### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE NOVEMBER 1999 SESSION
STATE OF TENNESSEE v. LETIVIAS PRINCE
Direct Appeal from the Circuit Court for Williamson County

No. I-497-141 Donald P. Harris, Judge

No. M1998-00005-CCA-R3-CD - Filed August 10, 2000

The defendant, Letivias Prince, was convicted of first degree murder and was sen tenced to life imprisonment. On appeal, the def endant argues th

at the jury pool did

not adequately represent the
rac ial mak eup of the community; that pre-trial publicity deprived him of a fair trial; that the trial court erred by permitting eight peremptory challenges in jury selection; that the trial court erred by allowing the state

to either call a r

ebuttal witness

or receive a missing witness instruction; that the trial court erred by instructing the jury regarding the order of conside

ration of offens

es; and that the evidence was insufficient to sustain his conviction. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgm ent of the Trial Cou

rt Affirmed.

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OHN H. P EAY and N ORMA M C G EE O GLE , JJ., joined. Mark C. Scruggs, Nashville, Tennessee, for the appellant, Letivias Prince.

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, Joseph Baugh and Jo

hn Barring er, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION

The defendant, Letivias Prince, was convicted of first degree m

urder in the shooti

ng death of Richard Clinton Fly. Tenn. Code Ann. § 39-13-202. The trial court sentenced the defenda ntto life imprisonment. In this appeal of right, the defendant presents the following issues for review:
(1) whether the defendant was deprived of a fair trial because the

jury didnot represent a fair cross-section of the community due to the systematic e

xclusion of blacks f

rom the jury

pool; (2) whether pre

trial publicity

surrounding the

defendant's tr

ial deprived him of a f

air trial;-2- (3) whether the

trial court erre

d by allowing

the defendant eight peremptor

y challeng

es in the jury

selection proce

ss; (4) whether the

trial court erre

d by allowing

the state to choose between a missing

witness instruction

or calling a re

buttal witness; (5) whether t he trial cou rt erred by inst ructing the jury regarding the order of consideration of offenses; and
(6) whether

the evidence of premeditation was sufficient to support his conviction. Because we find no reversible error, the judgment of the trial court is affir med.

At approximately 10:30 P.M. on March 8, 1997, Joel Dicke rson, di rected by t

he victim, Ricky Fly, drove to an area of Franklin to purchase c rack cocaine. After circling the block several times, they stopped at a street corner to ask a "large black m an" for a "twenty." When the man responded

that there was "nothing going on," they drove away . As they approached the intersection of Glass andEleventh, Dickerson heard between four and six successive gunshots which seemed to be coming from some bushes behind his truck. Fly was struck in the back of the head by a bu llet which cam e th rou gh th e rea r wi ndo w. D ick ers on d rov e to a nea rby g as station and called 911. Neither Dickerson nor the victim were armed. Dickerson did have a small pocket knife stored in his glove compartment.

Police immediately identified the defendant as a suspect. Several hours later, he was found hiding in a vehicle. The defendant initially denied any involvement in the shooting, but later took officers to the crime scene and admitted that he had fired at the truck.

When interviewed by the police, the defe ndant sta ted that two white men in a truck had driven through the area asking for crack cocaine. The defendant stated that he and his companions had informed the men that they did not sell drugs. He claimed that the two men threatened to shoot themand then drove away

. He contended that the two men came around the block again and appeared to be throwing bottles from thetruck. The defendant told police that he shot at the truck in order to frighten the m

en. He claimed th

at after he fire

d the shots, he took th

e weapon to his

home and hid it under a mattress. The police reco vered a Lorcin .380 semiautomatic pistol from the defendant's step-grandfather at the defendant's r esidence.

