# FILED

September 11,

1998

Cecil Crowson, Jr.

Appellate Co urt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MAY 1998 SESSION

STATE OF TENNESSEE, )

)

Appellee, ) C.C.A. No. 03C01-971 1-CR-00492

)

vs. ) Knox County

)

TADARYL SHIPP, ) H on. Mary Beth Leibowitz

, Judge

)

Appellant. ) (First Degree Murder,

) Conspiracy to Commit First

Degree Murder)

FOR THE APPELLANT: FOR THE APPELLEE:

M. CHRISTOPHER COFFEE JOHN KNOX WALKUP

Attorney at Law Attorney General & Reporter

P.O. Box 870

Knoxville, TN 37 902 ELIZABETH B. MARNEY

Asst. Attorney G eneral

425 Fifth Ave. N., 2d Floor

Nashville, TN 37243-0493

RANDALL E. NICHOLS

District Attor ney General

S. JO HELM

WILLIAM CRABTREE

Asst. District

Attorneys General

P.O. Box 1468

Knoxville, TN 37 901-14682

OPINION FILED:________________

CONVICTIONS AFFIRMED, CONSEC UTIVE SENTENCE S VACA T ED,

AND REMANDED

CURWOOD WITT, JUDGE3 OPINION

The defe ndant, Tada ryl Shipp, appeals the convictions of first degre e

murder and conspiracy to commit first degree mur der th at he received at his jur y

trial in the Kno x County Criminal Court. Shipp is presently serving consecutiv e

sentences of lif

e and 25 years i n the Department of Correction. In this direct appeal

,

he challenges the sufficiency of the convicting evide nce and the pr opriety of the tria l

c ourt's sentencing determination

. Having reviewed the record and the briefs of th e

pa rties and having heard oral arguments, we affirm both convictions and sentences ;

however, we vacate t he impositio n of consecutive sentences and remand in orde r

for the trial cou rt to make the appropriate findings before determining whether th e

defendant will serve his sentences concurrently or consecutively.

The defendant's convictions stem from the 1995 "Job Corps murder "

involving four students from the Knoxville Job Corps. The vict im was Collee n

Slemmer. The defendant and two young women have been convicted of h er mur der

.

Christa Gail Pike is on death row for her part in the murder. State

v. Chris ta Gail Pike , No. 03C01-9611-CR-00408 (Tenn. Crim. App.,

Knoxville, Nov. 26, 1997) (Tenn. R. Sup. Ct. 12, § 2 review pending).

According to the evidence of r ec ord, S hadolla Peterson ple aded

guilty to being an accessory after t he fact and received a six year

probationary sentenc e.

A few days pri or to January 12

, 1995, the defendant told Kip O'Hara h e4

had to make a human sa crifice because the celestial bodies were in alignment. Th e

defendant had a Ouija boa rd with him when he had this conversat ion with O'Hara.

On January 12, 1995, Daniel Wayland enco untered Pike, Peterson an d

the defendant off the Job Corps campus

. Pike and Peterson inquired whethe r

Wayland had seen Slemmer, and t he defendant said

, "[W]hen we find her, she' s

dead." Wayland admitted, however, that he may have attributed this assert ion t o

Pike in a previous statement t o law enforcement, but he contended he was "sh oo k

up" at the time and his recollec tion had since improved. He said that Pike, Peterso n

and the defendant were all in agreement w hen the assertion w as made.

On the day of the murder, Pike told Kimberly Ann Iloilo Rh odes that sh e

was going to kill Slemmer. Pike also said she was looking for Peterson to ge t a bo x

cutter from her.

Acc ording to the statement the defe ndant gave law enforcemen t

sh ortly after the murder, Pike, Peterson

, Slemmer and the defendant left the Jo b

Corps campus at 8:50 p.m. and walked to Tyson Park. Pike confronted Slem me r

about Slemmer's su pposed romantic i nterest in the defendant. Pike made Slemme r

take off her shirt. Pike b ecame physically violent, hitting Slemmer. Peterson als o

struck Slemmer. As the confronta tion escalated, S lemmer began grabbing th e

defendant, who pushed and sla pped her. P ike began cutting Slemmer with a

miniature meat cleaver. Pike was growing madder as the conf rontation continued

.5

Peterson had a box cutter and joi ned Pike in cutting a nd stabbing the victim

.

Slemmer plea ded for the att ack to end and promised she would walk to her home i n

Florida if she were released. The defendant admitted tripping Slemmer as she trie d

to run away, cau sing her to h it her head on a rock. The defendant also admitte d

cutting Slemmer three o r four times, including on the arm with the box cutter. Afte r

Slemmer had been seriously injured, she was talking and scre aming loudly. At Pike' s

request, the defendant wen t to see whether there was anyone in the area. Whil e

searching, he found a ra g by a dumpster, which he tied over Slemmer's mouth t o

keep her quiet

. Slemmer attempted to fle e, but she fell in some mud. The defendan t

went to her and b rought her back. Pike began hitting Slemmer with rocks. Peterso n

hit Slemmer with a brick or piece of asphalt. Wh e n Pike began hitting Slemmer wit h

the rock s, the defendant became uncomfortable with the assault and walked dow n

a hill but later returned to the scene to find Slemmer's head "all busted open on th e

side." Slemmer was gurg ling and breathing. Pike and the defendant carve d a

pentagram in Slemmer's chest. The defendant helped Pike move Slemme r to a "hi l l

of mud" with bushes and li ttle trees arou nd it. Peterson and the defendant thre w

Slemmer's shirt and jacket in the bushes. The three assai lants washed their hand s

in a mud puddle. Then they went to a ga s station, where Peterson and Pike washe d

again and threw aw ay some of Slemmer's perso nal effects. The defendant said h e

r eturned to the Job Corps campus before Pike and Peterson, at 10:50. He said i t

took him 30 minutes to walk from Tyson Park to the Job Corps campus.

When Pike and Peterson returned to the Job Corps campus, Pike tol d6

her friend R hodes that she had killed Slemmer because she was afraid she was g oin g

to get caught. Rhodes t hought Pike said the defendant had assisted in kil lin g

Slemmer, although she admitted having test ified at Pike's trial that Pike said sh e

killed Slemmer.

An employee of the Un iversity of Tennessee groun ds departmen t

discovered Sle mmer's body on the morning of January 13. University and Knox vill e

police officers res ponded to the scene.

During the afternoon ofJanuary 13, Pike and the def endant went to ge t

identif ication cards from Robert Alfred Po llock, the Job Corps orientation specialist

.

Pike left her jacket in Poll ock' s office, and he later turned the jacket over to Willia m

Hudson, the Job Corps security su pervisor. Hudson, in turn, surrendere d the jacke t

to a Knoxville Police Depart ment officer, who found a pie ce of skull bone in a pocket

.

Jennifer McCrary testified that she an d Pike went to Tyson Park o n

January 13. The police would not allow them to go into the area where they ha d

planned to go. As they were walki ng on "The S trip," they saw the defendant comin g

toward the park. The defendant asked Pike why she was coming from the park, an d

the two began arguing. McCrary had walked away and could not hear the specific s

of the argument.

Detective Randy York of the Knoxville Police Depar tment interrogate d1 The defendant was seventeen at the time of his crimes.

2 Detective York testified that he had been trained to

recognize the pentagram as a symbol repres entative of a goat

head. In satanism, the goat head represent s Satan. The

hexagram is a symbol for conjuring or controlling demons.

