### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M ay 15, 2002

STATE OF TENN ESSEE v. ERICK DA RNELL BAILEY

Appeal from the Criminal Court for Davidson County No. 99-B-1017 Seth Norman, Judge

No. M2001-01974-CCA-MR3-CD - Filed June 19, 2002

The defendan t, Eric k Darnell Bailey, appeals his first-degree murder convictions imposed following

a jury trial in the Davidson County Criminal Court. The defendant was trie d and con

victed on both felony-murder

and premeditated- murder coun ts in the indictment, and the trial court merged the convictions into a sing le convicti on of fir st-degr ee murde r. The sin gle issue

raised o n appea

l is whether the convi cting evi dence issufficie nt to support the verdicts. We modify the conviction for premeditated

mu rder t o second-degree murder and af firm the conviction for first-degree, felony murder. The second-degree murde r conviction merges into the felony murder conviction.

1.Tenn. R. A pp. P. 3; Judg ment of t he Crimina

l Court Af

firmed a s Modifie d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J OE G. R ILEY , JJ., joined.
Ralph Newman and Elizabeth Ezell, Nashville, Tennessee (at trial) and C. Dawn Deaner, Nashville, Tennessee (on appeal) for the Appe llant, Erick Darnell Bailey.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Ander s on, Assis tant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION

The defendant was charged in a two-c ount indictment with killing Timothy Chandler

on Decemb er 27, 19 98 at a Na shville conveniencestore. The first count alleged that the defendant killed the victim

while perpetrating a robbery, see Tenn. Code Ann. § 39-13-202(a)(2) (Supp. 2001), and the second count alleged that the defendant premeditatedly a

nd intentio nally killed the victim,

see id. § 39-13-202(a)(1) (Supp. 2001). After a three-day trial, the jury convicted the defendant on bo th counts. The trial court merged the premeditated-murde r conviction in count two with th e felony-murder conviction in count one and imposed a life sentence

.-2- In the light most favorable to the state, the evidence introduced at trial showed that the victim lef

t his home on the evening of December 27, 1998 to rent video movies and to buy food f or an even ing meal f

or himself

, his two ch

ildren, h is girlfr iend, and other fa mily me mbers. Th e victim was drivi ng his girlfriend’s gold-colored Camaro that was access orized w ith a set of chrome wire wheels valued

at approximately $4,000. After renting the videos and buying the food, he stopped at an Aztec convenience store on Dicke rson Road and at 7:48 p.m. prepaid for ten dolla rs’ worth of gas wit

h ten one- dollar bills. He left the store through the rear door in the direction of the gas pumps that were located on the back side of the store.

At or a bout this tim

e, the defendant

was ridin g on Dicke

rson Road

with his twi n brother Derrick Bailey a

nd two cou sins, Alvin

Hall and J avon Gar

rison, in D errick

Bail ey’s Ca dillac. According to Mr. Hall’s testimony, Derrick Bailey was driving and the defendant was riding in the front passenge r seat. D ue to the volume of the radio, Hall could not hear the conversation between the two Baileys in the front seat. After they passed the Aztec, D errick B ailey turn ed the Cadillac around and drove back toward the Aztec. H e pulled the car into the Taco Bell parking lot adjacent to the Aztec and

parked b ehind the

Taco Bell. The defendant got out of the car and went through the shrubbery into the rear portion of the Aztec lot.

Derrick Bailey then drove the Cadillac back to the street and pulled up to the front of the Azte c store. Hall got o ut and we nt inside the store to buy a drink. Hall and the store clerk bothtestified that the defendant was in the store when Hall ca me in. The defendant asked Hall if he had change for $20 and, after rec eiving a negative response, exited the store through the rear door. According to the clerk, the defendant exited the store some time

after the victim had exited through the same door. The clerk did not specify the amount of time that elapsed betwee n the vict im’s exit and the defenda

nt’s exit t hrough the

same door . She testi fied tha t the next gas sale occurred “[a]t the most[] 20 minutes” after the victim’s purchase.

Mary Ann Fenter, an Aztec customer, testifie d that whe n she drov e to the rear of the Aztec only one car was present, a “champagne-colored” ca

r parked beside a gas pump. Nearby we re two men, one who was lying on the ground and the other, a black man, who was standing over and looking down at the prone man. The man who stood was holding onto the jacket of the prone man, who did not move. When the man who was standing s aw Ms. Fen ter lookin g at him, he

turned lo ose of the other man’s jac

ket, got in to the champagne-colored car, and drove away in a manner that she “wouldn’t call speeding, but . . . wouldn’t call it slow.”

Alvin Hall had e

xit ed the Aztec store through the front door and had rejoined Garrison and Derrick Bailey in Bailey’s Cadillac. Bailey then drove the Cadillac around to the rear of the Azte c where

Hall saw the Camar

o with its he adlights off, moving away from the gas pump. The Cadillac followed the Camaro onto and down Dickerson Road . Both vehi cles turn ed onto Bellshire Road. Ha

ll asked to

be let out
, and Derrick Bailey stopped the Cadillac and let Hall and Garrison out.-3- Meanwhile, Ms. Fenter had alerted the store clerk, who ca lled the police. Although neither Ms. Fenter nor the clerk had heard a gunshot, the victim had been shot by a .9 mm weapon that was fired within six inches of the victim’s chest. The bullet struck the heart, liver, aorta, and spine. The victim died while on a hospital operating table.
Later that evening, a motorist discovered the Camaro on Jackson Road a bout two miles from Dickerson Road and five miles from the Aztec. Jackson Road

is connected to Dickerson Road via Brick Church Road and Bellshire. The wheels and tires, radio, and spe akers had been removed from the Camaro, and someone had ineffectua lly attempted to set the car afire.

The police were alerted to the defenda nt’s involvement in the crime by the store clerk’s identification of him and his appearance on the store’s surve illance videotape. After the police ap prehended the defendant, they discovere d $950 on his person, including 166 one-dollar bills. The defendant admitted being at the Aztec during the evening of December 27 and said that he had “heard a shot.”

The police obtained Derrick Bailey’s Cadillac. They found evidence that someone had placed tires in the backseat. They photographed a portion of the bac k of the leath er fron t seat, where an impre ssion of r aised le ttering f rom a tire had been left. This lettering was identified as belonging to a specific make and model of tire that had been sold to the victim and mounted on the Camaro in the summer of 1998. Also, after recovering the Camaro, the police discovered a propane bottle in its trunk that bore the defendant’s fingerprint.

The defendant was convicted at trial of both felony murder and premeditated murde r. On appeal, the sole issue is whether the convicting evidenceis sufficient. In presenting that issue, the defendant concedes that the e vidence supports a finding that he robbed the victim or stole his car; however, the defe

ndant posi

ts that the evidence fails to establish that he was the person who shot the victim. Essentially, he argues that the evidence does not exclude the reasonable hypothesis that the defendant came along to rifle thevictim’s p ockets a nd steal h is car after someone else had shot the victim.

It

is well es tabli sh ed that a jury verdict, approved by the trial judge, acc redits the testimony of the witnesses for the state and resolves all conflicts in favor of the theory of the state. State v. Hatch ett , 560 S.W.2 d 627, 630 (Tenn. 197 8); State v. Towns end , 525 S.W.2d 842, 843 (Tenn. 1975). On appeal, the state is entitled to the strongest legitimate view of the evidence a nd all reasonable or legitimate inferences whic h may be drawntherefrom

. State v. Cabbage , 571 S.W.2d 832, 836 (Tenn. 1978).

Moreover, a verdict against the defendant removes the presumption of innocence and raises a presumption of guilt on appeal, State v. Grace , 493 S.W.2 d 474, 476 (Tenn. 197 3); Anglin

v. State , 553 S.W.2d 616, 620 (Tenn. Crim. App. 1977), which the defendant has the burden of overcoming, State v. B rown , 551 S.W.2d 329, 331 (Tenn. 1977).-4- Most significantly, where the sufficiency of the evidence is challenged, the relevant question for an appellate court is whether, afte r reviewing the evidence

in the light mo st favor

able to the prosecution, any rational trier of f act coul d have fo

und the es sential e

lements of

the crime beyond a reasonable doubt. Tenn. R. App. P. 13 ; Jacks on v. Virg inia , 443 U.S. 307, 99 S. Ct. 2781, 2782 (1979); see also
, State v. Williams , 657 S.W.2d 405 (Tenn. 1983). This rule applies to findings based on both di rect and circumstantial evidence. State v. Thomas , 755 S.W.2d 838, 842 (Tenn. Crim. App. 1988).

The defendant’s appella

te challe nge to the sufficie ncy of the convicti n g evidence call s into play the r

ules concerni ng the use

of circ umstantia

l evidenc e. Unque stionably , a crimin al offe nse may be established exclusively by circumstantial evidence. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones , 901 S.W.2 d 393, 396 (Tenn. Cri m. App. 199 5); State v. Le quire , 634 S.W.2d 608 (Tenn. Crim. App. 1982). However, before an accu sed may be

convicte d of a cr

iminal off ense based upon circumstantial evidencealone, the facts and circumstances “must be so strong and coge nt

as to exclud

e every other re asonable

hypothesi s save the guilt of the defendant.” State v. Cr awford
, 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971); Jones , 901 S.W.2 d at 396. I n other w ords, “[a] web of guilt must be woven around the defendant from which he cannot escape and from which fa cts and circumstances the jury could draw noother reasonable inference sa ve the guilt of the defendant beyond a reasonable doubt.” Crawford , 225 Tenn. at 484, 470 S.W.2d at 613.

First-degree murder is committed by on e wh o kills another premeditatedly and intentionally, Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 2001), or who kills another “ in the perpetration of or attempt to perpetrate any . . . robbery,” id. § 39-13-2 02(a)( 2) (Su pp. 20 01). Premeditation involves “an act done after the exercise of reflection and judgment [and] means that the intent to kill must have been formed prior to the act itself[, although] it is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time.” Id. § 39 -13- 202(d) (Supp. 2001). “No culpable mental state is required for conviction [of felony murder] except the intent to commit the enumerated offense[],” whic h in the present case is robbery. Id. § 39-13- 202(b) (Supp. 2001).

Looking first to the felony-murder conviction, w e find suff icient ev idence, albeit circumst antial, of a killing committed during the perpetration of a robbery. In

so doing, we reject the defenda

nt’s clai m that the circumstantial evidence fails to exclude every reasonable hypothese s except that the defendant was the person who shot the victim.

T he evidence showed, rather palpably we think, that in driving past the Az tec, th e Bailey brothers were attracted to something they saw, causing them to turn around a nd result ing in the defendant stealthily entering the rear of the Az tec property. The jury c ould easi ly infer that he loitered about the Aztec store while the victim pumped gas into the Camaro. Then, he lef t the store

–not through the fro nt door, in the dire ction of h

is brothe r’s Ca dilla c – but through the rear door toward the rea

r gas pump s, where

the only ve

hicle kno wn to be pr

esent w as the Camaro. A short time later, the defendant was seen standing over the prone victim with

his hands o n the vict

im’s coat

. He then drove away in the victim’s car, leaving the vict im m ortally wounded by a gunshot to the-5-

chest. The d efendan t’s brother followed in the Cadillac, and soon thereafter, the defendant abandoned the Camaro after removing the ra dio, speakers, and expensive wheels.

These events bespeak the brothers’ plan to steal the Camaro in orde r to o btain the wheels, a plan that likely was hatched between the time that they passed the Aztec the first time and then turned around to go back. The defenda nt’s ac tions in lurking about the Aztec store and then exiting through the rear door are consistent with this plan. Significantly, until Ms. Fenter arrived, there was no evidenc e of any o ther per sons being near the rear ga s pumps exc ept the vi ctim and the defendant.
Accordingly, we find unreason able the hypothesi s t hat someo ne else k illed the v ictim and that the defendant merely came along later to stea l the Camaro. We hold that the evidence of felony murder e

xcluded e very othe r reaso nable hyp othesis except the guilt of the defendant beyond a reasonable doubt.

Now, we address the issue of the conviction of premeditated murder. Of course, our determination that the circumstantial evidence supports the conclusion that the defendant committed felony murder also supports the gene ral conclusion that the defendant was the man who shot the victim. That conclusion a lone, h owever, does not establish all of the elements of premeditated murder.

As noted above, premeditation involves the doi ng of an act after the exercise of reflection and judgme

nt. Tenn. Code Ann. § 39-13-202(d) (Supp. 2001). “Premeditation involves

a previous ly formed

design, or

actual intention t

o kill .” State v. B rown , 836 S.W.2d 530, 539 (Tenn. 1992) (quoting Lewis v. Sta te , 40 Tenn

. 127, 147-48 (1859)) (emphasis added in Brown ). It is the process “‘of think ing about a proposed killing before engaging in the homicidal conduct.’” Id. at 541. “[N]o specific period of time need ela pse between the defendant’s formulation of the desig n to kill and the execution of that plan . . . .” Id. at 543.

Our legislature has mandated that “[t]he mental state of t he accu sed at the

time the accused alleged ly decide d to kill must be carefully considered in order to determine w hether t he accused was sufficiently free from excitement and passion as to be capa ble of premeditation .” Tenn. C ode Ann. § 39-13-202(d) (Supp. 2001) ( emphasis added ). However, premeditation may b e inferred from the circumstances surrounding the killing. Brown, 836 S.W.2d at 541; State v. G

entry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). Facts which may allow a jury to infer premeditation include:

(1) facts about how and what the defendant did prior to the a ctual

killing whi ch s how he was engaged in activity directed toward the killing, that is planning activity;

(2) facts about the defendant’s prior relation ship and conduct with the victim from which motive may be inferred; and-6- (3) facts about the nature of the killing from which it may be inferred that the manner

of the killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Moreover, Tennessee courts have specifie d releva

nt circumstance s and con siderati ons:

the use of a d

eadly we apon upon

an unarm

ed victim; the particular cruelt y of the kill

ing; decl aration s by the defendant of an inte

nt t o kill; evidence of procurement of a we apon; prepara ti ons before the killing for concealment

of the crime, and calmness immediately after the killing.

State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997).

In the present case, the evidence shows that the defe ndant pla nned to ro b the vict im

o f th e Camaro, but the record is devoid of proof that the d efenda nt planne d to kill the

victim. Although the evide

nce show ed that the defen dant knew that the victim posse ssed the Ca maro with the expensive wheels, thus estab lishing a mot ive for robbery, there was no proof of a ny prior relation ship between the victim and the defendant

that supplies a motive for murder. Although a gun

was used upon an unarmed victim, there is no evidence that the defe ndant procured the gun

in order to shoot the victim. Significantly, except for the fact that the gun was close to the victim when it was firedinto his chest, there is no evidence ab out the nature or circumstances of the actua l killing. There is no declaration of an inte nt to kill the victim and no indication whether there was an argument or strugg le that might have prompted a passionate or an accidental shooting. In truth, we know nothi ng about th

e defen dant’s c

ritical c onfronta

tion with the victim.

When, as here, “there simply is no evidence in th e record that in causing [the victim’s] death, [the defendant] acted with the premeditation . . . required to establish first-degree murder,” see Brown , 836 S.W.2d at 543, we must reverse the conviction for that offense, id. at 544. Of course, one could

specula te that the defendant formed a prior intent to shoot the victim in order to facili tate the theft of the car, but a jury may not engage in “ pure speculation” and may no t “construct

a theory based on no evidence at all.” State v. W est , 844 S.W.2d 144, 148 (Tenn. 1992). “[I]n the absence of proof of . . . premeditation, an unlawful killing is presumed to be second degree murder.” Id.

Given the presumption in favor of second-degree murder and finding ample evidence to support a finding that the defendant knowingly

killed the victim, we reve

rse and v acate t

he firstdegree murder c onviction on count tw o and im

pose in lieu thereof a conviction of second-degre e murder. Accord State v. Boyd , 909 S.W.2 d 50, 55 (T enn. Crim. App. 1995 ) (wher e stated failed to of fer any evide nce of de liberate and prem editated nature o f attempt

e d homicide, presumption applie d that attempted unlawful killing was attempted second-degree murder); State v. D arnell , 905 S.W.2d-7-

953, 961-62 (Tenn. Cr

im. App. 19 95) (pre

meditate d murder

convicti on modifie d to second-degree murder where state’s arguments, although strong and possibly correct, were not supported by quantum of

proof ne cessar

y to sustain

premeditated fir st-degr

ee murde r convic tion). Of

course, this conviction in count two remains merged with the first-degree f elony-mu rder conviction in count one.
In all other respects, we affirm the actions of the trial court.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE