FILED

March 31, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9606-CC-00278

)

Appellee, )

) CHEATHAM COUNTY

V. ) 

) 

) HON. LEONARD W. MARTIN, JUDGE

RICHARD BURT McKEE, ) 

)

Appellant. ) (FIRST DEGREE MURDER) 

FOR THE APPELLANT: FOR THE APPELLEE:

GREGORY D. SMITH JOHN KNOX WALKUP 

One Public Square, Suite 321 Attorney General & Reporter

Clarksville, TN 37040 

KAREN M. YACUZZO

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

DAN M. ALSOBROOKS

District Attorney General 

JAMES WALLACE KIRBY

Assistant District Attorney General

105 Sycamore Street 

Ashland City, TN 37015

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Richard Burt McKee, appeals as of right from his conviction

following a jury trial in the Cheatham County Circuit Court. Defendant was convicted

of first degree murder and was sentenced to life imprisonment without parole. The

Defendant presents the following issues on appeal:

1) whether there was sufficient evidence to sustain a verdict of guilt

beyond a reasonable doubt of first degree m urder;

2) whether the venue of the murder was adequately established by

professional or expert testimony in Cheatham County; and

3) whether a sentence of life without parole is excessive.

We affirm the judgment of the trial court.

SUFFICIENCY OF THE EVIDENCE

Defendant argues that the record is insufficient to establish the elements of

premeditation and deliberation for a conviction of first degree murder. He contends

that the shooting was a matter of mutual combat, voluntary manslaughter or

criminally negligent homicide. 

When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing 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, 319 (1979).

On appeal, the State is entitled to the strongest legitimate view of the evidence and

all inferences therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Because a verdict of guilt removes the presumption of innocence and replaces it with
-3-

a presumption of guilt, the accused has the burden in this court of illustrating why the

evidence is insufficient to support the verdict returned by the trier of fact. State v.

Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973). 

Questions concerning the credibility of the 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, and not this court. State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict

approved by the trial judge accredits the State’s witnesses and resolves all conflicts

in favor of the State. Grace, 493 S.W.2d at 476.

The State presented several witnesses in its case-in-chief. Susie Ferguson

testified that she had been a friend of the victim, Terry Neblett, all of her life, and that

she has known the Defendant since she was in the seventh grade. She stated that

Defendant dated Kenya Fuqua for some period of time. After Fuqua and Defendant

separated, the victim and Fuqua began to date. On several occasions following the

beginning of the victim and Fuqua’s relationship, she witnessed the Defendant

threaten to kill the victim. The first incident was in October 1993. The Defendant

came to Ferguson’s home looking for the victim and stated that “He [victim] took his

woman away from him . . and he [Defendant] wasn’t going to take it . . . he might kill

them both.” Ferguson recalled at least three (3) other occasions that Defendant

threatened the victim. On one of those later occasions , Defendant stated that he

had been “locked up” before, and that it wasn’t any big thing as he had done time

before. He further stated that he was looking for the victim and “was going to catch
-4-

up to him some day.” The final occasion Defendant spoke of the victim in

Ferguson’s presence was at Ferguson’s wedding. The Defendant arrived early for

the wedding, but explained that he could not stay because he knew the victim and

Fuqua would be there and to avoid trouble, he was just going to leave.

Jimmy L. Murphy lived approximately three (3) to five (5) miles from Pinnacle

Point, the area of the shooting. He had been acquainted with the victim for

approximately five (5) years and had known the Defendant for approximately eight

(8) years. On June 12, 1994, the Defendant came by Murphy’s home. Sherry

Neblett, the victim’s ex-wife, was there with Murphy and some friends. They were

grilling out when Defendant arrived, and Murphy could see that the Defendant was

frustrated when he pulled up in his car. Murphy went out to the car to talk to the

Defendant, and Defendant described a confrontation he had with the victim earlier

that morning. Defendant asked Murphy to go with him to confront the victim, but

Murphy refused. When Murphy asked the Defendant if he had a gun with him, the

Defendant responded that he did not and did not need a gun. At that time, Sherry

Neblett came out of Murphy’s house and agreed to go with the Defendant. Because

Sherry was afraid of the victim, she said she would not go without a gun and went

back inside to get her gun. When she returned with a .38 caliber pistol, she left with

the Defendant.

