Court of Criminal Appeals of Tennessee, Nashville
Session November 19, 2013
Appeal from the Circuit Court for Knox County No. 92344 Mary Beth Leibowitz, Judge
Robert L. Jolley, Jr., and Jennifer L. Gower, Knoxville, Tennessee for appellant, Richard Cleophus Smith.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the appellee, State of Tennessee.
Jerry L. Smith, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and D. Kelly Thomas, Jr., JJ., joined.
JERRY L. SMITH, JUDGE
Early in the day of July 3, 2009, Desmond Cowan witnessed an argument between his brother, Michael Cowan, and Ron C., who was Appellant's cousin. Ron C. owned a maroon Cadillac at the time. Later that morning, someone shot at Michael Cowan in the Walter P. Taylor Homes housing project in Knoxville, Tennessee. Desmond Cowan retrieved his gun from his aunt's house after he heard that someone had shot at his brother. When he returned to the Walter P. Taylor Homes in the late afternoon, he went to the neighborhood market. As he left the market, someone began to shoot at him from a vehicle, so he shot back. He did not recognize the vehicle and could not identify the driver.
On the same day, Margaret Cowan heard that there had been a shooting involving her sons and became concerned. She began looking for them. As she walked in the neighborhood in the late afternoon she noticed a maroon Cadillac driving slowly. The driver of the vehicle sat up and began shooting from the car. The individuals outside began running. Ms. Cowan ran inside the neighborhood market.
James Johnson and his friend, Ronald Gilmore, were walking to the neighborhood market at the same time. Mr. Johnson also saw the maroon Cadillac and realized gunshots were coming from inside the car. He and Mr. Gilmore headed towards the market. Mr. Gilmore was shot before he could reach the market and later died from his injuries.
At 5:15 p.m., Officer Joseph Huckleby with the Knoxville Police Department received a dispatch call for a shooting at the neighborhood market in the Walter P. Taylor Homes. When he arrived at the scene, people in the crowd pointed toward a maroon Cadillac yelling, "There he is." Officer Huckleby activated his emergency lights and began to pursue the Cadillac. The Cadillac sped up and led Officer Huckleby on a high-speed chase. Shortly thereafter, the Cadillac struck a gold Lincoln Continental. The accident disabled both vehicles. Officer Huckleby exited his vehicle with his gun drawn, and Appellant exited his vehicle and ran toward some nearby woods. Officer Huckleby did not follow Appellant into the woods because he did not have his radio. When Officer Huckleby returned to Appellant's vehicle, he saw two handguns lying on the floorboard.
Officers Timothy Thornton and Preston Willock responded to a call for assistance from Officer Huckleby. They arrived at the scene of the crash and went to the woods to look for Appellant. A resident of the area told the officers that he had seen an African-American male run behind his house. The officers went behind the house and saw Appellant running away from them. They ordered him to stop, and he got down on the ground and put his hands behind his back. He asked why he was going to jail. They responded "You know, " and he responded, "They shot first." The officers arrested him.
The Knox County Grand Jury indicted Appellant for felony murder, first degree murder, attempted first degree murder, employing a firearm during the commission of a dangerous felony, evading arrest by motor vehicle, evading arrest, aggravated assault, reckless endangerment, leaving the scene of an accident involving injury, driving while privilege suspended, and failure to provide proof of financial responsibility. Appellant's jury trial began on May 9, 2012. The trial court amended Appellant's charge for driving while privilege suspended to driving without license in possession after the discovery that Appellant's license was not suspended. At the close of the State's proof, the trial court dismissed the charge for failure to provide proof of financial responsibility. At the conclusion of the jury trial, the jury found Appellant guilty of all charges except aggravated assault for which he was found guilty of the lesser included offense of reckless endangerment.
The trial court conducted a sentencing hearing. At the conclusion of the hearing, the trial court sentenced Appellant to a mandatory life sentence for felony murder, a twenty-year sentence for attempted first degree murder, and six years for employing a firearm during the commission of a dangerous felony. The trial court ordered the twenty-year sentence to be served consecutively to the six-year sentence and further ordered the life sentence to be served consecutively to the two other sentences. Appellant's effective sentence is life plus twenty-six years.
I. Sufficiency of the Evidence
Appellant's first issue on appeal is that the evidence was insufficient to support his convictions. The State disagrees.
When a defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and "approved by the trial judge, accredits the testimony of the" State's witnesses and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994) (citing State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992)). Thus, although the accused is originally cloaked with a presumption of innocence, the jury verdict of guilty removes this presumption "and replaces it with one of guilt." State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The relevant question the reviewing court must answer is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State "the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom." See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own "inferences for those drawn by the trier of fact from circumstantial evidence." Matthews, 805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the weight and value to be given to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). "The standard of review 'is the same whether the conviction is based upon direct or circumstantial evidence.'" State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
A. Death of Mr. Gilmore
Appellant argues that the evidence was insufficient to support his convictions of first degree murder and felony murder because the State presented no evidence connecting Appellant to the death of Mr. Gilmore. He argues that a bullet was not recovered from Mr. Gilmore's body to connect Appellant to his death and that the medical examiner could not determine the caliber of the bullet that killed Mr. Gilmore. In addition, Appellant summarily argues that "[b]ased on the description of the location of the shell casings" close to Mr. Gilmore's body "there is no evidence to prove beyond a reasonable doubt that [Appellant] fired the shot that killed Mr. Gilmore."