At the trial, Marcus

Cannon, who was sta

nding at t he corner of Glass Street an

d Ninth Avenue, testified that

the men in the truck

also asked him to sell them some drugs. He claimed that when he informed them that he had none, they

threatened to kill someone. Cannon contended that he warned the defendant and his friends about the two men. Defense witnesses claimedthat the two
men in the truck turne

d off the lights a

s if to do a "drive

by shooting " on their third tr ip around the block.-3-

Dickerson's truck

contained four different bullet holes. Twobullets were imbedded in the truck, one in the passenger door, and another in the left rear wheel well. One bullet and seven lead bulletjac kets were recovered from the scene of the shooting. The state's expert testimony established that all three bullets and four of the seven shells had been fired from t he Lorcin .380 pistol. The other three

shells were very close to a match. Other than Dickerson's small pocket knife located in the glove compartment, there were no weapons in the truck.

I

The defendant, who is African-American, argues that he was deprived of his right to a fair trial thr ough the "sys tem ati c ex clu sio n of bla cks fro m th e ju ry po ol i n Wi lli ams on C oun ty, Tennessee." His contention is that "the lack of blacks within the ju

ry pool almos

t guaranteed"

his conviction.

The statistics cont ai ned in the record regarding Williamson County reveal that in 1997, African-Americans made up approximately five pe rcen t of the drivers'

license pool. The

overall percentage of African-Ame ricans in the ge

neral population i

n 1996 was seven p ercent. It is the defendant's position that a broader statistical base s

hould have been u

sed from which his

jury was selected. The defendant insists that the veniresho uld hav e enc omp ass ed n earb y Dav ids on C oun ty, which is 25 percent African-American, so that he had "a fair cross-section of the commu nity in selecting a jury." As support of his claim, the defendant submitted the affidavit of a black juror, who swore that the racial composition of the jury had an effect on the disposition of the case

. Article I, Section 9 guarantees all criminal defendants a right to a jury from "the

County in which the crime shall have been committed." See State v. Upchurch , 620 S.W.2d 540, 542 (Tenn. Crim. App. 1980) (stating that "an accused mus t be tried in the county in which the crimes are alleged to have been committed."). Moreover, a criminal defendant has a constitutional right to a jury drawn from a ven

ire that represe

nts a fair cross-section of the community. "[S]election of a petit jury from a represe

ntative cross-se

ction of the commun

ity is an esse

ntial component of

the Sixth Amendment

right to a jury trial." State v. Bell , 745 S.W.2d 858, 860 (Tenn. 1 988) (citi ng Taylor v. Louisiana , 419 U.S. 522 (1975)). In Duren v. Missouri , 439 U. S. 357 (1979), the United States Supreme Court listed the criteria for establishing a prima facie violation of the requirement of

a faircross section: (1) the group a lleged to be exclu

ded is a "distincti

ve group" withi

n the com mun ity;
(2) the representa

tion of the group

in venires from wh

ich juries a

r e selected i s not fair

and reasonable in relation to the number of such persons in the community; and
(3) this underrepre

sentation is due to s

ystema tic excl usion of the-4- group in the jury selection process.

Id. at 364; see also State v. Buck , 670 S.W.2d 600, 610 (Tenn. 1984); Adkins v. State , 911 S.W.2d 334 (Tenn. Crim. App. 1995), app. dismissed (Tenn., Aug. 25, 1995).

C lea rly, the African-Am

erican populatio

n of Williamson County

represents a dis

tinctiv e group i n th e community. The defendant, however, has not established that the represe ntation of Afri ca n-Americans on the venire from which his jury was selected was unfair or unre asonable. Likewise, there is no showing that the jury selection process in Williamson C ounty result ed in underrepresentation of blacks due to systematic exclusion.

The record indicates that in 1996, seven percent o f the total Williamson

County population
was African-Amer

ican. One y

ear later, at the

time of the defendant's trial, African- Americans made up five percent of the drivers' license pool from which jurors were drawn i n Wi lli ams on C oun ty. In his brief, the defendant estimates that only five of the 60 to 75 potential jurors were black. Ba sed upon the defendant's own estimates, African-Americans on the venire rang ed between6.6 and 8.3 percent, a fair

representation of the county as a whole. Notwithstanding these figures, the defendant argues that the Williamson Cou nty tr ial court sho uld have attempted to achieve a higher ratio of black potential jurors by drawing from Davidson County, a bordering county, but one outside of "the community," by the traditional definition. The defendant has not cited, nor has this court found, any authority for such a propos

ition. In our vie

w, the trial court

's procedures

did not syste

ma tically exclude the black segment of the population and the jury venire represe nted a statistical

ly appropri

ate cross-section of the Williamson County community.

II

N ext, the defendant argues that pretrial publicity, including several ne wspaper articl es whic h
were published in the days leading up to his trial and which inc luded his prior criminal record, deprived him of a fair trial. The defendant cites no legal authority for his argument. H e merel y argues that it "would not have been humanly possible for the prospective jurors to have not either read or heard abou t . . . the De fendant's criminal record prior to the commencement of the trial." The defendant did not

include copies of the newspaper articles in the record. Moreover, the defendant didnot move the trial court for a change of venue, which would have been the proper r emedy in the event of excessive pretrial publicity. State v. Nichols, 877 S.W.2d 722 (Tenn. 1994).

As previously s

tated, Article

I, section 9 of the

Tennessee Constitution guarantees "the right

. . . to a speedy public trial . . . [by] an impartial jury." "The challenge for c ause w as designed to exclude from the jury triers whose bias or prejudice rendered them un fit . . . ." Manning v. State , 155 Tenn. 266, 292 S.W.2d 451, 455 (1927). Rule 24(b) of the Tennessee Rules of Criminal Procedure provides that "[i]f the trial judge, after examination of any juror, is of the opinion that grounds for challenge for

cause are present, the judge shall excuse that juror from the trial of th

e case." A par

ty may challenge a prospective juror for cause if the " prospective juror's exposure to potentially prejudicial information makes the person unacceptable as a juror." Tenn. R. Crim. P. 24(b)(2). The-5-

rule further pr

ovides as follows:

Both the degree of exposure and the prospective juror's testimony as to his or her st

ate of mi nd shall be considered in determining
acce pta bil ity. A pr os pective juror who states that he or she will be unable to overcome prec

onceptions shall be

subject to

challenge for
cause no matter how slight the exposure. If the prospective juror has seen or heard and

remembers information that will be developed

in the course of trial,

or that may b

e inadmissible

but is not so prejudicial as to create a

substantial risk tha

t his or her judgme

nt will be affected, the p

rospective juror

's acceptablit

ity shall d

epend on whether the testimon y as to impartiality is believed. If the prospective juror

admits to having formed an opinion, he or she shall be subject to chal lenge for cause unless the examination shows unequivocally

that the prospect

ive juror can be i

mpartial.

Id. Juror qualificatio

n rests within the di scretion o f the trial court and "t he trial ju dge's findin g a juror to be qualified will not be di sturbed on review except on the clear showing of an abuse of discretion." Burns v. State , 591 S.W.2d 780, 782 (Tenn. Crim. App. 1979). Although juror s may be excluded for cause if they have formed an opinion which will prevent imp art ial ity, "[j]urors need not be totally ignorant of the facts of the case on which they sit [and even] the formation of an opinion on the merits will not disqualify a juror if [the juror] can lay aside

[his
or her] opinion and re

nder a verdict ba

sed on the evidenc

e presented in

court." State v. Howell, 868 S.W.2d 238, 249 (Tenn. 1993). The United Stat e s Supreme Court has made the following observation:

In these days of swift, widespread and d iverse methods of communication, an important case can be expected to a rouse the interest of the public in the

vicinity, an

d scarcely

any of those

best qualified to serve as juror s will not have formed some impression or opinion as to the merits of the case. This is particularl y tru e in criminal cases. To hold thatthe mere existence of any preconceived notion as to the guilt or innocence o f an accused, w ithout more, is sufficient to rebut the pr esump tion of a pr ospective j uror's impartiality would be to establish an impossible standard.