7 Pike and the defendant in the ear ly morning hours of January 14, 1995. In additio n

to the contents of the defendant's statement summarized above, the de fendant tol d

De t. York that he had dabbled in satanism since he was ten years old

. 1 He said Pik e

was "pretty deep " into satanic worship. Both he and Pike were wearing pentagra m

necklaces when they were taken into custody on January 14, and th e def endan t

admitted he had sata nic paraphernalia in his room at the Job Corps campus. T h e

defen dant was also wearing a hexagram earring and hat pin. 2 The defendan t

claimed, however, t hat the killing ha d not been a planned satanic offering. He sai d

he carved t he pentagram on the victim's chest and then th ought that Slemmer coul d

be a sat anic sacrifice. The defendant claimed that in his mind the killi ng ha d

nothing to do with t he fact that the following day was Friday the 13th

, "Devil' s

birthday."

The defenda nt professed to D et. York that he was unaware of any pla n

to kill Slemmer prior to the eve nts taking place. Pike and Peterson told him the y

were going to "get [Slemmer] somewhere a nd do

. . . wh atever they could to her. "

He thought this meant they were " going to beat her up or something." He knew Pi k e

and Peterson had the box cutter and miniature meat c leaver, but he th ought the y

were "just going to scare her with them or something." He claimed he had no ide a8

they were going to cut Slemmer.

Doctor Sandra Elkins, th e Knox County Medica l Examiner, performe d

an autopsy of the victim

. Bruises on the victim's body were inflicted between 30 an d

45 minutes prior to death. The numerous lacerations and slash wounds in flicte d

prior to death were insufficient to render the victim uncon scious. The cause o f

death was blunt force trauma to the head. The victim's sinuse s and lungs fil led wit h

blood following the head injury to the base of the skull, and she esse ntially drowne d

in her own blood.

DNA profil ing of blood found on the shirt and pants the defe ndant wor e

on the night of the m urder matched Slemme r's DNA profile.

I

In his first issue, the defendant clai ms the e vidence is insufficient t o

sustain h is conv ictions. W hen a defendant challenges the sufficiency o f

the evidence, an appellat e cou rt’s standard of r eview is, whether

after considering the evi dence in the light mo st favorable to t he

prosecution, any rational trier of fact could have found the essenti al

elements of the crime beyond a reasonable doubt. Jackson v.

Virginia

, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v.

Dunca n

, 698 S.W .2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 1 3(e).

This rule is applicable to findings of guil t based upon direct9

evidence, circumstan tial evidence, or a combination of direc t and

circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253

(Tenn. Crim. App. 1990).

Moreover, a criminal offense may b e established excl usively b y

circumstantial evidence. Duchac v. State

, 505 S.W.2d 237 (Tenn. 1973); State v

.

Jones

, 901 S.W.2d 393, 396 (Tenn. Crim

. App. 1995); State v. Lequire

,

634 S.W. 2d 6 08 (Tenn. Crim. App. 1987). However, bef ore an

accused may be convi ct ed of a criminal offe nse based upon

circumstantial evidence alone, the facts and circum stances "must

be so strong and cogent as to exclude every other reasonab le

hypothesis save the guilt of the defendant." State v. Crawford , 225

Tenn

. 4 78, 470 S.W.2d 610 (1971); Jones , 901 S.W.2d at 396. In

other words, "[a] web of guilt must be woven around the defendant

from which he cannot escape a nd from which facts and

circumstances the jury could draw no o ther reasonable infer ence

save the guilt of the defendant beyond a reasonable doubt."

Crawford

, 470 S.W.2d at 613; State v. McAfee , 737 S.W.2d 304, 305

(Tenn. Crim. App. 1987).

In determining the sufficiency of the evidence, this court

should not reweigh or reevaluate the evidence. State v. Matthews

,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concernin g3 On January 12, 1995, fi rst degree murder was "[a]n

intentional, premeditated and deliberate killing of another."

Tenn. Code Ann. § 39-13- 202(a)(1) (Supp. 1994) (am ended 1995).

The element of deliberation has since been omitted. See Tenn.

10 the credibilit y of the witnesses, the weight and valu e of the

evidence, as well as all factual issues raised by the ev idence are

resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835

(Tenn. 1978). Nor may this cour t substitute it s inferences for those

drawn by the

trier of fact from the evidence. Liakas v. State , 199 Tenn. 298, 305,

286 S.W.2d 856,859 (1956); Fa r mer v. State , 574 S.W.2d 49, 51

(Tenn. Crim. App. 1978). On the contr ary, this court is required to

afford the State of Tennes see the strongest l egitimate view of the

evidence contained in the reco rd as well as all reasonable and

legitimate inferences which may be drawn from the ev idence.

Cabbage , 571 S.W.2d at 835.

A. First Degree M urder

O nce a homicide is estab lished, it is pr esum ed to b e

second degree murder. Witt v. State , 46 Tenn. (6 Cold.) 5, 7 (1868),

overruled on other grounds

, Campbell v. State , 491 S. W.2d 359

(Tenn. 1973). In order to elevate the offense to first degree murder,

the stat e must p rove premeditation and deliberation. 3 State v.Code Ann. § 39-13-202(a)(1 ) (1997).

11 Brown

, 836 S.W.2d 530, 543 (T enn. 1992) (citing Bailey v. State

, 479

S.W.2d 829, 733 (Tenn. Crim. App. 1972)).

At the time of t his offense, the Cri minal Code defined a

deliberate act as "one performed with a cool purpose." Ten n. Code

Ann. § 39-13-201(b)(1) (1991) (amended 1995). A premeditated act

wa s one which was "done aft er the exercise of r eflection and

judgment." Tenn. Code Ann. § 39-1 3- 201( b)(2) (1991) (amended

1995). Both premeditation and de liberation may be established by

circumstantial evidence. See Brown , 836 S.W.2d at 541.

In pertinent part, an individual is criminally responsible

for another's conduct if " [ a]cting with the i ntent to promote or

assist the commis sion of the

offense, or to benefit in the proce eds or results of the off ense, the

person solicits, dir ects, aids or at t empts to aid another person to

commit the offense." Tenn. Code Ann. § 39-1 1-402(2) (1997).

The defendant's challenge to the sufficiency of his first12

degree murder conviction centers on the proof of premeditat ion and

intent. We a r e convinced, however, that both premedit ation and

deliberation were suff i ciently proven to s ustain the defendant's

conviction based upon his criminal responsibility for the actions of

Pike and/or Peterso n.

In the light most fav orable to the stat e, Pike told he r

friend K i mberly Rhodes she was going to kill Sl emmer. The

defendant confided to Kip O'H ara in the days pri or to the murder

that he had to make a human sacrifice because the celestial bodies

we re in alignment. On the day of the murder , he t old Danie l

Wayland that when he, Pike and Peterson found Sl emmer she was

dead. Pike and Peterson procured weapons prio r to the

co nfrontation with Slemmer. The defendant knew Pi ke an d

Peterson had weapons . Pik e, Peterson and the defendant lured

Slemmer to a remote area in or near Tyson Park . The three inflicted

a chilling assault on Slemmer for 30 to 45 minutes. When S lemmer

tried to get away, the defen dant tw ice thwarted her es cape. The

defendant helped conceal the cri me by che ck ing to see if anyone

was within earshot o f Slemmer's screams and binding her mouth so

that she would be un able to m ake noise. After S lemmer was

mortally wounded, the defendant helped Pike move the victim to a

brushy area and helped Peterso n c onceal the victim's clothing in13

the bushes. The next day, the defendant became upset with Pike

for returning to the scene of the crime.

From t h is evidence, a rati onal jury could find the

def endant criminally resp onsible for first degree murde r based upo n

his aid to Pike and/or P eterson in the commi ssion of the murder and

hi s common i ntent to murder the victim. See State v. Frank

Whitmore

, No. 03C01-9404-CR-00 14 1, slip op. at 10 (Tenn. Crim.

App., Knoxville, June 19, 1997) (defendant's guilt of first d egree

murder by criminal responsibility for conduct of another suppo rted

in part by defendant's p articipation in bu rglary during whi ch murder

was committed, failure to assist the w ounded victim, and di sposing

of evidence); State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim . App.

1995) (planning activity prior to the crime relevant to

premeditation); Brown

, 836 S. W.2d at 541 (facts relevant to

p remeditation include the use of a de adly weapon on an unarme d

victim, a particularly cruel killing, and declarations of intent to kill

the victim); State v. McBee , 644 S.W.2d 425, 428-29 (Tenn. Crim.

App. 1982) (criminal int ent may be i nferred from presence,

companionship, and pre- and post-offense conduct of defendant).

B. Conspiracy to Co mmit First Degr ee Murder

A person is guilty of conspiracy where he acts with one14

or more other persons, "each having the culpable mental state

required for the offense which is the object of th e co nspiracy and

each acting for

the purpose of promoting or faci litating commiss ion

of an offense, [and] agree[s] th at one ( 1) or more of them will

engage in conduct which constitutes such offense." Tenn. Code

Ann. § 39-12-103(a) (1997)

.

The defendant claims ther e is insufficient proof that he

entered into an agreement w ith Pike and/or Peterson to murder the

victim. Although the defendant is correct to the extent that there

is no direct evidence of an agre ement, the record is replete with

circumstantial evidence that the defendant con spired with Pike and

Peterson. See State v. Shropshire , 874 S.W.2d 634, 641 (Tenn.

Crim

. App. 1993) (conspiracy may be proven by cir cumstan tia l

evidence). In the light most favorable to the s ta te, days before

Sl emmer's m urder the defendant sa id he had to make a human

sacrifice. The defendant and Pike carv ed a satanic pentagram on

Slemmer's chest. Pike and the defendant were wearing necklac es

bearing the same symbol wh en the y were taken into custody. On

the day of

the murder, both Pike and the defenda nt made

statements foretelli ng Slemmer's death. The defendant was

accompanied by Pike and Peterson when he made his statement in

this regard. Pike and Peterson procured weapons. The defendant15

knew P ike and Peterson were arm ed, and he accompanied them

and the victim to Tyson Park. The defendant participated in th e

horrific torture of Slemm er. When Slemmer tried to escape, t he

defendant tripped her once and b rought h er back another time so

that he, Pike and Peterson could continue th eir assa ult. The

defendant gagged Slemmer so she wo uld not scream. A rational

j ury could find the defendant's claim of ignorance of Pike's a n d

Peterson's plan incredible and accredit the stat e’s evidence as

st rong c ircumstantial pr oof beyond a reasonable dou bt that the

defendant conspired with Pike and Pet erson to murder the victim.

We find the evidence s uffic ient to sustain t he

defendant's convictions of firs t degree murder and conspiracy to

commit first degree murder.

II

Next, the defendant c hallenges the maximum 25-year sent enc e

imposed for conspira cy and the imposition of consecutiv e sentencing. I n

determining whether the tri al co urt has properly s entenced an

individual, this court engages i n a de novo review of the record with

a presumption that t he trial court's determination s wer e correct.

Tenn. Code Ann. § 40-35-401(d) (1997). This pres ump tion is

"conditioned upon the affirmat ive s howing in the recor d that the16

trial c ourt considered the sentencing principle s and all relevant

facts and ci rcu mstances.” State v. Ashby , 823 S.W.2d 166, 169

(Tenn. 1991). In conducting our de novo review, we must consider

the evidence at sentencin g, the presentence r eport, the sentencing

principles, the arguments of couns el, th e statements of the

defendant, the nature and charact eristics of the of fense, any

mitigating and enhancement factors , and the defendan t ’s

amenability to rehabilitati on. Tenn. Code Ann. §§ 40- 35-210(b), 40-

35-103(5) (1997); Ashby , 823 S.W.2d at 168.

