### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 13, 2002 Session
STATE OF TENNESSEE v. MICHAEL GEORGE MEDINA

Appeal from the Criminal Court for Smith County

No. 99-270 J. O. Bond, Judge

No. M2001-02412-CCA-R3-CD - F iled October 2, 2002

The Appellan

t, Michae l Georg e Medina , appea

ls his conviction by

a Smith Count

y ju ry finding him guilty of first-degree murder. O n appea l, Medina challenges (1) the sufficie ncy of the c onvicting evidence, as it rela

tes to the element of premeditation, and (2) the trial court’s ruling w hich he a sserts interfered with the defense’s order of proof, thus, “for cing a premature

election on defendant’s right to testify.” After

review, we find no error. Accor dingly, the judg

ment is affirmed. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

Affirme d.
D AV ID G. H AYES , J., delivered the opinion of the court, in which D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined. Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Michael Georg e Medina.
Pa ul G. Summe rs, A

ttorney Gene ral a nd Rep orte

r; Mic hael Moor e, Sol icito r General ; Renee W. Turner, As s istant Atto

rney Genera l; Tom P. Tho mpson, Jr., D istrict At torney Genera l; and Dav

id E. Durham, Assistant District Attorney G eneral, for the Appellee, State of Tenne ssee.

OPINION
Factua l Background

On Septembe

r 26, 1999 , Jennifer

Medina w as found in the home she ha d shared with the Appellan t, lying in a pool of blood with a f atal gunshot wound to the head. The autopsy re port and physical evidence established that death was produced by a 9 mm g unshot wound, with the gun’s barrel touching her head when the g un was fire d. The Ap

pellant, the estra

nged hu sband of t

he victim and present at the scene, was char ged with the homicide.1 The order also se t aside a quitclaim deed the victim had e xecu ted co nveying her inter est in the m arital pro perty,

the court finding the dee d had b een exec uted unde r duress.

2 Th is date w as a Su nda y and w as also the victim ’s twenty-sev enth b irthday. -2- The parties were m arried in 1991 and had one child, who was two y ears old. The child, Austin, had be en dia gnosed with cancer a nd, du ring th is ti me, wa s unde rgoing chemothe rapy treatme nts at Vanderbilt Hospital in Nashville, in addition to receiving intravenous medication at home

. By 1999, the mar riage had seriously

deteriorated, and the Appellant had filed for divorc e
. Af terthe divorce was filed, the victim resided with her best friend and ne xt-door neighbor, Ellen Newman. The Appellant

continued to reside in the marital residence with his minor children from a prior marriage. The parties a greed to a temporary

order, which provided for sha red c ustody of Austin. The divorce action was characterized as hostile and bitter, as were the ensuing temporary custody battles.
On August 2 0, 1999, a

n order o f protection was is sued ag ainst the Appellant, based upona finding of domestic abuse a fter t he Appellant refused to comply with the terms of the temporary custody agree ment. On th

is occas ion, the vi ctim w as thrown against a wall by the Appellant and sustained bruises and a knot on her head.
Also in Augus t 1999, the victim con

tacte d C rime Stoppers in Franklin, Tennessee, and reported that the Appellant

had stolen a “bobcat” loader in June 1997. She provided details of how the theft occurred, how the

Appellant had repainted it and removed the serial numbers, a nd to whom it was sold. Th e Appellant was contacted by a detective, and he claimed that the victim was manufacturing the charges because he had been given custody

of their child. The details provided by the victim

were su bsequen tly v erified

by t he police , and the A

ppellant was arr ested on A

ugust 26thfor the theft. The victim would have been a material witness in the c ase. After the arrangements under two joint custody orders ha

d failed, temporary

custody of the minor child and child support w ere aw arded to

the victim on September10,1999. The order provided the Appellant visitation on Monday through T hursday fr

om 5:00 p.m. to 6:30 p.m. and every other weekend from Fr iday at 5:00 p.m . to Su nday at 5:00 p.m. The A ppellant was per mitted to r

etain possession of the ma

rital re sidence , and the v

ictim was responsible for

delivering the child to and from the r esidenc e during

the Appellant’s vi sitation pe riods. 1
At approximately 5:00 p.m. on the day of he

r death, 2 the victim left the Newman residence on foot to go and retrieve Austin from his father following visitation. I t was the victim’s normal practice to rem ain ou tsid e the re siden ce when picki ng up he r son. Before l eavin g, the victim told Ellen Newman that she would be back in five minutes. She carrie d no purse or bags with her. Approximat

ely two and one-half hours later, a 911 call was made from the marital residence. When officers responded to the call, they found the Appellant outside with Austin in his arms. Upon entering the residence, deputies found the vic tim ly ing on the

floor wit h a guns hot wound t

o th e3 The post- mortem examin ation reveal ed that the t wenty -seve n-ye ar-ol d vict im was sixty -four inches tall and weighed nine ty-two pound s.

