### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE February 13, 2001 Session
STATE OF TENNESSEE v. KENNETH LAMONT ANTHONY
Direct Appeal from the Criminal Court for Davidson County

No. 98-C-1985 Seth Norman, Judge

No. M2000-00839-CCA-R3-CD - Filed April 27, 2001

The Defendant, Ken

neth Ant hony, was convicted by a Davidson Countyjury of first degree premeditated murder and attempted second degree murder. For these offenses, the Defendant received
a sentence of impr

isonment fo r life and a concurrent sentence of ten yea rs in the Tennessee Department

of Correction, re

spectively . On appeal,

the Defendant challenges the sufficiency of the evidence with regard to the first degree premeditated murder conviction. Finding suff icient evi de nce in the record to su

pport the Defend

ant’s convictions , we affirm the ju dgment of the tri

al court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and A LAN E. G LENN , J., joined.

Ric hard McG ee, N ash vil le, Ten nes see, for the App ell ant , Ke nne th A nth ony.
Paul G. Summers, Attorne y General and Reporter, Gle

n C. Watson, Assis

t ant Attorney

General, Vi ctor S. Johnson, II

I, District Att

orney Gene

ral, and Pamela S.

Anderson, Assista

nt Distric t Attorney General, for the Appellee, State of Tennessee

.

OPINION

I. Facts

The evidence pre s ented to the jury at trial, when viewed in a light most favorable to the prosecution, can be summarized as follows: At about 1:30 a.m. on May 17, 1998, Tony Moore a nd Teresa Day were walking together on the sidewalk on South Seventh Street in Nashville, Tennessee. The Defendant was walking on the same sidewalk but in the opposite direction. According to one witness who was sitting on a porch step within

a few feet of the shooting, when the Defendant met Moore and Day, he said, “I heard y ou was looking for me,” and began shooting at Moo re an d Da y.1 The police recovered f ive .25 caliber

shell casi

ngs at the scene, and one additi onal shell c asing was la ter
recovere d from inside Moo re’s blood y shirt.
-2- At least six shots 1 were fired in rapid succession. Moore was shot once in the chest and died about two days later. He was not physically able to give a stateme nt to the police prior to his death. Day
was shot in both knees and feet. She later identified the Defendant as the shooter. The witness who heard the Defendant’s statement immediately prior to the shooting was also able to identify the Defendant as the

shooter. No weap

ons were found in t

he possession of e

ither victim.

II. Analysis

In this appeal,the Defendant’s sole issue concerns the sufficiency of the evidence pertaining to premeditation by

the Defendant,

which is an element of the offense for which he was convicted. The Defendant argues that the record contains insufficient evidence for any rational trier of fact

to have found beyond

a reasonable doubt the essential element of premeditation by the Defe

ndant in the shooting death of Tony Moore. Following our caref ul review of the record, we respectfu lly disagree.

When an accused challenges the sufficiency of the evidence, an appellate court’s standard of review is

whether, after

considering the

evidence in the li

ght most favorab

le to the prosecution, any rational trier of fact

could have found the es sential elements o f the crime bey

ond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 324 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); T enn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence

. State v. Dyk es , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled onother grounds by State v. Hooper , 29 S.W.3d 1 (Tenn. 2000).

In determining the sufficiency of the evidence, this

Court should not re-

weigh or re-e

valuate the evidence

. State v. Matthews , 805 S.W.2d 776, 779 (T enn. Crim. App. 1990

). Nor may th

is Courtsubstitute its infer

ences for those

drawn by the trier of fact from the evidence. State v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956). Questions concerning the credibility of the witne sses, the we ight and value of the evidence, a

s well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the strongest legitimate view of the evidence containedin the record, as well as all rea sonable inferences which may be drawn from the evidenc e. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presump tion of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally insufficient

to sustain a guilty verdict. Id.

First degree murde

r is defined, in par t, as “the premeditated and intentional killing of another.” Tenn. CodeAnn. § 39-13-202(a)(1). “Premeditation” is described as “an act done after the exercise of reflection and judgment.” Id. § 39-13-202(d). To find a defendan t guilty of-3-

premeditated

murder, the jury mus t d etermine that “the intent to kill was formed prior to the act itself” and that “the accused was sufficiently free from excitement and passion as to be capable of premeditation.” Id. “‘Intentiona l’ refers to a person who acts

intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person’sconscious objective or desire to engage in the conduct or cause the result.” Id. § 39-11-302(a). Because premeditation entails proof of a state of mind about which there may be no direct evidence, “cases have long rec ognized tha t the necessary elements of first-degree murder may be shown by circumst

antial evid

ence.” S tate v. Brown , 836 S.W.2d 530, 541 (Tenn. 1992). Premeditation is a question of fact to be determined by the jury. State v. Suttles , 30 S.W.3d 252, 261 (Tenn. 2000). And, the jury may infer pre meditation fro m the manne r and circumstances of the killing. See State v. Pike , 978 S.W.2d 904, 914 (T enn. 1998); State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Our supreme court has enumerated several factors that may supp ort the existence of premeditation and deliberation, including: (1) declaratio

ns by the def

endant of an inten

t to kill, (2) evid

ence of pro curement of a weapo n, (3) the use of a de adly weapo

n upon an unarmed v

ictim, (4) the par

ticular cruelt

y of th e killing, (5) infli

ction of multiple

wounds, (6) preparation before the killing for concealment of the crime, (7) destruction or secretion of evidence of the murder, and (8) calmness immediately after the killing. State v. Nichols , 24 S.W.3d 297, 302 (Tenn. 2000).

