# FILED January 22, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE AUGUST SESSION, 1998
STATE OF TENNESSEE, ) C.C.A.NO. 01C01-9711-CC-00521 ) Appellee, ) ) COFFEE COUNTY V. ) ) ) HON.GERALDL. EWEL L, SR. , JUDG E PARKS A . BRYA N, ) ) Appe llant. ) (FIRST D EGRE E MU RDER )

FOR THE APPELLEE : FOR THE APPELLANT : B. CA MPBELL SMOOT JOHN KNOX WALKUP District Public Defe nder Attorney General& Reporter RACH EL E. W ILLIS KAREN M. YACUZZO Assistant Pu blic Defende r Assistant Attorney General 603 East CarrollStreet 2nd Floor, Cordel l Hull Bui lding Tullahoma, TN 37388 425 Fifth Avenue North Nashvill e, TN 37243 C. MICHAEL LA

YNE District Attorn ey Ge neral STEPHEN E. WEITZMAN Assistant Distri ct Attorney General P.O. Box 147 Manchester, TN 37355

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE



# OPINION-2- The Defe ndan t, Park s A. Br yan, ap peals as of ri ght foll owing his con viction in the Coffee C ounty C ircuit Cou rt. Following a jury t rial, Defendant was convi cted of preme ditate d first- degree murder and was sentenced to li fe impriso nment without parole. Defendant appeals both the sufficiency of the evidence and the admission of certain photo graph s of the vic tim which he argues wer e more prejudic ial than probative . We affirm the ju dgme nt of the trial co urt.

When an accused chall enges the suffi ciency of the convicti ng evidence, the standa rd is whe ther, after rev iewing the evidenc e in the light m ost favora ble to the prosecution , any rational t rier of fact could have found the essenti al elements of the crime beyond a reaso nable d oubt. Jack son v. V irginia , 443 U.S. 307, 31 9 (1979). On appe al, the State is ent itled t o the strongest legit imate view of the evidence and all inference s therefro m. St ate v . Ca bbage , 571 S.W .2d 832, 835 (Tenn. 197 8). Because a verdic t of guilt removes the presumpti on of innocen ce and replaces it with
a presum ption of gu ilt, the ac cuse d has the bu rden in this court of i llustr ating why t he evidence is insufficient to s upport th e verdict re turned b y the trier of fac t. State v. Tug gle , 6 39 S .W.2 d 913, 9 14 (Te nn. 198 2); State v. Grace , 493 S.W.2d 474, 476 (Tenn . 1973).

Questions concerning t he credibil ity of the witnesse s, the weig ht and va lue to be given the evidence, as wel l as allfac tual issues raised b y the evidence, a re resolved by the t rier of fact, not this c ourt. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm . to appeal denied , id . (Tenn. 198 7). Nor ma y this court reweigh or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835
. A jury verd ict approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace , 493 S.W.2d at 476.-3- Rebecca Nickerson worke d with th e victim , Helen Bryan , at PC A Ap parel in 1984. She also knew the Defendant and thought the two would make a good match. Af te r “matchmaking,” the two began a rel ationshi p and Helen and the Defendant event ually married . Nickerso n continu ed to sociali ze with th em for severalyears and knew th eir marria ge was unstab le.

Abbie Wa lker wa s a frien d of the victim and kn ew her m arriage to be “volatile.” They talked almost daily, but Walker did not of

ten see her i n person. In May 1995, she took the vic tim to Ala bamato Restorat ion Ranch, a nondenominat ional Chri stian rehab center. The v ictim went to this shelter to escape her hus band’s abuse and to
r ecoverfr om her own alcoholi sm. The day after Walker drove the vi ctim to t he shelter, the Defendant cam e to he r hom e requ esting the victim ’s locati on. Walker recalledthat sh e lied a nd told him th at she did not know. Defendant then stated that he believed t he victi m was driving t o California t o see her sister, but t hat her car
wou ld not mak e it and woul d probably br eak down before she r eached the Mississi ppi River. W hile Defe ndant b elieved the victim wou ld have to call him to
cometo gether, he stated that he woul d go after “ the car and t he dog, but . . . not

. . . after her.” When Walker asked the Defendant if he would leave her on the si de of the road , Defend ant resp onded , “If I brought the bitch b ack he re, I would k ill her.” Walker described the Defendant’ s expression when he stated that he woul d killthe victim as “very serious , just dead set.”

The victim c alled th e Def enda nt two (2 ) days la ter and aske d him to come and pickher up a t Re sto rat ion Ranc h. D efe ndan t br ough t t he v ict im h o me. Followi ng the victim’s return home, Walker did not speak with her as fr equently becaus e she
was afraid of

the vict im’s husband. They spoke every few weeks. On August 17,-4-

1995, the vi ctim call ed Walker. Walker recall ed that the victi m was not able to get her breath ver

y well andhad a “shuddery” voice. Walker never spok e with th e victim again, and lea rned that she h ad been k illed two (2) days later.

Debra Luttrell is an E MT w ith the Co ffee Cou nty Amb ulance Service. She was called to the scene of the Defendant

and the vic

tim’s home on RoyBryan Road on August 18, 1995 , at

appr oxi mate ly

8:3 0 to9:0 0 p. m. When Luttrel l arri ved, deputi es were already pr

esent at t he scene. Defendant met Luttr ell and her

partner i n the doorway, then they f

ound the vict im lying on the bed on her back with no signs of life. Luttrell recalledthat the victim “l ooked like she had been beat from her head down to herfeet. T here w as [sic] n ew bru ises on top of o ld bruis es tha t just co vered all of her body.” She n oted th at it was one of the wor st beati ngs she had ever seen. The victim’s body was cool i n temperature, and she was not yet stiff, indica ting to L uttrell thatthe v ict im had been d ead over f ifteen t o twe nty minutes. Th ey attempt ed to revive the vic tim, but the re was n o respo nse.

Various officers te stifi ed that they were present at

the scene and that

the victim had bruises over the entir e length of her body, suf fering one of the worst beatingstheyhad ever seen. The Defenda nt advised t he police t hat the vi ctim had fallen on a pro pane b ott le in t he l iving roo m, bu t no pro pane bottles were fo und in the house. Allthe offi cers test ified as to the filt h of the l iving conditi ons, with alcohol bottles and tras h strewn about the home . Bloody to ilet paper w as foun d in th e Defendant’s yard and blood stains were on t he floor near the victim’s be d. Also, a partially empty vodka bott le was found i n a brow n paper bag , and scie ntific tests confirm ed that the paper b ag had the victim’s b lood on it.-5- Dr. David Florence observed the v ictim i n the emergency room and determined she was both medical ly and legal ly dea d up on arriv al at the hosp ital. After performing an exam ination of her bod y, Dr. Florenc e found in excess of sixty (60) or seventy

(70) brui ses on the victi m’s body, with some less than fort y-eight (48) hours old and some approximatel y seven (7) days old. She had also suffered eleven (11) fractured ri bs, causing six (6) punctur

e wounds in her

lung, i nflicted between a few minutes to forty-ei ght (48) hour s prior to her death. While the vict im may have been able to wal k, talk , and breatheaf ter thes e injurie s were inflicted , she w ould have been in pain and woul d have had difficulty speaking. Dr. Florence testified that the victim’s voice would have s ound ed cra ckly or lik e a wh isper. T he ba ck of h er rib cage also had multi ple fract ured ribs, likel y infl icted at least t hree (3) months prior to her death. I n additi on, she had a lar ge lacerati on on the back of her head which was inflicted shortly before her death asshe was stil l bleedi ng from that l aceration upon her arr ival at the hosp ital.

