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11/30/95 STATE TENNESSEE v. JOHN HENRY WALLEN

November 30, 1995

STATE OF TENNESSEE, APPELLEE
v.
JOHN HENRY WALLEN, APPELLANT



Claiborne County. Hon. Lee Asbury, Judge. (First-Degree Murder).

John K. Byers, Senior Judge, Concur: Paul G. Summers, Judge, Penny J. White, Judge (Concurring & Dissenting).

The opinion of the court was delivered by: Byers

The defendant was convicted of first degree murder and sentenced to serve a life sentence.

We find the trial court made reversible error, and we remand the case thereto for further proceedings.

Judge White wrote the original proposed opinion in this case. That opinion develops the facts of the case as presented to the trial court, and it also sets out an in-depth review of the cases and the law applicable to the issues raised. We concur in all of the Conclusions reached in the opinion with the exception of the finding that the evidence is insufficient to show deliberation necessary for a finding of murder in the first degree and the finding that the trial Judge was in error for admitting evidence that the defendant had previously fired into a City of Tazewell police vehicle approximately one month prior to the shooting of Trooper Tripp.

For the purposes of this opinion, we adopt the facts as set out in Judge White's opinion.

In this case, the evidence shows that, prior to the killing Of Trooper Tripp, the defendant had spoken of killing Tripp.

In the statement to the police officers made after the killing of Trooper Tripp, the defendant said that Tripp came up behind him, turned on his blue lights and pulled him into the lot where the killing occurred. He stated he had made up his mind to kill Tripp if Tripp pulled his gun on him. Further, he said Tripp pulled his revolver and yelled at him not to run. He said that Tripp put his gun away and got back into his car. The defendant said that he then backed his truck up so he was driver's side to driver's side with Tripp, and he emptied his rifle into Tripp.

In State v. Brown, 836 S.W.2d 530 (Tenn. 1992), the Supreme Court quoted WHARTON'S :

'Pre-meditation' is the process simply of thinking about a proposed killing before engaging in the homicidal conduct, and 'deliberation' is the process of carefully weighing such matters as the wisdom of going ahead with the proposed killing, the manner in which the killing will be accomplished, and the consequences which may be visited upon the killer if and when apprehended. 'Deliberation' is present if the thinking, i.e., the 'premeditation' is being done in such a mental state under such circumstances and for such a period of time as to permit a 'careful weighing' of the proposed decision.

Brown, 836 S.W.2d at 541 (quoting Charles E. Torcia, WHARTON'S § 140 (14th ed. 1979)).

When the evidence in this case is weighed in conjunction with the definitions of premeditation and deliberation adopted in Brown, the evidence is sufficient to show both of the elements.

Wallen's statement prior to the shooting of the necessity of killing Tripp shows a premeditated intent to commit the murder, which supplies the element of premeditation. Wallen's statement indicates that he decided on the night of the killing that if Tripp pulled his gun, he would shoot him. Further, the defendant said Tripp got out of the patrol car, pulled his gun, put the gun away and got back into the patrol car. He said that he then picked up his rifle and "shot the rifle empty." This evidence is sufficient to show the defendant deliberated on whether he would kill Tripp on this occasion and the manner of the carrying out of the intent to kill. This evidence is further strengthened by the defendant's statement that he backed his vehicle up to position it beside Tripp before he fired. Obviously, this was done to make certain of the death of Tripp by the assault. This evidence satisfies the elements of deliberation as raised in Brown.

The elements of premeditation and deliberation are questions for the jury to determine and may be inferred from the manner and circumstances of the killing. State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). We conclude, therefore, that the evidence is sufficient upon which the jury could find the defendant guilty of murder in the first degree. If the jury could not draw these Conclusions from the evidence, it is unlikely the State could ever prove a case of first degree murder in the absence of an eye-witness to the crime. Further, Conclusions based upon reasonable circumstantial evidence have historically and logically been recognized as sufficient to show the commission of a crime.

The issue of the admissibility of the evidence that the defendant fired into a police vehicle owned by the City of Tazewell is somewhat more problematic. However, under the circumstances in this case, we believe the probative value of the evidence outweighs any prejudicial effect of the evidence.

