# FILED

February 3, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON APRIL 1998 SESSION

STATE OF TENNESSEE, ) No. 02C01-9708-CR-00303 ) Appellee ) ) SHELBY COU NTY V. ) ) HON. JAMES C. BEAS LEY, ADAM D. BLACK, ) JUDGE ) Appellant. ) (Attempted First Degree Murder) ) ) For the Appellant: For the Appellee: A.C. Wharton John Knox Walkup District Public Defender Attorney General and Repor ter Michael J. Johnson Elizabeth T. Ryan Assistant Public Defender Assistant Attorney Gener al 201 Poplar Street, Suite 201 425 Fifth Avenue North Memphis, TN 38103 Nashville, TN 37243-0493 (At trial) Tony N. Brayton William L. Gibbons Assistant Public Defender District Attorney General (On appeal) Karen Cook Assistant District A

ttorney 201 Poplar Street, Suite 301 Memphis, TN 38103

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Specia l Judge1 Thr ee eye witne sse s, Ch arles Taylo r, Cla y Mab on, a nd C oda Kuyk end oll, as well as the vic tim, testif ied on behal f of the State.

2 The te stimon y is unclear a s to whe ther app ellant was wearing the coat o r mer ely carrying it. 2 OPINION The appellant, Adam D. Black, appeal s as of right from his conv iction in the Shelby County Crimi nal Court of attempted first degr ee murder. Appellant was sentenced to serve 40 yea rs in the Department of Correction as a Range II offender. On appeal, appellant argues that the evidence is insuff icient to support his

co nv ic ti on an d t ha

t t he tr ia l c ou rt er re d i n a dm it

ti ngce rtai n h ea rs ay

stat em en ts . We have determined that appellant’ s arguments are without merit and affirm the judgment of the trial court. About 5:00 p.m.on May 27, 1 996, Terence L ee, the twenty-five-

year-old victim, was playing b asketba ll on the s treet ne ar his hom e in Memph is. There were twelve young men present, who h ad been playing four-on-four games for about three hours. During that time, sev

eral of the young men 1 noticed a gray, two-do or, T-top Buick drive by the game. There were three men inside the car. The car drove by twice and each time the occupants were g esturing and loud music w as emanating from the vehicle

. On the third pass-by, th e car stopped and the occupants ex ited the vehicle. A man, who was later identified as appellant, got out of the bac kseat of the car. The passenger stood on the curb an d the driver stood in th e middle of the street. Appellant ha

d a heavy c

oat despite the fact that th e weather w as warm. 2 He began walking around the area where the men wer e playing basketball and remarked that he was

“going to

see his folk

s.” Instead , however, he approach ed the victim, pulled a gun from under the coat, a nd put the gun to the victi m’s head. Appellant said, “You going to die toda

y.” The victim pushed the gun away and told ap pellant to “squash it.” Appellant turned to walk away and the victim began to walk toward his house. Suddenly, appellant began firing the weapon at the v ictim from behind.3

Between eight and twel ve shots were fired, four of which struck the v

ictim. Two of the bullets struck the vi ctim in each hip. The vic tim turned toward appellant when he heard the shots and one shot struc k him in the arm and entered the s ide of his chest. As the victim turned again to run, a fourth shot struck him in the lower back and he fell to the ground. Appellant ran back to the car shouting, “It’s not over with.” The victim underwent surgery and was hospitalized for twelve days as a result of his injuries. Because the bullet from the last shot lodg ed near the victim’s spi ne, he is paralyzed from the w aist down and is confined to a wheelchair. The vi ctim testified that he knew appellant before the shooting, but had not had a prev ious altercation with him. He stated that he had no idea w hy appellant shot him and testified that he was not armed that day. On cross -examination, the vic

tim stated that he had an altercation with an associate of appellant named Yaseem about a year before this incident. However, he testified that he and Yaseem had laughed and joked since that time. Appella nt did no t testify and off

