousin of the victim. He was with the victim from the evening
of July 12th until just before the victim was shot. He stated that he saw the defendant approach a
vehicle on North Main Street in Covington looking for Terrence Simpson. The defendant believed
that Simpson had robbed the defendant’s younger brother, Boo. The defendant asked Simpson to
get out of the car Simpson was in. The victim and Courtney Somerville went across the street and
intervened on Simpson’s behalf. A general melee broke out and, according to Courtney Somerville,
the defendant and his brother were “beat down.” The defendant ran away and then returned, saying
they would “take it to the Hill,” meaning the Hill Street Apartments. The defendant and his brother
were driving to Hill Street while Courtney Somerville and the victim were running in that direction.
The defendant stopped on Valley Street and pulled a gun or guns from the trunk. The victim and his
cousin took refuge in the victim’s residence on Hill Street where the victim’s mother, Beatrice
Somerville, also lived. By this time, the defendant and his brother had already reached Hill Street
and had guns. The city police were notified by a neighbor, Wynette Wilks, and an officer responded
to the scene. The officer was not informed of the identity of the individuals causing a problem or
any other details and left the scene. Later, the defendant returned on foot on a pathway. Courtney
Somerville, the victim, and Beatrice Somerville were outside but returned inside the house when they
saw the defendant. Courtney Somerville stated that the defendant was firing the gun in the air. Mrs.
Somerville attempted to speak to the defendant, and the defendant told her that if she would move
from the door, he would shoot both Courtney Somerville and the victim.

        Acquavian Alston drove up and told the defendant to leave the area. The defendant told
Alston that if Simpson would get out of Alston’s car, he would kill him too. The defendant
eventually left by way of the path he had arrived on. Later, the occupants of the Somerville house
were again outside when the defendant, accompanied by Boo, returned in the defendant’s car. Both
the defendant and Boo were firing guns, and the Somervilles retreated inside. After this, the victim
or Courtney Somerville sent for Victor Rudd to bring them a gun. Mr. Rudd brought a nine
millimeter handgun and left it with the previously unarmed victim. Courtney Somerville walked to
his home, which was located four houses down the street. Before he closed the door, he heard shots
being fired and heard Beatrice Somerville yelling. Upon returning, he saw the victim on the ground
in a pool of blood.

        Kenneth Whitmore testified that he lived directly across the street from the victim. He had
seen the defendant on Hill Street the night of the shooting, with a pistol in his hand and “having
words” with the victim. The defendant was saying something about someone jumping on his
brother, Boo. The defendant fired the weapon twice in the air and left. Later that evening, Whitmore
saw the victim with a handgun. Whitmore later saw a vehicle, similar to the defendant’s vehicle,
pull up. Whitmore said he could not identify the driver. He heard four shots but said that he did not
see the victim “fire nary a shot.” The car then left the area. Whitmore admitted he had given a
statement to Investigator King saying that the defendant shot the victim, but he could not testify to
that. He stated that he was standing within arms’ reach of the victim when the victim was shot.

       Aquavian Alston testified concerning an altercation that occurred on North Main Street, at
approximately 11:00 p.m. on July 12th. The defendant approached Alston’s car in an intoxicated


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state and addressed two of the occupants, Terrence Simpson and Terry Currin. The defendant was
accusing the two of planning to rob his brother, Boo. Heated words were exchanged, and a fight
broke out. The victim and Courtney Somerville joined in the fight. The victim struck the defendant
more than once, and Courtney Somerville grabbed Boo in a headlock. The defendant ran away.
Later that evening, Alston’s sister, Wynette Wilks, called Alston and reported gunfire in her
neighborhood on Hill Street. On his arrival, Alston saw the defendant firing a gun in the air. The
defendant told Alston that he would kill Simpson if Alston allowed Simpson to get out of the car.
Alston laughed at the defendant and told him to go home.

         Wynette Wilks stated that she lived across the street from the victim. She had first seen the
defendant with his brother after 1:00 a.m. on July 13th. Later, she saw the defendant drive by and
fire the gun in the air. Later still, she observed the defendant addressing the victim, who was in his
house. At that time, the defendant told the victim he was going to kill him.

         Beatrice Somerville was the mother of the victim. She first saw the defendant drive by,
shooting a gun. Later, she saw him approach on foot from the end of the street, holding a gun. She
asked him what was going on. Addressing the victim, the defendant said if the victim’s mother were
not standing in the door, he would “let this m-f go and I’ll go to jail, ain’t going to do no time.”
Later, the defendant returned. Ms. Somerville said she saw the car, heard a shot, and saw the victim
fall to the ground. She stated that she was unaware that her son had a weapon.

        Officer Allen Willis, of the Covington Police Department, was on duty on July 12-13, from
10:00 p.m. to 6:00 a.m. He received a report of “shots fired” on North Main Street and went to the
scene. A crowd of 150 to 200 people was present but was dispersing. He saw the defendant, who
appeared angry to the officer, and the defendant remarked to others that “we’re going to take this to
the hood.” The defendant left in his vehicle. At 12:55 a.m., Officer Willis received another report
of “shots fired,” this time at the Hill Street Apartments. He responded immediately to the scene.
Several people were present, including the victim, Beatrice Somerville, Kenneth Whitmore, and
Courtney Somerville. None would provide information on what had happened, and the officer left.
Thirty minutes later, he received another call and returned to Hill Street. There he found the victim
sprawled in the parking area with a gunshot wound to his face. A handgun was found under a
vehicle approximately ten feet from the victim’s body.

