From Knox County, Hon. Randall E. Nichols, Judge. First Degree Murder.
Permission to Appeal Denied August 5, 1991,
Edgar P. Calhoun, Special Judge. Gary R. Wade, Judge, Joseph N. Tipton, Judge, concur.
The opinion of the court was delivered by: Calhoun
Travis Dyer, the defendant, was convicted by a Knox County jury of murder in the first degree and sentenced to life imprisonment. The state did not contend aggravating factors existed to support capital punishment.
Dyer argues in his appeal as of right that the evidence was legally insufficient to support the offense of murder in the first degree and, also, for the same reason, the trial Judge erred in overruling his post-verdict motion for judgment of acquittal or, in the alternative, for a new trial.
The judgment is affirmed.
Defendant concedes that trial evidence would support the offense of murder in the second degree and that there is no issue of self defense.
The evidence is undisputed except as noted hereafter.
This homicide resulted from an unsuccessful shopping trip for marijuana by defendant, 19 years of age at the time; his sister, Shonda Dyer; and his girlfriend, Gidget Raines. The girls were both seventeen years of age, were runaways, and were living with defendant and William M. Bright at Bright's Knoxville residence. Bright was an adult male who had formerly dated the mother of Gidget Raines.
At about 12:30 a.m., October 9, 1988, the three teen-agers borrowed Bright's automobile and his .38 caliber revolver handgun for their trip to one of the federal housing projects in Knoxville to purchase the drug. At the nearest of the projects, Walter P. Taylor Homes, defendant and the girls made contact with the victim, Ricky Blair, by simply driving around the area of the apartments. Blair, a stranger, agreed to find marijuana for them.
After an unsuccessful attempt to purchase the drug at one source, defendant and Blair met another possible dealer, a "Mr. Harrison", out of sight of the two girls who remained in the car. Defendant gave Blair twenty dollars for the marijuana. Blair then engaged in a whispered conversation with Harrison after which Harrison went into an apartment purportedly to get drugs. Harrison did not return and defendant did not receive drugs or retrieve his money. Defendant testified that he never saw Blair hand over the money to Harrison.
Some twenty minutes had elapsed. The girls had become concerned and had left the automobile to search for defendant. Soon, thereafter, the teen-age girls saw defendant and Blair come from behind an apartment building. At this time, defendant had the gun in his hand and was saying that someone had ripped him off and was demanding that Blair either "get my money or my pot". Blair responded repeatedly to defendant that he would get him his money or the marijuana. An unsuccessful search for Harrison lasted thirty to forty five minutes. Finally, the girls returned to the car and Raines drove the vehicle to near where defendant was standing, a distance of about nineteen feet from Blair.
Defendant told Raines to open the car door and scoot over. She did not immediately respond. He repeated the order. At this time, the gun was in defendant's hand. The unarmed Blair held up his open hands and, according to the teen-age girls, said, "No man, don't shoot. Don't shoot me," or "Don't shoot." Blair then began to run. Defendant held the gun with both hands and fired four rapid shots at the fleeing Blair, who fell to the pavement. Raines saw Blair fall and try to crawl.
Defendant testified at the trial and his version of the facts differed little from that of the two teen-age girls. He contended that he shot only at the victim's feet or legs because the victim was running or starting to run ...