ered no p roof at t rial. The jury convic ted him o

f attempted first degree murder. At a later sentencing hear ing, the trial court found eight enhancement factors and one miti gating factor. The appellant was sentenced to serve the maximum term of 40 y ears as a Range II offender for the C lass A felony. SeeTenn. Code Ann. §40-35-112(b)(1) (1990). Appellant first challenges the sufficiency of the evidence supporting his conviction. He arg ues that the proof of premeditation w as inadequate because the State failed to demonstrate any planning activity prior to the shooting, nor did it suggest any motiv

e for the killing. See State v. Gentry , 881 S.W.2d 1, 4-5 (Tenn. Crim. App. 1993). We conclude th at the evidence is more than sufficient to support the conviction. This Court will not disturb a verdict of guilt for lack of sufficient evidence unless the facts contained in the recor d and any inferences whic h may be drawn from the facts are insufficient, as a matter o f law, for a rational tri er of fact to find the defendant3 The State was not r equired to

prove deli beration,since it was deleted as an element of fi rst degree murd er by the Le gislature in 1 995. Comp are Tenn. Code Ann. §39-13-2 02(a)(1) ( Supp. 1995) with Tenn . Code A nn. §39- 13-202 (a)(1) (S upp. 199 4). 4 guilty beyond a rea

sonable doubt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In our review , we must consider the ev idence in the light most fav orable to the prosecution in determining whether “any rati onal trier of fact could have found the essential elements of the offen se beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L .Ed.2d 560 (1979). In order to prove cri minal attempt, the prosecution must demonstrate that the accused acted with the “k ind of culpability otherw ise required for the offense.” Tenn. Code Ann. §39-12-101(a) (1991) . While intent was a necessary el ement, premeditation was the cru cial element the State was required to prove to obtain a conviction for attempted first degree murder. 3 See Tenn. Code Ann. §39-13-202(a)(1) (Supp. 1996). Premeditation i s an act done after the exerci se of reflection and judgment and requires that the intent to kill must have been forme d prior to the act itself. Tenn. Code Ann. §39-13-202( d) (Supp. 1996). Whether a homicide was premeditated is a factual determination for the jury and may be inferred from the manner and circumstances of the ki lling. State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). The undisputed proof in this case was that appellant dro ve by the area where the victim was play

ing basketball three ti mes before he exited the vehic le. Contrary to appellant’s assertion, the jury could have reas onably inferred that appellant was surveying the sc

ene and planning the assault dur ing these drive-by

s. He arrived at the scene armed with a conce aled gun that was approx imately a foot and a half long and approached the unarmed victi m. When a ppellant appr oached the victim , he declared his intent to kill by sayin g, ”You going to die toda

y.” He then fired numerous shots at the victim as he tried to4 Three eyewit nesses to the shooting test ified that between eight and t en shots were fi red. The first police of

ficer on t he scene testi fied that he observed approxi mately twel ve spent shel l casings at the scene. Alt hough the number of rounds f ired by the appell ant does not by itsel f establi sh premeditati on, that eviden ce was relevant fo r the jury’s co nsidera tion in conju nction with o ther proo f. Brown , 836 S.W .2d at 543

. 5 flee. 4 Appellant concedes that both the use of a dea dly weapon on an unarmed victim and declarations of an intent to ki ll constitute circumstantial evidence of premeditati on from which the jury c

ould find the necessary state of mind. See State v. B rown , 836 S.W.2d 530, 541 (Tenn. 1992). While the State was unable to show a moti ve for the shooting, that i s but one of several factors to consi der with regard to premeditation. Id. ; Gentry , 881 S.W.2d at 4- 5. In light of all of the ev idence, the jury was

justified in finding that appel lant acted after the exercise of reflecti on and judgment and formed the intent to k ill prior to firing the shots. Appellant also argues that the trial court erred i n admitting a hearsay st atement as an excited utterance. H e argues that the declarant was not under the stress or excitement of the event and the s tatements did not fall withi n the parameters of the hearsay exception. We disagree. The State presented testimony from Of ficer Joel Bird of the Memphis Police Department during its case-in-chief. Officer Bird testified th at he and his partner, Officer Tommy Tines, were the fir st officers to arrive at the scene, five to six mi nutes after receiving the shooting call. Upon their arrival, they immediately went to where the victim lay on the ground and Officer Tines spoke to him. Over appellant’s objection, Officer Bird testified as follows: Q. What did the man who was laying there with an obvious

gunshot wound to his shoulder tell you and Officer Tines? A. Officer Tines actually asked him, “W ho shot you? Are you hurt?” And he responded, “Yes, I’m s hot,” and that Blackie did it. He asked, Officer Tines asked him, “Who shot you?” And he s aid, “Blackie.” At trial, appellant arg ued that the statement was not admi ssible as an excited utterance because of the length of time th at had passed since the shooting. However,6

he now argues that Officer Ti nes, not the victim, w as the declarant and he was not under any stress or ex

citement. Since appellant’s theories have changed from that relied upon in the trial c ourt, we consider the i ssue waived. State v. Ma tthews , 805 S.W.2d 776, 781 (Tenn. Crim. App. 1990); State v. Aucoin , 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988), cert. denied 489 U.S. 1084, 109 S.Ct. 1541, 103 L. Ed.2d 845 (1989). Nevertheles s, in the interest of judici al economy, we wi ll address the issue. The fallacy in appellant’s c urrent argument is that Officer Tines was not the declarant. As the person w ho uttered the hearsay statement s, the victim is cons idered the declarant. See Tenn. R. Evid. 801(b). O fficer Bird was present and heard the victim make these statements.Appellant’s argument w ould hold true only if Officer Tines had repeated the victim’s statements to Off icer Bird. That is not the case before

us. Having determined that the victim was the declarant, we have determi ned that the trial court properl

y admitted the hearsay s tatements as excited utteranc es. An excited utterance is a statement relating to a startling event or condition made while the declarant was under th e stress of excitement caused by the event or conditi on. See Tenn. R. Evid. 803(2). I t is generally thoug ht that the stressful condition precludes the opportunity for fabrication, thus ensuring the reliability of the s

tatement. State v. Smith , 857 S.W.2d 1, 9 (Tenn.), cert. denied 510 U.S. 996, 114 S.Ct. 561, 126 L.Ed.2d 461 (1993). According to Officer Bird’s testimony, he and Tines were on the scene within five to six minutes after receiving the call. When they arrived on the scene, the victim was lying in a pool of blood and obviously suffering much pain. The paramedics ha d not yet arrived. The t rial court properly found that the victim was still laboring under the stress and excitement of bei ng shot numerous times, unques tionably a startling event. His statements, w hich related to the shooting , were correctly admitted under5 The mere fact that t he statements were made in r esponse to questi ons from Officer Tines do es not prec lude their cla ssification a s excited utteranc es. See State v. Gordon , 952 S.W.2d 817, 820-21 (Tenn . 1997); Sm ith , 857 S.W .2d at 9; State v. Binion , 947 S.W.2d 867, 873-74 n. 4 (Tenn. Crim. App. 1996), pe rm. app. denied (Tenn. 1997). 7 the excited utterance ex ception to the hearsay rul e. 5 State v. Summerall , 926 S.W.2d 272, 277-78 (Tenn. Crim. App. 1995) (admitting as excit

ed utterances statements by the shooting victim i dentifying the defendant). Appellant has failed to demonstrate that the evidence was i nsufficient or that the trial court erred in admitting the hearsay statements under the excited utteran ce exception. According ly, we affirm the judgment of the trial court with regard to appellant’s conviction

and sentence.

_______________________________ William M. Barker, Specia l Judge

CONCUR:

____________________________ David G. Hayes, Judge

____________________________ Joe G. Riley, Judge