# FILED
July 28, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON FEBRUARY

1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 02-C-01- 9604-CR-00125 ) ) Shelby Count

y v. ) ) John P. Colton, Jr., Judge ) ( (First D egree Mur der and Attempt to ) Commit First Degree Murder) ERIC D. WALLACE, ) ) APP ELLANT. )

FOR TH E APPEL LANT: FOR THE APPELLEE: W . Mark Wa rd John Knox Walkup Assistant Publ ic Defender Attorney Gen eral & Repor ter 147 Jefferson Avenue, Suite 900 500 Charlotte A venue Memphis, TN 38103 Nashvil le, TN 37243-0497 Betty Jo Thomas Daryl J . Brand Assistant Publ ic Defender Assistant Att orney Gener al 201 Poplar Avenue, Suite 2-01 450 James Roberts on Parkway Memphis, TN 38103 Nashvil le, TN 37243-0393 OF COUNSEL: William L. Gibbons Distric t Attorney General A C Wh arton, Jr. 201 Poplar Avenue, Suite 3-01 Shelby Count

y Public Defender Memphis, TN 38103 201 Poplar Avenue, Suite 2-01 Memphis, TN 38103 Jerry R . Kitchen Assistant D istrict A

ttorney Gener

al 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILE D:_____________________________ AFFIRMED Joe B. Jo nes, Pre siding Jud ge1 

## O P I N I O N

The appe lla nt, E ric

D. Wall ace ( defe ndant), was conv icted of first deg ree murder and attempt to com mit first degree murder, a Class A felo ny, by a jury of his peers. The defendant was sentenced to life in the Department ofCorrecti on for the offense of murder first degree. T he trial court , finding the defendant to be a standard offender, imposed a Range I sentence consistin g of confinement for fifteen (15) years i n the Department of Correction for the off ense of attempt to commit fir st degree mur

der. The sentences are to be served consecutivel y. In thi s Court the defendan t cont ends (a) the evidence is insufficientto support his co nvicti ons and (b) the trial cour t abused its di scretion by ordering the sentences to be served consecutivel y. After a th orough rev iew of the re cord, the briefs submitted bythe p artie s, an d the law gove rnin g the i ssue s pre sent ed f or revi ew, it is the opi nion of this Cour t that the judg ment of the trial court should be affir med. On the evening of July 10, 199 2, the defenda nt an d his brother , Percy Wallace,
were walking along W oodlawn Street in Memphis. W hen they were passing the W eddle residence, they saw

Jimmy Weddle, known in the neighborhoo d as “Jim Bodey,” s itting on his front porch with several people v isiting the W eddle residence. The W allace brothers asked Weddle to meet them on the sidewalk. They as ked Weddle if he knewof anyone who wanted to pur

chase illi cit narcoti cs. W eddle told the Wallaces there was a woman and
a man who desi red to make apurchase. The Wallaces told W eddle to send the individuals to them. They then walked down the stre e t until they came to the nex

t intersecti on, W ood lawn a nd Lo one y. Boo Boo Fox, who was driving through the neighborhood, stopped to purchase drugs from the W allaces. W eddle walked to the intersection af ter Fox stopped his vehicle. Fox asked fora $20 rock of cr ack cocaine. He gave the Wallaces $15. He was t old he did not have enough money to purcha se the rock. Fox told the W allaces he would go to the vehicle and get more money . Fox reached inside th e vehicle, ob tained a pistol, and told the Wallaces to give him all ofthe illicit narcotics and money they had on them. He also made them lay on the ground. Weddl e began w alking backwards toward his residence. F ox obtained th e money and drugs, and h e fired at the Wallaces. It appears2

he gra zed Pe rcy W alla ce. Fo x then drove away. When Fox left, the W allaces r an toward their resi dence. Percy Wallace and the def e ndant each obtained a s hotgun. They then went to t he Weddle residence as they believed W eddle had assisted Fox in the robbery . App roximately ten to fifteen minutes expir ed between the robbery and the appearan ce of the W allaces at the W eddle residence. When the W all aces arri ved, Weddle and his guests were sti ll sitti ng on the front porch. Percy Wallace asked, “Where is Jim Bodey?”He then exclaimed, “Ji m Bodey you
a dead man [sic].” When the people saw the Wallaces were armed, they began running into the Weddle residence. Percy Wallace fired at Weddle. The shot struck the exteri or of the Weddle residence. Percy Wallace then forced his way into the W eddle residence and fired the shotg un two more t imes in an effort to s hoot Weddle. W hile Percy Wallace was attempting toreload his s hotgun, he told the defendant to shoot anyone w ho exited theresidence. Shortly t hereafter, the v ictim, Venita Swift, w ho was celebr

ating her bi rthday

at the Weddle residence, decided to ex it the resi dence and go home. She li ved across the street from th e Weddles. As she ran from the residence with her arms rai sed above her head, the defendantstated: “Hol d, bitch.” S wift looked at the defendant, but she kept running . The defendant raised his shotgun and fired at Swift. She subsequentl y fell in t he street. A few minutes later

she died. The buckshot from the s hotgun struc k Swift in the back below her left shoulder . The pellets conti nued thr

ough h er body . Wadding from t he s hotgun blast w as found under Swift’s skin. Numer

ous pellets entered her body. The pe llets went through the victim’s left lung and struck her

heart. The pellets also struck the v ictim’s aor ta, stomach, spl een, and liver. Two wadding wounds were found. The pathologist estimated that over 100 pellets entered the victim’ s body. H e also estimated the shotgun was approxi mately ten to fifteen feet from the vict im when it was fired. The pathologist testified the cause of death wasthe shotgun wound inflicted by the defendant. The defendant was ar rested by t he police at hi s place of employ ment. He was given the Miranda

warnin gs. He read ily a dmitted he shot the vi ctim. He coope rated wit h the police in an effort to obtain ev idence of the murder. However, during the trial, the3

defendant testified the police did not advi se him of the Mirandawarnings, and he did not read the statemen t before signing it. He emphatically denied shoo ting the victim. He testified he told the victi m to “get dow n.”

I.

The defendant contends the evidence is insufficient, as a ma tter of law, to support his convicti on for

felony murder. He argues the State of Tennessee fa iled to establish the elements of attempt to com mit first degree murder, the fe lony used by the state to establish the crime. A.

When an accused challenges the sufficiency

of the convic

ting evi dence, this Court must review

the record to

determine if the evidence adduced at tri al is sufficient "to support the finding by the tri er

of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is appl icable to findin gs of guil t based upon dire ct evidenc e, circumstant ial evidence, or a combinati on of direct an d ci rcumstantial evidence. State v. Dy kes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determining the sufficiency of the convic

ting ev idence, t his Court doe s not reweigh or reeval uate the evidenc e. Stat e v. Mat thews , 805 S.W.2d 776, 779 (Te nn. Cr im. App.), per . app . denied (Tenn. 1990). Nor may this Court substitute its inferences f or those drawn by the tri er of fact fr om circumstanti al evidenc e. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert
. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this Court is required to afford the St ate of Tenne ssee the strongest legitimateview of the evidence contained in the record as well as all reasonable and legitimateinferences w hich may be dr awn from the ev idenc e. Stat e v. Cabbage , 571 S.W .2d 832, 835 (Tenn . 1978). Questions concerning the credibil ity of the wi tnesses, the weight and value to be given the evidenc e, as well as all factual issues raised by the evidence are resolved by the trier of fact, not this C ourt. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d4

474, 476 (Tenn. 1973), ou r Supreme Cour t said: "A

guilty verdict by the jury , approved by the trial judge, accredits the testimony of the witnesses f or t he State and resolves all conflicts in fav

or of the theory

of the State." Since a verdic

t of guilt removes the pre sumption ofinnocence and replaces i t with
a presum ption o f gu ilt, th e accused, as th e appellant, has the burden in thi s Court of illustrat ing why t he evidence i s insufficient to support the verdicts re turned by thetrier of fact. State v. Tuggle , 639 S.W .2d 913, 914 (Tenn . 1982). This Court will no t disturb a verdict of gu ilt due to the s ufficiency of the ev idence unless the facts contained in th e record are insufficient, as a matter of law, for a rational trier of fact to find that the acc used is guilt y beyond a

reasonable doubt. Tuggle , 639 S.W.2d at 914.

B.

Before an accused can be convic ted of murder in the perpetration of a felony, the State of Tennessee is req uired to prove beyond a reasonable doubt (a) the acc used recklessl y kill ed the vict im and (b) the killing occurred dur ing the perpe tration, or attempt to perpetrate, one of the enumerated felonies set forth in the stat ute. Tenn. Code Ann. § 3 9-13 -202(a)(2). In this cas e, the State of Tennessee’ s theory w as the defendant recklesslykilled thevictim w hile the defendant and his brother were attempting to comm it murder in the fir

st degree. The intended vi ctim was Jimmy Weddle. The defendant does not chal lenge the fact he reckless ly kil led the vi ctim. The evidence of this fact is over whelming . The defendant gave the police officers a statement admitting he shot and killed the victim. In addition, several eyewitness es te stified the defendant was the per son who shot

and killed t he victi m. However, the defendant contends he did not commit the offense of attempt to commit mur der firs t degree. He argues the State of Tennessee fail ed to establis h the offense was co m m itted wi th deliberation, which is to say “committed with coolness and reflection and without passion or provocation.” The question thi s Court must r esolve is whether th e element of deliberation was established by

the evidenc e.5 C.

When this offense was committed, the ter m deliberation was defined by statute as
an act “performed with a cool purpose.” Te nn. Co de Ann. § 39 -13-201(b)( 1). The defendant contends his status of being a v ictim of the robber y, the shooti ng, and his be lief W eddle was acti ng in concer t wit h Fox created excitement and passion. He argues this excitement and passion had not s ubsided prior to the crimi nal conduct in question. In this case, the defend ant and his brother, Perc y, left the s itus of the armed robbery-s hootin g, went to theirresidence, ar med themselves with shotguns, and went to the Weddle residence. A rationa l jury could have found fifteen mi nutes elapsed from the time of the robbery-shooting a nd the defendant’s appear ance at the Weddle residence. A reasonable and pr udent person would have cal led the policeand reported the crime. If the Wallaces reported the robbery -shooting t o the police, t hey woul d have had to admit they were selling illic it narcotics , and Fox took their money and illicit narcotics. Thus, they did not

report the cr ime to the police. However, the Wallaces felt compelled to establish there was

a price to pay

when someone committed a cri minal act ag ainst them. In other words, the Wallace s wan ted to d eter s uch con duct i n the fut ure. Th ey became the police, judg e, jury, and executione r. There was a concerted effort to kill W eddle. Percy Wallace fired at Weddle as he
ran into the dwelli ng. He then forced his way into thedwelling where he fired twice. While PercyW allace was attemp ting to rel oad the shotgu n, he told the defendant to shoot anyone who left the dwelling. When the innocent victim left the residen ce with he r hands held above her

head, t he defend ant sho t her i n the ba ck from a distance of ten to fifteen feet. This Court concludes the evidence contain ed in the record supports a find ing by a rational trier of fact the defendant reckless ly shot th e victim during an att empt to commit first degree murder

beyond a reas onable doubt. Tenn. R . App. P. 13(e)

. See Jack son v. Virgini a , 443 U.S. 307, 99 S .Ct. 2781, 61 L.Ed. 2d 560 (1979). B ased upon the facts contained in the record, the jurycould reasonabl y conclude sufficient time had el apsed for any exci tement or passio n to dissipate

.6 This issue is

without mer it.

II.

The defenda nt contends the trial court abuse d its discretion by ordering his sentences to be serve d conse cutively . He argue s the record fails to establi sh he “is an offenderwhose record of criminal activit y is ex tensive.” Tenn. Code Ann. § 40 -35- 115(b)(2). A.