Is the evidence relevant? We think it is. The evidence shows Wallen had a grudge against police officers in general. Further, this evidence is probative on the issue of premeditation. See State v. Gentry, 881 S.W.2d 1, 4-5 (Tenn. Crim. App. 1993). We do not view the evidence as being merely evidence of propensity to commit a crime as condemned in State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985). This evidence is relevant on the issue of premeditation as we said above, and the relevancy is enhanced by the evidence of Wallen's pre-killing stated dislike of police officers. This evidence is certainly prejudicial to Wallen. However, any evidence which is relevant to show guilt is prejudicial. When cases have dealt with the prejudicial effect vis-a-vis the probative value of prior bad acts evidence, we find little articulable definition of the scale to use, and we conclude that definition of the relationship is, for the most part, inarticulable. As was said in Claiborne v. State, 555 S.W.2d 414, 417 (Tenn. Crim. App. 1977), "There is no set test to determine the relevancy of evidence of another crime. The question must be resolved in each case by logic and general experience."

If one can logically say the evidence of the prior crime has a tendency to prove an essential element of the charge at issue in the case on trial, then the evidence is relevant. If it is relevant on an issue in the case on trial, it is offered not to show propensity to commit a crime but as relevant evidence to show the commission of the crime charged in the case on trial. We think the evidence of the shooting of the police car by the defendant is admissible in this case.

We concur with Judge White's opinion on all other issues, and we agree with Judge White that there was reversible error in the trial of this case.

We, therefore, reverse the judgment of the trial court and remand the case for a new trial on the charge for first degree murder and all lesser crimes charged in the indictment, or not charged but included therein as a matter of law, if raised by the evidence.

Costs are assessed to the appellee, the State of Tennessee.

John K. Byers, Senior Judge

CONCUR:

Paul G. Summers, Judge

(See Separate Concurring & Dissenting Opinion)

Penny J. White, Judge

CONCURRING AND DISSENTING OPINION

I concur with the majority's reversal and remand for a new trial. I Dissent from their determination that appellant can be tried for first-degree murder and that prior acts are admissible under Rule 404(b), Tennessee Rules of Evidence.

A jury convicted John Henry Wallen of murder in the first-degree in the shooting death of state trooper Douglas Tripp and for the felonious possession of a deadly weapon with the intent to commit first-degree murder. *fn1 After a separate sentencing hearing, the jury imposed a life sentence. In this appeal as of right, appellant raises the following issues:

1. whether the evidence presented at trial is sufficient to prove the elements of premeditation and deliberation beyond a reasonable doubt, and whether the instruction informing the jury that premeditation may be formed in an instant was so prejudicial as to warrant a new trial;

2. whether appellant's statements to authorities and evidence obtained from searches of appellant's truck and residence should have been suppressed;

3. whether evidence of a prior uncharged crime was erroneously admitted as probative of appellant's motive and identity;

4. whether a defense expert should have been allowed to testify as to appellant's psychological condition at the time of his confession and the effect of his retardation on the issue of voluntariness; and

5. whether the defense challenge for cause of the juror Bailey should have been granted.

We find that the evidence presented at trial is insufficient as a matter of law to find the element of deliberation as required by State v. Brown, 836 S.W.2d 530 (Tenn. 1992). Moreover, the trial court committed reversible error by improperly admitting evidence of an uncharged crime. Therefore, appellant's conviction for first-degree murder is reversed and this case is remanded to the trial court for retrial on charges of second-degree murder or lesser included offenses.

FACTS

It was nearly midnight on May 19, 1991, when Tara Lynn Bott and her fiance drove through Tazewell, Tennessee, en route to his parents' home in Abingdon, Virginia. A steady drizzle was falling. As they passed the Tazewell Muffler Shop, Bott noticed a state trooper car parked in the lot in front of the shop. The dome light and headlights were on, but the trooper was not visible. Bott's curiosity was aroused when she noticed that the driver's window was down and the passenger's window was shattered. The couple decided to take a second look. Upon closer investigation, they found Doug Tripp, a veteran state trooper, slumped into the passenger side of the automobile, unconscious and bleeding profusely from a number of wounds. *fn2 The police vehicle's engine was running. Sergeant Ben Evans, a Claiborne County Deputy Sheriff, received Bott's call from a nearby convenience store at 11:56 p.m. After calling the authorities, the couple returned to the scene. Bott, a nurse, detected a faint pulse and attempted, without success, to clear the blood from Doug Tripp's mouth and nasal passages. *fn3 The victim was declared dead upon arrival at the hospital.

Later, another witness reported seeing Doug Trip on the night of his death. Just after 11:30 p.m., David Smith of Middleboro, Kentucky, a casual acquaintance of Tripp, saw Tripp's patrol car parked in front of the Tazewell funeral home. When Smith waved, Tripp, who was sitting inside, returned the greeting. When Smith drove back through Tazewell at approximately 11:50 p.m., the patrol car was no longer at the funeral home. As Smith continued north, he passed a slow-moving red Toyota passenger car. At the muffler shop, he saw the state patrol car parked in the lot facing the road. Tripp was sitting in the vehicle with the dome light on, looking down, and appeared to be reading or writing. This time, when Smith waved, Tripp did not respond. Within a short time after Smith saw Tripp at the muffler shop, the Toyota came up from behind and sped around him. *fn4

The police found little at the scene to assist in the investigation. When the police arrived, Sergeant Tripp was lying on the front seat of the patrol car. Tripp's revolver was in his holster with the cover snapped shut. Investigators found four spent .22 cartridges in the vehicle. The window on the passenger side was shattered. Lying under the steering wheel on the floor of the vehicle was a magazine. No murder weapon was found. No attempt was made to obtain fingerprints from the patrol car. Other than Smith and Bott, no other witnesses were found with information about the killing.

From the evidence at the scene, police concluded that the killer pulled up next to the patrol car and spoke to Tripp who rolled down the driver-side window. The killer fired a .22 rifle directly at the officer. The first group of shots hit Tripp on the left side of the head and neck. The second group of shots hit his left shoulder as he turned away and slumped over. At least one shot shattered the passenger window.

Despite the meager evidence, the investigating officers almost immediately connected the killing of Sergeant Tripp to an earlier incident and to John Henry Wallen. During the early morning hours of April 12, 1991, someone fired a series of shots at a Tazewell City Police vehicle parked in front of the police station. The police collected a number of .22 cartridges at the scene. According to Chief Tim Taylor, who did not testify, a dark colored pickup truck was seen in the vicinity of the police station at approximately the time of the shooting. Because John Henry Wallen drove a dark maroon pickup truck and had a .22 rifle which he used for target practice, Tazewell police suspected Wallen of involvement in the police car shooting. However, no charges were filed against him.

The investigating officers sent the shells found at the murder scene, the shells collected in the police parking lot, and some .22 shells obtained in an area where Wallen was known to have fired his .22 rifle to the T.B.I. laboratory. On the morning of May 24th, the laboratory notified the T.B.I. agents that all three sets of shells matched and had been fired from the same rifle.

Wallen was living at home with his parents, Henry and Betty Wallen. Immediately upon learning that the shells matched, the T.B.I. agents set up roadblocks at each end of the road that the Wallens used to reach a state highway. At about 9:30 a.m., the T.B.I. agents stopped Wallen on his way to work in Middleboro, Kentucky. He spoke at length with the officers who explained that they were looking for Tripp's killer who may have been driving a dark colored pickup truck. After obtaining Wallen's consent, the officers searched his truck finding a single spent .22 cartridge. The rifle rack in the truck was empty. Wallen told the agents that he liked Tripp and that he would help them find the murderer if he could.

At about 10:30 a.m., while Wallen was talking to T.B.I. agents, Betty Wallen left her home to go to a funeral. As she passed by the place where the police had stopped her son, she slowed to a stop. *fn5 The officers at first waved her on but when they realized that she was Wallen's mother, they intercepted her before she reached the highway. The officers told her they were investigating Tripp's death and her son's possible involvement. She consented to the search of her car. When the police asked for consent to search her home, she agreed and signed the waiver form. However, she explained she was on her way to a funeral and would not return until about 12:30 p.m. If the officers could not wait that long, she asked that they find her husband who was plowing a nearby field and have him accompany them when they entered the house.

