### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 2000 Session

STATE OF TENNESSEE v. JERRY D . CARNEY

Appeal as of Right from the Criminal Court for Davidson County

No. 97-D-2821 Cheryl Blackburn, Judge

No. M1999-01139-CCA-R3-CD - Filed September 15, 2000

The appellant, Jerry

D. Carney,

appealshis conviction by a jury in the Davidson County Criminal Courtof first degre

e murder. Pursua

nt to his convict ion for first degree murder, the trial court sentenced the appellant to lif

e in pris on in the Ten nessee Department of Correction, with the possibility

of parole. Theappellant raises the following issues for our review: (1) whether there was sufficient evidence of

premeditation to su

pport his convictio

n of first degree murder; (2) whether the State violated Brady

by failing to disclose audio taped statements made by the police of witnesses the day after the sho oting; and (3) whether the tria l court erred in p

recluding the a

ppellant’s cross

examination of the police officers who were testifying at trial about their training r egarding selfdefense and the application of deadly force. Upon review of the record and the parties’ briefs, we affirm the judg

ment of the trial c

ourt.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which G ARY R.W ADE , P.J., and J OE G. R ILEY , J., joined.

Sam uel E. W all ace, Jr. , Na shv ill e, T enn ess ee, f or t he ap pel lan t, J erry D . Ca rney.

Paul G. Summers, Attorne y General and Reporter, Ma

rvin E. Clements, Jr.,

Assistant Att

orne y General, Pamela Anderson, Assistant District Attorney General, and Lisa Nay lor, Assistant District Attorney General, for the appellee, State of Tennesse e.

OPINION I. Factual Backgr

ound On the night of August 13, 1997, the appellant, Jerry Carn e y, was “riding around” Nashville and drinking bee

r with his friends Eric B radshaw, Mike Shane, Jimmy Womack, and Melia Gribble. Erin Harris, another friend, paged the appellant and requested that he pick her up at 716 Virginia Avenue. On the way to Virginia Avenue , Bradshaw remarked that he b eliev ed that

some one who had a problem with his brother, someone named “Shane” or “Shawn,” lived at tha t address.-2- Upon arriving at

the residence, the four

males exited the ca

r and began uri

nating in the front yard. Bil l Massey and Cra ig C artwright walked out of the residence to investigate. The appellant began asking several people, “Who is Shane?” Cartwright responded that he was Shane. Upon hearing Cartwr

ight identify

himself as Shane, t

he appellant quic

kly walkedback to the vehic

le and sat in the back seat behind the driver.

Massey approached the

car onthe driver’s side and noticed a gun on the seat near the appellant. Massey asked if the appellant had a problem. The appellant replied tha t there was no problem. Massey then requested one of the beers that was located in the back seat. The appellant handedMassey a beer. As soon as Massey touched the beer, the appellant grasped the gun

with both hands. Massey thre

w down the beer a

nd grabbed the a

ppellant, hoping to disarm him. Cartwright had moved to the passenger side of the car. Althou gh Massey was in direct contact with the appellant,the appellant never looked at Mas sey. Instead, the appellant pulled the slide of the gun back twice and fired six shots into Cartwright who was standing near the open passenger door.

The appellant, Bradshaw, Shane, Womack, Gribble, and Harris sped away in the car to Bradshaw’s house. The appellant took a shirt and wiped the car, inside and out, in order to destroy evidence. He also

removed a deca

l from the back g

lass of the car and tried to remove all of the spent shellcasings from the car. The appellant entered Bradsha w ’s house, remove

d his bloody c

lothes, and soaked them in water in the bathtub. He then went to sleep and slept until the next day when he was picke d up by the poli ce for quest ioning.

The appellant testified that he shot Cartwright in self-defense. The appellant stated that he was afraid of

Massey and Cartwright because they were much larger than

he. The appellant claimedthat Massey had grabbed the appellant by the shirt collar prior to the appellant’s retreat to the car. The appell

ant alleged tha

t he feared Mass

ey or Cartw

right would hurt h

im or try to ta

ke his gun and use it ag

ainst him.