In the appellate court s, the party app eal ing the

sente ncing determination has the burden of showing that it is

improper. Ten n. Code Ann. § 40-35-401(d), Sentencing Comm'n

Comments (1997); Ashby

, 823 S.W.2d at 169. A component of this

burden is preparing a reco rd "which conveys a fair, accurate and comple t e

acco unt of what transpired in the trial court wit h respect to the issues which for m

the basis of t he a ppeal." State v. Oody

, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) ;

Tenn. R. App. P. 24(b). If the record fails to contain necessary items with resp ec t

to an appellate issue, the court is precluded from considering th e merits of th e issue

.

State v. Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993); Tenn. R. App. P. 24(b).

In the case at bar, the defendant has not inc luded the presentenc e

report in the record. Because this document is ne cessary for a de novo rev iew o f4 Tenn. Code Ann. § 40-35- 210(b); § 40-35-103(5) (1 997);

Ashby , 823 S.W.2d at 168.

17 the trial court's sentencing determinatio n, 4 we ar e unable to review th e

sentencing issues on their merits. In this situati on, a waiver of the

sentence enhancement and mitigation is sues and affirmance of the

trial court’s sentence len gth determination i s the result. Oody , 823

S.W.2d at 559 . However, we di scern an error of l aw in the trial

court’s consecutive sentenci ng determinations, and we conclude

in this case that justice is better served by remanding the case to

the t rial court for a new determination as to concurre nt o r

consecutive service of the sentences.

We review questions of law de novo

. State v. Davis , 940

S.W.2d 558, at 561 (Tenn. 1997 ). As part of such a de novo review,

we conclude that the trial court’s rationale for ordering consecutive

sentences was legally erroneous.

In announcing its decision to order consecutive service

of the defendant’s sentences, the tr ial court declared t he defendant

a “dangerous offender”. See Tenn. Code Ann. § 40-35- 115(b)(4)

(1997). The dangerous offender is one of the categor ies of offender

for which consecutive s entencing is allowed. Tenn . Code Ann. § 40-

35-115(b) (1997). However, in State v. Wilker son , our supreme court18

held that merely findi ng the defendant to be a dangero us offender

is an insufficient

basis for ordering consecutive sentencing. State

v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995).

The proof must also establis h th at the terms impo sed

are reasonably related to the severity of the offenses

committed and are necessary in order to protect t he

public from further criminal acts by the offender.

Id

. The record of the sentencing hear ing reflects no att empt by the

trial judge t o co nsider or apply the se two factors mand ated by

Wilkerson

. There were no findings of fact relative to these factors.

On remand, should the t rial court find t he defe nda nt to be a

dangerous offender, it should follow the principles announced in

Wilkerson in considering the use of consecutive sentences.

Because of the incomplete st atus of th e sentencing

record before us, we have no t reviewed the trial court’s s entencing

determinations except for t he legal issue address ed above. The

absence of the presentence report precludes not only our fu rther

review of the other sentencing issues raised by t he defendant but

also precludes our taking any action on the consecutive sentencing

iss ue o ther than remanding t he case for new findi ngs of fact and

determinations. We leave it to the trial court t o determ ine, in its

discretion, whether a further hearing is to be conducted or whe ther

the necessary determin ations should be made on the record that is19

already before the court.

Accordingly, the convictio ns a nd sentences are affirmed

,

the imposition of consecutive sentences is vacated, and the case

is remanded for the tr ial court to make ap propriate findings of fact

and to determine whether the sentences shall run concurrently or

consecutively.

_______________________________ CURWOOD WITT, JUDGE

CONCUR:

_____________________________ JOSEPH M. TIPTON, JUDGE

_____________________________ JOE G. RILEY, JUDGE