        Captain Larry Russell with the Covington Police Department, stated he encountered the
defendant at 1:15 p.m., on July 13th, after the defendant had surrendered himself at the Tipton
County Jail. During questioning, the defendant first denied shooting the victim, then said that he had
shot the victim but that the victim had fired on him first. Initially, the defendant claimed he could
not remember what he had done with his weapon but later stated that he had thrown it in a pond in
Haywood County. The gun was not recovered.

        Officer James A. King served as the investigator for the Covington Police Department. Other
officers had secured the crime scene prior to Officer King’s arrival. He noted that a semiautomatic
handgun was under a vehicle, with its magazine about three feet away. No shell casings were found


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at the scene. He smelled the weapon for a scent of cordite and opined that the gun had not been fired
recently. He stated that no tests were performed on the weapon. Officer King stated that he
requested the coroner to perform a residue test on the victim’s hands to determine if the victim had
fired a weapon recently.

       The defendant was questioned by Officer King and said that he went to the victim’s
neighborhood because the victim had been involved in robbing the defendant’s brother. The
defendant stated he was in the car when the victim shot at him, and he returned fire. Officer King
examined the defendant’s vehicle and found no bullet holes. The defendant stated that his weapon
was a nine millimeter Ruger and that he had thrown it in a pond.

      Dr. Teresa Allen Campbell, a forensic pathologist, had assisted in the autopsy of the victim.
Dr. Campbell testified that the victim died of a gunshot wound to the face. She stated that she was
unaware of any request to perform a residue test of the victim’s hands, and no such procedure was
done.

                                             Sufficiency

       The defendant, in his challenge to the sufficiency of the evidence to support the verdict,
argues that the State failed to rebut the defendant’s theory of self-defense and failed to prove
premeditation beyond a reasonable doubt.

        The standard for an appellate court reviewing a sufficiency challenge is “whether,
considering the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002); see also Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319
(1979). A verdict of guilt removes the presumption of innocence and imposes a presumption of
guilt. Thus, the burden shifts to the defendant upon conviction to show why the evidence is
insufficient to support the verdict. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v.
Carruthers, 35 S.W.3d 515, 557-58 (Tenn. 2000). On appeal, the State is entitled to the strongest
legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom. State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000). “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 does not re-weigh or re-evaluate the evidence.” Evans,
108 S.W.3d at 236 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Nor may this court
substitute its own inferences drawn from circumstantial evidence for those drawn by the trier of fact.
Evans, 108 S.W.3d at 236-37.

                                            Self-Defense

       In his statement to police, the defendant claimed that he shot the victim in response to the
victim shooting at him.



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          It is the State’s burden to negate the existence of self-defense beyond a reasonable doubt if
it is raised by the proof. See Tenn. Code Ann. § 39-11-201(a)(3). Whether an individual acted in
self-defense is a factual determination to be made by the trier of fact. State v. Goode, 956 S.W.2d
521, 527 (Tenn. Crim. App. 1997); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993).
Furthermore, the initial use of force provoked by the defendant may negate the availability of self-
defense. See Tenn. Code Ann. § 39-11-611(d).

        There is ample evidence in this record to portray the defendant as an aggressor instead of an
aggrieved victim entitled to defend himself. The evidence established that the defendant essentially
stalked the victim from the time of the confrontation on North Main Street until he finally shot him
in front of the victim’s residence. The victim was apparently armed at the time of the fatal
confrontation, but there was no evidence other than the defendant’s statement that the victim ever
utilized his weapon. It is the jury’s prerogative to reject that claim. In light of the defendant’s
relentless pursuit of the victim together with his stated intention to kill him, the jury was well
justified in rejecting the defendant’s claim of self-defense.

                                           Premeditation

       Lastly, the defendant claims that he was still inflamed with such “excitement and passion”
from the initial confrontation so as to be incapable of premeditation.

        To support the defendant’s conviction for first degree murder, the State was required to prove
beyond a reasonable doubt that the defendant killed the victim intentionally and with premeditation.
Tenn. Code Ann. § 39-13-202(a)(1). A person “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).

                [P]remeditation 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. 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.
Tenn. Code Ann. § 39-13-202(d).

       After the initial altercation occurred on North Main Street, the defendant armed himself and
began to relentlessly pursue the victim, even as the victim took refuge in his own home. The
defendant announced his intention to kill the victim and followed through on his promise.

        The determination as to whether a defendant acted with premeditation is for the trier of fact,
and it may be inferred from the manner and circumstances of the killing. State v. Holder, 15 S.W.3d
905, 914 (Tenn. Crim. App. 1999).


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        As we view the evidence in a light most favorable to the State, it is apparent that the proof
was sufficient for a rational jury to have found, beyond a reasonable doubt, that the defendant killed
the victim intentionally and with premeditation.


                                            Conclusion

        We conclude from the record that there was sufficient evidence for the trier of fact to reject
self-defense by the defendant beyond a reasonable doubt and, further, that the evidence supports the
finding that the defendant acted with premeditation. Accordingly, the judgment is affirmed.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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