# FILED
April 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 02C01-9708-CR-00307 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. W. Fred Axley, Judge JOHNNY O. CLARK, ) ) (First Degree Murder ) Appellant )
For the Appellant : For the Appellee : Tony N. Brayton John Knox Walkup Asst. Public Defender Attorney General and Repor ter 201 Poplar, Suite 2-01 Memphis, TN 38103 Elizabeth T. Ry an Assistant Attorney Gener al Criminal Justice Div

ision AC Wharton, J r. 450 James Robertson Parkwa y District Public Defender Nashville, TN 37243-0493
William L. Gibbons District Attorney General Edgar A. Peterson Asst. District Attor

ney General Criminal Justice Comple x Suite 301, 201 Poplar Street Memphis, TN 38103

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 Deron Cathey i s also refer red to as Desron, Ron, or Darren i n the record. He is also referred to by his father’s surname, Taylor.

2 Testimony at t rial i ndicated t hat the l iving r oom and one bedroom were located i n the front of the ho use. A hal lway led fr om the li ving r

oom to the ki tchen. The only access to the two rear bedrooms was through the front bedr oom. 2 OPINION
The appellant, Johnny O. Clar k, was found guilty by a Shelby County jury of premeditated fir

st degr ee murde r. He w

as subse

quently sente nced to a term of l ife imprisonment in the Department of C orrection. In this appeal as of right, the appellant contends that the evi dence is insufficient to support his conviction.

After a review of the rec ord, we affirm the judgment of the tr ial court.

Background

On the eve ning of Ma rch 14, 19 95, a hos t of peo ple, incl uding fa mily, acquaintances, and others g athered at the 3171 Nathan Street r esidence of Betty Clark. Inc luded in t his group wa s ninetee n year old, Deron Cat hey, 1 the victim in this case. As was customary, Mrs. Clark allow ed various people to spend th e night at her home. Mrs. Clark’ s home consisted of a living room, three bedrooms, a kitchen and a bathroom

. 2 The only entrance to the house was through the front door and Mrs. Clark kept the only key. On this particular evening, Jerrekcha Clark, Mrs. Clark’s granddaughte r, and her boyfriend, Rober t Patterson, went to sleep in the living room; Mrs. Clark and Eric Johnson, Jerrekcha’s nine year old son, were sleeping in the front bedroom; M ose Dire, a family friend, and Deron Cathey occupied the middle bedroom; and Fel ix Lockett, “an old g uy,” and Tony Valentine, the appellant’s brother, re tired to the rear bedroom. Bet ty Clark is the mother

of the appellant. Although the appell ant usually stayed at his mother’s house, he had been absent from the residence for the past three days.3 At tri al, Val entine expl ained that , three day s earli er, the appel lant and Deron Cat hey had been invol ved in a verbal argument regar ding Phyl lis, the appell ant’s gi rlfri end, and money appare ntly owed to C athey. Cath ey may h ave bee n arm ed with a w eapon during this a ltercation. The appellant ’s mother, Bet ty Clark, confirmed that the appell ant and Deron had been ar guing over som ethin g for abou t a m onth . In the appe llant’s defe nse , she testifie d tha t Cath ey had told her that he was go ing to kill the ap pellant. 3 At approximately 3:15 a.m. , on March 15, Tony Valentin e was awakened by the appellant

and Mose Di re in the kitchen. The appellant was getting s

ome clothes. Valentine noticed that Deron Cathey was in the middle bedroom awake. Valentine co nfronted the ap pellant in the kitchen an d asked him to leave the h ome because of previo us alterc ations wit h Deron Ca they. 3 The appellant “was like wanting to go at [De ron] but I told him not to. . . like he wanted to break at him but I stopped him.” Valentine then esc orted the apparently angr y appellant to the front door of the residence and locked the door.
Sometime later that morning, around 5:00 a.m. , the appellant returned to his mother’s house and began knocking on the front door. Jerrechka and Mrs. Clark were awakened by th e noise. Mrs. Clark told Valentine to let the appell ant in the house. Jerrechka and Mrs.Clark then went back t o sleep. The appellant accompanied Valentine to the rear bedroom where he told his brother, “I’m going t o sleep in my bed.” At thi s time, Valentine noticed that, although Mose Dire w as asleep in the middle room, Der on Cathey was awak

e and sitting on the bed. Valentine then went back to s leep.
Shortly thereafter, the sl eeping residents wer e awakened by the sound of gunfire. Valentine awoke to find the appellant “bent over and shooting [Deron Cathey].” Mose Dir

e observed Deron Cathey laying across the bed with his hands raised palm up in the air. Cathey was not armed w ith a weapon and begged the appellant, “[p]lease don’t do this.” After firing multi ple gunshots at the unarmed Cathey, the appellant ran out the front door of the house. Jerrec hka Clark noticed the front door closing, but w as unable to identify the pers on. Tony Valentine then called for an ambulance and the poli ce.4 Memphis Police Officers Joseph Locastro and J.L. Simpson respon ded to the call from the Nathan Street addre ss within two minut

es of hearing the dispatch. They found the victim, Deron Cathey, lying on the floor, between a couch and a bed, in a bedroom on the east side of the house. T he victim had sustained multiple gunshots wounds. The officers secured the scene, began preliminary investigations, and i dentified the appellant as the suspec t. However, no w

eapons were discovered at the scene nor did the officers loc ate any spent shells or b ullet holes. All of the witness es at the scene testified that no w eapons were kept in Betty Clark’s residence, as

she forbade them. Around 6:15 a.m, Officer Loc astro was outside on the front porch of the house w hen he spotted the appellant emergi ng from between two houses. The appel lant was placed under ar rest, but no weapon was discovered on hi s person or in the area from w hich he emerged.
Paramedics from the Memphis Fir e Department arrived at the scene at 5:31 a.m. and proceeded to transport the victim to a local hospital. Th e victim, whose condition deteriorated in transport, was pronounced dead at 7: 54 a.m. Dr. O.C. Smith performed the autopsy on the v ictim. He determined that the victim had died from multiple gunshot wounds.Dr. Smith testified that the victim had been shot four times: in his right uppe r lip; in his left back; in his right front chest , and in the backside of hi s left upper a rm.
At trial, the appellant testified in his own behalf. He stated that he arrived at 3171 Nathan Street at 5:05 a.m. in or der to change his clothes.He explained that [w]hen I reached in my d rawer to get my c ologne to put on, and [Deron] stepped up to the door and a sked me, say, ‘You ready for you ass whooping.’ So I j ust looked at him and he walk ed off. And when he walked off, he went to the r ight where guns ar

e kept there in the house. And so when I put my cologne back in the draw er, I looked. . . up, he was coming tow ard me and I shot him. I shot him a s he stepped into my room coming toward me. . . . I was scared.4 The weapon used by the appe llant was never recover

ed.
5 At tria l, the a ppe llant a rgue d self -def ens e. Th e jury, b y their v erdic t, reje cted this th eory, findingthat th e kill ing was not j ustifi ed. On appeal, the appell ant concedes “whi le [t he appellant ’s] fear may not have b een enough to gi ve rise t o a defense of sel f-defense, i t does indi cate that the appellan t acted in the passion and fea r of the m ome nt. . . . [ergo,] the pr oof wou ld only supp ort a convicti on for second degree murder un less the State could show t hat premeditat ion and deliberation preced ed the stru ggle.” 5 After the appellant fled the house, he thr ew the gun in a field loc ated at the intersection of “Crys

tal and Baltic.”4 The appellant admitted that he had purc hased the gun, a .38 revolv

er, earlier that eveni ng for “40 something dollar s” from a “guy named . . . Mac” on the street.
The appellant stated that, three day s prior to the shooting,he and Deron had an argument and the appellant had to escape f rom the kitchen window because Deron was armed with a weapon. He believed that “they were pla nning to get me, because Deron had hit Phyl lis in the eye and broke her glasses and hit her under here. And she was a friend of min e. . . .” The appellant expl ained that Deron was involved in drugs

and that drugs were s

old out of his mother’s house. Consequently, he stated that a lot of guns were kept in the residence, hidden in the air conditioner and under the couch. He alleged that the State’s witnesses li ed during th eir testim ony.

Analysis
The appellant contends that a ration al trier of fact could not find, from th e evidence presented at tri al, that the appellant acted w ith premeditation and deliberation. 5 Specifically, he arg ues that the proof fails to establi sh that the homicide was “committed w ith coolness and reflection and without passion or provocation.” Thus, he conc ludes his conviction for premeditated first degree murder cannot stand. We disagree.6 When there is a challenge to the verdi ct based on the sufficiency of the evidence, this court must review the evi dence in the light most favor able to the prosecution and determine w hether “any rational tr

ier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e ). We do not reweigh or reeval uate the evidence; these are issue s resolved by the tr

ier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Furthermore, a gui lty verdict accr edits the testimony of witnesses for the State and a pr esumption of guilt replaces the presumption of innocence. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The appellant bears the burden of proving that the evidence was insufficient to supp ort the jury verdict in his case. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982).
On the date of this offense, first degree murder not committed in the perpetration of a crime requi red proof of the “intentional, premedi tated and deliberate killing of another.” Tenn. Code Ann. § 39-13-202( a)(1) (1994 Supp.). A death caused by another is pr esumed to be second degree murder. State v. B rown , 836 S.W.2d 530, 543 (Tenn. 1992). Thus, the State must prov e premeditation and deliberation to raise the offense to first degree murder. Id . Premeditation necessitates “the exerc ise of reflection and judgment,” Tenn. Code Ann. § 39-13- 201(b)(2) (1991), “includ[ing] instances of homicide committed by poison or lying in wait,” and requiring “a previously formed design or intent to kill.” State v. West , 844 S.W.2d 144, 147 (T enn. 1992). Deliberation, on the other hand, is def ined as a “cool purpose . . . formed in the absence of passion .” Brown , 835 S.W.2d at 538 (citations and internal q uotations omitted). Deliber ation also requires “

some period of reflection, during which the mind is free from the inf luence of excitement.” Id .; see also Tenn. Code Ann. § 39-13-201(b)(2).7 The elements of premeditation and deliber ation are questions for the j ury and may be inferred from the circums tances surrounding the ki lling. State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993), perm. to appeal denied , (Tenn. 1994). Because the trier of fact cannot speculate as to what was i n the killer’s mind, the existence of facts of premeditation an d deliberation must be determined from the appellant’s conduct in lig ht of the surrounding circumstances. State v. Wright , No. 01C01-9503-CC -00093 (Tenn . Crim. App. at Nas hville, Jan. 5, 19 96). Although there is no strict standar d governing what

constitutes proof of premeditation and deliber ation, s everal relev ant cir cumstan ces are

helpful , inclu ding: t he use of a deadly weapon upon an unarmed victim; the fact that the killing was particularly cruel; declarations by

the defendant of his intent to kill;the making of preparations before the killing for the pur pose of concealing the crime; and the procurement of weapons immediately pri or to the killing. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997) (citing Brown , 836 S.W.2d at 541-54 2). Additional factors from which a jury may infer premeditation and deliberation incl ude planning activiti es by the appellant prior to the kil ling, the appellant’s pr ior relationship wi

th the victim from which motive may be inferred, and the nature of the kill ing from which it may be inferred that the manner of killi ng was so particula r and exacting that the d efendant must have intentionally killed according to a preconceived design. Gentry , 881 S.W.2d at 4-5 (citation omitte d).
Reviewing the pr

esent case in the light mos t favorable to the State, the appellant and the victim had an oral argument three day s prior to the homicide. See Gentry , 881 S.W.2d at 5 (while mot ive is not an el ement of t he offense , its pr oof may reflect upon the elements of premedi tation and deliberation). The ap pellant purchased a weapon with in several hours of the in cident. He also was aw are that Deron Cathey had been stay ing at his mother’s Nath an Street residence. See Brown , 836 S.W.2d at 541 (facts about what the defendant did pr ior to the killing which show he wa

s engaged in planning ac tivity support an i nference of8

premeditation and deliberation). At 3:00 a.m. the next morning, he went to his mother’s house, where his brother, Tony Valentine, instructed him to leave beca use the appellant “was . . wanting to go at [Deron] Cathey.” He returned several hours later and found Deron Cathey una rmed in the middle bedroom. See Bland , 958 S.W.2d at 660. Tony Valentine and Mose Dire witnessed the appellant sh oot Deron multiple times despite Dero n’s pleas. Gentry , 881 S.W.2d at 4-5. The weapon was fired at close range. The appel lant ran out of the house and subsequ ently threw the weapon in a vacant field. See West , 844 S.W.2d at 148 (fact that defendant disposed of weapon immediately after shooting supports theor y that homicide was committed in the absence of passion).

From the se facts , we conclu de that a reasona ble trier o f fact c ould have found t he essen tial elem ents of t he crime b eyond a re asonabl e doubt. Accordin gly, the judgment of conviction for the offense of first degree murder is a ffirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

________________________________ WILLIA M M. BARKER, Judge

________________________________ JOE G. RILEY, Judge