At about the time Mrs. Wallen passed by, the T.B.I agents asked Wallen if he would go with them to their motel room to make a formal statement. He agreed and was transported to the motel. Upon arrival, Wallen gave a statement admitting he had driven by the muffler shop on the night of the murder as he was on his way to his girlfriend's house. He denied seeing Tripp or knowing anything about the murder. The agent then confronted him with the fact that the shells from all three sites matched. At this point, Special Agent Rick Davenport read Wallen his Miranda rights. Wallen signed the rights waiver and also signed a consent form allowing a search of his home. Wallen then gave a second statement in which he admitted shooting Tripp at about 11:45 p.m. on May 19th. He said that Tripp came up behind him, flashed his blue lights, and pulled him into the lot. According to the statement, Wallen made up his mind that if Tripp pulled his gun on him, he would shoot him because Tripp had threatened him earlier. Wallen had told his girlfriend five months earlier that due to the harassment, one day either Tripp would kill him or he would have to kill Tripp. Tripp got out of his car, he drew his revolver, and yelled at Wallen not to run. Wallen backed up until his driver's side was next to Tripp's window. He took the .22 automatic rifle on the seat beside him and emptied it into Tripp. Wallen also admitted that he shot at the city police car in April. The interview was not recorded but written by Agent Davenport and signed by Wallen. *fn6

After learning that Wallen had consented to a search of his home, the agents waiting there entered the house without either Mr. or Mrs. Wallen. There they found Wallen's .22 rifle in a rack in his bedroom and a number of .22 "longs" and "shorts" at various locations in the house. The shell casings were later compared with Wallen's .22 rifle. At trial, T.B.I. forensic scientist, Don Carmen testified that the shell casings found at the scene of the murder had been fired by the rifle taken from Wallen's bedroom. The same rifle had fired the shots at the Tazewell Police vehicle and the shells collected from the yard at Wallen's former residence.

At trial, Wallen presented an alibi defense. His father testified that Wallen stayed home after his arrival that evening at about 10:30 p.m. A friend's mother and his girlfriend's mother testified that Wallen had made several telephone calls to their homes between 11:00 p.m. and 1:00 a.m. Based on these facts, the jury convicted appellant of first-degree murder and with possession of a firearm with the intent to commit first-degree murder.

I. SUFFICIENCY OF THE EVIDENCE

Appellant asserts that the evidence is insufficient to support a conviction for murder in the first-degree. Specifically he argues that the prosecution failed to prove the elements of premeditation and deliberation beyond a reasonable doubt.

Appellant was tried and convicted by a jury. A guilty verdict from the jury, approved by the trial Judge, accredits the testimony of the state's witnesses and resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978).

When the sufficiency of the evidence is challenged the standard for review by an appellate court is whether, after considering the evidence in the light most favorable to the prosecution, 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, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). In determining its sufficiency, this court should not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d at 836. Nor may this court substitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (Tenn. 1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App.), cert. denied, (Tenn. 1978).

Appellant was convicted of first-degree murder on May 4, 1992 for a crime committed on May 19, 1991. According to Tennessee statute, first-degree murder is "an intentional, premeditated and deliberate killing of another." Tenn. Code Ann. § 39-13-202(1)(1994 Supp.). A deliberate act is one "performed with a cool purpose," and a premeditated act is one "done after the exercise of reflection and judgment." Tenn. Code Ann. § 39-13-201(b)(1)&(2)(1991 Repl.). The law in Tennessee has long recognized that once a homicide is established, it is presumed to be murder in the second-degree. State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992); Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, 867 (Tenn. 1966); Witt v. State, 46 Tenn. 5, 8 (1868). The two distinctive elements of first-degree murder are deliberation and premeditation. Without proof of these two elements, a conviction for first-degree murder cannot be upheld. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992); State v. Brown, 836 S.W.2d at 538; See Everett v. State, 528 S.W.2d 25 (Tenn. 1975).