Dr. Charles Harlan testified regardi ng the results of the vic tim’s autopsy. Her death was caused by multiple blows to t he chest which produ ced “b lood a nd air in the space around thelungs compressingthe lungs and ca using he r to be un able to breathe .” After the fr actured r ibs punc tured he r lungs, the victim slow ly bled to dea th, struggl ingto b reatheand hav inga “very tou gh way t o di e.”

Fro m th e examination it appeared that thevicti m had been beaten over a period of ti me, and it was likely that she died “ove r many ho urs or a coup le of days.”
Depu ty Mike Jarvis was gua rding the victim’s bod y prior to her transpo rt to the medical examiner’s of fice when the Defendant entered the r

oom and asked to see the victi m. After

approaching her body, t he Defendant turned his back and removed-6-

the victi m’s bloodstai ned shirt a nd then hi d it unde rneath his jack et. W hen J arvis confronted the Defe ndan t, the D efend ant rep lied tha t it was th e victim ’s favorite shirt and he wanted to keep i t in remembran ce of her. Jar vis ref used to all ow the Defendant to keep t he shirt, and the shir t was admitted into evi dence.

Investi gatorAlexander recorded t he D efendant’s statement regar

ding the victim’s death. In his statement, Defendant r ecalled that he had been to the grocery store after

work on August 18, 1995. When he pulled i nto his driveway, he bl ew the horn but receiv

ed no response fr

om the victi m. Thi s an gered the Defendant who
was dri nkin g alcohol at t he ti me. He then picked up the gr oceries and car ried them into the kitche n, returning to the car to drink m ore alcoh ol. In his state ment, Defendant admits he was “furi ous,” and went i nside, l eaning over to “thu mp” his wife with the vodka bott le on the back of the head. They had a few drinks together, but Defendant was s till angry and told t he victi m to go to bed. When the vi ctim rose, she fell down. Having to help t he victi m up made him so mad that he kicked her in the side, possibly

more than once. Defend ant then drug her to bed by the a rmpits
. When he p u t her in bed, Defendant noti ced some blood on her pi llow and he got
some toilet pape r to place o n the cut o n her he ad.

Some ti me after he r

eturned to the l iving r

oom to watch tel evision, Defendant heard the vict im fallout of bed. When he went to check on her, he noticed t hat she had fall en and “messed on hers elf.” Defen dant pu lled off her pink shor ts and then cleaned her off, throw ing her sh orts on the po rch. W hen D efenda nt returne d to her
roo m, the vict im had “messed on herself ag ain,” and t his made him so mad that he hit her with hi s fists. Defendant st ated he was “nice enough to clean her up a gain,” then went back to watching tel evision . Later he got worri ed about his wi fe, so he-7-

went to check on her and discovered sh e was pale. When he checked for her pul se, he thoughthe heard a small hear tbeat and he shook her to wake her up. When he agai n chec ked for a p ulseand co uld n ot f ind o ne, h e cal led 9 11 and star ted CPR

.
Defendant argues that the evidence was insu f ficien t to support a convict ion forfirst-degree murder. Defendant sug gests that his case is si milar to State v. Brown , 836 S.W.2d 530 (Tenn. 1992), i n which a convicti on for first degree murder
was reversed an d modified to a second degree murder conv iction . Defendant sugge sts that because the abuse of hi s wife had exi sted for an extended peri od of time, he should not have expected the a buse occurri ng on Augus t 17, 18, an d 19 to have kill ed the vict im. Therefore , Defendant argues if he had no expectation of h er death, h e could n ot have c omm itted first degre e murd er.