Approximately forty-five (45) minutes after they left, Sherry and the Defendant

returned with Sherry driving the Defendant’s car. Both appeared to be upset.

Defendant stated that he shot the victim but did not think that he had killed him.

Murphy called 911 to notify emergency personnel about the shooting.
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Officer Floyd Duncan, investigator with the Cheatham County Sheriff’s

Department, worked at the crime scene at Pinnacle Point. Pinnacle Point is a

location where the three counties of Cheatham, Montgomery and Dickson converge.

Duncan stated that he was familiar with the county lines and drew a map of the crime

scene. There is a creek there, and the south bank of that creek is in Cheatham

County and the north bank is in Montgomery County. Duncan determined that the

murder occurred in Cheatham County by going to the tax assessor’s office and

looking at the line down the center of the creek. 

While Defendant had already left the scene of the crime when Duncan arrived,

Duncan determined from various witnesses that there was only one gunshot and that

the Defendant had left the scene with the weapon. Duncan stated that the weapon

has still not been recovered. The bullet found in the victim was consistent with that

from a .38 caliber pistol. Several hours later, the Defendant was taken into custody

in Montgom ery County and then transported to Cheatham County.

Shelby Jean Sevilles, the owner of Jean’s Cash and Carry, has known the

Defendant for thirty-six (36) years. Sevilles’ store is located two (2) and one-half

miles from Pinnacle Point. On June 12, 1994, the Defendant came by Sevilles’ store

and asked to use her telephone. When Sevilles asked the Defendant if it was a long

distance call, he said that it was and she responded that he could call collect.

Defendant agreed and gave her the telephone number. Sevilles made an error while

dialing the number, so she started to dial again. The Defendant said “Just forget it,

I have got to go,” and left the store. Sevilles testified that the Defendant was calm.

Several minutes later, another boy came in and told Sevilles that there had been a

shooting down at the creek and to call 911. 
-6-

Faith Karen Stoneman went swimming at Pinnacle Point with her boyfriend,

Doyle Miles, and friends Becky Swaw, Sam Taylor and Matt Miles on June 12, 1994.

It was close to 5:00 p.m. when they arrived. They parked their cars on the

Montgom ery County side of the bridge and went under the bridge and down the

embankment to get into the water. She was swimming when she heard a loud

hissing sound. Just after she heard the hissing she heard her boyfriend screaming

to get out of the water, that someone was slashing tires and had a gun. She was

swimming with Swaw, and they turned around and looked at the Cheatham County

side of the bridge. One man rushed towards another man and they started

struggling. One had a gun in his hand, but Stoneman could not see his face. She

remembered someone screaming, “I’m going to get you. I’m going to get you,” and

that it was not the victim who screamed these words. Stoneman and Swaw went up

the embankment to leave, but Stonem an turned back to try to see the man who was

holding the gun. The men continued to struggle. Stoneman’s boyfriend then came

down and drug her back up the bank. They heard someone scream “[t]he kids, the

kids. Not in front of the kids.” Stoneman heard the shot, and she immediately began

to try to get several children in the area out of the way. Stoneman and her friends

then went to a nearby house to call the police.

Doyle Miles, Stonem an’s boyfriend, testified that he was standing near the

bridge when a man in a black T-bird drove up from the Montgomery County side.

The man had a gun hanging out the window, and there was a passenger in the car,

but Miles could not tell if it was a man or woman. The man jumped out and used a

knife to cut the tires on a parked car. Then, the man jumped back in his car and

drove across the bridge, still holding the gun. Miles saw the man park his car and

run down the bank with the gun in his hand. He identified the Defendant at trial as
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the man holding the gun. He and the victim began fighting, but Miles believed that

the victim was only trying to get the gun out of the Defendant’s hand. Miles heard

a shot, and he and his friends left to call 911. When they returned, the victim was

lying there and had been shot just below the waistline. 

Becky Swaw Taylor, formerly Becky Swaw, testified that she was also at

Pinnacle Point on June 12, 1994. She and her friends parked on the Montgomery

County side and then went to swim. Swaw was swimming with Faith Stoneman

when they heard a hissing sound. Immediately, their friends began screaming that

someone was slashing tires. Swaw saw a man come down from the bridge with a

gun and go towards the victim. The man and the victim began fighting, and Swaw

turned to leave. She heard a shot, and turned around to see that the two men had

fallen to the ground. 

Samuel Taylor, Becky Swaw Taylor’s husband, was also swimming at

Pinnacle Point. He made similar observations, but also saw the Defendant walk

back to his car after the shooting. Taylor identified this man as the Defendant at

trial.

Julie Neblett was the sister-in-law of the victim. She went to Pinnacle Point

on June 12, 1994 with her husband and two children. When they arrived, the victim,

Kenya Fuqua and Fuqua’s two children were already there swimming. After Neblett

and her family got there, they all went swimming on the Cheatham County side. She

and Fuqua were sitting with their feet in the water when they heard what sounded

like breaking glass. Neblett thought that someone had wrecked their car. When she

heard the sound again, Neblett began to run up the bank to get her sons out of the
-8-

way. Neblett heard a car speed up and then slam on the brakes. When she looked

up, the Defendant was standing there with a gun in his hand. Fuqua was standing

directly behind Neblett, with the victim standing down by a tree near the water. 

Neblett’s son was in her arms, so she dropped him to the ground and tried to

push him down the bank. She also pushed Fuqua down the hill and told her to run,

then screamed for her kids to get out of the water. The next thing Neblett saw was

the Defendant and the victim twisting around in circles, both trying to get possession

of the gun. She was screaming for them to stop and trying to get the kids out of the

way when she heard a pop. When Neblett turned, the victim fell to the ground. The

Defendant stepped back and then pointed the gun at the victim. He mumbled

something and then told Neblett that “[she] better save him.” The Defendant

returned up the bank with the gun in his hand. Neblett followed to check on her

children. The driver’s side door to the Defendant’s car was open, and Sherry Neblett

was inside. The Defendant did not say anything, but got into the passenger’s seat.

Sherry Neblett and Defendant drove off towards Cheatham County. Neblett further

stated that the car in which the victim, Fuqua and their children arrived at Pinnacle

Point was the car which had the slashed tires.

Julie Neblett went home to stay with the children, including Kenya Fuqua’s.

Between a half hour to an hour after the shooting, she received two telephone calls

from the Defendant. During the first phone call, the Defendant stated that, “[W ]e all

deserved what happened at the creek.” In the second call, Defendant threatened

“that Fran [Kenya Fuqua’s mother] was going to get it because she allowed Kenya’s

children to be with Kenya and [the victim] that day . . . and that they were crackheads and she knew it.” During this second conversation, the Defendant, who had
-9-

call-waiting, received another call and clicked to the second call. When he clicked

back to speak with Neblett, he said “Well, he’s dead, and I’m out of here.” 

Larry Bryant, the Director of 911 for Montgomery County, testified that on June

12, 1994, Clinton Davis called at 5:09 p.m. to report the shooting at Pinnacle Point.

Bryant stated that two (2) other calls were also made to 911 regarding the shooting,

one from Julie Neblett at 6:30 p.m. and another from Kenya Fuqua at 7:58 p.m. He

did not receive any other calls regarding the incident.

Larry Bruce, Director of Dickson Central Communication, supervises all

communications including 911. On June 12, 1994, Jean Sevilles called 911 at 5:30

p.m. from Jean’s Cash and Carry. Steve Smith, the Cheatham County 911 Director,

stated that there was no record of any calls regarding Pinnacle Point on June 12,

1994.

Barney Reed, the paramedic supervisor for Montgomery County, responded

to an ambulance call at Pinnacle Point. The call came at 5:14 p.m. When Reed

arrived, CPR on the victim was already in progress, and they continued CPR

although the victim had no vital signs. The victim was transported to Clarksville

Memorial Hospital where he was later pronounced dead. There appeared to have

been three (3) bullet wounds under the right side of the victim’s abdomen.

