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04/03/91 STATE TENNESSEE v. TRAVIS DYER

COURT OF CRIMINAL APPEALS OF TENNESSEE, AT KNOXVILLE


April 3, 1991

STATE OF TENNESSEE, APPELLEE,
v.
TRAVIS DYER, APPELLANT

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 away and that he did not hear the victim say "don't shoot".

Blair died of secondary hemorrhage resulting from a gunshot wound. One bullet entered the body on the left side just back of the armpit and coursed through the chest. There was evidence of three bullet marks on outside walls of apartments near the scene of the shooting. The marks indicated a trajectory for the bullets of hip level or higher on the victim as he stood or ran.

After the shooting, defendant got into the driver's seat of the vehicle and drove it back to the Bright residence. There, he cleaned Bright's revolver, removing from it the live rounds of ammunition and spent hulls.

Defendant and the girls told Bright and James Dyer, brother of defendant and Shonda Dyer, about the events at Walter P. Taylor Homes. The parties learned that Blair was dead by listening to the evening television news the same day. Thereafter, Bright contacted a police officer and defendant was arrested at the Bright residence.

The material differences in the testimony of the various witnesses concern whether or not Bright knew that defendant was in possession of the gun and as to defendant's behavior after the shooting. There was disputed testimony that defendant drove the vehicle away from the crime scene behaving more or less in a calm manner, that he was "scared to death", that he laughed about the occurrence and that he laughed at the news of Blair's death.

On appeal, the trial evidence will be viewed in the light most favorable to the state. State v. Hatchett, 560 S.W.2d 627 (Tenn. 1978); State v. Tuggle, 639 S.W.2d 913 (Tenn. 1982). If a rational trier of fact could have arrived at a verdict of guilt, this court will not reverse the conviction. Jackson v. Virginia, 443 U.S. 307 (1979); Tenn. R. App. P. 13 (e).

Defendant concedes that the jury could find the existence of malice but he argues that there is insufficient evidence of premeditation to support the offense of murder in the first degree.

Both defendant and the state correctly point out that the elements of premeditation require a prior intention or design to kill and that the time lapse between the formation of this mental state and the killing is not a determinative factor so long as the mind is sufficiently free of excitement or passion to be capable of forming a cool and deliberate purpose to kill. Lewis v. State, 40 Tenn. 127 (1859); Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863 (1966). It is a question for the jury to determine whether the accused acted with premeditation, which may be inferred from the circumstances of the killing. McGill v. State, 475 S.W.2d 223 (Tenn. Crim. App. 1971); Clarke v. State, supra.

Clearly, the jury by its verdict has rejected defendant's claims that he fired four shots at the feet and legs of the running victim, for the purpose of causing him to stop and return defendant's money. At this time, it was apparent to defendant that the money would not be returned or the drug delivered. Doubtless, defendant had become angry, but considerable time had elapsed since the beginning of the attempted transaction.

On the other hand, the jury could and did find that, at the time of the killing, defendant with cool purpose and deliberation ordered the driver of the vehicle to move over from the driver's seat and to open the car door as the defenseless victim begged for his life, and that defendant then fired four shots at the body of the fleeing victim with the intent to kill him. The issue of premeditation obviously was not a difficult issue for the jury in this case.

The evidence amply supports the jury's verdict of murder in the first degree. See State v. Caldwell, 671 S.W.2d 459 (Tenn. 1984); State v. Adkins, 653 S.W.2d 708 (Tenn. 1983); Clarke v. State, supra; and State v. Bullington, 532 S.W.2d 556 (Tenn. 1976).

Accordingly, the judgment of the trial court approving the verdict of the jury is affirmed.

19910403

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