### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A pr il 7, 200 4

STA TE OF TEN NES SEE v. STEV EN A. MEY ER

Direc t Appeal from the Circ uit Court for Montgom ery C ounty

No. 40970 Michael R. Jones, Judge

No. M2003- 02297-CCA -R3-C D - F iled Jun e 25, 2004

At his first trial, the defe ndant, Steven A. Me y er, w as convic ted of first deg ree murder and the trial court, sua s

po nte , overturne d the jury verdic t, concluding that it was ag ainst the weig ht of the evidenc e. At the s econd trial, the j ury ag ain found the defendant guilty of first degr ee pr emeditated murder, a nd he wa s sentence d t o life imprisonment. On appe al, he a rg ues that the e vidence was ins u ff i cient to s ustain his conviction. Following our re view, we aff irm the judg ment of the trial

c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and R O BERT W. W EDEMEYER , J ., joined.

Gre g ory D. Smith, C larksvil le, Tenne ssee ( on appea l); Steven A. Mey er, Pro Se, a nd Edwar d DeWerf f, Clarksville, Tenne ssee ( at trial), f or the a ppellant, Steven A. Me y er.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Da vid H. F ind le y , A ssi sta nt A tto rn e y Ge ne ra l; J ohn W. C arney , J r., District Attorney Gene ral; and H elen O. Y oung , Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

The defe ndant was convicted of the first deg ree preme ditated murder of his former g irlfriend, J oanne Wi lcox. The proof prese nted by the S tate shows that he c onfronted the victim in a parking lot on J une 16, 1999, as the y wer e in their re spective ve hicles, shot her multiple times, a nd then fled the sce ne. At his second trial, the def endant, a ssisted by

elbow counse l, repre sented himself.

J essica G ilbert, the victim ’ s d a u g h te r, testified that she move d to Clarksville in J anuary 1999, living with he r sister, the victim, a nd the victim’s boy friend, the defe ndant. Her family moved out-2-

of the a partment about two and a half months prior to the victim’s de ath, the move prec ipitated by the def endant’ s hav i n g a n ew g irlfriend, w hich upset the victim. She said that the def endant unexpectedly came to the ir apartment on J une 16, 1999, and asked the victim “ about may be g oing
to a mov ie a nd g e tti ng a mot e l roo m.” Th e vic tim de c lin e d, sa y ing sh e wa s g oin g ou t w ith frie nd s, but the defe ndant “just kept asking her, h e wa nted her to go out with him.” The victim told t he defe ndant to leave , but he sat down on the couch. The victim left in her ca r betwe en 7:30 and 8:00 p. m.

Gi lbe rt

sa id the defe nd a nt h a d th re a te ne d th e vic tim tw ic e a ft e r the ir

br e aku p. He fi rs t thr e a te ne d h e r b y

sa y ing “ if

he c a ug ht h e r w ith a no the r m a n, he wo uldkil l her .” Th e se c on d th re a t, about one a nd a half

months before she wa s killed, was mad e as t h e t wo were a rg uing a bout the defe ndant’s new g irlfriend and the victim’s f riend, J essie. The defe ndant re peate d his threat “[t]hat if he c aug ht her with an o t h er m an , t h at he would kill her.” About four da y s befor e the victim’s murder, the defe ndant g ave the victim two g uns, a nine-millimeter and “a .22,” in a black c ase “ for her pr otection.” A day

or t wo l ater , the couple arg ued and the def endant r etrieve d his guns. Gilbert

sa id tha t th e vic tim

ha d n ever th reat ened the de fe nd a nt o r h is g ir lf ri e nd , Lisa

Mil le r. On c ro ssexamination, the witness said she never saw the defe ndant hi t the vi ctim, but she had seen “a lot of bruises” on the victim. She said she saw the vic tim’s wrist after the defe ndant “br oke it.”

Cry stal Ramos, the victim’s other daughter
, testified t hat s he saw the def endant the nig ht of the vic tim ’s mur de r, wh e n h e un e xpe c te dly c a me to thei r a

pa rt me nt anda sk e d th e vic tim to g o to a motel room and a movi e with him. The victim declined and aske d him to leave. Ramos said the defe ndant once told the victim “if he couldn’t ha ve her , then nobody could.” On c ross-examination, Ramos rec alled the d efendant’s bra g g ing a bout “che ating ” on the victim and r eca lled an occ asion when the victim f

ound something in the defe ndant’s wallet reg arding L isa Miller, at which time the defe ndant threatened the vic tim and pushed her of f the porc h.

Steven Tay lor testified that on June 16, 1999, at about 8:40 p.m., he was driving down Crossland A v e n u e p a s t a b u il d in g o w n e d b y

h is e mp lo y e r

w h e n h e n o ti c e d th a t a

d o o r w a s o p e n. He sto pp e d to c los e it a ndhe ard“ pr of a nit y , ho lle ri ng ” fr om tw o vo ic e s d ow n th e hil l ne ar a bu sin e ss

c a lle d So uth e rn Se c re ts. He sa w t wo ve hic le s, a wh ite Ply mou th c ar wi th a maro on top a nda

wh ite GMC or Chevrolet pickup truc k with an emblem in the back w indow, parke d side-by -side, fa cing the same dire ction. A man wa s in the pickup truck and a woman was in the car . The man’ s “voice from the pickup was more dominant tha n the other one.” He sa id that the vehicles le ft befor e he did, the whi t e car lea ving f

irst and the truc k following sever al sec onds later. Tay lor identified ph oto g ra ph s o f b othve hic le s.
Matthew Slight testified tha t he was a Clarksville police office r fr om 1995-2000 and, a t the time of trial, was employ ed as a civilian police office r in Kosovo. Estimating that he ha d been one and a ha lf to two blocks from the c rime sce ne on June 16, 1999, Sl ight sa id h e h ea rd ei gh t t o ten g unshots. He described the shots as “a series of – there was – roug hly four – pow, pow , pow, pow

– a paus e , a nd the n po w, po w, po w, po w a nd the n wh a t I he ard to be – tir e s sq ue a lin g .” W hile

sear ching the ar ea, he rec eived a radio disp at ch saying the shots came f rom Riverside Center . As-3-

he nea red the are a, he obse rved a vehicle w ith the motor r

unning parke d ag ainst a telephone pole. As he a pproac hed the vehicle , he saw , betwee n the driver and passe ng er se ats, a woma n “slumped in the seat and it a

ppear ed that she had underg one some sever e trauma.” He c hecke d the victim and determined that she did not have a pulse. He said there wer e seve ral g unshots to the driver’s side door and a

handwritten note on the bac kseat of the victim’s vehicle.

Serg eant Scott Cutler of the Clar ksville Police Depa

rtment Crime Scene Unit testified that wh e n h e arrive d a t th e sc e ne , th e loc a tio ns of so me of the sh e ll c a sin g s h a d a lr e a dy be e n ma rk e d w ith milk crates. Of

fice rs collec ted the shell ca sings a nd found lea d fra g ments on the armr est and on the passenger’ s side floorboa rd of the vic tim’s vehicle. Af ter the c ar w as towed, a dditional lead fra g ments were found inside the drive r’s door.

Dr. John E. Gerber

testified that he pe rformed the autopsy on the victim and desc ribed he r

wo un ds a s “ a pe ne tr a tin g g un sh ot wo un d of the le ft mid -b a c k, ” wh ic h “ brie fl y la c e rate d th e tho ra c ic

a orta ;” a pe rf or a tin g wo un d to the le ft sid e of he r f a c e , w hic h w e nt o ut the ri g ht s ide of the fa c e ; a pe rf or a tin g wo un d to the up pe r le ft ba c k; anda

pe rf or a tin g wo un d a lon g the le ft c he st. Th e c a us e of death was multiple gunshot wounds, with the one to the left bac k causing the “the most serious injuries.” As to the victim’s w ounds, he testified that “[t] here was no evidenc e of g un powder [si c] or stipling or black soot on the skin a round the e ntranc e wounds,” indicating the shots had bee n fired fr om g re a te r tha n two fe e t. Al tho ug h he didno t e xami ne the vic tim ’s c lothin g fo r p ow de r m ark s, he said the wounds to her face and upper back were distance wounds. Dr. Ge rber did not classify any of the wounds a s defe nsive.

Serg eant Timothy

Saunders of

the Clarksville Police Depa rtment testified that he attended the victim’s autopsy

and took custody

of the bullet re cover ed by Dr. Ge rber
, place d it in an e nvelope,

a ndturne d it

int o th e e vid e nc e ro om.

Offic er Gar y Ho d ges of the Clarksville Pol ice De partment testified he photogr aphed the

c ri me sc e ne , a ssi ste d in these arc h f or e vid e nc e , a nd col le c te d th e vic tim ’s c lothe s a t th e ho sp ita l. He a lso loc a te d th e de fe nd a nt’ s veh ic le a t th e K- Ma rt on Hi g hw a y

41 -A a t app ro xima te ly

2:3 0 a .m. on J une 17, 1999, and c onducted surve illance on it until 8:00 a.m., at which time other off icer s

arrived to sear ch the ve hicle.

Offic er Tim Anderson testified that he w as a thirtee n-y ear veter an of the Clarksville Poli ce Depa rtment, assig ned to t he Major Crimes Unit. He searc hed the defenda nt’s truck at the K-Mart at 8:20 a.m. on J une 17, 1999, the de fenda nt having consente d to the sear ch. Be hind the seat of the truck, Ande rson found a

black pistol case containing a nine-mill imeter pist ol and a mag azine which was unloade d in the pistol. I n the foa m of the g un casewas a n impression of another handg un which

was a bout “four to f

ive inches hig h and may

be fi v e i n ch es long.” He f ound sever al .22-c aliber bullets in a Rolaids bott le in the g love box and two .22-ca liber ca sings in the outside ve nt are a on the driver ’s side whe re the windshield conver g ed with the hood of the truck.-4-

L isa Miller testified that she a nd the defe ndant met while working in the laundry department of the Opry land Hot el i n Nashville, and, in May 1999, they

became romantica lly

involved. The defe ndant t old her that he and the vi ctim wer e “stil l toge ther but broken up.” Miller was with the de fe nd a nt the nig ht be fo re the vic tim ’s mur de r w he n th e de fe nd a nt t oo k a bla c k o r g ray

pla sti c c a se from under

the sea t of his truck, set it on the hood, and took out two g uns which he showe d to Mill er

a ndhe r b ro the r. De sc ri bin g the g un s, Mil le r sa id, “ [T]he big on e wa s b la c k o r g ray a ndthe sma ll

on e ha d b ro wn on it. ” Th e de fe nd a nt pu t the g un s ba c k int o the c a se a ndre turne d th e m to the sa me location in the truck. She a nd the def endant then took he r brother and his g irlfriend home , near the Golden Nug g et, wher e they saw the vic tim’s car. The defe ndant “wanted to g o i n s i d e t o see w ho [t he victim] was with,” but Miller told him “if he g ot out that [she] would leave him there.” Miller said they saw the vic tim throug h the door of the club. The de fenda nt then spent the nig ht with Mil ler
at her mother’s house, and, the next morning
, he and her mother left for work betwee n 4:00 and 4:30 a.m. Miller later

drove the defe ndant’s truck to work f or the sec ond shift, arriving at ar ound 1:00 p.m. The defe ndant then drove his truc k back to Clarksville whe n he g ot off wor k betwee n 4:00 and 4:30 p.m. The defe ndant telephoned Miller at about 9:40 p.m. to tell her that he w ould pick her up from wor k. He a rrived at her wo rk place at about 11:00 p.m., and they drove to the K -Mart on Madison Street whe re the defe ndant lifted the hood of his truc k and disconne cted something . They then left the truc k at the K- Mart, rode a shuttle bus to F ort Campbell, and then drove he r mother’ s

c ar h o me

. T h e d e f

e n d a n t s p e n t th e n ig h t w ith M il le r a n d w a s s ti ll s le e p in g w h e n s h e le f t th e n e xt morning to take her

mother to work.

Anthony Fulmer , L isa Miller’s brother, testified t hat he met the de fenda nt in J une 1999 and saw him the day

before t h e victim ’s murder at the home of

Fulmer and Miller’s mother . The defe n d an t re t rieve d “a c ouple of g uns” fr om his truck and showe d them to Fulmer a nd Miller. Desc ribing the g uns, Fulmer sa id, “[T] he blac k one .

. . it looked like a B B g un and the other g un, a little chrome g un that could fit in my hand.” T he def

endant r eturne d both guns to his truck.

Serg eant Robert Miller of t he Clarksville Police De partment testified tha t he investig ated the victim’s murder a nd that the note found in the vic tim’s car ha d the def endant’ s name on it. Off

icer s located the defe ndant during the ea rly morning hours of J une 17, 1999, at Lisa Miller’s re sidence
, and he voluntarily acc ompanied the officer s to their office . Serg eant Miller obtaine d the def endant’ s

c on se nt t o s e arc h his ve hic le a nd re sid e nc e . Wh ileoth e r o ff ic e rs c on du c te d th e se arc h, the wi tne ss stay ed with the defe ndant who rela ted his activities from the pre vious day . The de fenda nt’s initial
statement wa s that, on J une 1 6
, h e had g one to the victim’s house to ask he r about “ doing something” with him that ni gh t

. S h e declined and whe n she left, he followed he r in his vehicle, flashing his lights an d honking his horn to g et her to stop. He stopped at a tr aff ic light, while she went throug h, causing him to los e s i gh t o f h er

. He then went to his apartment, g ot a cha ng e of clothes, and started f

or Lisa Miller’s house but ende d up picking Miller up at work, w ith them stay ing at her home the rest of the night.

When Serg eant Miller showe d the def endant the note found in t he victim’s ca r, the de fenda nt admitted writing it; however, he claimed to have written it on Thursday or Friday of the pre ceding

wee k. The note r ead: “ J oAnne, someone told me that they caug h t y o u fu ck i n g someone in the-5-

backse at of y our car Tuesday night at the Gold Nug g et. J ust when y ou thought y ou knew someone

. Yeah rig ht. I t was verified. Steven.” The rever se si de read: “Friday night – Ge ttin’ a littl e more , huh? I f y ou want to save us – come c lean.” The de fenda nt acknowle dg ed owning two pistols, a nine-millimeter, which wa s in his pickup, and a .22-c aliber, w hich he claimed was in a dresser at the victim’s house. Appro x i m at elythree hours af ter the de fenda nt came to the police station, he was told that the vi ctim was dead. The defenda nt rea cted by hug g ing the other off icer in the room and say ing, “ [N] o, no, no,” but, according to Mill er, the defe ndant did not cry or ask how the victim died. Asked if he had shot the victim, the defe ndant said, “ Fu ck n o ” an d denied a ny knowledg e of he r death.

The de fenda nt subsequently admitted that he followe d the victim from her house and that he

ra n th e tr a ff

ic lig ht, a lth ou g h h e ini tia lly sa id h e ha d stop pe d at the lig ht. He sa id h e a ndthe vic tim stopped their vehic les and talke d. Acc ording to the defe ndant, the victim threatened to kill him as

we ll a s Lisa Mil le r, he r c hil d, a nd he r un bo rn ba by . T he de fe nd a nt s a id that th e vic tim pr od uc e d h is loaded .22- caliber

pistol and pointed it at him . He then g rabbe d the pistol and started firing. When the pistol was empty , he droppe d it a nd hear d it hit the victim’s c ar. The defe ndant then drove home, picked up his clothes, dr ove ar ound, and ca lled L isa Miller at work by pay telephone. He said the shooting occur

red at approximately 8:35 p.m. Asked how many shots were fired, the defe ndant said, “I was lea ned over

out the window, I

emptied the clip

. T h e clip holds seven a nd one in the

c ha mbe r. ” Se rg e a nt M ill e r s a id tha t th e de fe nd a nt s ho we d no s ig ns of e mot ion a l di str e ss w hil e g ivi ng his state me nts

.

Offic er Raymond Macia s of the Clarksville Police De partment testified tha t he was pr esent during the def

endant’ s interview. Af

ter Mac ias told the defe ndant he would like to hea r hi s “side of the story ,” the two wa lked outside. The de fenda nt t h en t o l d M acia s that he and the victim had

rac ed throug h the stre et s , wi th him chasing the victim, before stopping on Riverside D rive. The defe ndant said he a nd the victim had a he ated a rg ument, and the victim pulled a g un. The de fenda nt g rabbe d the g un from her , turned it, fire d every round into the v i ct i m , an d then threw it down betwee n the two vehicle s. The defenda nt said “he kne w that he hit [the victim] beca use he he ard he r g o, Uh and then sa w her slump into the center console.” He sa id he left the a rea and later came back and saw the y ellow tape surrounding the victim’s ve hicle. Mac ias and the de fenda nt then went bac k inside, and the de fenda nt told S erg eant Miller that he wa nted to chang e his story . Macia s said the de fe nd a nt s ho we d n o s ig ns of e mot ion a l di str e ss.
Spe c ia l A g e nt D on a ld C arm a n o f the Te nn e sse e B ur e a u of I nv e sti g a tio n F or e ns ic F ir e arm s I dentifica tion Unit testi fied that he examined the lead bullet f rag ments from the armrest, passeng er’ s side floorboa

rd , and drive r’s side door of the victim’s ca

r. He could not conclusively match the bullets as having come from the s ame barre l, but did conclude that most of t he frag ments wer e .22- caliber bullets, although some w ere too mutilated for comparison. Two .22-c aliber bullets, one f rom the vic tim ’s bo dy ba g a nd the oth e r re c ov e re d fr om the vic tim ’s bo dy , we re bo th fi re d f ro m th e sa me g un and consistent with those bullets fo u n d i n t h e R olaids bottle in the defendant’s truck. Ag ent Carm a n s a id tha t th e sh e ll c a sin g s f ou nda t th e sc e ne a ndtho se fr om the de fe nd a nt’ s truc k we re a ll struck by the same f

iring pin of a .22-caliber

wea pon. He sa id he examined the six bullet holes on-6-

the exterior of the driver’s side door of the victim’s vehic le, and they “we re a ll consistent with .22 caliber holes.”

Offic er Joe Sustek, testify ing a s the first def ense w itness, stated that he wa s the fourth off icer to arrive at the crime scene . He a ssisted in taping off the sce ne and obta ined infor m at i o n for the orig inal report about the shooting. H e did not interview w itnesses or take statements.

Offic er William Nalley

testified that he r esponded to a criminal trespa ss ca l l on May 22, 1999, at 701A Cumberland D rive, whe re the defe ndant met him at the front door. H e said that the J essica Seton na med in the re port was in the de fenda nt’s car e and that the two individuals whom the defe ndant wante d cited for criminal t respa ss wer e S eton’s friends and had been invited by her to the residenc e.

Offic er V incent L ewis testified that he and De tective Matt Slight responde d to the shooting

scene on Riverside Drive . They found the victim’s vehic le with the m o t o r s t i ll running. Slig ht opened the driver’ s side door, and both saw the victim ly ing a cross the se at. L ewis bac ked out of the vehicle and ra dioed for a supervisor a nd an ambulanc e. He also testified that he saw a purse and a handw ritten note in the bac kseat.

R i ch ar d Br ad y

t es t i fi ed t h at t h e d ef

en d an th ad d at ed h i s d au gh t er

. He s ai d t h at , al t h o u gh asked by the defe ndant to do so, he had not take n possession of any g uns because he did not wa nt his daug hter or g randson e x posed to dang er a nd acknow ledg ed that he may have se en the de fenda nt with a small silver pistol.

Detec tive Nicholas Ne wman of the Clarksville Poli ce D epartment testified that h eresponde d to a shots-fire d call on J une 16, 1999. He said he saw the victim’s car ag ainst a telephone pole on Riverside Drive and took photog raphs of it. He also saw a

note on the bac kseat of the car

.

L e e Pot ts t e sti fi e d th a t he ha d w or ke d wi th the de fe nd a nt. He sa id the de fe nd a nt a sk e d h im about two wee ks befor e the victim’s murde r to “hold” some g uns for him, but the exchang e neve r took p la c e

. H e s a id th e d e f e n d a n t to ld h im th a t h e “ w a n te d to g e t [t h e g u n s ] o u t o f the house” beca use he “ was afr aid that either [the victim] or some of he r friends may take them or

do something with them or something mig ht happen.”

De b b i e Ad ams testified that she wa s the defe ndant’s mana g er at the Opry land Hotel. She acknow ledg ed that the defenda nt had a rela tionship wit h a cow orker , L isa Miller. Adams re ceive d telephone c alls from the victim who inquired a bout the defe ndant and his work duties. She r eca lled

an occ asion when the victim accompa nied the def endant to wor

k and aske d who Lisa Miller was beca use the victim wante d to “whip her ass.”

Mildred B ear d testified that the def endant wa s one of he r tena nts until he went to jail. S he said that he first moved i nto the apartment with the vi ctim, and later the victim’s two children move d in

. T h e v ic ti m a n d h e r

c h il d r e n s u b s e q u e n tl y

move d in to a n o th e r

ap ar tm e n t w ith in th e c o mp le x.-7-

She acknow ledg ed that she ha d let the victim in the defendant’s apartment “a couple of times” af ter the vic tim

ha d mo ve d o ut.

L a ur a B ra dy te sti fi e d th a t sh e kn ew th e defend a nt thr ou g h w or k a ndhe r d a ug hte r, L isa Miller, whom the defe ndant dated until he went to ja il. She said she had se en the de fenda nt’s two g un s a nda

g ray g un c a se by

the de fe nd a nt’ s tr

uc k, bu t sh e c ou ld no t rem e mbe r the date thi s

occur red. She ha d never

seen the defe ndant hit any one or he ard him talk badly about the victim.

Offic er John W ader

ker te stified that he re sponded to a c ri m i nal trespa ss call at 701 Cumbe rl a ndDrive on Ma y 22 , 1 99 9, a ndthe vic tim

wa s p re se nt. He sa id w he n he iss ue d th e vic tim a spee ding c itation on J une 3, 1999, she g ave he r addr ess as 701 Cumberla nd Drive.

I nv e sti g a tor

Che ry l A nd e rs on te sti fi e d th a t sh e a ssi ste d Se rg e a nt M ill e r w ith his investigation. At the scene , she saw a vehicle in the pa

rking lot ag ainst a lig ht pole and a ha nd writt e n n ote ly ing on the ba c ks e a t.

Patricia Mey er, the defe ndant’s sister, testified that she last saw the defe ndant in 1999 at the Mo ntg ome ry Cou nty Jail . Sh e sa id s he ha d n e ve r s e e n th e de fe nd a nt thr e a te n, hit , o r c a ll the vic tim names. John Mey er, the defe ndant’s brother, testified that the def endant c ame to their g randf ather ’s funer al in I owa without the victim and said that he had a ne w g irlfriend, L i s a M i l l er

. He sa id the defe ndant had two g uns, a nine-millimeter B are tta and a .22-ca liber Taurus. He said he had ne ver seen the defe ndant point a g un at or phy sically assault any one, including the victim.

AN AL YSI S

Suf fi ciency of the Evidence

As the so le iss ue , th e de fe nd a nt a rg ue s th a t th e e vid e nc e wa s in su ff ic ie nt t o s up po rt

his conviction for f

irst deg ree murder.

B e fo re re vie wi ng the iss ue raise d by the de fe nd a nt on app e a l, w e fi rs t w ill c on sid e r h is c la im
t h a th e c a n n o tb e r e tr i e d b e c a u s e o f t h e tr i a l c o u r t ’ s o r d e r i n g a n e w tr i a l f

o l l o w i n g h i s f

i r s ttr i a l

. In that ruling , the court conclude d that the verdict was ag ainst the weight of the evidence a nd order ed

a ne w t ri a l:

Pursuant t o R u l e 3 3(f) , Tenn. R. Crim. P., the court, sua

s p o n te , finds that the jury ’s ver dict is ag ainst the weig ht of the

e vid e nc e

. Ac c or din g ly
, the jud g me nt is va c a te d a nd a ne w t ri al is g rante d.

Tenne ssee Rule of Criminal Proce dure 33( f) pr ovides that a trial court may g rant a new tria l if the ver dict is ag ainst the weig ht of the evide nce:-8- New T rial Where V erdic t I s Ag ainst the Weight of the Evidence . – The trial c ourt may g rant a new tria l following a verdic t of g uiltyif it disag ree s with the j ury about t he weight of the evidenc e. I f the tr ia l c ou rt grant s a

ne w t ri a l be c a us e the ve rd ic t is c on tr ary to the weig ht of the evidenc e, upon re quest of either party the new trial shall be conduc ted by

a diffe rent judg e.
The Advisory Commi ssion Comments to Rule 33(f) e x plain that double jeopar dy does not preve nt retria l of a de fenda nt if, in a trial, the ver dict is ag ainst the weig ht of the evide nce:

One should distinguish a ne w trial g rante d beca use t he ver dict is ag ainst the weig ht of the evide nce f rom a g rante d motion for judgme nt of acquittal under T. R. Crim. P. ( 29)( c) fo r i nsufficie ncy of evide nce to c onvict. I n the latter situation, re try ing the def endant

wo uldre su lt i n d ou ble je op ard y , w hile in the fo rm e r s itu a tio n it

wo uldno t.

Acc ording ly
, we respe ctfully disag ree with the defe ndant’s claim that the trial court’ s ruling at the conc lusion of the first trial pre cluded his being tried aga in. I n fac t, Rule 33(f) allows a re trial when the c ourt conc ludes a ve rdict is ag ainst the weig ht of the evide nce, and that is what occ urre d in this case.

The de fenda nt was c onvicted for the violation of Tenne ssee Code A nnotated sec tion 39-13- 202, which def

ines first deg ree murder as “[a] premeditated a nd intentional killi ng of anothe r.” The “ele ment of pre meditation is a question of fac t” for the jury to determine based upon a consider ation of all the e vidence . State v. Suttl es, 30 S.W.3d 252, 261 (Tenn. 2000) (c iting State v. Bl and, 958 S.W .2d 651, 660 (Tenn. 1997) ). Premeditatio n m ay b e inferr ed fr om circumstantial evide nce surrounding the crime, including the manner and circ umstances of the killing. See State v. Pike, 978 S.W .2d 904, 914 (Tenn. 1998) ; State v. Addison, 973 S.W .2d 260, 265 (Tenn. Crim. App. 1997)

. The c ircumstantial evidenc e of pr emeditation m ust, howeve r, be "so strong and cog ent as to ex clude

e ve ry oth e r re a so na

ble hy po the sis sa ve the g uil t of the de fe nd a nt, a nd that be y on d a reason able doubt." Stat e v

. Crawf

ord, 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). The re a re se vera l fac tors that tend to evidenc e pre meditation:

the use of a

deadly wea pon upon an unarmed v i ct im; the particular

c ru e lty of the kil lin g; de c laratio ns by the de fe nd a nt o f an in te nt t o kill; evidenc e of pr ocure ment of a w eapon; pr epar ations befor e the killing for c oncea lment of the crime, and ca lmness immediately afte r t h e k i l l i n g.

Bla nd, 958 S.W .2d at 660.-9-

Apply ing the se fa ctors, our supr eme c ourt, in State v. Keoug h, 18 S.W .3d 175 (Tenn. 2000)
, conclude d that the evidenc e pre sented in that ca se had e stablished preme ditation:

Wh en viewed in a

light most favor able to the pr osecution, the evidenc e re veale d: that the def endant wa s looking for

the victim on the nig ht in que sti on ; tha t the de fe nd a nt wa s in poss e ssi on of a ri fl e knife or bay onet; that the defendant found the vi ctim at a bar drinking with another ma n; that an ar g ument ensued be tween the defe ndant and the victim; that once outside the bar, the defen d an t s t abbed the

u n ar me d v ic ti m f

o r c ib ly in th e c h e s t w ith th e b a y o n e t; th a t the defe n d ant disposed of the murde r we apon; and, that the de fenda nt soug ht mone y to f

lee. This e vidence
, when viewed as a whole unde r the appr opriate standa

rds of a ppellate r eview, w as leg ally sufficie nt to support a finding that the def endant a cted with pre meditation.

I d. at 181.

Ta ke n in the lig ht m os t fa vo ra ble to the Sta te , the jury in thi s ma tte r c ou ld h a ve re a so na bly conclude d that althoug h the defe ndant’s romantic rela tionship with the victim ha d ended, he still was jealous of he r being with others, twice te lling her daug hters that he would kill her if he ca ug ht her wi th a no the r m an andthat if he c ou ld n ot h a ve he r, no on e c ou ld; that th e de fe nd a nt l e ft a ha nd writt e n n ote fo r the vic tim , a c c us ing he r o f ha vin g se xua l r e la tio ns wi th o the rs ; th a t hi s c ur ios ity in the victim’s dating othe rs continued to the point t hat, the nig ht before the victim was killed, he

s t o p p ed at t h e b arwh er e t h e v i ct i mwa s , wa n t i n g t o go i n s i d e t o s ee wh o s h e wa s wi t h ev en t h o u gh his new g irlfriend w as with him at t he ti me; that he followe d or pursue d the victim to the location wher e she w as killed; that befor e the shooting
, they arg ued, with the defendant loudl y cursing ; that the de fe nd a nt s ho t th e vic tim mul tip le tim e s, e mpt ying his pis tol by sh oo tin g the vic tim or fi ri ng int o he r c ar; that th e de fe nd a nt fl e d the sc e ne “ sq ue a lin g ” his tir e s; tha t the vic tim ha d be e n sho t f ro m a distance g reater than two f eet; that two s p en t casing s were located on the driver’ s side of the de fe nd a nt’ s tru ck con tr ary to h is c la im that he a ndthevic tim fo ug ht o ve r the pis tol ; a ndthat, following the shooting, the defe ndant disposed of the .22-ca liber pistol with which he had shot the victim, replac ing it in his pistol ca se with a nine-millimeter pistol. From all of this, we c onclude that the jury rea sonably could have determined that the State had established the elements of first deg ree

mur de r. Ac c or din g ly , th e de fe nd a nt’ s c la ims are wi tho ut m e ri t.

CO NC LU SION

B a se d u po n th e fo re g oin g a uth oriti e s a ndre a so nin g , w e a ff ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ ALAN E. GL

ENN, JUDGE