Irvin v. Dowd , 366 U.S. 717, 722-23 (1961). Thus, so long as a juror may set aside any previo

usly formedopinions and render a verdict based u pon t he evidence presented in court, the juror may properly sit on the case. Id.
Here, the trial judge allowed extensive vo i r dire. Further, any juror who acknowledg ed having heard or read about the case was individually questioned by the judge, the prosecution, and-6-

defense counsel. Each juror stated that he or she had not formed an opinion about the case. In light of their assurances of impartiality, the fact that some of the jurors previously had heard or read about the defendant does not disqualify them from participation. In our view, th e trial court did no

t abuse its discretion by its approval of the jury panel.

III
Next, the defe nda nt c ont end s th at t he t ria l co urt erre d by a llo win g onl y e ight peremptory challenges.

The defendant asserts that the plain langua

ge of the statute

entitles him to

15 peremptory challenges.

Specifically, he points to the language of the statute which states that a de fendant "charged wit

h an offense puni

shable by de

ath" is entitled to

15 peremptory

challenges.
Tenn. Code Ann. § 40

-18-118 provides : Peremptory

challenges .– Notwithsta nd ing any other provision of law or r ule of co urt to t he co ntr ary, in any case in which a defendant is charged with a

n offense punisha

ble by death

, such defendant

is entitled to fifteen (15) peremptory challenges an

d the state is

entitled to fifteen (15) peremptory challenges for each such defendant. If the offense charged is punishable by imprisonment for more than one (1) year but not by dea

th, each defend

ant is entitled to eight (8) peremptory

challenges, and the state is ent itle d to eight (8) peremptory challenges for each defendant. If the offen se charged is punishable by imprisonment for less than one (1) year or by fine, or both, each side is entitled to three (3) peremptory challenge s for each defendant. Tenn. Code Ann. § 40-18-118 (emphasis added).

In State v. Atkins , 681 S.W.2d 571 (Tenn. Crim. App. 1984), cert. denied , 105 S. Ct. 1395 (1985), this court concluded that where the death penalty is not to be submitted for t he ju ry's consideration, the defendant is e ntitled to only

eight peremptor

y challeng

es. Because

the state did notseek the death pen alty in this case, the tr

ial court did not er

r by permitti

ng the defenda

nt only eight peremptor

y challeng

es.
IV

The defendant next contends that the trialcourt erred by allowing the state the opportun

ity to either call

its ballistics expert

, Steve Scott, as a r

ebuttal witness

or receive the benefit of a missing witness jury instruc

tion due to the failu

re of the defend

ant's ballistics e

xpert, Robert Goodw

in, to testify.

The evidence offered by the state established that the victim was killed by a bullet fired from-7-

a large caliber

pistol, such as a .380. A Lorcin .380 was recovered from the defendant' s residence. The state's ballistics expert testified that the bullet found in the area of the shooting a

nd the bullets found embe dded in

the truck in which the victim was riding were fired from the defendant's gun. A defe nse witness, Rena P rince, testified

that Marcus Canno

n asked her to hold

a "similar" pisto

l sometime after the shooting on the night of the crime. She claimed that Cannon's pistol was not the
sameas that recovered from the defendant's residence. According to Ms. Prince , she was a t the AmericanLegion Club near the women's room when Marcus Cannon entered the club followed by the police. She testified that as officers moved closer to Cannon, he ran to her, and handed her a gun, saying, "Auntie, take this." She put the gun in her pocke

t and held it for Can

non for approximate

ly five minutes. Cannon the n retrieved the gun and l eft through the back door. Ms. Prince described the gun given to her by Cannon as being black, heavy , and having a length of approximately five inches long. The gun given to her by Cannon was not the same gun put into evidence by the state. It was simply described as "similar." Upon the close of the defendant's proof, the state sought to rebut the testimony of Rena Prince, which it characterized as "placing another gun at

the scene." Initia

lly, the state atte

mpted to introduce the agreed order allowing the defendant's bal

listics expert to

access the state

's ballisticsrelated evid ence. The defense objected, however, and the trial court sustained the objection. Although the state suggested several other possible courses of action that it believed to be a

vailable for purposes of rebu

tting Ms. Prince's te

stimony, the only one

ente rtained by the trial court wa s a missing witness jury charge. The state offered t o rec all its own ballistic s expert, Steve Sc ott, to testify that the defenda

nt's ballistics expe

rt had indeed test

ed the ballistics e

vidence at the TBI fac ilities an d that he was within the range of the court's subpoena power, thereby establishing a foundation for the missing witne ss charge. When

the trial court ind

icated that it would allow the state to recall Scott to establish the basis for the instruction, defense counsel offered to stipulate the anticipatedtestimony. The tria l cour t read the stipulation into the record and ultimately provided the jury with a missing witness charge.

Rebuttal evidence, defined as that "which tends to explain or controvert evidence produced by an adverse party," is admissible within the discretion of the trial court. Cozzolino v. State , 584 S.W.2d 765, 768 (Tenn. 1979); see Statev. Yarbro , 618 S.W.2d 521, 525 (Tenn. Crim. App. 1981). "Whether [evidence] is

rebuttal [evidence] is not determined by the order in which [it is presented]. This determination is based upon the content of the evidence offe

red." State v. West, 825 S.W.2d 695, 698 (Tenn. Crim. App. 1992). "The rationale be hind [the rule] is <

[s]ince the state does not and cannot know what evidence the defense will use until it is presented at trial, the state is given the right of rebuttal. '" State v. Cyrus Deville Wilson , No. 01C01-9408-CR-00266 (Tenn. Crim. App., at Nashville, Nov. 15, 1995) (citing Johnson v. State , 469 S.W.2d 529, 530 (Tenn. Crim. App. 1971)). The scope of rebuttal testimony usually lies within the discretion of the trial court. Beasley
v. State , 539 S.W.2d 820, 824 (Tenn. Crim. App. 1976). Trial courts may p roperly permit the

state to introduce testimony in rebuttal which should have been introduced in their proof in chief. Johnson , 469 S.W.2d at 530.

The missing witness rule provides that when thereis " < a reasonable a

ssurance that it w

ould have been natural for a party to have called the absent witness but for some apprehension about his-8-

[or her] testimony,' an inference may be drawn by the jury that the testimony would ha ve been unfavorable." Statev. Francis , 669 S.W.2d 85, 89 (Tenn. 1984) (quoting Burgess v. United States , 440 F.2d 226, 237 (D.C. Cir . 1970)). This rule

was established in Graves v. United States , 150 U.S. 118 (1893) . While the original rule in Graves created a presumption of the unfavorability of th e testimony, the rule is now generally characterized as authorizing a permissive inference. Francis , 669 S.W.2d at 88; see also State v. Jones , 598 S.W.2d 209, 224 (Tenn. 1980). In Delk v. State , 590 S.W.2d 435, 440 (Tenn. 1979), our supreme court held that a party may comment about an absent witness when the e

vidence shows as f

ollows: (1) the witness ha

d knowledge of mat

erial facts; (2) that a relationship exists between the witness and the party that would naturally incline the witness to favor the party; and (3) that the missing witness was available to the process of the trial court.

These requirements are to be "strictly construed, particularly when the rights of a criminal defendant may be affecte

d." Francis , 669 S.W.2d at 89.

Rena Prince's testimony

was offered by t

he defense to

imply that Cannon might have fired the fatal shot. The stipulation that Robert Goodwin had tested the defendant's weapon, coupled with his failure to testify, was presented to rebut any possible inference drawn by the jurors. Because, howeve r, the "missing witness" was a ballistics e

xpert, his testimony

would have relat

ed to hi s opinions as to the weapon used in theshooting and whether the pistol recovered from the defendant's homewas the same weapon used in the sho oting. This t estimony does not me

et the first crite

ria listed in Delk . That is, the expert witness did not have knowledge of "material facts" relative to the shooting. Instead, he had formed opinions based upon his knowledge in the field of ballistics and his examina tion of the weapons and ammunition. See Tenn. R. Evid. 703 ( stating that exper

ts in scientific or technical fields may testify in the form of an opinion). Additionally, it cannotbe said that an expert will always be naturally inclined to favor the party who hires him, as required by the second Delk criteria. Although an expert may be more likely to testify if his views are consistent with the theory of his employer, "we are not convinced that an expert's testimony