Since the Supreme Court decisions in Brown and West, we have often been required to scrutinize the evidence and determine whether the prosecution has produced sufficient evidence to prove beyond a reasonable doubt the existence of both distinguishing elements. *fn7 State v. Joe Nathan Person, 1993 Tenn. Crim. App. LEXIS 675, *8, No. 02C01-9205-CC-00106, (Tenn. Crim. App., Jackson, Sept. 29, 1993), perm. to appeal denied, (Tenn. 1994); State v. David L. Hassell, 1992 Tenn. Crim. App. LEXIS 951, No. 02C01-9202-CR-00038, slip op. at 13 (Tenn. Crim. App., Jackson, Dec. 30, 1992).

In Brown, our Supreme Court recognized that Tennessee courts had often commingled the elements of premeditation and deliberation. State v. Brown, 836 S.W.2d at 537-541 (citations to other cases omitted). A failure to distinguish between the two elements destroys the statutory distinction between first- and second-degree murder. 836 S.W.2d at 541 (quoting 2 W.LaFave and A. Scott, Substantive Criminal Law § 7.7 (1986)).

Premeditation is the process of thinking about a proposed killing before engaging in the homicidal conduct. Deliberation is the process of weighing matters such as the wisdom of proceeding with the killing, the manner in which it will be accomplished, and the likely consequences if apprehended. State v. Brown, 836 S.W.2d at 540-41. Deliberation, by its very nature requires proof that the offense was committed "upon reflection, without passion or provocation, and otherwise free from the influence of excitement." State v. David Hassell, 1992 Tenn. Crim. App. LEXIS 951, *8. See also State v. Deborah Mae Furlough, 1993 Tenn. Crim. App. LEXIS 769, *11, No. 01C01-9109-CR-00261 (Tenn. Crim. App., Nashville, Nov. 18, 1993). The circumstances must suggest that the murderer reflected on the consequences of the act and that the thought process took place in a cool mental state. 1992 Tenn. Crim. App. LEXIS 951, *8. The deliberation and premeditation must be akin to the deliberation and premeditation shown for a murder performed by poisoning or lying in wait. State v. Brown, 836 S.W.2d at 539 (quoting Rader v. State, 73 Tenn. 610, 619-620 (1880)); Tenn. Code Ann. § 39-13-201(b)(2)(1991 Repl.). The cool purpose must be formed and the deliberate intention conceived in the absence of passion. Id.

LaFave's treatise on criminal law, which the Supreme Court quoted in Brown, provides insight into the nature of proof from which a jury may properly infer the elements of premeditation and deliberation:

Three categories of evidence are important for this purpose:

(1) facts about how and what the defendant did prior to the actual killing which show he [or she] was engaged in activity directed toward the killing, that is planned activity;

(2) facts about the defendant's prior relationship and conduct with the victim from which motive may be inferred; and

(3) facts about the nature of the killing from which it may be inferred that the manner of the killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design . . . .

2 W. LaFave and A.Scott, Substantive Criminal Law, § 7.7 (1986) (emphasis in the original). See State v. David Hassell, 1992 Tenn. Crim. App. LEXIS 951, *7.

In this case with no eyewitnesses and only shell casings to connect Wallen with the murder, the evidence of premeditation and deliberation is largely circumstantial. The record contains little information about appellant's activities just prior to the murder. We know that appellant and his girlfriend apparently had a disagreement while in Kentucky which prompted their departure. According to Wallen's statements and his father's testimony, which was partially rejected by the jury, Wallen arrived home before 10:30 p.m. and made several phone calls. *fn8 Later, he drove by, saw his girlfriend's car, and headed home. *fn9

The other evidence of Wallen's activities before the murder comes from Wallen's second statement. In that statement, he asserted that after he drove by his girlfriend's home, and turned around, Trooper Tripp began following him. When they arrived at the muffler shop, Wallen pulled in. The trooper got out of his car with this gun drawn. When he put his gun away and got back in his car, Wallen picked up his loaded rifle from the truck seat and "shot the rifle empty" intending to kill.

The record contains facts from which a reasonable juror could have found that Wallen had a motive for the murder. He was carrying the rifle because another police officer, Joe Wolfenbarger, was "stopping him a lot." He had told his girlfriend, months before, that one day he would have to kill Tripp or Tripp would kill him. Louise Arnold, the girlfriend's mother, testified that Wallen hated some police officers. Wallen admitted shooting up an empty Tazewell City police car about a month before the murder. *fn10 He further admitted that he had decided to shoot Tripp if Tripp pulled his gun. From these facts, a rational juror could readily conclude that appellant was hostile toward the police in general and that he was fearful of Tripp. However, proof that an accused had a motive to kill, without more, does not prove that the killing was premeditated and coolly executed. See, e.g., State v. Brooks, 880 S.W.2d 390 (Tenn. Crim. App. 1993), perm. to appeal denied, (Tenn. 1944)(turbulent relationship and argument just prior to killing insufficient to prove deliberation where jury instruction was inaccurate statement of the law).

The nature of this killing provides little from which a jury could conclude that the crime was committed according to a preconceived design and free from passion or provocation. Nothing indicates that Wallen sought an encounter with Tripp or that their meeting was anything but pure chance. Certainly, the manner of the killing suggests that Tripp did nothing to provoke the encounter. He was seated with his gun strapped in the holster. He was shot repeatedly at close range. While Wallen fired twelve or thirteen shots, repeated blows or shots, by themselves, are not enough to establish premeditation and deliberation. State v. Brown, 836 S.W.2d at 543. A vicious beating may well be evidence of rage or passion, and emptying one's rifle is as likely to be a sign of panic or loss of control as an indication of a cool, deliberate killing.

The record is equally sparse on the issue of Wallen's mental state either before or after the murder. He had an argument with his girlfriend. One could reasonably infer he was upset because she refused to speak to him on the telephone. In his confession, he told the police that he had "made up" his mind "if Tripp pulled a gun on me I was going to use my gun on him." It is impossible to tell from the context whether this decision was reached months earlier or seconds before the killing. *fn11

Since Brown, courts have examined the sufficiency of the state's proof in first-degree murder cases a number of times. In State v. Gentry, 881 S.W.2d 1 (Tenn. Crim. App. 1993), perm. to appeal denied, (Tenn. 1994), for example, defendant was locked in a bitter land dispute with TVA and held a grudge against that agency's employees. State v. Gentry, 881 S.W.2d at 2. He had stated several times he would kill any TVA employee who came on his property. When he saw a TVA vehicle enter his land, he returned to his house, armed himself, and waited for it to arrive. Several eyewitnesses testified to his calm demeanor as he waited by his barn for the man to approach. During their brief conversation, the victim was not offensive or threatening. When the defendant pointed his gun in the victim's face, the victim resisted, and the defendant fired several shots at point blank range. This court found that the evidence was sufficient to prove that defendant had a motive, had planned his actions, and had killed in accordance with a preconceived design. Id. at 5.

In State v. Brimmer, 876 S.W.2d 75 (Tenn. 1994), defendant handcuffed the victim to a tree and choked him to death with a wire. Evidence suggested that defendant came to Anderson County intending to rob and kill him. He was armed with a gun and knife. He later got a ride with his ultimate victim, pretended to be a police officer, "arrested" him, handcuffed him, drove him to another location, choked him, and stole his truck. The Supreme Court concluded that the evidence was sufficient to establish first-degree murder.

In State v. Tune, 872 S.W.2d 922 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1993), defendant entered the victim's garage carrying a shotgun. He pointed it toward the victim and wondered aloud whether it would fire. After saying he was not going to shoot the victim, he conversed with the victim. Moments later he declared that he would shoot and shot the victim. Witnesses detailed threats made by defendant against the victim two weeks earlier. Again, the court found sufficient evidence to sustain the first-degree murder conviction.

No similar evidence exists in this case. Granting the state the strongest legitimate view of the evidence, the record demonstrates that Wallen was hostile toward police and afraid of Tripp. On the evening of May 18, 1991, Wallen had a fight with his girlfriend and was upset and angry. That night at approximately 11:45 p.m., Wallen shot Tripp twelve or thirteen times with his .22 rifle while Tripp was parked in the Tazewell Muffler Shop lot. Wallen left the lot, went home, and put the rifle in the gun rack in his room. Like Gentry, Wallen carried a known grudge against a certain group. Unlike Gentry, the record contains nothing from which a jury could conclude that Wallen coolly and calmly decided to murder Tripp and then carried out that intent according to his preconceived plan ...


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