# FILED March 15, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9803- CR-00108 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. CHERYL BLACKBURN, MICHAE L J. RUSSO, ) JUDGE ) Appe llant. ) (First Degree M urder)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF DAVI DSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : F. MI CHIE GI BSON, JR. JOHN KNOX WALKUP 1416 Pa rkway Tow ers Attorney Generaland Reporter 404 James Robertson Parkway Nashvill e, TN 37219 TIMOTHY BEHAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attor ney General SHARON BROX Assistant Distri ct Attor ney General Washington Square, Suite 500 222 Se cond A venue N orth Nashvill e, TN 37201-1649
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defen dant, Michael J. Russo, appeals as of right his convi ction fo r the first deg ree premed itated murder of his wi fe. The only assignment of er ror for review is the suf

ficien cy of the co nvicti ng evidence, whi ch Defendan t contends does not support a findi ng o f preme ditation be yond a re asona ble dou bt. W e disagre e, and w e affirm the verdict of the jury as app roved by the trial cour t.

Tennessee Rule of Appell ate Procedure 13( e) prescri bes that “[ f]indi ngs of guilt in crimi nal acti ons whether by t he trialcourt or j ury shallbe set aside if the evidence is insuf

ficien t to support

the findi ng by the tr ie r of fact beyond a reasonab le doubt.” Tenn. R. App. P. 13(e) . In addi tion, because convict ion by
a trier of fact destroys the presumpti on of innocence andimposes a presumptio n of guilt, a convicted cr iminal defendant bears th e burden of showi ng that the evidence was insu fficient. McBe e v. State , 372 S.W.2d 173, 176 (T enn. 1963 );
see also State v. Evans , 838 S .W .2d 18 5, 191 (Ten n. 199 2) (cit ing State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1976), and State v . Brown , 551 S.W.2d 329, 331 (Tenn . 1977)); State v. Tug gle , 639 S.W.2d 913, 914 (T enn. 19 82); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).

In its rev iew of theevidence, an appellate court must af ford theState “t he strongest legiti mate view of t he evidence aswell as all rea sonab le and leg itimate inferences

that may be d rawn therefrom .” Tug gle , 639 S.W.2d at 914 ( citi ng State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 19 78)). The court may not“reweigh or re- evaluate the evi dence” i n the record below. Evans , 838 S.W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836). Likew ise, should the review ing court-3-

find particul ar confli cts in t he trialtestimony, the court must res olve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle , 639 S.W .2d at 914
.

In this case, the State a nd Def endant presented the jury with conf licti ng factual scenarios r

egarding howthe sh ooting of the vic tim occurred. According to Defen dant, while he and hi s wife argued, she brandished a knife , caus ing him to pin her

against t he wall i n self-def ense. He admitted to cocking the handgun to frighten her; but

he testi fied that

she then pushed him away from her, caus ing the gun to accidentally di scharge as he stumbl ed backward. A bul let enter ed her nose and traveled through her skull, killing her instantly.

He testif ied that

he was drunk—that he had consumed ei ght or nine drinks and “a couple of

beers ” in approximatel y one hour pri or to ret urning home from work the night of the m urder. Howe ver, even his own testimony ref lected t hat he
was cohe rent an d rem emb ered c learly his own versi on of the evening’s events. In additio n, he stated t hat his wi fe had slapped him an d cut his fa ce with the knife in the course of their confrontation. A witness for t he defense who saw Defendant immediately after t he murder testi fied that his face was cut and bleeding
.
The State, on t he other hand, pr esented Carmella Russo, dau g hter of Defendant and thevi cti m, who testi fied that while she wa s in her room , she heard her parents arguing . She kn ew from past exp erience that her paren ts did not want to argue in her pre sence, so sh e left her room a nd entered the area whe re her parents cont inued to f ight. She watched as Defen d ant pinned her mother agains t the wall, ho lding her a rms as he yelled a t her.-4- According to Carm ella, Defe ndant “w as still yelling at [the victim] and hittin g her, and then he went to go get a knife and was tell ing her if she was so big and bad, why didn ’t she cut h im.” The vi ctim threw t he steak knife to the fl oor, and Defendant picked it

up , bent the bl ade, and threw it at her, hitti ng her in the stomach. Then, “she built up enough nerve to push him off of her, and he caught hi[m]self in the doorw ay . . . and went into the o ther room a nd got the gu n.”

