          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                               Assigned on Briefs December 4, 2007

                  STATE OF TENNESSEE v. CAMERON WINSELLE

                     Direct Appeal from the Criminal Court for Shelby County
                               No. 04-05193 Lee V. Coffee, Judge




                     No. W2007-00139-CCA-R3-CD - Filed February 20, 2008




A Shelby County jury found the Defendant, Cameron Winselle, guilty of two counts of first degree
murder, and the trial court sentenced him to two consecutive life sentences. On appeal, the
Defendant claims the evidence does not sufficiently support his convictions. Finding no error, we
affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and DAVID G. HAYES, J., joined.

Garland Ergüden (on appeal), Memphis, Tennessee; Sanjeev Memula and Glenda Adams (at trial),
Memphis, Tennessee, for the Appellant, Cameron Winselle.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross
Dyer, Senior Counsel; William L. Gibbons, District Attorney General; Betsy Carnesale and Nichole
Germain, Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                                    OPINION
                                                     I. Facts

        On Sunday, August 11, 2002, brothers Rubin and Larry Matthews were shot and killed at
their apartment complex in Memphis, Tennessee. At the Defendant’s trial for these murders, the
following evidence was presented: Ruthie Matthews, the victims’ mother, testified that the victims
lived together and that she last talked to Larry the morning he was shot.1 Ms. Matthews, who found
out about the shooting while she was still at Sunday’s church service, said Larry was killed instantly,


1
  The victims and some of the witnesses share a surname. Therefore, for clarity, we have chosen to use their first
names. We mean no disrespect to these individuals.
but Rubin lived until Wednesday, August 14, 2002. Addressing her sons’ living situation, she said
Rubin lived with Larry to “protect him” because people would “come [into Larry’s apartment] and
eat up the food and [use] dope.” On cross-examination, Ms. Matthews stated she talked to Rubin
every other day. She testified that she did not know Rubin and Larry were drug addicts, but she
knew Larry was diagnosed with schizophrenia.

         Bland Matthews, the victims’ brother, testified he last saw his brothers the Friday before their
death. He visited them daily at their apartment because “there [were] always a lot of people preying
upon them, taking advantage and coming into their apartment and illegal activity, or doing things
that were not right.” Bland continued, saying, “I was aware that there was a lot of activity with
trying to sell drugs and just that [the people who visited] would bring stolen merchandise, just
anything that they could do, because they could run over Larry and Rubin.” Bland said both Rubin
and Larry were over fifty years old, and Larry was diagnosed with paranoid schizophrenia. He
testified he did not know if Rubin and Larry used drugs but said he “may have suspected it.” On
cross-examination, Bland testified that, when he visited his brothers’ apartment in the past, there
were a lot people coming to the door, and sometimes there were too many people in the apartment
for Bland to “try to throw out of the home.” He said Rubin and Larry had similar problems with
people taking advantage of their apartment at other apartment complexes; Bland blamed Larry’s
mental illness for his letting people take advantage of him. According to Bland, “Rubin was
physically unable to protect himself” against the people who would force their way into the
apartment. He also said that he, Rubin, and Larry had all called the police several times for help
expelling the people from their apartment. On re-direct examination, Bland further discussed what
happened at the apartment, saying that people threatened Rubin and Larry with violence, promised
them activities involving “certain girls . . . that were of a pretty base character,” and did drugs.
Additionally, Rubin was once “beaten pretty bad[ly]” by one of the people coming into his
apartment, and he told Bland that he wanted to move. On re-cross examination, Bland testified that
he did not know if Rubin or Larry were paid to let people use their apartment for drugs.

         Gabriel Teal, the Defendant’s ex-girlfriend and mother of his four-year-old daughter, testified
that she accompanied the Defendant to the apartment complex on the morning of August 11, 2002.
She said he was going to buy marijuana from a dealer named Torrick Lyles, whom the Defendant
was meeting via Teal’s connections, in an exchange that had been planned the previous day. Teal
said she did not know how much money the Defendant had with him to buy the marijuana because
he hid the money in a sock. She stated that she lived with the Defendant before and that she had seen
“large” amounts of marijuana in the house; however, she never saw him buy or sell it. She also
testified that she never saw him smoke marijuana, but she did see him with thousands of dollars at
the house. She “understood [the Defendant] to be a drug dealer.” Teal stated that on August 11,
she and the Defendant drove to the apartment complex in his Lincoln Towncar, and he had a .38
caliber pistol, which he habitually carried, in his front pants pocket. She said he also had a gun in
the Towncar’s trunk, which he placed there that morning. Teal stated that, when they arrived at the
apartment complex, she remained in the car while the Defendant went inside the building, carrying
his sock full of money. She said the Defendant was in the apartment “two, or three minutes” before
he “came back out to the car with his hands up.” She said he told her “they” robbed him and that