4 Joe Med ina, the Appellant ’s twelve- year- old son, did tes tif y at t rial that he w ent to the doo r while the victim
was ins ide a nd saw her h oldi ng a g un at tha t poi nt. However, on cross- examination, t he son admit

ted that in hi s ini tial statement to th e inves tig ator, he did not indic ate that he had seen the victi m with a gun. The son also admitted that the Appell ant had t old hi m what happene d and l eft

note s t o him de scri bing what had happe ned. -3- head. A .38 cal

iber revolver w as found nea r her head and a 9mm semi-automatic handg un was found near her knee. The serial number on the .38 re volver w as remov ed and no identifia ble fing erprintswere found on either weapon. The .38 c aliber revolver was fully loaded and h ad no t been fired. A 9 mm shell casing was found on the floor in the kitchen are a and a 9 mm projec tile was removed from the floor, where it was e mbedded.
The Appell an t was taken into custody and subsequently ga ve a statement to Tennessee Bureauof Investigation

Agent Jason Locke. The Appellant stated that the victim had brought the .38 revolver with her into the house and then refused to leave . He claimed that she wanted to

talk about reconc ilin g. The Appellant also stated that he was afraid of her as she was hyste

rical at times. 3 He stated tha

t, after he saw he

r with the gun, he retriev ed his 9 mm p isto l from the saf e in the bedroom. He explained that he put the g un in his ba

ck pocke t so that the

victim would not see

it. During this period, the victim remained in the living room of the house. The Appellant stated that an argument ensued and "she ke pt pointing the gun at me. . . . I turned a round an d she wasright in front of me. And I

could n't see the gun any more, s he was j ust t oo clo se to m e, I didn 'tknow where it was, and I g

rabbed her and I pushed her . We hit the ground, and all three of us hit together." When the victim fell, he heard a gunsh ot. The Ap

pellant d enied sho oting the

victim. During the scuffle, the Appellant maintained that his pistol remained in his back pocket and he offered no explanatio n as to how

his pistol shot the vic tim. Several witnesses testified that the victim did not own a gun. No one saw her entering the residencewith a gunthat day , includin g the Ap pellant’ s three s ons from a prior marriage who were present outside the house when she arrived. 4 Several witnesses also testified that the victim had no plans to reconcile with the Appellant. The victim’s father testified that she a nd Austin had in fact planned to move to Illinois and live with him after the divorce.
At tri al, the State argued that the Appellant had lured the victim into the residenc e on thi s date, had shot her in the head, and then plantedthe .38 pistol by her body . On April 12, 2001, the Appellan t was found guilty

by a jury of first- degree preme ditated mu rder. Th is appea l follows. Analysis I. Sufficiency of the Evidence The Appe llant arg ues that th

e evidence intro duced a

t trial wa s insufficient to sup port his-4-

convicti on for the

first-de gree m

urder of his wife, Jennifer Medina. Specifically , he contends that the State failed to prove the element of premeditation.
A jury conviction remove s the presumption of innocence with which a defenda nt is initially cloaked and replaces it with one

of guilt , so that on

appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence, t

his cour t does not reweigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this court to revisit questions of

witness credibility on appea l, that function being within the province of the trier of fact. See generally State v. Adkins , 786 S.W.2d 642, 646 (Tenn. 1990 ); State v. Burlison , 868 S. W. 2d 7 13, 718 -19 (Te nn. Cri m. App . 19 93) . In fact, “a guilty verdict by the

jury, approve d by the trial judge, accredits the testimony of the witnesse s for the

Stateand reso lves all c onflicts in favor of the theory of

the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). To overcom e this, the defendant must establish that the e vidence presented at trial was so deficient that no reasona ble trier of fact could have found the essential elements of the offense bey ond a reaso nable doubt. Tenn. R. App. P. 13( e); Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S. Ct. 743, 130 (1995). The State is entitled to the strongest legitimate view of the evid ence and all rea sonable inferences which may be dr awn therefrom. State v. H arris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S. Ct. 1368 (1993).
The State may prove a

criminal offense by

direct evidence, circumstantial ev i dence, or a combination of the two. State v. Tharpe , 726 S.W.2d 8 96, 899-9 00 (Tenn . 1987); see also State v. Brow n , 836 S.W.2d 530, 541 (Tenn. 1992) (“the cases have long recognized that the necessary elementsof first- degree murder ma y be shown b y circumstantial evide nce”). Before a jury

may convict a defendant of a criminal offense ba sed upon circumstantial evide nce alone, the facts and circumstances “must be s o strong and cog ent as to

exclude e

very other re asonable

hypothesis save the guilt of

the defe ndant, and that bey

ond a rea sonable

doubt.” State v. Cr

awford , 225 Tenn. 478, 470 S.W.2d 61 0, 612 (Te nn. 1971) ; see also State

v. Grego ry , 862 S.W.2d 57 4, 577 (Te nn. Crim. App. 1993). As in the case of direct evidence, the weight to be give n circumstantial evidence and “the infere nces to be

drawn f rom such e

vidence , and the e

xtent to whic

h the cir cumstanc es a

r e consistent withguilt and inconsistent with innocence, are questions primarily for the jury.” Marable v. State , 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn. 1958) (citation omitted).
First degree murder is defined as “a premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-2 02(a)( 1). The s tatute de fines pr emeditat ion as follows:
As used in subdivision (a)(1) “premeditation” is an act done after the exercise of ref l ection and judgment. “Premeditation” means that the intent to kill must have been for med pri or t o t he a ct i ts elf . It is not necessary that the purpose t

o kill pre- exist in the mind of

the accused f

or any def

inite period of time. The mental state of the accused at the time

the accused alle gedly

decided to kill must

be carefully

considered-5-

in order to determine whether the acc used was sufficiently

free from excitementand passion as to be capable of premeditation.
Tenn. Cod

e Ann. § 39 -13-202( d); State v. Sims , 45 S.W.3d 1, 7-8 (Tenn. 2001).
After reviewing all the evidence in the recordin the light most favorable to the prosecution, we cannot say that no r

easonable trier of fact could have f ound the Appellant guilty of first-degree murder beyond a re asonable doubt. The jury was in the best position to view the witnesses and the evidence and determine, based upon that proof, whether the shooting was accide ntal or whether the Appellant intentionally and with premeditation murdered

his wife. Mental states, such as the intent to kill, are not generally

established by direct evidence, as most often the only remaining witne ss to the homicide

is the def

endant. T

hus, the in

tent to k ill may be inferred from the character of the defendant’s conduct and the circumstance s surroundi ng the commission of the offense. See generall y State v. Bland , 958 S.W.651, 660 (Tenn. 1997).
Facts from which a jury

may infer pr

emeditation includ e use of a d eadly we apon upon an unarmedvictim , pl anning activities by the Appellant prior to the killing, the Appellant’s prior relation ship with the victim, and the nature of the killing. Bland , 958 S.W.2d 6 60; State v. Gentry , 881 S.W.2d 1, 4-5 (Tenn. Crim. App. 1993 (citation omitted).
The proof prod u ced at tr

ial estab lished tha

t it was not

the norma

l routine o f the vic tim to enter the residence when picking up her c hild and she had clearly

told Ellen Newman that

she would return in five minutes. Testimony further e stablished that the Appellant had instructed his children to leave the residence

during t he time the

victim would be picking Austin up following visitation. No one saw the victim enter the residence with a handgun . No fingerprints were found on either weapon located by the victim’s body, nor could ownership of the .38 revolver

be determined

because the serial number had been removed. The A ppell ant denie d he shot hi s wife; r ather, h e impliedl

y testified that she mu st have shot herself when “ he, Jennif er and A ustin all f ell in apile.” Th

e autopsy report showed that

death re sulted fr

om a gunshot wound inflicted when the barrel was pre ssed to the victim’s head. The phy sical evidencecircumst antially establish ed that the 9 mm pistol , which the Appellant admittedly possessed, was the we apon whi ch produ ced the fatal wound. Finally , the record established several motives for the murder. See Iveyv. State , 360 S.W.2d 1,3 (Tenn. 1962) (holding that evidence tending to show moti ve is alwa

ys r elevant , particularly

in casesbuilt wholl

y or partially on circ

umstantial evidence). The victim and t he Appellant were involved in a bitter divorce proceeding, the victim had reported the Appe llant to the police for

theft and was a material witness in that cas e, the victim had only day s earlie

r obtaine d custody

of the mino

r child in addition to being awarded child support, and the victim had indicated he r intent to le ave the St

ate with t heir son. Thes e facts, which include use of a deadly weapon upon an unarmed victim, plannin g activities prior to the killing, the Appellan t’s prior relation ship with the victim, including his motives for murder, and the nature

of the killing, support the jury’s finding of premeditation. After viewing5 The S t ate arg ues that th e Ap pellan t has wa ived th e issue b y not co ntemp oran eou sly obj ecting a t trial.

Ge nerally, the f

ailu re would r es ult in a wa iver. Stat e v. Burton , 751 S.W .2d 440, 448 (Tenn. Crim. App. 198 8). However, in the pr esent c ase we find that the issue wa s prese rved for ap pea l. It is clear fro m the record that the Appellant rais ed the i ssue dur ing t rial and at t

he appropriat e ti me. In v iew of the fol lowi ng pron ounceme nt of the t rial judge, we fin d that

any f urther objecti ons by the Appellant would have been fut ile:

THE COU RT: W e’re sit ting here at

3:30 and you have a client there t ha t’ s goi ng t o b e making a dec ision wh ether h e’s goin g to test if y or n ot. We’re goi ng t o be here u ntil 5:30 , that’s the sch edu le of the Court today. That’s t he reason I said the othe r day to mak e sur e you had al l of your wi tness es here. This havi ng to wai t for somebody to show u p, we al l knew wh at we we re her e for. If he’s going to tes ti fy he can tes ti fy now, it wil l ju st be hi s t urn.
. . . I made that st atement from the start of t his t rial that we we ren’t go ing to d o this. . . . W ell, we’re going to go forward wit h the trial. I’m no t going to stop until in the morni ng we a ll knew to be her e, we ’re goin g on wi th w hat we hav e gotand you can either c lose o r do whatev er you want to do. I’m just not g oing to do it.

6 The three witnesses were t he Appellant’s sons, who were living wi th him on the date of the murder, but had been relocated to Kentucky after t he Appellant’s incar ceration.

-6- the evidenc e inthe ligh

t most favo

rable to the State , we conc lude that a reaso nable

trier of fact could have found the Appellant guilty of the first-degree murder of his wife.
II. El ecti on to T estify
The Appellant next contends that the trial j udge committed error by “forcing a premature election” by the

Appellant as to whether he was going to testify in the case. 5 This ruling occurred on the third day of trial a

nd after the Appellant had already presented three witnesses in his defense. The testimony of the third witness was c oncluded at approximately 3:30 p.m., but the Appellant’s remaining three witnesses were not pr es en t i n t he co ur tr oo m t o t es ti fy. 6 The trial judge advised the Appellant that th e court w as “going on with what we have g ot and you can e ither close or do whatever you want to do.” Th e A pp el la nt as se rt s t ha t t hi s r ul in g f or ce d h im to de ci de pr em at ur el y, i.e. , before hearing

his other witnesses, if he would test ify and that t his, in turn , hamper

ed his def ense because he was un able to evaluate the actual worth of all witnesses bef ore deciding whether he sh ou ld te st if

y. The Appellant and the State apparently had previously discussed the de fense order of proof and when the respective witnesses would be needed a t trial; however, neither realized that the trial would progress as quick

ly as it did. Nonetheless, it should be noted that the Appellant had been instructed by

the trial judge on the previous day of the trial to have his witnesses present. We further notethat a tri al judge

is not bound

by a n agre ement of

the part ies, as it is within the province of the trial court to control the orderly disposition of the trial. Our review of this issue is conducted under an abuse of

discreti on standa

rd. Reve rsal is not warranted unless the trial court “‘applies an incor rect legal s tandard , or rea

ches a decision whi ch is ag ainst logic or reasoning

that cau ses an inj ustice to the party complaining.’” State v. Shirley , 6 S.W.3d 243 , 247 (Te nn.1999) . Under t

his standa rd, this court is not permitted to substitute its own judgment in place of the trial court’s. Id

.-7-

The Appe llant arg ues that f orcing him to testif

y or close hisproof before all his witnesses had taken the stand is analogous to a Brooks violation. In Brooks , the United States Supreme Court held unconstitutional a Tennessee statute, which required that if a defendant wanted to testify as part of his pro of, he ha

d to do sobefore any

other witnesses took the stand. Brooks v. Tennessee , 406 U.S. 605, 612-13 (1972).
We find the Appellant’s reliance upon Brooks misplaced. Unlike Brooks , the Appellant was notrequired to testify f

irst or not at all. Accordingly , we findno impingement of any constitutional right. Rather, we find that the trial court’s ruling involved an order of proof issue, wh ich is with

in the di scret ion of the trial judge, as the judge is responsible for the orderly a

nd expeditious presentation of testimony. State v. B arnard , 899 S.W.2d 617, 624 (Ten n. Crim. Ap

p. 1994). While perhaps not the mos t prudent method of

dealing withthe remaining two hours left in the co ur t d ay, we cannot sa

y th at it was a

n abuse o f discre

tion to keep the trial moving forward, so as not to prevent additional inconvenience to the jurors or to incur added time and expense to the trial. The Appellant had been warned the

previous day to have

all his witnesses present and ready to testify . He chos e instead to chance that they would not progress that far into the trial.
Even had we found this to be error on the part of the trial judge, the error would have bee n harmless

. The Appe

llant asse rts no pre judice to his case as a result of his decision to take the stand before his last thr

ee witne sses. Cl early

the act d id not “affirmatively a

ppear to have affected the result of the trial on the mer

its.” Ten n. R. Crim. P. 52(a). T

his issue iswithout me

rit. For the above stated reasons, the judgme nt of conviction is affirmed.

___________________________________ DAVID G. HAYES, JUDGE