A jury convicted the appellant of first degree murder on November 19, 1998. The trial court sentenced the appellant to a term of life in prison, with the possibility of parole. The appellant appeals his conviction , arguing : (1) there was in sufficient evide

nce of premedita

tion to suppo rt h is conviction of first degree murder; (2) the prosecution committed a Brady violation by failing to disclose, prior

to trial, audio

taped statements made by potential witnesses; and (3) the trial court erred in precluding the appellant from cross-examining the police officers about their training regarding self-defense and the use of deadly force.
II. Analysis A. Sufficiency of the Evidence The appellant claims that the evidence was insufficient to support his conviction of first degree murde

r. To prove first degree murder, the State must estab lish that there wa

s a “premeditated

and intentional kill

i ng of another.” Tenn. Code Ann. § 39-13-202(a)(1)(1997).1 The appellant also repeatedly argues that the evidence was i nsufficient

to prove deliberat

ion. However, aft

er the 1995 amendments to the first degree murder statute, t he State no longer needs to prove deliberati

on as an element of first degree murder. Tenn. Code Ann. § 39-13-202(a)(1); see State v. Mason , No. 01C01-9603-CC-00103, 1997 WL 311900, at *11 n. 4 (Tenn. Crim. App. at Nashville, June 6, 1997).

-3- Spe cif ica lly, the appellant argues that there was insufficient

evidence to establish the existence of premeditation. 1

Tennessee appellate courts accord great weight to a jury verdict in a

criminal trial. In other words, a jury conviction serves to replace the presumption of the appellant’s in

nocence with

a presumption of the appellant’s guilt. State v. Tuggle , 639 S. W.2d 913, 91 4 (Tenn. 1982). Therefore, on appeal, the appellant carries the burden of establishing why the evidence is insufficient to support the jury’s findings. Id. The appellant must demonstrate to

this court that no “

reasonable trier of fact” could have foun d the essential ele ments of the offe

nse beyond a

reasonable doub

t. Jackson v. Virgini

a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

Acco rdi ngly, on appeal the State is entitled to the str

ongest legitima

te view of the evidence and all reasonable inferences which may be dra wn therefrom. St ate v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). Moreover, questions concerning wit ness credibility, the weight and value to be given the evidence, and all factual issues raised by the

evidence are resolved by the trier of fact, and not the appellate courts. State v. Pruett ,788 S.W.2d 559, 561 (Tenn. 1990).

At trial, the State must prove all elements of first degree murder , inc luding premeditation, bey ond a reasonable doubt. State v. Brown , 836 S.W.2d 530, 543 (Tenn. 1992). Premeditation requires “the exercise of reflection and judgment” and a “previous ly formed design

or intent to kill.” Ten

n. Code Ann. § 39-13 -202(d); State v. West , 844 S.W.2d 144 , 147 (Tenn. 1992)(citing McGill v. State , 475 S.W.2d 223, 227 (1971)). The intent to kill does not have to preexist for any definite period of time. State v. Sims , No. W199 8- 00634-CCA -R3-DD, 2

000 WL 298901, at *7 (Tenn. Crim. App. at Jackson , March 14, 2000).

Moreover, it

is the appellant’s mental state at the time the appe

llant allegedly

decided to kill tha

t is the important factor

in determining if the appellant was “sufficiently free from excitement and passion to be ca pable of premeditation.” Id.
, see also

Tenn. Code Ann. § 39-13-202(d).

Althou gh ther e is no concrete test for determining the existence of premeditation, Tennessee courts have relied upon certain circumstances to infer premeditation. See State v. Pike
, 978 S.W.2d 904, 914 (Tenn. 1998), cert. denied , 526 U.S. 1147, 119 S.Ct. 2 0 25 (1999). Spe cif ica lly, the following factors have been used to support a jury’sinference of premeditation: (1) the appellant’s prio

r relationship to th

e victim which mig

ht suggest a

motive for the killi ng; (2) the appellant’s declarations of intent to kill ; (3) the app ellant’s p lanning act ivities b efore the ki lling, including the procurement of a weapon or preparations for concealment of the crime; (4) the nature of the killi ng, includi ng the appell ant’s usin g a deadly weapon

upon an unarmed victim, killing the victim while the victim is retreating or attempting escape, or killing the victim in a particularly cruel
manner; (5) the appellant’s demeanor before and a fter the killing, including a calm demeanor-4-

immediately

after the killing. See Pike , 978 S.W.2d at 914-15 ; State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997)(cit ing Brown , 836 S.W.2d at 541-42, and State v. West , 844 S.W.2d 144, 148 (Tenn. 1992)); State v. Gentry , 881 S.W.2d 1, 4-5 (Tenn. Crim. App. 1993); State v. Anderson , 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992).