When the evidence is taken in a light most favorable to the State, the evidence showed that early on the day in question, Michael Cowan and Ron C. engaged in an argument. Appellant is Ron C.'s cousin. That afternoon, witnesses saw a man driving a maroon Cadillac identified as belonging to Ron C. in the Walter P. Taylor homes. Desmond Cowan, Michael Cowan's brother, was leaving the neighborhood market when someone began shooting at him from a car. Other witnesses identified the car as a maroon Cadillac and stated that the driver was not Ron C. As James Johnson and his friend, Ronald Gilmore, were walking toward the neighborhood market they saw and heard gunfire coming from a maroon Cadillac. The two men ran towards the market, but Mr. Gilmore did not make it to the market and was fatally wounded. When Officer Huckleby arrived, witnesses identified a maroon Cadillac as the car from which the shots came. The Cadillac came into view, and Office Huckleby proceeded to pursue the Cadillac, which fled from him. The maroon Cadillac hit a vehicle, and the driver of the Cadillac ran into the nearby woods. Other officers began to pursue the driver. Eventually, they saw the driver and ordered him to the ground. Appellant was the driver that they apprehended.
Appellant argues that there was no evidence to support his conviction. However, his argument appears to focus solely on direct evidence. As stated above, circumstantial evidence can support a conviction, and this court may not substitute our own "inferences for those drawn by the trier of fact from circumstantial evidence." Matthews, 805 S.W.2d at 779. Whether Appellant caused the death of Mr. Gilmore is a factual question to be resolved by the trier of fact. Dorantes, 331 S.W.3d at 379; Pruett, 788 S.W.2d at 561. We conclude that the evidence was sufficient to support Appellant's conviction for felony murder and first degree murder.
B. Intent to Kill Desmond Cowan
Appellant also argues that the State did not prove that Appellant intended to kill Desmond Cowan with premeditation, and therefore his convictions for felony murder, first degree murder, and attempted first degree murder must be reversed.
First degree murder is described as "[a] premeditated and intentional killing of another; . . . ." T.C.A. § 39-13-202(a). A defendant may be guilty of premeditated first degree murder even though the victim was an unintended victim, so long as the State proves the elements of intent, premeditation, and deliberation for the killing of an intended victim. See State v. Ely, 48 S.W.3d 710, 723-24 (Tenn. 2001); Millen v. State, 988 S.W.2d 164, 168 (Tenn. 1999). Tennessee Code Annotated section 39-13-202(d) provides that:
"[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.
An intentional act requires that the person have the desire to engage in the conduct or cause the result. T.C.A. § 39-11-106(a)(18). Whether the evidence was sufficient depends entirely on whether the State was able to establish beyond a reasonable doubt the element of premeditation. See State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). Whether premeditation is present is a question of fact for the jury, and it may be inferred from the circumstances surrounding the killing. State v. Young, 196 S.W.3d 85, 108 (Tenn. 2006); see also State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998).
Premeditation may be proved by circumstantial evidence. See, e.g., State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992). Our supreme court has identified a number of circumstances from which the jury may infer premeditation: (1) the use of a deadly weapon upon an unarmed victim; (2) the particular cruelty of the killing; (3) the defendant's threats or declarations of intent to kill; (4) the defendant's procurement of a weapon; (5) any preparations to conceal the crime undertaken before the crime is committed; (6) destruction or secretion of evidence of the killing; and (7) a defendant's calmness immediately after the killing. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); Pike, 978 S.W.2d at 914-15. This list, however, is not exhaustive and serves only to demonstrate that premeditation may be established by any evidence from which the jury may infer that the killing was done "after the exercise of reflection and judgment." T.C.A. § 39-13-202(d); see Pike, 978 S.W.2d at 914-15; Bland, 958 S.W.2d at 660.
One learned treatise states that premeditation may be inferred from events that occur before and at the time of the killing:
Three categories of evidence are important for [the] purpose [of inferring premeditation]: (1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning 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 killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.
2 Wayne R. LaFave, Substantive Criminal Law § 14.7(a) (2d ed. 2003).
As stated above, the presence of premeditation is a question of fact for the jury and may be proven by circumstantial evidence.
We conclude that the evidence presented was sufficient to support the jury's findings that premeditation existed. The evidence presented at trial showed that Appellant's cousin and Desmond Cowan's brother engaged in an altercation. Desmond Cowan heard that someone was shooting at his brother during the day in question. This information caused Desmond Cowan to get his gun to carry with him. Later that afternoon, Desmond Cowan was leaving the neighborhood market when a man in a maroon Cadillac, without apparent provocation, began shooting at him. Desmond Cowan shot back. Mrs. Cowan also testified that the man in the maroon Cadillac began to shoot first. Mr. Johnson also testified that the gunshots were coming from inside the maroon Cadillac. Other witnesses also testified to shots coming from the vehicle. After the shooting that resulted in the death of Mr. Gilmore, Appellant fled with Officer Huckleby in pursuit. When Appellant was involved in a car accident, he jumped out of the Cadillac and ran to the woods. From this evidence, we conclude that a reasonable jury could find premeditation.
Appellant argues that evidence showed that he acted in self-defense. Tennessee defines self-defense as follows:
(b)(1) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force.
(2) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended ...