# FILED March 20, 2000 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF

CRIMINAL APPE

ALS OF TENNESSEE AT KNOXVILLE FEBRUARY 2000 SESSION

STATE OF TENNESS EE, ) ) No. E1999-01287-CCA-R3-CD Appellee, ) ) MONROE COUNTY VS. ) ) HON. CAROLL L . ROSS, JERRY ALLEN MIL LSAPS, ) JUDGE ) Appellant. ) (First Degree Murder: ) Life Without Par ole)

FOR THE APPELLANT : CHARLES M. CORN District Publ ic Defender 53-A Central Ave

. P.O. Box 1453 Cleveland, TN 37

364-1453 FOR THE APPELLEE : PAUL G. SUMMERS Attorney General

and Reporter LUCIAN D. GEIS E Assistant Attor

ney General Cordell Hull

Building, 2nd Fl oor 425 Fifth Avenue North Nashville, TN

37243-0493 JERRY N. ESTES District Att

orney General WILLIAM W. REEDY Assistant

District Att

orney General 130 Washington Ave. NE P.O. Box 647 Athens, TN 37371-0647

OPINION FILED:

AFFIRMED
JOE G. RILEY, JUD GE2 OPINION

De fe ndant was convicted by a Monroe County jury of premeditated first degree murder and sentenced to lif e without the poss ibility of parole. In this

appeal as of right, defendant makes the following allegations: (1) The evidence

is insuffici ent to support his conviction; (2) The trial cour

t erroneously l imited cross-exami nation regarding the victim's family’s and employee’s reputation for v iolence.; (3) The trial court er

red by failing to app

oint a disinter

ested interpret

er and by limi ting cross-examination into the credibility of the courtappointed interpr

eter; and (4) The evidence was insufficient to establish the heinous, atrocious, and cruel aggrava

ting circumst

ance. Upon careful consid eration of the record presented f or review, we AFFIRM the judgment of the trial court.

I. FACTS

The defendant was a bart ender at the Log Barn Bar in Mo nroe County, and the victim was a regular patron at th e Bar. Testimony at tr ial revealed th e two had
a continued history of animosity. Testimony from the state’s witnesses reveale d that prior to the night

of the murder, t he victim and the defendant argued over the victim’s accusations that defendant was prov

iding marijua na to one of the victim’s employees and that defendant had stolen money from a patron at the bar.

Bill Barr, a patron of the Log Barn, described an incide nt three weeks before the homicide in whi ch the defendant atte mpted to shake the v ictim’s hand an d the victim refus

ed, stating “I won’t shake h ands with no son of a bitch that

hollers and shouts at me.” Barr al so testified tha t on January 21, 1997, the night of the murder, defendant indicated he was “about over this shit,” referring to the victim and his1 The state medical examiner testified that the victi

m could have died eithe r from strangulation, blunt trauma to the head, cranial hemorrhaging, or a combination of all three. He explained to the jur

y that the victim had approximately t welvetimes the hemorrhaging required to cause de

ath. 3 family. Fifteen minutes after this stat

ement, defendant pur

chased a pistol from Barr.
Shortly thereafter, defe ndant and the victim e ntered into a verbal alterc

ation in which the defendant a ccused the victim of trying to “st art shit.” T he defenda nt knocked the victim to th e floor and began choking him.Barr testifi ed that the defendant

“had his knees in the victim’s shoulder blades, choking him wi th both hands,” and the victim w as unable to move or

defend himself. Barr then attempt ed to e xtricate the def

endant from the vi ctim, stating “please, don’t k ill hi m.” Th e defendant told him to "get the hell out." Barr started to leave and the defendant ’s wife begged him to stay, ask ing him “what am I going t o do?”. Barr lef

t the establishment, respond ing “I don’t give a damn wha t you do; I’m leaving.”

Defendant

testifi ed that after Barr left, there was a lull in the fighting. He claims he left the room a nd, upon his retur n, noticed the vi ctim had a k nife. A subsequent

altercation ens ued during which the victim was thrown against the brick floor and strangleduntil he ceased movement. 1 Upon realizin g the victim wa s dead, the defendant shut

off the lights i n the bar, locked the doors and drug the victim’s body into an adjoining room.

The defendant showered and changed his cloth es. He placed his clot hes and the victim’s

personal items into the w ood burning stove, moved the body to the outside of the building, and covered it with garbage bags. He then went to bed

. The next morning defe ndant moved the victi m’s vehicle f rom the bar parking lot to the main road. He then transported the victim’s body to his mother’s pr operty and buried it underneath an aba ndoned outhouse. The body w as found approximately two weeks later.4 Steve Dotson testifi ed thatthe day after the m urder the defendant stated

that the “troubles at

the Log Barn are ove r...[h]e’s cut up and burnt and they’l l never find the body.” In additi on Barr testifi ed that later that day def

endantasked him to tell authorities

that he was the las

t one to leave the Log B arn on the night of the murder.

Soon after the victim’s disappearance and prior to finding his body, defendan t
was interviewed by

law enforcement

aut hori ties. He gave tw o separate writ

ten statements. In the first stat ement, he said ther

e was no altercation at the bar; the victim left the bar; and h e never returned. In the second statement defendan t said he had a “fight” with the victim; the victim left the bar; and the victim n ever returned. At no time did the defendant ever mention that the victim had a knife.

Defendant

was found guilty of first deg ree murder and sentenced to life in prison without the possibility of parole.

II. SUFFICIENCY OF THE EVIDENCE

Where sufficiency of

the evidence is challenged, the relevant questi on for an appellate court is whether, after v iewing the evide nce in thelight most favorable to the prosecution, any rationa l trier of fact could have fou nd the essential ele ments of the crime or crimes beyo nd a reasonable doubt. Tenn. R. App. P. 13(e); Jackson
v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State
v. Ab rams , 9 35 S.W.2d 399, 401 (T enn. 1996). The wei ght and credibil ity of the witnesses' testimony are m atters entrus ted exclu sively to the j ury as the trier s of fact. State v. Sheffield , 676 S.W.2d 542, 547 ( Tenn. 19 84); State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. Ap p. 1996).5 Defendant

claims th ere is insufficient evidence to prove the victim’s death resulted from a “premeditated and inte ntional killing.” See Tenn. Code Ann. § 39- 13-202(a)(1). He argues the altercation arose from an invitation to mutual combat, and the murder

occurred in the excitement of that combat. Thus , he contends the evidence only supports a conviction for voluntary manslaughter. See Hunt v. State , 303 S.W.2d 740, 742 (Tenn. 1957).

The applicable definition of first degree murder is “[a] pre meditat ed and intentional killing of anot her.” Tenn. Code Ann. § 39-13-202(a) (1). Premedit ation necessitates

“a previously formed design or intent to kill,” State v. West , 844 S.W.2d 14 4, 147 (Tenn. 1992)(citations omitted), and “an act done after the exe rcise o f reflection and judgment . . . [meaning] t hat the intent to k ill must have been formed prior to the act itself.” Tenn. Cod e Ann. § 39-13-2 0 2(d). It also r equires that the accused be “sufficiently f ree from excit ement and passion as to be capable of premeditation.” Id. A h omicide, on ce proven, is pr esumed to be second degree murder, and the state has the burden of proving

premeditation to raise the offense to first degree murder. State v. Nesbit , 978 S.W.2d 872, 898 (Tenn. 1998).
Although the jury may not engage in speculation,it may infer premeditation from the manner and cir cumstances of the

killing. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis , 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995). Our Supreme Court de lin eated several ci rcumstances tha t may be indicati

ve of premeditation, including the use of a deadly weapon u pon an unarmed victim , the fact that the killing was particularly cruel, declar ations of the intent to kill the victim by the defendant, the making of preparations before th e ki lling for the pu rpose of concealing the cr

ime, and calmnes

s immediately

after the kill ing. See Bland , 958 S.W.2d at 660.6 The evidence reveal ed a continued anim osity between the def endant and th e victim. Bil l Barr, a regul ar patron at the Log Barn, testifi ed that on the night of the murder the defendant t ol d him that he “was about over this s hit,” referr ing to the victim and his family. Fifteen minutes later, h e asked Barr if he could purchase his pistol and Barr complied. He further test ified that the def endant accused the

victim of trying to “start shit” and jumped on the victim “for no reason.” Barr attempted to extricate the defendant from the victim and s

aid to the defendant “ Please stop, don’t kill him.” The defendant respo nded by telling Barr to “get the hell out of he re.” Barr testified thatthe defendant had the victim pinned down with his knees. He stated that the victim could not defend himself.
A killing committed during a state of passion may rise to the l evel of fi rs t degree murder if the State can prove that premed itation preceded the struggle. State v. Hall , 8 S.W.3d 59 3, 600 (Tenn. 1999). Fu rthermore, “it is not necessary that the purpose to kill pre- exist in the mi nd of the accused for any definite per

iod of time.” Tenn. C

ode Ann. § 39-13-202(d ). The jury hear d sufficient

testimony to indicate the defendant was th e aggressor in th e initial attack, and could reasonably conclude any passion that l ed to the initial attack was interrupte

d by Barr’s atte mpt to separate the two as well as Barr’ s verbal warni ng not to kill th e victim. Based upon the nature and extent of the head trauma as est ablished by the me

dical proof, the jury could reasonably conclude that the beating continued af ter Barr’s att

empt to stop the attack.
Although the defendant testified there was a second altercat ion in which the victim produced a knife, defendant never mentioned a knife to the invest igato rs. The medical exami ner

testified that the victim had numerous defensi

ve wounds on his forearms. The number and extent of the blunt trauma wounds to the head also indicate that the defendant continually beat the defenseless victim with an intent to
cause death. The victi m suffered from twelve times t he amount of hemorr haging7

necessary to produce death.

Evidence of “ repeated blows” is not sufficient, by itself, to establish premeditated

murder. State v. Brown , 83 6 S .W.2d 530, 542 (Tenn. 1992). Furthermore, concealment of evidence afte r the crime is insufficient to establish premeditation. West , 844 S.W.2d at 148. Howe ver, calmness immediately after a crime is relevant i n determining th e element of premeditati on. Bland , 958 S.W.2d at 660.

Whether the state established p remeditation was prim arily a jury question. The jury could believe or disbelieve any or all of the defendant’s testi mony. It was within their preroga

tive to reject self-defense, wh ich it did. The jury could reasonably conclude that Barr’s int erventi on was a suffici ent interrupti on to quell any existing passion. The continued beating of a t otally defensel ess person i s also relevant, not only to the is sue of self-defen se, but also to the defendant’s st ate of mind.
Viewing the evidence in the light most favorable to the state, we conclude that the jury could reasonably infer premeditation from the circumstance s surrounding the murder. This issue is without merit.

III. REPUTATION EVIDENCE

Defendant

argues that the tr

ial court erred by not allowing defense counsel to cross-examine witnesses with regard to the victim’ s family’s and employee’s reputation for violence. He claims this evidence was neces sary to explain

why he did not report the crime, but rather attempted to conceal it.8 At trial the judge allowed the defendant to testify to this inf ormation as it related to the defendant’s state of mind at t he time of the crime and the events that followed. Defendant testified that he knew Allen Kile, the victim’s so n, was in the federal penitentiary fo r murder. In add ition, counsel was allowed to as k two of the state’s witnesses about certai n instances of violence co mmitted by the victim’s family and one of the victim’s employees. Both witness es denied having any knowledgethat either the v ictim, his s

ons or employees had a reputation for committing

acts of violenc

e. Furthermor

e, counsel was allowedto ask the victim’s son, Bobby Kile, Jr., and employee, Fel icito “Felix” Roblero, about specific ins tances of violence they allegedly comitted.

The trial court did refuse to allow the defendant to cross-examine the T.B.I. agent in charge of the current investi gation with regard to his knowledge of Allen Kiles’ conviction. The court held such cross-examination was not necessary since the defendant had alrea dy testified about Allen Kiles’ convic t ion and the circumst ances s urrounding that offen se. The trial court further held the agent’s involvement

in the Kiles cas

e was irrelev

ant. Although we agree that estab lishing
a b asis for defendant

’s post-homicide actions was relevant, we fi nd no a buses o f discretion by the trial court in these rulings.
Furthermore, the defendant indeed presented

evidence relati ng to this issue. Therefore, no prejudice res ulted from the l imitation plac ed upon him by

the t rial court. This issue is without merit.

IV. COURT-APP OINTED INTERPR ETER

At trial, a His panic interpret er was appointed t

o assist in the

testimony of

the state’s witness, Felicito “Felix” Roblero. Roblero was an em ployee of the vic tim and9

a regular patron

at the Log Barn. The

interpreter w

as also an employ

ee of the

victim and currently worked for the victim’s brother. The interpreter took an oath to make a truthful translation pursuant to Tenn. R. Evid. 604.

A. Appointment

The defendant argues th e trial court erred by faili ng to appoint a disi nterested party as an interpreter. “Appoin tment of an interpreter of a witness’ testimony in a cr iminal case is a matter for the trial court’s discr etion subject to reversa l only fo r abuse of that discretion.” State v. Van Tran , 864 S.W.2d 465, 475 ( Tenn

. 1993). A party contending that a translation was inaccurate must prove prejudice, and this court should not specul ate as to the accur acy of the transl ation

. I d. at 476. The better practice is to appoint a disinterested interpreter. Id.

The record is sil ent as to the circu mstances leadin g up to the appointme nt of the interpreter , and no objection w as made. This issue is waived. Tenn. R. Crim. P. 36(a). Defendant, nevertheless, asserts plain error. See Tenn . R. Crim. P. 52(b). However, defendant has not demonstrat ed nor even alleged t he translation
was inaccurate and, thus, hasnot demonstrated prejudice. Van. Tran , 864 S.W.2d at 476.

This issue is without merit.

B. Impeachment
During the cross-exam ina tion of Roblero, defense counsel began ques tioning10

the interpreter an d established that he worked for the victim for five years and still worked for

the victim’s brother. A bench conference sub sequently ensued whe re defense counsel advised the trial judge he was “shooting blind,” but h ad been informed by his client that the interp reter “has been in jail some.” The trial court refused to allow defense counsel to ask the interpreter if he had been in jail.

The issue of

whether an inter

preter can be im peached with a prior c onviction, pursuant to Tenn. R. Evid. 609, is an issue of first impr

ession in Tenness

ee. An interpreter

is “subject to th e provisions of the [Tennessee Rules of Evidence]... relating to... the admini stration of an oat h or affirmati on to make a true translation.” Tenn. R. Evid. 604. The ac curacy of the tes timony of the wi

tness as heard and determined by the trial co urt or jury depe nds upon th e accuracy of the translation
or interpretation. If an inte rpreter’s credibility is subject to q uestion, certainly this maybe established by

an examination of

the interpreter. An examination or crossexamination of an interpreter is governed by the Tennessee Rules of Evidence.

Evidence of a prior

criminal con

viction of a witness may be admitted if it was
a felony or if it was a misdemeanor that involved dishonesty or fals e st ateme nt. Tenn. R. Evid. 609 (a)(2). Unfortunately, the record is m eager relating to thi s issue. Defense counsel was admittedly “shooti ng blind.” The r ecord does not

establ ish whether the interpreter ha

d any prior reco rd, although the pr osecutor stated du ring the bench conferenc e that “he had a misdemea nor.”

The jury was aware of the interpreter’s connection to th e victim and his family. Furthermore, the nature of Robl ero’s testimo ny related only t o a prior confront atio n between the victi m and the defendant. M ost importantly, as noted above, ther e is absolutely n o allegation or i ndication that th e translation w as inaccurate. See Van Tran , 864 S.W.2d at 476.2 The medical examiner expla ined to the jury that 5 c

c’s of hemorrhage c

an result in death. He further testifie d that the autopsy

of the vi ctim revealed a total of 140 cc’s of hemorrhage. 11 For these reasons, we conclu de the de fendant has failed to establish prejudice. Tenn. R. App. P. 36(b). This issue is without mer it.

V. Life Without Parole
Finally, defendant claimsthe jury errone ously sentenced hi m to life with out the possibility of parole. He argues the evidence does not support the jur y’s conclusion that the murder was “especia lly heinous, atrocious, or crue l in that it involved torture or ser

ious physical abuse beyond that necessary to produce death.” See Tenn. Code Ann. § 39- 13-204(i)(5) . We disagree.

“The ‘especially h einous, atrocio us or cruel’ aggr avating circum stance may be proven under either of two prongs; torture or serious physical ab use.” State v. Hall , 8 S.W.3d 593, 601 (Ten n. 1999). “The terms ‘serious physi cal abuse beyond that necessary to produce death are self-explanatory; the abuse must be physical rather than mental in nature.” Id. “Abuse is defined as an act that is ‘ex cessive’ or which makes ‘improper use of a thing,’ or which uses a thin g ‘in a manner contrary to the natural or l egal rules for its use.’” State v. Odom , 928 S.W.2d 18, 26 ( Tenn. 1996) (quoting Blac k ’s Law Dictionary 11 (6 th ed.1990)). In Hall , the Court held that the “ extent and severity of the beating support ed a finding of eit her physical torture or “serious ph

ysical abuse bey

ond that necessary to produce death.” Hall , 8 S.W.3d at 601.

In the i nst ant case, the medical examiner testified that there was massive brain hemorrhaging, blu nt trauma to the hea d and manual strang ulation, any one of which could have caused the victi m’s death. 2 In addition, the a utopsy revealed multiple contusions, lacerations and abrasions to the victim’s face, head, and neck.12

He further testified that the victim had defensive wounds on his arms.

We view the suffic

iency of the evid ence fo r an aggravating circumstance under the standards of Jackson v. Virginia , 443 U.S. 307, 99 S.C t. 2781, 61 L.Ed.2d 560 (1979); namely, whether, after vie wing the evidence in a light mos t favorable to the state, a rational tri er of fact could find the aggravati ng circumstanc e beyond
a reasonable doubt. See State v. Will iams , 690 S .W.2d 517, 530 (Tenn. 1985). Considering

the nature and ex

te nt of the injuri es, including t he fact that manual strangulation

or blunt trauma to the head could have caused death, we con clude the evidence supports the

jury’s concl usion that the defen dant inflicted ser ious physical abuse beyond that necessary to cause the vict im’s death. This iss ue is without merit.

VI. CONCLUSION
For the foregoin g reasons, we AFFIRM the judgment of the trial court.

__________________________ __ JOE G. RILEY, JUD GE

CONCUR:

__________________________ __ JOSEPH M. TIPTON , JUDGE

__________________________ __13

THOMAS T. WOOD

ALL, JUDGE