A ju ry, upon consideration of the facts adduced at trial, could conclude, be yond a reasonable

doubt, that the appellant formed a premeditated

intent to kill prior to

shooting the victi

m. The appellant

was looking for “Shane,” who had caused problems for his friend’s brother. This fact suggests a possible motive for the killi ng, namely retribution for a friend. Next, the appellant quickly walkedto the car after Cartwright said he was Shane . A t that time, there was no reason for the appellant to return to the car to get his gun, unl es s he was planning to use it. The appellant pulled the slide on the gun back twice, and fired six times a t Cartwright, an

unarmed victim. Mu

ltiple shots

or blows alone may not be

used to establish premeditation, but may be considered along with other circumstances in assessi ng t he e xistence of premeditation. Brown , 83 6 S. W.2 d at 542 . Ad dit ion all y, the appellant went home and slept until the po lice arrived, indica ting his calm deme

anor immediately after the murder. See Sims , 2000 WL 298901, at *8.

Moreover, the jury, as the trier of fact, must decide if the appellant acted in selfdefense. Hawkins v. State, 527 S. W.2d 157, 161(Tenn. Crim. App. 1975). At trial, and in prior statements

to t he p oli ce, t he ap pel lan t re peat edl y gave fal se o r con tra dic tor y s tatements, which damaged his credibility with the jury. The appellant went to great lengths to conceal or destroy as much evidence as possible on the night of the murder. The appellant wiped down the car, removed

a decal and spent shell casings from the car, washed his bloody clothes and gave his gun to a friend’s father to hide. Even thoug

h concealment of

evid ence a lone does not suggest premeditation, concealment

of evidence may

establish the appellant’s guilt by negating theappellant’s claim of selfdefense. See West , 844 S.W.2d at 148. Ad ditionally, e

vidence su

ff icient to prove premeditation equally indicates the absence

of self-defense. State v. Pryor , No. 89-191-III, 1990 WL 11096, at *1 (Tenn. Crim. App. at Nashville, February 13, 1990).

Although the evide n ce of the appellant’s guilt may not be overwhelming, it is not unfathomable

for a jury t

o have reasonab

ly found that

the appell an t shot Cartwright with a premeditated

intent to kill. Moreover, the jur y could have

reasonably

concluded that the appellant didnot act in

self-defense.

The appellant ha

s not demonstrated

why the evid

ence will not support his conviction. The

refore, we upho

ld the jury’ s verdict.

B. Brady violation The appellant claims t

hat he was denied

his right to due process when the State failed to disclose potentia

lly exculpatory audio taped statements made to the police by witnesse s the morning after

the shooting. In Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194,1196-97(1963), the United State s Su preme Court held that the prosecution has a constitutional duty to furnish the accused with exculpatory

evid e nce pertaining to either the accused’s guilt or innocence and the potential punishment that may be imposed. The Supreme Court f urther held

that “the suppression by the prosecution of evidence fa vorable to an ac

cused upon reque

st violates due process where the2 Nonetheless, the State is obligated to re lease obviously exculpatory evidence r egardless o f whether or no t it

was reque sted. Edgin , 902 S.W.2d at 390.

-5- evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady
, 373 U.S. at 87, 83 S.Ct. at 1196-97. Moreover, the prosecution mu st disclose evidence w hich may be

used by the appellant to impeach a witness. Giglio v. United States , 405 U.S. 150, 154-55, 92 S.Ct. 763, 766 (1972).

Before this court can find a Brady violation, all

of the following

elementsmust be present: (1) the appellan

t must have requested the information 2 ; (2) the State must have suppressed the info rmation; (3) the information must have been favorable to the appellant; and, (4) the information must have been mat eri al. State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995). The appellant has the burden of proving the Brady violation by a preponderance of the evidence. Id.
First, the appell

a nt claims he never rec

eived the taped st

atements of Ry

an Curtis, Tiffany Elkins, and Natasha Holland. We first note that there is e

vidence in the re

cord to sugges

t that, prior to trial, the appellant requested the disclosure of Brady mate rials. Therefore, the first prong of the Brady

test has been satisfied. However, the appellant has offered no proof that taped statements

of Curtis, Elkins, or Holland even exist. A bald assertion that the tapes exist without proof is notenough to satisfy

the appell ant’s burde n regarding th e remaining Brady factors. See State

v. Hamlin , No. 0 1C01- 9604- CC-00 174, 1 999 W L 778 53, at *5 (Tenn. Crim. App. at Nashville, February 19, 1999). As a consequence, the appellant has not demonstrated that the State suppressed information that was favorable and material to the appellant’s case.