Charles Harlan, M.D., the consulting forensic pathologist for Cheatham

County, performed the autopsy of the victim on June 12, 1994. The victim died as

a result of a near gunshot wound in the right lower quadrant of his abdomen. A

“near gunshot wound” is one in which the m uzzle of the gun is between zero (0) to
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twenty-four (24) inches from the victim’s skin. There was powder in the wound, with

stippling of nine (9) inches in diameter. Stippling indicates the distance from the end

of the muzzle to the skin surface, and Dr. Harlan estimated that the muzzle of this

particular gun was probably between nine (9) to twelve (12) inches from the victim ’s

skin. While the gunshot wound was from a single bullet, there were three separate

wounds on the victim’s abdomen, one from the entry of the bullet, one from the exit,

and one from the reentry of the bullet. The three (3) wounds were all in the fleshy,

soft tissue of the abdomen, possibly occurring due to the pinched position of the

victim’s body as he was shot. The victim’s right common iliac artery and vein were

injured, causing internal bleeding. As a result, the victim likely died within a period

of fifteen (15) to twenty (20) minutes. 

Clifton Smith, deputy for the Montgomery County Sheriff’s Department,

testified that he responded to the call on June 12, 1994 for assistance in a death

investigation at Pinnacle Point in Cheatham County. During his investigation,

Deputy Smith first came into contact with the Defendant at the Montgom ery County

jail around 9:00 p.m. Defendant and Deputy Smith knew each other prior to this

meeting. Lieutenant Hastings and Sergeant Pat Haynes were also present, and

Hastings read to Defendant his constitutional rights. Defendant asked to speak with

Smith alone as he did not trust the Cheatham County authorities.

After the other officers left the room, Defendant stated that he was having

problems with the victim, that the victim had stolen his wife, kids, money, and farm

and that he was out to get the victim. Defendant stated that this came to a head at

the Pinnacle Point Bridge, that it “was all he could take.” Smith asked if he could

take notes, and Defendant agreed. The Defendant’s statement is as follows:
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I walked down the creek bank. Come on. I got something for you. I

got him down fighting. He had the gun. I hit him with fist. (Right hand).

Then he came out with the gun and placed it underneath my chin. I

grabbed his hand and pushed the gun towards his stomach area. Then

the gun went off (one). We were fighting underneath the bridge.

The State then rested its case-in-chief.

Jesse Donald Herrell testified for the defense. On June 12, 1994, Herrell was

with Sherry Neblett at Jimmy and Rita Murphy’s home having a cookout. Herrell

and Sherry Neblett were seeing each other. The Defendant stopped by, but did not

get out of the car. He hollered out and asked Neblett to ride down to the creek with

him. Neblett agreed, but before they left she went back into the trailer. When she

came out she had a gun in her hand. While Herrell did not know if the Defendant

saw the gun or not, Sherry was not trying to hide the gun on her way out of the

trailer. Neblett stuck the gun in her purse. When Herrell asked her what she was

going to do the gun, she stated that she was not going to go without it because she

was afraid of the victim. When Defendant and Sherry returned, Sherry was upset,

nervous and crying. The Defendant stayed approximately thirty (30) minutes, then

left.

Lynette McKee Arthur, the Defendant’s sister, had known the victim for fifteen

(15) to twenty (20) years. In August 1993, the victim lived with the Defendant and

Kenya Fuqua. Shortly after the victim moved out, the Defendant and Fuqua broke

up and the victim and Fuqua began to date. While Arthur knew that she had not

seen the victim and the Defendant together since the victim moved out, she knew

they later patched up their relationship and were on cordial terms. Arthur testified

that she saw the victim and the Defendant together at parties and at businesses, and

she never heard the Defendant threaten the victim. On the day of the killing, Arthur
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went to her sister’s trailer to get the Defendant and take him to the Montgomery

County jail. When she got to her sister’s, the Defendant was trembling, nervous,

muddy and unable to speak clearly. The Defendant volunteered to go to jail. 

Alexis Worthing, Wanda Wallace and Herrell all testified that the Defendant

had overcome his hard feelings toward the victim. They saw the Defendant and the

victim around each other, and they seemed to be cordial. They never saw or heard

the Defendant threaten the victim. 

Billy Hodges was with the Defendant on June 12, 1994. He testified that prior

to that occasion he had seen the victim and the Defendant go to the store together,

return, shake hands and hug. On the day of the shooting, Hodges and Defendant

were drinking a twelve (12) pack of beer, and the Defendant was discussing the

victim and Fuqua. Defendant stated that he hoped that the victim “did not end up

getting them kids on crack rock.” Hodges stated that crack rock referred to cocaine.

The Defendant later left Hodges at Tatum Bridge, but he did not have a gun at that

time.

In order to convict the Defendant of first degree murder, there must have been

an intentional, premeditated and deliberate killing of another. Tenn. Code Ann. § 39-

13-202(a)(1991 Repl.). At the time of this offense, a deliberate act was an act

performed with cool purpose, and premeditation occurred when an act was done

after the exercise of reflection and judgment. Tenn. Code Ann. § 39-13-201(b)(1)

and (2)(1991 Repl.); State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). Both the

elements of premeditation and deliberation are questions for the jury and may be

inferred from the manner and circumstances of the killing. State v. Gentry, 881
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S.W.2d 1, 3 (Tenn. Crim. App. 1993). The State is entitled to prove the offense by

circumstantial evidence alone. State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992).

In the light most favorable to the State, there was sufficient evidence whereby

a reasonable trier of fact could have found the Defendant guilty of first degree

murder beyond a reasonable doubt. Beginning in 1993, the Defendant made

numerous threats to the victim because he believed that the victim “stole his

woman.” Even in early 1994, the Defendant continued to threaten the victim

according to one witness. Declarations by the defendant of his intent to kill and the

defendant’s prior relationship with the victim are both circumstances which are

indicative to the jury of the elements of premeditation and deliberation. Brown, 836

S.W.2d at 541-42; State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995).

On the day of the murder, the Defendant and the victim had a confrontation.

Defendant expressed his anger to his friend, Billy Hodges, while they were drinking

beer. Later that day, the Defendant drove to the Murphy’s home and again told of

his plan to confront the victim. He took Sherry Neblett, a co-defendant, with him to

Pinnacle Point. Before Neblett would get in the car with Defendant, she retrieved a

.38 caliber pistol. Witnesses described Defendant as driving over the bridge to the

scene at Pinnacle Point holding a gun and hanging it out the window. Upon arriving

at the scene, Defendant jumped out of his car and used a knife to slash the victim’s

tires. Defendant completely disabled the victim’s vehicle, and the jury was entitled

to infer that this slashing of the tires was performed so that the victim could not

escape the scene. Planning activity prior to the killing of the victim is a circumstance

the jury may use to infer the elements of premeditation and deliberation. Bordis, 905
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S.W.2d at 222. After slashing the tires, Defendant drove over the bridge and ran,

brandishing a gun, towards the victim screaming, “I’m going to get you. I’m going

to get you.” The victim was unarmed and had been swimming. The use of a deadly

weapon upon an unarmed victim is such that the jury was entitled to infer both

premeditation and deliberation. Brown, 836 S.W .2d at 541. 

The victim struggled with the Defendant, but was unable to protect himself and

was shot in the stomach by the Defendant. While the Defendant alleged in his

statement to police that the victim pulled out a gun after Defendant approached him,

the jury chose to accept the testimony of numerous other witnesses. We may not

reevaluate this evidence. Cabbage, 571 S.W .2d at 835. 

Motive is not an element of first degree murder, but, if proven, it reflects upon

the elements of first degree murder. Obviously, the Defendant resented the victim ’s

relationship with Kenya Fuqua. Following the shooting, the Defendant called the

sister-in-law of the victim and proceeded to tell her that “her family deserved what

happened.” He then called a second time to threaten Kenya Fuqua’s mother for

allowing Fuqua’s children to be around the victim. Furthermore, in his own

statement, the Defendant admitted that he was “out to get the victim” because the

victim had “stole his wife, kids, money and farm.” 

Finally, following the murder, the Defendant calmly walked away from the

scene with the weapon. He stopped at a local market, Jean’s Cash and Carry, and

asked to use the phone. The Defendant did not call 911 and did not mention the

shooting to the owner of the store. The store’s owner testified that the Defendant
-15-

appeared very calm. Calmness immediately after a killing may be evidence of a

cool, dispassionate, and premeditated murder. West, 844 S.W .2d at 148. 

As Defendant deliberately and with premeditation went to Pinnacle Point to

confront the victim, and intentionally approached the victim with a loaded gun

screaming, “I’m going to get you. I’m going to get you,” the jury could have found

beyond a reasonable doubt that the Defendant was guilty of first degree murder.

This issue is without merit.

VENUE

The Defendant argues that the State did not adequately establish that the

murder occurred in Cheatham County, and therefore, that the matter should be

remanded for a new trial. Under Tennessee Code Annotated section 39-11-201(e),

the State must prove venue “by a preponderance of the evidence.” As the

Defendant concedes, the State can meet its burden of proof by only presenting slight

evidence, so long as it is based upon more than mere speculation. See State v.

Bloodsaw, 746 S.W .2d 722, 724-25 (Tenn. Crim. App. 1987). Venue may be shown

by a preponderance of the evidence which may be either direct or circumstantial or

both. Hopper v. State, 205 Tenn. 246, 326 S.W.2d 448, 451 (1959) (citations

omitted). 
-16-

Pinnacle Point, as described by various witnesses, is the convergence of three

(3) counties and two (2) creeks. The Defendant concedes that the crime occurred

in either Montgomery or Cheatham County. Under the Tennessee Rules of Criminal

Procedure, “[o]ffenses committed on the boundary of two (2) or more counties may

be prosecuted in either county.” Tenn. R. Crim. P. 18(c). Therefore, even if the

State only presented evidence that the murder occurred at the converging point of

the two (2) counties, then the evidence would still be sufficient to establish the

proper venue in Cheatham County.

Based upon the testimony of many individuals,including police officers familiar

with the county lines and individuals from within the community, the murder occurred

in Cheatham County. While the officers did not witness the shooting, all the

eyewitness testimony and evidence inferred that the crime occurred on the south

side of the bridge, which is the Cheatham County side. As the Defendant points out

in his brief, an officer’s rational belief that a crime occurred within a given county can

meet the burden of proof to show proper venue. See State v. Chadwick, 750 S.W.2d

161, 165 (Tenn. Crim. App. 1987). In the light most favorable to the State, the jury

was entitled to infer that the Defendant committed the crime in Cheatham County.

The Defendant failed to present any conflicting evidence, and this issue is without

merit.

SENTENCE

Defendant challenges the sentence of life without parole as being excessive

under the facts of this case. Defendant specifically contends that the mitigating
-17-

factors outweigh the aggravating factors in the circumstances of this case.

Defendant argues that a sentence of life imprisonment is appropriate.

In considering the appropriateness of Defendant’s sentence, this court shall

first consider any errors assigned. Tenn. Code Ann. § 39-13-207(g). Life

imprisonment without the possibility of parole is an appropriate sentence “if the state

proved beyond a reasonable doubt at least one (1) statutory aggravating

circumstance contained in [Tenn. Code Ann.] § 39-13-204(i), and the sentence was

not otherwise imposed arbitrarily, so as to constitute a gross abuse of the jury’s

discretion.” Id. Upon review, we affirm the sentence of life imprisonment without the

possibility of parole.

At the sentencing hearing, the State relied upon the evidence at trial and two

previous convictions of the Defendant. The parties stipulated to Defendant’s 1979

California conviction of robbery with the use of a deadly weapon and a 1983

Tennessee conviction of voluntary manslaughter. The jury was instructed that both

crimes involved the use of violence to the person. The Defendant presented

numerous witnesses, all of whom testified as to the Defendant’s character within the

comm unity regarding his acts of goodwill and kindness to children in particular. 

In this case, the jury imposed the sentence of life imprisonment without the

possibility of parole following the sentencing hearing. The jury found that the

following aggravating factors applied: (1) defendant was previously convicted of one

(1) or more felonies, other than the present charge, whose statutory elements

involve the use of violence to the person; and (2) defendant knowingly created a

great risk of death to two (2) or more persons, other than the victim murdered, during
-18-

the act of murder. Tenn. Code Ann. § 39-13-204(i)(2) and (3). We agree with the

jury’s findings as to the application of the above aggravating factors. First, the

Defendant’s criminal record was stipulated to include two (2) prior felonies which

involved violence to the person. Second, the Defendant knowingly carried a loaded

.38 caliber pistol to a crowded swimming area, with both children and adults in

nearby vicinity to the victim. Defendant admitted that he went there to confront the

victim, and his use of a weapon within such close proximity to those nearby was a

knowing risk on his part that someone other than the Defendant might have been

injured or killed. 

The Defendant argues that the mitigating factors outweigh the aggravating

factors in this case. The Defendant asked the jury to consider the testimony of these

witnesses and apply any mitigating factors under Tennessee Code Annotated

section 39-13-204(j) which relate to that testimony. The mitigating factors are as

follows:

1) The defendant has no significant history of prior criminal activity;

2) The murder was committed while the defendant was under the

influence of extreme mental or emotional disturbance;

3) The victim was a participant in the defendant’s conduct or consented

to the act;

4) The murder was committed under circum stances which the

defendant reasonably believed to provide a moral justification for the

defendant’s conduct;

5) The defendant was an accomplice in the murder committed by

another person and the defendant’s participation was relatively minor.

6) The defendant acted under extreme duress or under the substantial

domination of another person;

7) The youth or advanced age of the defendant at the time of the crime;

8) The capacity of the defendant to appreciate the wrongfulness of the

defendant’s conduct or to conform the defendant’s conduct to the

requirem ents of the law was substantially impaired as a result of mental

disease or defect or intoxication which was insufficient to establish a

defense to the crime but which substantially affected the defendant’s

judgment; and
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9) Any other mitigating factor which is raised by the evidence produced

by either the prosecution or defense at either the guilt or sentencing

hearing.

The only evidence presented by the Defendant was regarding his reputation

in the comm unity for perform ing acts of kindness. While this is appropriate as

evidence for mitigating factor nine (9), no other factors are applicable in this case.

Based upon his prior convictions, Defendant did have a history of prior criminal

activity. The murder was not committed while the Defendant was under extreme

mental or emotional duress. While it was suggested that Defendant was upset over

losing his girlfriend to the victim, the only witnesses who were with the victim that day

did not testify as to any extreme duress the Defendant was experiencing. As

witnesses described the victim acting in self-defense, the victim was not a participant

in the Defendant’s conduct. 

While there was some testimony as to the nature of the victim ’s relationship

with Kenya Fuqua’s children, the Defendant, in his own statement, did not tell the

police that he believed he was morally justified in killing the victim for any reason.

Instead, the Defendant stated that, “the victim had stole his wife, kids, money, and

farm and that he was out to get the victim.” There were no accomplices to the

murder, and the Defendant was not acting under extreme duress as heretofore

stated. The Defendant’s age was not a factor in the crime. Finally, there was not

sufficient evidence to suggest that the Defendant could not appreciate the

wrongfulness of his conduct or conform his conduct to the law. While there was

testimony that the Defendant had been drinking that day, the witnesses who were

with the Defendant just prior to the murder testified that Defendant did not appear

to be under the influence, only that he had a few beers. 
-20-

When reviewing the aggravating and mitigating circumstances, if the

aggravating circumstances are found to have been proven beyond a reasonable

doubt, then the jury may sentence the defendant to either life imprisonment or life

without parole, in its discretion. Tenn. Code Ann. § 39-13-207(c). As the jury found

that both aggravating circumstances were present as argued by the State, it was

within the jury’s discretion to determine if a sentence of life imprisonment without

parole was appropriate, notwithstanding the existence of mitigating factors. Only a

gross abuse of discretion would result in our finding an error. Id. at (g). Based upon

the evidence and Tennessee Code Annotated section 39-13-207, we find that the

sentence was appropriate and the jury did not abuse its discretion. This issue is

without merit.

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THOMAS T. W OODALL, Judge 

CONCUR:

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DAVID H. WELLES, Judge

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JERRY L. SMITH, Judge