In order to convict the Defen dant in the case sub judice , the State was required to prove that h e committe d an unlawf ul kil ling , both inten tionally and with premeditati on. Tenn. Code Ann. § 3 9-13-20 2(a)(1). Premeditati on requires t hat the act be committed after th e exercis e of reflection and judg ment, b ut the pur pose to kill is not required to hav e pre-exi sted in the mind of the defendant

for any de finite period of time. Id . at ( d). Whether a defendant has acted with premedit ation is a question for the j ury to determine, and i t may be infer red from the manner and circumstancesof the killing. St ate v. Ge ntr y , 881 S.W.2d 1, 3 (Tenn. Cri m. App. 1993). The use of a deadly weapo n upon an unarmed vict im, the decl arations of a defendantof his inte nt to kill, th e inflictio n of m ultiple wounds, the defendant’s pri or relation ship with the victim, and the fact that the killi ng was particularly crue l are all factors which the j ury may consider in determin ing whe ther the murder was-8-

premeditated. Brown , 836 S.W.2d at 541-4 2; State v. Bland , 958 S.W.2d 651, 660 (Tenn . 1997).

In the li ght most favor able to th e State, there is more than suffi cient evidence thatthe Defend ant comm itted the first degree m urder o f the vict im. When questi oned reg ard inghis act ion s af

ter thevi cti m “di sapp eared”from th eir home i n May 1995, only t hree (3) months prior to her death, theDefen dant state d, “[i]f I broughtthe bitch back here, I w ould k ill her.” Thi s declarat ion by the Defendant of his intent t

o killthe vict im was made when Defendant was “ver y serious. ” In addit ion to thi s th reat t o ki ll thevi cti m, w hen he did k ill the victim multiple wound s were infli cted upon her. In add ition to nea rly seventy (70) br uises on he r body , the victim h a d numerous broken ri bs and her lungs wer e punctured. Also, she had a l arge lacerati on on her head as a result of a wound admit tedly i nflicted by the Defe ndant. In his statement to the pol ice, theDefendant admitted to both hi tting and kicking t he victim on mu ltiple occas ions. Th e Defe ndant’s p rior relations hip with the vict im was fill ed w ith turmoi l, as two witnes ses te stified to the “vo latile” na ture of th eir relati onship. Fina lly, the jury coul d have infer red from the ci rcumstances of t he kill ing that the D efenda nt was p articularly cru el. M edical evidence demonstrated th at the victim’s injuri es may have been inf lictedup to fort y-eight (48) hours prior to her arrivalto the hos pital, followi ng which she had a pain ful, sl ow death, descr ibed by Dr. Harlan as a “very tou gh way to die. ” Even the Defendant’s own statement indicates his cr uelty

in hi s acti ons towar

d his own wife, i n which he descri bes kicking and hitti ng her for hav ing to hel p her walk and to clean her up altho ugh he indicated he was “nice en ough to clean her up aga in.” The evidence demonstrated that so me of th e victim ’s wounds were i nflicted nearly t wo (2) days pr ior to her death, duri ng which the Defend ant admittedly be came a ngry with her and beat her repe atedly.-9-

The Defe ndan t’s actio ns ca used the victim to have difficulty s tandin g, walking, remaining cons cio us, and maintaini ng control of her bodily functi ons, yet he continue d to abu se her.

Defe ndan t’s declarati ons of his inte nt to kill the victim, th e inflictio n of m ultiple wounds, the nature of their r elations hi p and th e partic ularly cr uel na ture of h is cond uct are all circumstances f rom which the j ury properly infer red premeditat ion
. While Defendant may argue to the contrar y, there is no evi dence that he ki lled the victim while suffe ring from a sudd en and uncon trollable rag e. Rath er, he re peate dly beat, ki cked and otherwise abus ed the vict im untilher body could no longer withstand the lethal a buse. T his issue has no merit.

De fenda nt argues that the tri al court i mproperly admit ted evidence of photographs of the victi m during her autopsy. He ass er ts that the photographs’ prob ative value wa s substa ntially outwe ighed b y the preju dice they c reated. T he tr ia l court rul ed the photographs were admissibl e with the f ollowing explanati on: The issu e is whet her or not t he probative value outwei ghs the prejudici al effect t hat migh t be incurred as a result of this but notwithstanding Dr. Harlan’ s graphic verbal test imony , I thi nk these photographs will show to the jury more than can ever be described ver bally by testimo ny of anyo ne and are prob ative to the e xtent t hat , according to the defenda nt over here, she fel l and hit her head on a propane tank, and for that and various r

easons, to show

the jury what the inju ry exactly was to the head and to the ri b cage.

The admissibil ity of

photographs fa lls wi thin the s o und disc retion of the trial court, whose ruling wi ll not be overturne d except upon a cl ear sho wing of an abuse of discreti on. State v. Cazes , 875 S.W.2d 253, 262-63(Tenn . 1994), cert
. denied , 513 U.S. 1086, 1 15 S.C t. 743, 13 0 L.Ed.2 d 644 (1 995); State v. Zirkle , 910 S.W.2d 874,-10-

888 (Tenn. Crim. App. 1995). A photo mus t be relevant to an iss ue that the jury must decide and the pr obative value of th e photogra ph must outweigh any prejudic ial effe ct that it

may have upon the trier of f act before a photograph may be admitte d into evidenc e. State v. Auco in , 756 S.W.2d 705, 71 0 (Ten n. Crim. A pp. 198 8), cert
. denied , 489 U .S. 1084 (1989); State .v Braden , 867 S.W.2d 750, 758 (Ten n. C ri m. App. 1993 ).

Ban ks v. State , 564 S.W.2d 947 (Tenn. 1978), sets forth the factor s to b e taken into co nside ration in determ ining w hethe r the inh erently prejudic ial chara cter of th e photogr aphs outweighs their probative value. These factors are as f ollows: (1) their accu racy and clarity; (2) whe ther they w ere take n befo re the c orpse was moved, if the posit ion and loca t ion of thebody when found i s material ; (3) t he inadequacy of testimonial eviden ce in relating the facts to the jury; and (4) the need forthe evidence to establ ish a prima facie case ofguilt or to reb ut the d efend ant’s conten tions. Id . at 951.

The accuracy an d clarity of these photo s is not contested , but the photos w ere adm ittedly made after the victi m’s bodyhad been moved. Photographs of a corpse
are admissible i n murder pros ec utions , if they ar e relev ant to is sues on trial, notwithstanding their grueso me a nd horrifyin g chara cter. Banks , 564 S.W.2d at 951. W hile photographs made duri ng or after an autopsy are of

ten condemned, they are not rendered inadmissible m erely becaus e they are cumu lative to the testi mony at trial. See Collins v. S tate , 506 S.W.2d 179, 185 (Ten n. C ri m. App. 19 73); State v. Stephenson , 878 S.W .2 d 53 0, 542 (Ten n. 1994). Ob viously these pho tos are relevant to this case due to the issue of wheth er the De fendan t intentiona lly and with premeditati on kill ed the vict im or whether she hit her head on a propane bott le as he-11-

first stated to

the pol ice . Th e Defenda nt a dmit ted to kickingthevi cti m, possibly more than once, and hit

ting the victim i n the head, al so per haps more than once. Howeve r, the photogra phs dem onstrate that the victim ’s extensive injuri es could not have been caused by only a few pun ches orkicks. The medicaltestimony demonstrated that the f orce of the se blo ws was suffi cient to result i n a compound fracture of the victim ’s ribs, caus ing the pu ncture o f her lungs . Admitte dly, th es e photos are some what graph ic and grueso me. How ever, this court has p re vi ously uphe ld the trial cour t’s decision to allow the admis sion of g rues ome autopsy photographs of the vi ctim when other State’s witnesse s had d escribed the subje cts of the pho tograph s. State v. Terre nce D avis , C.C .A. No. 02C01-9511- CR-00343, ShelbyCoun ty (Tenn . Crim. A pp., at Jac kson, Ju ne 2, 19 97), perm . to appeal denied (Tenn . 1998). T his issue is without m erit.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JOE G. RILEY, Judge