Furthermore, the appellant contends that, even thoug h he received th

e tapes of Melia Gribble, Erin Harris, and Bill Massey on the first day of trial, the delay

in receiving the information prejudiced

his defense. A delayed disclosure of evidence re quires a different analysis than a complete nondisclosure of evidence. Thi s court has previo

usly held tha

t “if there is only

a delayed disclosure of information, in contrast to a complete failure to disclose exculpatoryinformation, Brady normally does not

apply, unless the delay itself causes pre judice.” State v. Hall , No. 01C01- 9710-CC-00503, 1999 WL 34782, at *9 (Tenn. Crim. App. at Nashville, January 28, 1999), perm. to appeal denied

(Tenn. 1999).

Acco rdi ngly, delayed disclosure requires aninquiry into whether the delay preve nted the defense from using the disclosed material effectively in preparing and pre senting the appellant’s

case. Statev.Caughron, 855 S.W.2 d 526, 548 ( Tenn.1993 )(citing United States v. Ingraldi , 793 F.2d 408 (1st Cir. 1986)). Moreover , a potential Brady violation can be cured by the appellant’s failure to move for a continuance after receiving the information, the appellant’s thorough c r oss

examination of

the witness regarding the evidence, or by the appellant’s failure to call or recall an available witness concerning the exculpatory statements. See Id.
, State v. Ewing , No. 01C01-9612- CR-00531, 1998 WL 321932, at *9 (Tenn. Crim. App. at Nashville, June 19, 1998).-6- In the present case, the

appellant received the taped interviews on the first day of trial

as Jencks material. Upon receivingthe tapes, the appellant failed to move for a continuance to review the material. The witnesses had been available for the appellant to interview prior to trial. Moreover, when Massey

took the stand, the a

ppellant had an op

portunity to

cross-examine him

regarding hi

s earlier statements. Harris was in cus tody and was

available for th

e appellant to

call at trial in order to examine her about the taped statements. Furthermore, the trial court permi tted the appellan

t to recall Me lia Gribble, who had earlier testified, to allow the appellant to attempt to bring out information contained on the tape. The appellant also had the opportunity to intro duce Gribble’s statement as evidence. However, the appellant failed to lay a proper foundation for the introduction of the statement, even though he was instructed on how to do so by

the trial court.

Regardless, there

was no exculpatory

material contain

ed in the tapes.Based uponthe foregoing, we conclude that the appellant was not prejudiced by the delay ed disclosure of this information.
C. Cross-Examination Regarding Police Training The appellant also argu es that he should have been allowed to cross-examine the police officers who tes

tified at his trial r

egarding the

trainin g the y had received concerning selfdefense and th e use of deadly force. The appellant contends that this evidence should have be en admitted because

the testimony was relevant to the appellant’s claim of self-defense. The appellant alleges that police are trained to shoot at “center mass” for self-defense. The appellant argues that because he shot at “center mass,” testimony that police were trained to d

o the same in self-

defense situations would have bolstered his claim of self-defense. The trial court disag reed and ruled th

is testimony not relevant. We agree with the trial court.

In Tennessee, the defini ti on of self-defense is set out in Tenn. Code Ann. § 39-11- 611(a)(1997): A person is justified in threatening or using force against another person when and to the degr ee t he p ers on r easo nab ly be lie ves the for ce i s im med iat ely nece ssary to protect against the other's use or attempted use of unlawful force. The person must have a reasonable belief that there is an imminent danger of death or serious bodily inj ury. The danger creating the be l ief of imminent death or serious bodily injury must be real, or honestly believed to be real at the time, and must be founded upon reasonable

grounds. T here is no duty to retreat before a person threatens or uses force. Moreover, Tenn. R. Evid. 401 defines relevant evidence as“evidence havi ng any ten

dency to make the existence of

any fact that is of consequence to the determination of the action more probable or less probable than it w

ould be without the evidence.” Police training c oncerning the p

roper response to self-defense s

ituations is irrele

vant to the appell

ant’s beliefs or actions on the night of the shooting, unless, perhaps, the appellant had undergone such training himself. Cf. State v. Cole , No. 98-CAC-01001, 1998 WL 429712, at *1- 2 (Ohio App. 5 Dist.,

July 2, 1998)(training the defendant’s father gave the defendant concerning self-defense was “ too vague and unconnected to the incident at issue to be considered material”). There was no evidence adduced at trial to sugg est that the appellant had been a police officer who was trained in self-defense or the

use of deadly force. Nor-7-

was there evidence t

h at the appellant had any other self-defense training . This issue is without merit.

III. Conclusion

Based upon the f

oregoing, we

affirm the judg

ment of the trial c

ourt.

___________________________________ NORMA McGEE OGLE, JUDGE