When an accused chal lenges the manner of serviceof sentences, it is the duty of this Court to conduct a de novo review on the record with a presumption that "the determinationsmade by the court from which the app eal is taken are cor rect." Tenn. Code Ann. § 40-35-401(d). This presumpt ion is "conditioned upon the affirmative s howing i n the
re cor d that the trial court consi dered the sentenci ng princi ples and all r elevant facts and circumstances ." State v. Ash by , 823 S.W .2d 166, 169 (Tenn . 1994). The pre sumpt ion does not apply t o the legal conclusions reached by the trial court in sentenc ing the accu sed
or to the determinat ions made by the tri al court w hich are predi cated upon uncontroverted facts. Stat e v. Butler , 900 S.W.2d 305, 311 (Tenn. Crim. App . 1994); State v. Smit h , 891 S.W.2d 922, 929 (Tenn. Cr im. App.), per . app . d enied (Tenn. 1994); State v. Bonestel , 871 S .W .2d 1 63, 1 66 (T enn . Crim . App . 199 3). Ho wever, this C ourt is requ ired to give greatweight

to the trial court's deter minati on of contr overted facts as the trial court's determination of these facts is pr edicated upon the w itnesses' demeanor and appearance when test ifying. In conducting a de novo rev iew of a se ntence, this C ourt must consi der (a) any evidence received at the trial and/or sentencing hearing, (b) the presen tence report, (c) the principles

of sentencing, (d) the arg uments of counsel relative to sentencing alternatives, (e) the nature and characteri stics of the offense, (f) any mitig ating or enhan cing fac tors, (g) any statements made by

the accused in his own behalf, and (h) t he accused's pot ential or lackof potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210;7

State v. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App .), per . app . denied (Tenn. 1987). The party chal lenging the sentences impos ed by the tr ial court h as the burden of establishingthat the senten ces ar e erroneous. S entencing Co mmission Comments to Tenn. Code Ann. § 40-35 -401; Ashby , 823 S .W.2d at 169; Butler , 900 S.W.2d at 311. In this case, t he defendant has the burden of illustrating the sent ences imposed by t he trial court are erroneous. B.

The record does n ot support a findi ng that the defendant has a reco rd of exten sive criminal activit

y. Tenn. Code Ann. § 40-35 -115(b)(2)

. The presentence report establi shes the defendant has been convic ted of two counts

of felony possess ion of cocaine w ith intent to sell, rec kless dri ving, an d drivi ng whil e license sus pended. No evide nce was i ntroduced during the sentencing hearing. It appears the tr ial court cons idered mere ar rests and chargeswhich were either nol le prossed or dismissed tosupp ort t he f indi ng of exten sive criminal conduct. These entr ies in the presentence report should not have been considered. Cons ecut ive sent enci ng was wa rr anted. Here, t he defendant was on probation when he committed the offenses i n question. Tenn . Code Ann. § 40-35-115( b)(6). The defendant was conv icted of felony pos session of cocaine on May 25, 1989 in theCriminal Court of Shelby

County, Tennes see. He was placed on five years pr obation. The offense in question occurred on J uly 10, 1992. Given the defendan t’s prior co nvicti ons, the outstandi ng indictment s for a felony drug offense and another murder first degree, and the facts in this case, the c itizens of Tenn ess ee need to be protect ed from the defendant’s future criminal conduct. The defendant has sever

al drug-r elated convi ctions. Y et, he is only 25 years ofage. The record establi shes the defen dant is b eyond reh abilita tion; an d he will con tinue to engage in criminal ac

tivity if released in to society. His history of criminal convictions supports this conclusion. See State v. Wilkerson , 905 S.W .2d 933, 939 (Tenn . 1995).8 ___________________________________ JOE B. JO NES, PRESIDI NG JUDGE
CONCUR:

______________________________________ JOHN H . PEAY, JU DGE

______________________________________ JOE G. R ILEY, JUD GE