                                                   2
he looked scared, but, instead of driving away, he opened the car’s trunk, using a button on the
driver’s side interior, and he retrieved the gun. Teal testified that, as soon as the Defendant moved
away from the trunk, she “got out of the car and ran” because she was “afraid.” She said she heard
“smaller shots and then . . . a big shot.” Teal said the Defendant began calling her on her cell phone
immediately after the shots wanting to know where she was, but she did not tell him because she was
scared. He told her that he thought he “hurt somebody.” Later, Teal talked with the Defendant, but
she never asked him what he did with the gun from the trunk.

        Teal testified that she originally heard about the victims’ deaths from the police, who talked
to her in December 2002. She admitted lying to the officers and telling them she was not at the
apartment complex that day. She said she later talked to the police in August 2003 and was honest
with them then about what she saw. Teal said that, after the incident at the apartment, the Defendant
painted his black Towncar gold.

         On cross-examination, Teal testified that she had lived with the Defendant for three years and
that she had never gone on a drug deal with him before August 11, 2002. She said a man met the
Defendant outside of the apartment and then led him inside, but she denied seeing anything else
because she remained in the car. When she talked with the Defendant later on the phone, “He had
like a rattle to his voice, you know, he sounded scared.” On redirect, Teal stated that the Defendant
never asked her to call the police when he came out from the house.

        Rodney Davis, a brother of one of the victims’ neighbors, testified that he bought Larry
cigarettes. He stated that Larry “smoked drugs,” and he let homeless people smoke drugs and sleep
at his apartment. Davis recalled that on August 11, 2002, he heard a gunshot at the apartment
complex. He said that his sister, whose apartment it was, told him that two men, one of them being
Torrick Lyles, were at the door. The men stayed briefly in the apartment, and after they left Davis
went back to bed.

        Officer Terry Butler, a patrolman with the Memphis Police Department, testified that he
responded to a call involving two male shooting victims. When he arrived on the scene, he found
the victims lying in the rear bedroom of the apartment. Officer Butler said he taped off the scene
with crime scene tape and gathered witnesses while he waited for the paramedics to work. On cross-
examination, Officer Butler stated that Bland Matthews told him that his brothers were known drug
users.

        Officer James Fitzpatrick, a police officer with the Memphis Police Department, testified that
he coordinated the crime scene for this case. He found shell casings in three locations: in the
bedroom where the victims were shot; near the heating and air-conditioning units outside the
victims’ apartment; and in another apartment. Officer Fitzpatrick said the police developed the
Defendant as the suspect as early as December 2002, but they could not locate him. Fitzpatrick
stated the police used federal prisoner Torrick Lyles to find the Defendant. Teal, the Defendant’s
girlfriend, came forward and told the police that she accompanied the Defendant to the apartment
complex for a drug deal, but he was robbed during the deal. She told them she fled the scene as soon


                                                  3
as she saw the Defendant reaching in the trunk for the gun. Officer Fitzpatrick said the police did
not find weapons or other casings or bullets at the apartment, but they did find three casings
belonging to the assault weapon outside the apartment, near the air conditioner. Additionally, the
police found no evidence to support the use of a handgun. On cross-examination, Officer Fitzpatrick
said that the police checked the parking lot, another apartment that was shot, and the victims’
apartment for ammunition and casings.

         Officer Kay Turnmire, an officer with the Memphis Police Department crime scene
investigation unit, testified that when she arrived at the crime scene, both victims had been
transported to a hospital for treatment. She testified that she did not find any casings or blood in the
kitchen, but there were casings on the bed and floor in the bedroom along with two bullet fragments
in the wall. Officer Turnmire stated that the casings belonged to “an assault rife, such as an SKS
[Chinese Assault Rifle], or an AK-47.” She discussed the location of the different casings and
bullets, in addition to describing the location of furniture in the room. On cross-examination, Officer
Turnmire testified that in addition to the victims’ apartment, she also checked a neighboring
apartment for bullets because shots were fired at it; however, she did not find any bullets in that
apartment. When asked by the court, Officer Turnmire said she could not determine where the
shooter was standing when he or she shot each bullet.

        Officer William Woodard, an investigator with the Memphis Police Department, testified that
in October 2003, he helped arrest the Defendant as a suspect in this case. Officer Woodard
explained that the Defendant refused to waive his right to silence and his right to an attorney. Officer
Woodard then testified about how an SKS Chinese Assault Rifle works, where “if you’ve got a
cartridge in [the gun] and you just pull back . . . then you’ve got . . . Ten rounds as fast as you can
pull the trigger.” Additionally, the gun “shoots a 7.62 by 39 bullet, which is . . . an intermediate size
cartridge, but it’s a short range, or within 200 yards and it’s pretty deadly.” Moreover, he said a
bullet shot from such an assault rifle would travel at about two thousand feet per second.

        On November 5, 2003, after waiving his rights, the Defendant gave a statement to the
Memphis police. Officer Connie Justice, one of the officers at the Memphis Police Department who
took the Defendant’s statement, read it to the jury. In his statement to the police, after he later
waived his rights, the Defendant said he went to the apartment complex to buy marijuana from a man
named “Stank.” When the Defendant went into the apartment to inspect the marijuana, the four
people in the room “ ‘put a pistol to [his] head . . . [and] laid [him] down on the floor.’ ” He claimed
they robbed him of his $7400 and his handgun he kept in his pocket. He was eventually allowed to
leave the apartment, at which point, he “ ‘got a 50 round [SKS] out of [his] trunk and ran back up
to the door . . . [he] was looking for them.’ ” The Defendant admitted entering the rear of the
apartment and shooting both of the men who robbed him. He stated that after shooting them, he left
the scene. He also told the police that he sold the SKS Chinese Assault Rifle in Chicago about six
months after he killed the victims and painted his Towncar gold two months after the incident.

        Dr. O’Brian Cleary Smith, the doctor who performed the autopsies on the victims, testified
that Larry Matthews tested negative for drugs and had a “minimal amount” of alcohol in his system.


                                                   4
Larry had an entrance wound from a bullet on his upper stomach, which exited through his lower
back, and an exit wound near his groin area. He also had two entrance wounds on the back of his
body. Dr. Smith explained each entry and exit wound and showed X-rays of the victim’s torso and
pelvic region, which depicted the bullet fragments in the body. Dr. Smith testified that he thought
Larry was shot three times and that either “the shots going from the front of the abdomen out the
lower back” or “the gunshot wound . . . higher up on the back of the right thigh that crossed over to
the left buttock also went through the pelvis causing bleeding of the large blood vessel there” was
the fatal shot.

         Dr. Smith then testified about the autopsy of Rubin Matthews. Rubin tested negative for both
alcohol and drugs. Rubin suffered a grazing wound from a bullet on his left arm, with the bullet
traveling from his elbow down to his wrist. Rubin suffered another entrance wound on his left side
and had an exit wound on the back of his right thigh. Rubin was also shot on the left side of his body
and his upper middle thigh area. The shot to the left side of his body resulted in major abdominal
surgery before his death. Dr. Smith then discussed Rubin’s entrance and exit wounds on his lower
left leg, followed by his addressing the exit wound on back of his left thigh. The fifth entry wound
Dr. Smith discussed was in the abdomen, but, due to the surgical intervention, there was no exit
wound. Dr. Smith testified that Rubin was shot five times and that he “died as a result of multiple
high velocity gunshot wounds,” with the shots to the abdomen and the thigh being fatal. On cross-
examination, Dr. Smith listed the organ and internal damage done to both victims by the bullets.

          Torrick Lyles testified, as a defense witness, that he was involved with a marijuana drug deal
with the Defendant on August 11, 2002. Lyles said that he met the Defendant outside the apartment,
and they walked inside together. Lyles said he “took [the Defendant’s] gun off of him,” and then
one of the victims robbed the Defendant and went into the back of the apartment. Lyles stated that
he knew the marijuana was fake when, at the deal, the Defendant asked to smell it and another
person at the apartment put a gun to the Defendant’s head. The Defendant then left the apartment
with his hands raised. Lyles admitted shooting at the Defendant a total of six times, as the Defendant
was getting into his car, “because [he] didn’t feel safe,” and then the Defendant shot back at them.
 Lyles said that he then went into another apartment to get a new shirt, and he saw “[the Defendant]
. . . discharging his gun.” Lyles said he next saw the Defendant leave the apartment complex in his
car. He said that he went to the apartment where the Matthews brothers were, called 911, and stayed
there until the ambulance arrived. On cross-examination, Lyles said one victim was “laying in the
bedroom and the other brother was laying in the [apartment’s] doorway.” He also said the
Matthews’ apartment was a “drug house.” Lyles admitted he is serving nearly thirty years in prison
for a federal drug conviction. He said he was in the apartment’s doorway when he fired five shots
at the Defendant.

       The jury found the Defendant guilty of two counts of first degree murder and the trial court
sentenced him to two life sentences, to be served consecutively. It is from these convictions that the
Defendant now appeals.




                                                   5
                                             II. Analysis

        On appeal, the Defendant challenges the sufficiency of the evidence for both of his first
degree murder convictions, and, tied with that claim, he argues that “the State failed to show that the
killing . . . was without passion produced by adequate provocation.” The State claims that the
evidence sufficiently supports first degree murder.

        When an accused challenges the sufficiency of the evidence, this Court’s standard of review
is whether, after considering the evidence in the light most favorable to the State, “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) (emphasis in original); see Tenn. R. App. P. 13(e); State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389,
392-93 (Tenn. Crim. App. 1999). A conviction may be based entirely on circumstantial evidence
where the facts are “so clearly interwoven and connected that the finger of guilt is pointed unerringly
at the Defendant and the Defendant alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The
jury decides the weight to be given to circumstantial evidence, and “[t]he inferences to be drawn
from such evidence, and the extent to which the circumstances are consistent with guilt and
inconsistent with innocence, are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646,
662 (Tenn. 2006) (citations omitted).

         In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions
concerning the credibility of witnesses, 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.” State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. “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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme Court 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) (citing Carroll v. State, 370 S.W.2d 523 (Tenn.
1963)). This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.


                                                   6
Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a
verdict of guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

       First degree murder is a premeditated and intentional killing of another. T.C.A. § 39-13-
202(a)(1) (2006). The Tennessee Code Annotated fully defines premeditation:

        ‘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. 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 to be capable
        of premeditation.

T.C.A. § 39-13-202 (d) (2006). Additionally, the Tennessee Supreme Court found the following
circumstances sufficient for supporting a finding of premeditation: the use of a deadly weapon on
an unarmed victim; the particular cruelty of a killing; the defendant’s threats or declarations of intent
to kill; the defendant’s procurement of a weapon; any preparations to conceal the crime undertaken
before the crime is committed; destruction or secretion of evidence of the killing; and a defendant’s
calmness after a killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Furthermore, “evidence
of repeated blows is relevant to establish premeditation, although this evidence alone is not sufficient
to establish premeditation.” State v. Sims, 45 S.W.3d 1, 8 (Tenn. 2001).

        In the light most favorable to the State, the following facts, supporting the Defendant’s
conviction on two counts of first degree murder, were presented. The Defendant planned to buy
$7400.00 worth of drugs from an unknown seller. In preparing for this drug deal, he packed an SKS
Chinese Assault Rifle in his trunk, and he carried a concealed handgun in his pants pocket. He
arrived at the apartment where the deal was planned to occur, and he went inside. After a few
minutes, he left the apartment with his hands up in the air, walking towards his car without anyone
walking behind him or shooting at him. He then went to the driver’s side of his car, opened the door,
pressed the button to release the trunk, walked around the side of the car, and retrieved the assault
rifle. At that point, he went back into the apartment and shot two unarmed men with the assault rifle.
The men were in the rear of the apartment, in their bedroom. The Defendant shot Larry three times,
with two of the shots entering Larry’s back. The Defendant shot Rubin, Larry’s caretaker and
brother, five times. The Defendant then fled the scene and called his girlfriend saying that he might
have “hurt somebody.” The Defendant remained missing for about a year, and he painted the car and
sold the gun. We conclude that these facts are clearly sufficient to support his convictions for
premeditated first degree murder.

       Turning now to address the Defendant’s claim that the State failed to prove that the killings
were without passion produced by adequate provocation, and therefore were voluntary manslaughter,


                                                   7
we conclude that the State did not have to present proof specifically to negate voluntary
manslaughter. The Defendant was charged with first degree, premeditated murder, not voluntary
manslaughter. “If the state proves a premeditated and deliberate killing of another, meaning that
the state has proven the absence of passion or provocation, then under [T.C.A.] § 39-13-202, the
defendant should be adjudged guilty of first degree murder.” T.C.A. § 39-13-211 (2006), Sentencing
Comm’n Cmts. Premeditation is mutually exclusive with passion produced by adequate
provocation. See id. Because we conclude that the State proved the Defendant committed first
degree, premeditated murder, then it also proved that the killings were without passion produced by
adequate provocation. The Defendant is not entitled to relief on this issue.

                                        III. Conclusion

        We conclude that the Defendant’s convictions were supported by sufficient evidence. Based
on the foregoing reasoning and authorities, we affirm the judgments of the trial court.


                                                          ________________________________
                                                           ROBERT W. WEDEMEYER, JUDGE




                                                8