The jury in this case was correctly instru ct ed as follows concerning the definition of premeditation: A “premeditated” act is one done af

ter the exercis

e of ref lection and judgment. Premeditation means that the intent to kill must have been formed prior to the ac t its elf. It is not necessary that the purpose to kill preexist in the mind of the accused for any definite period

of time. The menta

l state of the acc

used at the time h e all egedly decided to kill must be carefully considered in order to determine whether the accused wa s suf

ficiently free from excitement and passion as to be capable of premeditation. If the design to kill was formed with premeditation, it is immaterial that the accused may have been in a state of passion or excitement when the design was carried into effect. Furthermore, premeditation can be fou nd if the decision to kill is first formed during the heat of p assion, but the acc used commits the act after the passion has subsided.

See Tenn. Code Ann. § 39-13-202(d); T.P.I. - Crim. 7.01(b).

In his brief, the Def

endant points out ce

rtain aspects of the testimony of s everal witnesse

s to support his argument

that the evidence of premeditation is insufficient. First, he notes that one of the eyewitnes ses to the shooting, Shanika Beard, did not he

ar the Defenda

nt or either of the

victims make any statements prior to the shooting. Secondly, the Defendant points out that the eyewitnes s who testified that she heard the Defendant say, “I heard you was looking for me,” was not sure of how much time passed between the statement and

the first shot; the w

itness was also not sure who firedthe first shot. Thir

d, the Defendan

t asserts that bec

ause both eyewitnesses who testified “took-4-

cover” immediately

upon hearing the

initial sh ots, neit

her could state whether either victim was
ar m ed or whether (if armed) he or she may have fir ed the first shots they heard. Finally, the Defendant

claims that inflammatory remarks by Dete ctive Kyle Anderson caused the jury to

convict the Defendant of premeditated murder in the absence of sufficient evidence

of premeditation. The pertinent portion

of Detective And

erson’s testimony

is as follows:

DEFENSE

COUNSEL: Why would it be a problem for her to talk with you

on the front porch? DETECTIVE

ANDER SON: . . . I am actually su rprised that y

ou would ask that. But , obviously, people who live in a high-crime neighborhood, in w hich no t everybody

sees the police as their friend, are, of cou rse, s cared of retribution from people like your clien

t, for hel pin g hav ing h im a rres ted . Ci tiz ens are n ot a lwa ys rewarded. DEFENSE

COUNSEL: So you would characterize this place as a high-crime

area? DETECTIVE AN

DERSON: Yes. DEFENSE COUNSEL

: Dangerous, in o

ther words? DET ECTIVE ANDERSON: Well, because people like your clients are killing people there, y

es. In this case, the jury heard evidence from which they could r

easonably and rationally infer that the Defendant acted with premeditation. The De fendant used a deadly weapon. He fired the weapon several times at point-blank range at the two victims. The victims were apparently unarmed. The Defendant a

pparently a

pproached the vi

ctims in a calm manner on the sidewalk, and when he
was close to them he stated, “I heard you wa s looking for me,” and

opened fire. After the

shooting, the Defendant left the scene. It is both rational and reasonable that the jury concluded from the evidence that the Defendant shot Tony Moore intentionally and wi th premeditation. As

the State points out in its brief, the existence of the element of premeditation is a question for the jury that may be established by proof of the circumstances surrounding the killing. Bland , 958 S.W.2d at 660. Considering the entire record in this case, we cannot conclu de that Detective Anderson’s comments p ertaining t o the high crime area where the killing occurred and the issue of retribution affected the jury’s ve

rdict. Detective Anderson was answering the questions of defense counsel when he made the alleg

edly “in flammator y” remarks about people in the neighborhood fearing ret ribution from people “like your client

” and that the plac

e of the killing wa

s a high crim

e are a because “people like y

our clients are k

illing people

there, yes.” Although we agree with counsel for the Defendant that these comments by Detective Anderson were not necessary to fully answer the questions asked of him, we c annot conclude th

at these comments a

ffecte d the verdi ct o f th e ju ry. As stated above, there is ample evidence in the record from which a jury could find that the Defendant killed Tony Moore intentionally and with pre meditation.

Accordingly, the judgment of the trial court is AFFI RMED.-5- ___________________________________ ROBERT W. WEDEMEYER, JUDGE