must somehow be a c

ommodity bought and so

ld to reflect exa

ctly what a party might wish or direct." Taylor v. Kohli , 625 N.E.2d 64, 68 (Ill. Ct. App. 1993). It was, therefor e, erroneous for the trial court to provide a missing witness instruction relative to the ba llistics expert. Were we to hold

otherwise, any expert witness not called upon to test

ify for the state o

r the defense would entitle the other side to a missing witn ess instruction. Parties might be disinclined to hire consulting, non-testifying experts for fear that their absence might result in a

negative inference. In
our view, that is not the intention of the missing witness rule. Our resea rch does not indicate any other Tennes see case in which the missing witness rule

was applied under

similar circumsta

nces. An Indian a appellate court, reviewing a trial court's refusal to issue a missing witness instruction under similar circumstances, stated the following:-9- Refu sing the instruction was not reversible err

or. The court is invested with discret io n in determining the final instructions to be given to the jury. Our prior decisions havedisapproved the giving of such "missing witness" instructions unless clearly re q uired by the evidence. We f

ind it unrealistic

to impose on litigants the nece ssity of calling as witnesses every expert whom theymay have consulted at some stage of t he proceedings o r suffer a missing

witness instruction when th

e case goes to tri

al.

Bitzer v. Pradziad , 571 N.E.2d 593, 597 (Ind. Ct. App. 1991) (citations omitted).

Furthermore , the record prov ides us with no infor

mation to assess the

admissibility of th

e "missing" ballistics expert's testimony. The only reference in the record to the defendant's ballistics expert comes from the agreed order, wherein the state and the de fense stipulated that Goodwin would be permitt

ed to test the w eapon at the TBI laboratory. In the absence of any information about Goodwin's education or tra ining, this court is

unable to conclude that he would have qualified as an expert in the field of ballistics under Tenn. R. Evid. 701 . It is, therefore, our conclusion that the trial court erred by providing a missing witness instruction relating to the ballistics expert. Although the trial court erred by instructing the jury regarding th

e missing witness,

the state is entitled to a harmless error analysis. See Francis , 669 S.W.2d at 90. A reversal is required if the
error affirmatively appears to have affect ed the result of th e trial on the meri

ts. Tenn. R. App. P. 36(b); Tenn. R. C rim. P. 52(a). The proof of the defendant's guilt was substantial. The weapon locatedat the defendan

t' s home matched the bullets and casings recovered from the scene of the shooting and the bullets recovered from t he tru ck. In contrast, the testimony of Rena Prince provided littleassistance to the defense theory. It mer ely suggested that

another gun might have

been present at the scene of the crime. There was no indication that it had been fired. Moreover, the defendant admitted to shooti ng a t the t ruck. In our assessment, the missing witness jury instruction was harmless error.

V
Next, the defendant contends that the trial court erred

in its instruction to th

e jury rela tive to the order of consideration of offenses. The trial court charged the jury on first degree murder, and the lesser included offenses of second degree murder, voluntary ma

nslaughter, re

ckless homicide, and criminally n

egligent homic

ide. In confo

rmity with TennesseePattern Jury Instruction Criminal 41.01, the trial court instructed the jury to fi rst consider whe ther the defenda

nt was guilty

of first degree murder before proceed

ing to th e lesser include

d offense of sec

ond degree mur

der, and to continue in that manner until reaching a verdict. Tennessee Pattern Jury Instruction Criminal 41.01 provides as follow

s:
If you have a re asonable doubt as to the defendant's guilt of

_________(insert offense charged) as ch

arged in th

e ind ictment, then-10- your verdict must be not guilty as to this offense, and then you shall proceed to determine [his][h er] gu ilt or innocence of the lesser included offense of _________ (insert lesser included offense).

The defendant now a

rgues that the cou

rt's instructions to

first consider fi

rst degree mu

rder "gave
more weight to the charge of first degree murder, invade d the province of the jury regarding the
manner in which their deliberations were to be conducted, and

effectively prevented the jury from considering all possible convictions ."

This court has previous ly r ejected similar arguments. In State v. Rutherford , 876 S.W.2d 118 (Tenn. Crim. App. 1993), app. denie d (Tenn., Feb. 14, 1994), the defendant argued that the sequential nature of the charge prevented the jury from determining the degree of homicide shown by the evidence.

A panel from this c

ourt concluded a

s follows: The jury does have a duty to determine the grade of the offense, but the "seque n tial" instruction was not violative of this duty under Tenne ssee law. The judge instructed the jury on all of the lesser offenses included in the charge of first degree murder as required by statute. The sequential jur y instruction did

not preclude the jury from considering the lesser charges.

Id. at 119 (citations o

mitted); see also State v. Robert Williams , No. 03C01-9302-CR-00050 (Tenn. Crim. App., at Knoxv

ille, Apr. 2, 1996) . This issue, there fore, is without me

rit.

VI

As his final issu

e, the def endant argues th

at the evidence w

as insufficient to

support his conviction for first degree murder. Specifi cally, he c ontends that the ev idence did not supp

ort a finding of premeditation.

On appe al, the state is entitled to the strongest legitimate view of the evidence and al l reasonable

inferences which might be drawn the refrom. S tate v. Cabbage , 571 S.W.2d 832, 836 (Tenn. 1978). The credibility of witnesses, the weight to be given the ir te stimony, and the reconciliation of conflicts in the evidence are matters entrusted exclusively to the jury as the trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). In a criminal case, a conviction may be set aside only whe n the reviewing c

ourt finds that the " evidence is insuf ficient to support the finding by t he trier of fac t of guilt beyond a r

easonable doubt. " Tenn. R. App. P. 13( e). A guilty verdict, approved by the tr ial judge, accre

dits the test

imo ny of the witnesses for the state and resolves all conflicts in testimony in favor of the state's theory. Statev. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978). A verdict against the defendant removes the presumption of innocence and raises a presumption of guilt upon appeal. State v. Grace , 493 S.W.2d 474 (Tenn. 1973).

First degree murder is defined as a "premeditated and intentional killing of another." Tenn. Code Ann. § 39-13-202(a)(1). "'[P]remeditation' is an act done after the exercise of reflection and-11-

judgment" and requires that the "intent to kill [be] formed prior to the act itself." Tenn. Code Ann. § 39-13-202(d). A

person "acts inte

ntionally with resp

ect to the nature

of the conduct or

to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11-302(a). While the intent to kill must have been formed prior to the act itself, "[i]t is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time." Tenn. Code Ann. § 39-13-202(d). One authority provides some insight into the nature of proof required before a jury might properly infer premeditation:

(1) facts about how and what the defendant did prior to th e actual killing which show he w as e ngaged in activity directed toward the killing, that is, planning activity; (2) facts about

the defendant's

prior relationshi

p and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of the killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

2 LaFave & Scott, Substantive Cr iminal Law § 7.7; see also State v. Jones , 15 S.W.3d 880, 888-89; Statev. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1 995). Premeditati on is a question for

the jury and may be inferred from the manner and circumstances of the killing. State v . Gentry , 88 1 S.W.2d 1, 3 (Tenn. Crim. App. 1993).

The evidence here established tha t the defendant, rather than leaving the scene, armed himself and hid in some bushes while waiting for the truck to drive by. The defendant fired at least
seven different times f

rom his semiautomat

ic weapon into a truck containing two unarmed passengers. The shot that killed the victim entered from the rear of

the truck, striking

the victim

in the back of the head, thereby indicating that the truck was already past the defendant when he f ired the fatal sh o t. The defendant was found hiding in a car after the shooting. He admitted that he intended to fire his weapon at the truck. The jury was given a self-defense instruction, but rejected that theory, finding instead that the defendant had inten tionally and with premeditation shot and killed the victim. This evid ence, accred

ited by the jury, is s

ufficient t o pro ve the elements of the crime.-12-

Accordingly, the judgment of the trial court is affirmed.

____________________________________ GARY R. WADE, PRESIDING JUDGE