# FILED
July 23, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON JANUARY

1997 SESSION STATE OF TENNESSEE, ) ) No. 02-C-01- 9601-CR-00012 Appellee, ) ) Shelby Count

y v. ) ) Joseph B. Dailey, Ju dge TERRY W . COPELAND, ) ) (First Degree Murder) Appellant. )

FOR TH E APPEL LANT: FOR THE APPELLEE: ON APPEAL : John Knox Walkup Marvin E. Ballin Attorney Gen eral & Repor ter 200 Jefferson, Suite 1250 500 Charlotte A venue Memphis, TN 38103 Nashvil le, TN 37243-0497 Mark A. Me sler Susan Rosen 200 Jefferson, Suite 1250 Assistant Att orney Gener al Memphis, TN 38103 450 James Roberts on Parkway Nashvil le, TN 37243-0493 AT TRIAL : Edwin C. Lenow William L. Gibbons 100 North Mai n Building Distric t Attorney General Suite 2325 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Memphis, TN 38103 Phillip G. Harris Assistant D istrict A

ttorney Gener

al 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 Rhea Cli ft 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 ge2 

## O P I N I O N

The appellant, Terr

y W. Copeland (defendant), was convicted of murder in the first degree by

a jury of his peers. H e was senten ced to life in t he Department of Cor rection. The defendant presents tw o issues for review. He contends ( a) the evi dence is insuffici ent,
as a matter of law , to support hi s convic tion because the State o f Tennessee failed to establish t he elements of first d egree murder , and (b) the t rial court committed error

of prejudicial dimensions by failing to g ive the defendant’ s spec ial request set ting forth a definition of “passion.” After a thoroug h review of the record, the briefs, and the law governi ng the issues pr esented for rev iew, it is the opinion of this Court the judgment

of the trial cour t should be affirmed. On the evening of May 27, 1994, the defendant saw his mother’s vehicle pa rked at the Rugby Bar, which is located in the Frayser area of Memphis. He called the bar from
across the street and aske d for his mother. He wanted t o know if Far rell D. “ Dou g ” Goggins, the victi m, was ins ide the bar. Hi s mother asked hi m to come to the bar and h ave a beer with the people seated at her table. The defendant went acr

oss the street

to the bar and vis ited wit h his mother, stepfather, and the other people who were at the table. The defendant saw t he victi m enter the establ ishment and take a seat atthe bar. He exited through a si de door. The defendant returned t o the bar throug h the front door approximately ten minutes later. He was carrying a baseball bat. The victim had his back to the front door and ap parently never saw the defendant ente r t he bar . The defendant brutallyattacked the v ictim from the rear without warning. He repeatedlystruck the victim’s head, shoulder, and leg w ith the baseball bat. One of the blows caused the victim to fall to the floor. The de fendant contin ued to strike the victim while he lay on the floor. Patrons of the Rugby Bar on the night in question testified the defendant was armed with a basebal l bat. They ide ntified a baseball bat found by poli ce officers in the defendant’s backyard as the murder weapon. The victim was transported to a hospital. He d ied the follow ing day due to the injuries hesustained at th e hands of the defendant. An aut opsy rev ealed the vi ctim had sustained multiple injuries to the head. There were bruises, tears of the scal p’s skin, an d3

fractures of the skull. The v ictim’s br ain was al so injured as a result of the bl ows to the head

. There were bruises to the underly ing brain and there wer e hemorrhages to th e surface of the brain between the cover ing of the brai n and the brain. The patho logist opined the victi m died as a result of the multiple blows to the he ad. He testified the i njuries sustained by

the victi m were cons istent wi th repeated blow s with a baseball bat. The defendant testified in support of his defense. He stated that he and his brother had gotten into a fight wi th the victim and a friend of the victim, Jef f Austin, as they were leaving the Rugby

Bar two weeks before the inc ident in question. Austin grabbed the defendant, held him around t he he ad, and pi nned him against a pool table . The victim allegedlystruck t he defendant from the rear with a pool cue whil e he was bei ng held by Austin. When the defendant was able tobreak Austin’s hold, the def endant and his brother ran and exi ted the bar. T he defen dant stated the v ictim followed them into the parking lotwith the pool cue. According to the defen dant, the victim threatened to kill him and his brother. Supp osed ly, the defendant came in co ntact wit h the vict im a few days late r at a convenience store acros s from the Rugby Bar. The defendan t testified the victim repeated the threat that he was going to kill him and his brother. The defendant testified the victim saw him i nside the bar on the night in question, and the victim pointed his finger at hi m. Allegedl y, someone came t o the table and tol d the defendant to move his vehicle i n the parking lot. The defendant exited th e bar thro ugh the
s ide doo r, but he did not move his vehicle. When he re-entered thebar, he stated t he victim saw him. According to the defendant, he armed h imself with a stick use d to prop the front door open. He admitted st riking the victi m with the stick. He de nied he intended to kill the victi m. He claimed the killing was accidental. Moreover, he saw the victim standing or sitting on a bar stool before he lef t the bar. The defendant denied he used a baseball bat t o strik e the vict im. He testi fied he had never see n the baseball bat found by the poli ce in his bac kyard. It appears the defendant claimed self-de fense because ofhis fear of the v ictim and his threat to ki ll hi m. H owever , a search of the v ictim’s body by the paramedi cs prior t o removing the victi m from the bar revealed the vi ctim was not armed.4 I.

The defendant contends the ev idenc e co ntained in the record is insuff icient, as a matter of law, to support a finding by a rational trier o f fac t he was gu ilty of first degree murder beyond a rea sona ble d oub t. He a rgues the S tate of T enn esse e fa iled to pro ve the elements of deliber

ation and premedit ation.

A.

When an accused challenges the suff iciencyof the convicting evidence, this Court must review

the record to

determine if the evidenc e adduced at tri al is sufficient "to support the finding by

the trier of fact of guilt beyond a reasonable do ubt." Tenn. R. App. P. 13(e). This rule is ap plicable to findings of g uilt based upon di rect evi dence, circumstantial evidence, or a combinati on of direct and circumstanti al evidenc e. State v. Dy kes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determining the suff iciency of the convicting evidence, this Court do es not reweigh or reeval uate the evide nce. Stat e v. Matt hews , 805 S.W.2d 776, 779 (Tenn. Crim

. App.), per . app . denied (Tenn. 1990). Nor may this Court substitute its inferences f or those drawn by the tri er of fact from circ umstantial ev id ence. 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 w e ll as all reasonable and legitimateinferences w hich may be drawn from the evidence. State v. Ca bbage , 571 S.W .2d 832, 835 (Tenn . 1978). Quest ions concerning the credibil ity of the w itnesses, the weight and value tob e given the evidenc e, as well as all factual i ssues raise d by the evidence ar e resolve d by the trier of fact, not this C ourt. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), ou r Supreme Cour t said: "A guilty

verdict by the jur

y, approved by the trial judge, accredits the testim ony of the wi tnesses for the State and resolves all conflicts in fav

or of the theory

of the State."5 Since a verdic

t of guilt removes the pre sumption of innocence and replaces it w ith
a pre sump tion of guilt, the accused, as the appellant, has the burden in th is 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 not dist urb a verdict of guilt due to the suffici ency of the ev idence unless the facts contained in the record are in suf fici ent, as a m atte r of l aw, for a rational trier of fact to find that the accused is guilt y beyond a

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

B.

As the defendant advocat es in his br ief, the death of a vi ctim caused by the knowing act of the accused is

presumed to be second degree murder

. Stat e v. Bro wn , 836 S.W.2d 530, 543 (Te nn. 1992). When the defendant killed t he victi m in this cas e, the State of Tennessee was req uired to prove beyond a reasonable doubt the murder was “intentional, premeditated and deliberate, ” Tenn. Code Ann. § 39- 13-202(a)(1) , before the defendant could be convic

ted of murder first degree. A “ deliberate act” was defined as “one performed with a cool purpose .” Tenn. Code Ann. § 39-13-201(b) (1). A “premeditated ac

t”
was defined as “one doneafter the exercise of refle ction and judgment.” Tenn. Code Ann. § 39-13-201(b)(2). A kill ing is the result of a “premeditated act ” when there is “a previously forme d design or intent to kill.” State v. W est , 844 S.W .2d 144, 147 (Tenn . 1992). A killi ng is the result of a “delibera te act” w hen the intent to ki ll is formed i n the absence of passi on. Brown , 836 S.W .2d at 540. A “deliberate act” r equires some period of reflec tion during which the mind is free from the influence of exciteme nt.” Id

. The elements of premeditat ion and deliber ation are que stions for the j ury to determine. These e lements may beinferred from t he circums tan ces surroundi ng the killing. State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993), per . app . denied (Tenn. 1994). In this case, the evidence was clearlysufficient fo r a rational trier of fact to find the defendant killed the victim wit h premedit ation and after deli beration. Tenn. R . App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 278 1, 61 L.Ed.2d 560 (19 79).1 Althou gh the State of Te nnessee cites the stepf ather’s prior statement to supp ort

its argument

the evidenc e was sufficie nt to support theconvicti on, such evi dence is limi ted in scope to impeachment . The evidencecannot be used as substantive evidence t o support the suffici ency of the ev idence. 6 The defendant’s stepfather g ave a statement to a police officer the morning after the defendant attacked the victim. The statement, inconsiste nt with his testimony at trial,
was used to impeach th e stepfather. The stepfather told the poli ce that th e defe ndant stated he was goi ng to ge t eve n wi th the v icti m. 1 When asked during cross -examinati on ab out the statement made by his stepfather, the defendant did not deny making the statement. He stated hedid not make the statement immediately before hitting the vic

tim. He opined the s tatement was m ade shortly after the victim had struck him. Th e facts in this case establis he d the elements of deli beration and pre meditation. Those pr esent inside the club stated the defendant was calm and did not indicate an y apprehensi on when the victim entered the cl ub. Instead, the de fendant saw an oppo rtun ity to get eve n with the victim as he had previously indicated. He calmly exited the side door of the club. He apparently did not want to alert the v ictim of his pr esence inside the club. If he was seen bythe victim, it would destroy the element of surpri se. He drove to his resi dence, obtained the bat, drove back to the cl ub, approached the victim from the rear, and repeate dly struck the victi m with the bat. Tw o wee ks had passed after t he figh t wi th Aust in and the v icti m. This was a sufficient perio d of time forthe excitement of the event to subside. These circumstances

establish thevictim a cted with a “cool purpos e” af ter “reflection and judgment.” This issue is

without mer it.

II.

The defendant contends the tr ial court committed error of prejudicial dimensionsby refusing to include a s pecial req uest submitted by him. The request wasa definition of the term “passion .” The trial court denied t he request. The term “passion” is a word commonly used by the gener al population of this

State. Further, the term can be understood by the citiz ens who poss ess ordinary intellig ence.7

See Sta te v. Rai nes , 882 S.W.2d 376, 383 (Tenn. Crim. App .), per . app . denied (Te nn . 1994); State v. Br

aden , 867 S.W.2d 750, 761 (Tenn. Crim. App. ), per . app . denied (Tenn. 1993). Thus, the tri al court was not requi red to give the special request offered by the defendant. As this Court

sta ted i n State v. Gl enn Bernard Mann , Dyer C ounty, No. 0 2-C-01- 9502-CC-00046(Tenn. Crim. App., Jackson, August 16, 1996) , no court has ever held a n instruction on the definition of “pass ion” must be i ncluded in the c harge gi ven the jury . To the contrary , this Cour

t held in State v. Kel ley , 683 S.W.2d 1, 6 (Tenn. Crim. Ap p.), per . a pp . denied (Tenn. 1984), a case factually similar t o this case, t he trial cour t was not required t o give a n instructi on on the wor d “passion.” The charge g iven by

the trial court was adequate. The court instr ucted the jury “[t]he
me ntal state of the accused at the time he allegedly decided to kill must be care full y considered in order to determine whe ther the accuse d was sufficie ntly free from excitement and passion as to be capab le of premeditation .” This issue is

without mer it.

___

_____________________ ___________________ _ JOE B. JONES , PRESIDING JUDGE

CONCUR:

_________________________________________ DAVID G. HA

YES, JUDG E

_________________________________________ THOMAS T. WOODALL, JUDGE