Carm ella t estified that wh en De fenda nt cam e bac k, he a sked the victim “something like why ar e you afrai d to die?”or “Are you afr aid to d ie or wh y aren ’t you yelli ng?” The vict im repliedthat she wasnot afra id to die because s he knew where she would be going ( i.e. , to heaven). Next, Defendant put the gun against the victi m’s nose, and Carmell a closed her eyes. While Carmella’ s eyes were closed, she heard a gunshot. When she opened her eyes, shesaw her mother “on the ground in a pu ddle of blood, ” and her fat her with t he gun stil l in hi s hand.

Carm ella ran into the ba throom until she heard her father leave; she then emerged, call e d 911, and attempted u nsuccess fully to resuscitate her m other. She testif ied on redirect that when Defendant placed the gun again st the vic tim’s nose, she b elieved that “he as ked her are yo u afraid to die.”
First degr

ee murder is a “pr

emeditated and i ntentionalkilling of ano ther.” Tenn. Code Ann. § 39-13-202(a) (1). Premedi tation “ is an ac t don e after t he exercise of reflection a nd judg ment,” a nd it mea ns that “ the intent t o kill must have been formed prior to the act itself.” Id. § 39-13 -202(d). F urtherm ore, [i]t is not ne cess ary tha t the pu rpose to kill pre -exist in themi nd of the accused for any

definite period of

time. The mental state of the accused at the tim e the a ccus ed alle gedly d ecide d to kil l mus t be-5- carefu lly considered i n order to determine whether t he accused was sufficie ntly free fr

om excitement and passi on as to be capable of premeditati on. Id.

The element of premeditation is a questi on f o r the jur y and “may be establi shed by proof of the circ umstances surroundi ng the killing.” State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997) ( citing State v . Brown , 836 S.W.2d 530, 539 (Tenn. 1992)), cert. deni ed , 118 S. Ct. 1536(1998); see also State v. Pike , 978 S.W.2d 904, 914 (Tenn. 1998) . Oursupreme court hasidentified several factors tending to dem onstra te existe nce o f prem editatio n, inclu ding: th e use of a de adly weapon upon an unarmed vict im; the part icular cruelty of the ki lling; declarati ons by the defenda nt of an intent to kill; evidence o f pro curem ent of a weapon; prep arationsbeforetheki ll ing for con ceal ment

of t he c ri me; a nd c almn es s imm ediate ly after the kil ling. Bland , 958 S.W.2d at 660 (ci ting Brown , 836 S.W.2d at 541-42, and State v. West , 844 S.W.2d 144, 148 (T enn. 19 92)); Pike , 978 S.W.2d at 914-15.

W hile certain of th ese facto rs are ab sent in th is case, t he jury heard testimony

from Carmella Russo, an eyewitness , that her motherwas unarmed at all ti mes and that when Defendant handed her a steak knife and taunted her to cut him, she thr

ew the knife to the fl oor a nd did not retrieve it. I n additi on, Carm ella stated t hat her father left t he immediate place of the conf rontati on twice—once to obtain th is knife that he th rew at the vi ctim, and l ater, to obtain t he gun with which he shot her
. Finally , Carmella testifi ed that Defendant asked the vi cti m, while he pre ssed a gun to her nose, if she was afraid t o die, to which the-6-

victim replied t hat she was not afraid b ecaus e she kn ew “whe re she w as going .”

Defendant presented a di fferent set of facts to t he jury, creatin g a sce nario in which the ki llingwas a pro voked, acci dental shoot ing. This, therefor e, presented a question of fact for the jury. We conclude that the ev idence was suffic ientto perm it the jury to find Defendant guilty of premeditated f irst degr ee murder, and we af

fi rm t he ju ry’s exerci se of its fact-finding power to convi ct Defendant. The j udgment of the t rial cour t is accor

dingly af firmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JERRY L . SMI TH, J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE