# FILED
September 16, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON SEPTEMBER 1 997 SESSION

STA TE OF TENN ESSEE, ) ) NO. 02C01-9610- CR-00352 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. JAMES C. BEASLEY, JR ., CEDRIC D AVI S, ) JUDGE ) Appellant. ) (First Degree Murder)

FOR THE APPELLA NT : FOR THE A PPELLEE : W. MA RK WA RD (on ap peal) JOHN KNOX WALKUP 147 Jefferson, Suite 900 Attorney Gen eral and Repor ter Memphis, TN 38103 KAREN M. YACU ZZO WILBUR C. RULEMA N, JR. (at trial) Assistant Att orney Gener al 251 Adams Avenue 450 James Roberts on Parkway Memphis, TN 38103 Nashvil le, TN 37243-0493 WILLIAM L. GIBBONS Distric t Attorney General JAM ES M. LA MMEY Assistant

District Attorney G eneral 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINI ON FI LED:

AF FIRMED

JOE G. RI LEY, JUDGE2 OPINION

The defendant, Cedric Davis, w as convic

ted by a Shel by Cou ntyjury of murder in the first d egree. He was sentenc ed to life in pr ison. On appeal , h e challengesthe sufficiency of the con victing evidence by arguing that (1) the state did not establish his identit y beyond a

reasonable doubt, and (2) the s tate failed to establish beyond a reas onable doubt tha t th e homicide was intentional, premeditated and deliberate. After a thoroug h review of the record, we find that the evidence is sufficient to sustain his c onviction. The judgment of the trial court is affirmed.

FACTS

The state’s proo f at trial showed that at approximately 5:30 p.m. on Apri l 30, 1993, defendant, Kedrick C rutcher (“ Pokey”) and Kavious Jenkins (“Teddy Bear”)
were trave ling in an automobile looki ng for Phill ip Thomas. Both defendant an d Jenkins were car rying weapons. They asked a gr

oup of peopl e if Phillip Thomas lived in the home at 219 Sil ver Mapl e. One person in the gro up, Marcel Pratcher, identified the defendant as the per son who was armed wi th what appeared to be a TECH-9 weapon and w ho stated, “tell Phillip I’m going to kill his momma and then he’s going to be next.” Defendant, Crutcher an d Jenkins pull ed into the dri veway at 219 S il ver Maple. Two of the men jumped out of the car and began shooti ng. Laura Warren, Phillip Thomas’ grandmother , was shut ting the front door w hen she was hi t by one of the bullets. She died of a guns hot wound to t he chest. The v icti m’ s granddaughter

and another pers on in the neighborhood i dentified the defendant as one of the gunmen. Defendant offer ed an al ibi defense at tr ial. His wife, Teresa, testified that defendant was w ith h er a t the Wilson Inn on American Way at the time o f the incident. She presented a r eceipt from the hotel which s howed a check-in time of3

5:54 p.m. on the day of the sho oting. Fur thermo re, Yo landa Aik ens testified that defendant hit he r car

as shewas leav ing t he hotel at appr oximately 5:30 p .m. on April 30. Jenkins also

testified on behalf of the defense. He clai med that defendant
was not invol ved in the i ncident and insi sted the shootingwas car ried out by Crutcher, hi mself and a man named “Butt er.” On rebuttal, the state presented a letter written to Crutcher. In the letter, the writer asks Crutc her to assist, along w ith “Teddy Bea r,” in a pl an to blame the sh ooting on a man named “Butter .” A handw riting ex pert testified t hat the writin g in the letter was consistent with that of the defendant’s. Additionally , Cindy Maho ney, an em ployee of W ilso n Inn, testified t hat there was no record o f defendant’s stay ing at that hotel on April 30. Defendant testified on sur rebuttal. Hedenied wr iting the letter to Crutcher. Th e state then asked defendant about ten (10) prior felony convicti on s fo r impeachment pu rposes. The jury returned a verdict of guilty of murder in the fir

st degree. Defendant
was sentenced to life imprison ment. From this conviction, defe ndant brin g s this appeal.

SUFFICIENCY OF THE EVIDENCE

When an accused challenges the suf ficiency of the evidence, this court must review the record to

determine if the ev idence adduced dur ing the tri al was sufficien t

“ to support the findi ngs by t he trier of fact of g uilt beyond a reasonable doubt. ” Tenn. R. App. P. 13(e). In determining the suff iciencyof the evidence , this cou rt does n ot reweigh or re-evalu ate the eviden ce. State v. Ca bbage , 571 S.W .2d 832, 835 (Tenn . 1978). Nor may th is cou rt sub stit ute i ts inf eren ces f or th ose d rawn by the trier o f fact from circumstanti al evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary , this court is requi red to afford the state the strongest4

legitimateview

of the evidenc e contained in t he record as well as all reasonabl e and legitimateinferences w hich may be drawn from the evidenc e. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App .1995). “A guilty verdict by the jur

y, approved by the trial j udge, accredi ts the testimony of the witnes ses for the State and resolves all conflicts in favor of the the ory of the State.” State v. Grace , 4 9 3 S

. W. 2d 47 4, 476 (Tenn. 1973 ). Because a verdict of guil t r emoves the pre sumption of innocence and replaces it

with a pr

esumption of guil t, the accused has the burden in this court of illustrat ing why

the evidence is insufficient to support the verdi ct returned by the trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); St ate v . Grace , 493 S.W.2d at 476. A. Identity of the Defendant Defendant asserts t hat the s tate failed to prov e his identit

y beyond a reasonable doubt. Speci ficall y, heclai ms that there is insufficient

evi denc e to j usti fy
a finding that hewas one of the assailants involved in the shoo ting of W arren. He bases this contention on the f act that several witnesse s testified that he was not presentduring the shooting. As a result , he argues t hat the eviden ce is insuffici ent to support a findi ng of guilt beyond a reas onable doubt. “The defense of alibi and the questi on of identification present issues of fact determinable by

the jury as

the exclus ive judg es of the credibil ity of the w itnesses and the weight to be given their testim on y.” State v. Cate , 746 S.W.2d 727, 729 (Tenn. Crim. App. 198 7); see a lso State v. Str ickland , 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993); Stat e v. Crawford , 635 S.W .2d 704, 705 (Tenn . Crim. App. 1982). The state presented two ey ewitnesses to the shooting who testifie d that defendant
was one of the men who fire d his weapon at the hou se and it s occupa nts. Alth ough other witness es testified that the defendant was no t present during the shootin g, questionsconcerning the credibil ity of the w itn esses, the weig ht and value t o be given the evidence as well as all factual issues raised by the evidence are resolved bythe trier o f fact, not this cour t. State v. Tuttle , 9 1 4 S

. W. 2 d a t 9 3 2

. We find that there is sufficient ev idence from whi ch a reasonable trier of fact coul d conclude that1 As a result of the 1995 amendment to Tenn. Code Ann. § 39-13-202(a)( 1),

“deliberate” is no longer a required element of f irst degree murder. See 1995 Public Acts, Chapter 460. Since the instant offense was committedprior to this amendment, “deliberate” was a required element of first deg ree murder. 5 defendant was inv

olved in t he shooting. This issue is without mer it. B. Intentional, Premeditated and Deliberate Defendant also contends t hat the state failed toprove that the homicide was intentional, premeditated and del iberate. He argues that b ecause the state d id not prove these elements, he is merely guilty of second degree murde r. Therefore, he claim s that the evidence is insufficient to support a conviction for murder in the first degree. The law is

well- established i n Tennessee that all homicides are presumed to be murder in t he second degree. State v. W est , 844 S.W.2 d 144, 147 (Tenn. 1992); Stat e v. Bro wn , 836 S.W.2d 530, 543 (Tenn. 1992) . The state bears the burden to p rove preme ditation and del iberation in order to elev ate the offense to murder in the fir

st degree. Id

. At the time the offense was committ ed, first degr ee murder w as defined as the “intentiona l, premeditated and deliberate killing of another.” Tenn. C ode Ann. § 39-13-202(a)(1)(1991). 1 A deliberateact is one “ performed wit h a cool purpos e,” whereasa premeditated ac t is one “done af ter the exer cise of reflecti on and judgment.”Tenn. Code Ann. § 39- 13-201(b)(1991 ). As our S upreme Court note d in State v. W est , “[t]he element of premeditation req uires a prev iously formed design or i ntent to kill . Deliberation, on the other hand, requir

es that the killing be done with a cool purpose-- in other words, t hat the killer

be free from the passi ons of the mome nt.” 844 S.W .2d at 147 (citations omitte d). The elements ofpremeditation and deliberation may be establ ished by the circumstances

surrounding the offense. State v. Bordis , 905 S.W.2d 214, 221 (Tenn. Crim

. App. 1995); State v. Gentry , 881 S.W .2d 1, 3 (Tenn. Crim. App. 19 93). Indeed, in Stat e v. Bro wn , supra , our Supreme Co urt recogn ized: there may be leg itimate first-degr ee murder cases in which there is no direct evidence of the perpetrator' s state of mind. Si nce that stateof mind is cruci al to the establ ishment ofthe elements of the offense, the cases have long re cognized that the necessar y elements of2 Jenkins testified that “Butter” was thedominant perpetrator in theshooting and that

the defendant was not with them at the time. I

n his testimony he stated that they were “try ing to shoot the house up. We wasn’t [sic] trying to shoot no individual.” 6 first-degree murder may beshown by c ircumstantial evidence. Relevant circumstanc es recog ni zed by ot her courts ar ound the country have incl uded the fact “that a deadly w eapon was used up on an unarmed vic

tim; that the homic idal act was part of a conspiracy

to kill persons of a part icular cl ass; that thekilling was particularly cruel; that weapons w ith whic h to commit the homic ide were procured; that the defendant made declarati ons of his intent to kill the victim ; or that preparationswere made beforethe homicide for concealmentof the crime, as by

the diggi ng of a grave.” 836 S.W.2d at 541-42 (quoting C. Torcia, Wharton's Crim inal Law § 140 (14th ed. 1979)(emphasis adde d). In the case sub

judice , we find that the state prov ided sufficient pro of that the defendant acted wit h premeditation, deliberation and the intent to k ill. Defendant, along with Cr utcher

and Jenkins, ar med themselves with weapons and pr oceeded to the home where Thomas lived. They asked a g roup of pe ople if Thomas lived in that home . De fe ndant stated that he intend ed to kill Thomas and his mo ther. After they drove into the dri veway of the hom e, two of th e men fired numerous shots. Defendant was identified by eyewit nesses as one of the g unmen. Thirteen (13) 9mm shell casi ngs were found in the immediatearea of the sho oting. Alt hough Jenkins testified that th ey did not i ntend to hurt anyone, 2 a rational trier of fact could choose to disbeliev

e this testi mony. Furt hermore, the fact thatWarren was killed instead of Thomas or his mother makes the defendant no less cul pable. See State
v. Summerall , 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995); State v. Br yant Dewayn e Millen , C.C.A. No. 02C01-9602- CR-00049 (Tenn. Crim. App. fil ed March 7, 1997, at Jacks on). This is sue has no merit

.

CONCLUSI ON

We find that there i s sufficient ev iden ce f rom wh ich a rational trier of fact could determine that the defendant was one of the perpetrator s involv ed in the7

shooting of Warren. Additionall y, we find sufficient evi dence thatthe homicide was intentional, premeditated and de liberate. Accordingly, we affirm the judgment of the trial cour t.

JOE G. RILEY , JUDGE

CONCUR:

JOE B. JONES, PRESIDING JU DGE

DAVID H. WELLE S, JUDGE