FILED

November 4, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9709-CR-00438

)

Appellee, )

)

) WILSON COUNTY

VS. )

) HON. J.O. BOND

WILLIAM D. STOCKWELL, ) JUDGE

)

Appellant. ) (Direct Appeal - First Degree M urder)

FOR THE APPELLANT: FOR THE APPELLEE:

B. F. LOWERY JOHN KNOX WALKUP

Public Square, Lowery Bldg. Attorney General and Reporter

Lebanon, TN.. 37087

TIMOTHY F. BEHAN

Assistant Attorney General

425 5th Avenue North

Nashville, TN. 37243

TOM P. THOMPSON, JR.

District Attorney General

ROBERT HIBBETT

Assistant District Attorney

111 Cherry Street

Lebanon, TN. 37087

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On Decem ber 19, 1996, a W ilson County jury found Appellant, William D.

Stockwell, guilty of first degree murder in the death of his newborn son. The trial

court immediately imposed a sentence of life imprisonment. Appellant appeals

from his conviction, raising three issues:

1) whether the evidence was sufficient to support a conviction for first

degree murder;

2) whether the trial court erred in failing to make a conclusive determination

of the voluntariness and admissibility of Appellant’s alleged confession prior to

the submission of the statement to the jury; and

3) whether the trial court erred in allowing the State to introduce into

evidence the involuntary statement of Appellant as well as the testimony of

Detective David Kennedy at the trial concerning the taking of the statement.

After a review of the record, we affirm the judgment of the trial court.

FACTS

On Thursday, May 11, 1995, Appellant received a call from his girlfriend,

Lisa Murphy, at approximately 6:45 in the morning. Ms. Murphy, who Appellant

knew to be pregnant with his child, called to say that her water had broken.

Appellant went to Ms. Murphy’s house and picked up Ms. Murphy and her

younger sister. The couple transported Ms. Murphy’s sister to school. Appellant

then took Ms. Murphy to a farm that his parents owned on Sherrilltown Road. He

left her there in an old decrepit travel trailer, and returned home so that no one

would notice that Ms. Murphy did not go to school. He returned to the farm,

reportedly around 9:00 am, to find Ms. Murphy in labor. The couple delivered the

baby in the floor of the trailer.
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According to Ms. Murphy, the baby was born alive, though Appellant told

her the cord was around the infant’s neck during delivery. Ms. Murphy tied off the

child’s cord with thread and cut the cord with scissors she had with her. She

reported that the child cried as it was delivered and was a purplish-reddish color.

She further testified that Appellant took the child from her, wrapped it in a jacket,

and took it to his truck, where there was a heater. He came back to the trailer and

helped her to the truck where she sat and held the infant. She testified that the

infant cried and slept, breathing normally. The couple discussed what to do with

the child; they considered taking it somewhere and leaving it, but decided it would

eventually be traced back to them. Ms. Murphy reported that Appellant several

times mentioned the possibility of burying the child. The two discussed their

dilemma for 15 to 20 minutes, and then Appellant got out of the truck, took a

shovel, and went into the barn. When Appellant returned from the barn, he took

the baby from Ms. Murphy and carried it into the barn. Ms. Murphy testified that

the baby cried as Appellant carried it. Appellant returned in a few minutes without

the baby, telling Ms. Murphy that the baby had died.

The couple spent the rest of the day together, acting as if nothing out of the

ordinary had occurred. They went shopping and then had dinner with Ms.

Murphy’s family. 

According to Appellant, the baby was born with the cord around its neck.

In a statement made at the time of his arrest, he stated that he thought that

perhaps the child moved a little. He said that it seemed that the baby was alive

when Ms. Murphy cut the cord, but it was blue in color. He testified at trial that he

attempted to revive the infant by placing his finger in the baby’s mouth and trying
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to clear its throat. He stated that both he and Ms. Murphy determined that the

baby was dead, and that they jointly decided that the baby should be buried.

Appellant admitted to digging a grave and burying the baby. 

When Ms. Murphy returned to school the Monday following the birth, a

teacher noticed that she was no longer pregnant. The teacher asked a friend of

Ms. Murphy’s, Judy Williams, if Ms. Murphy had delivered the baby. Ms. Williams

responded that the baby had died after being born with the cord around it’s neck.

The teacher went to the school principal who called law enforcement. The

detective assigned to the case wired Ms. Williams in order to tape a conversation

between her and Ms. Murphy regarding what had occurred. The taped

conversation was only partially audible, but Ms. W illiams reported that Ms.

Murphy told her that the baby boy was buried in a barn in Cherry Valley. Officers

determined that Appellant’s parents owned the property described and obtained

permission to search the property. The officers located the buried infant.

An autopsy performed by the County Medical Examiner revealed that the

child was full term and properly developed. The child’s esophagus, trachea, and

stomach contained liquefied brownish grey dirt. The child’s lungs floated very well

in water, which the medical examiner testified indicated that the chid had been

born alive. The bronchi of the child’s lungs were blocked with a brown material,

and the alveoli contained “brown amorphous aspirated material,” which was

consistent with the material in the child’s stomach. The medical examiner

determined that the cause of death was “mechanical airway obstruction due to

inhalation and ingestion of dirt.” The Federal Bureau of Investigation lab
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determined that the soil recovered from the infant was consistent with soil from

the child’s grave.

Detective Kennedy observed the autopsy of the baby, after which he

returned to the Sheriff’s office and re-read the statements by Ms. Murphy and

Appellant. Upon reading them, he decided to again question Appellant as to

whether the baby had been alive. At approximately 1:00 in the morning, Detective

Kennedy awoke Appellant and led him to an interrogation room for further

questioning. Appellant signed a rights waiver. Detective Kennedy testified that

Appellant then told him he wished to change his statement to reflect that the baby

was alive at the time he buried it. Detective Kennedy stated that he wrote out the

statement for Appellant, but Appellant refused to sign the statement. Detective

Kennedy testified that he told Appellant that he, Detective Kennedy, would testify

as to what Appellant had told him even if Appellant did not sign the statement. 

Appellant’s version of that night’s events differed from that of Detective

Kennedy significantly. He testified that Detective Kennedy asked him if he wanted

to change any part of his statement and that he responded that he did not. He

said that Detective Kennedy wrote a statement and read it back to him, again

asking if he wanted to change his statement. Appellant testified that he

unequivocally told the detective that he did not wish to change his statements and

that he asked for an attorney. Appellant further testified that Detective Kennedy

told him that he, Detective Kennedy, was studying to be an attorney and that in

his opinion Appellant should sign the statement. 
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I. Sufficiency of the Evidence

Appellant initially contends that the State failed to present evidence

sufficient to support the jury’s conviction of murder in the first degree, alleging

specifically that the State failed to prove the elements of premeditation and

deliberation. When an appellant challenges the sufficiency of the evidence, this

Court is obliged to review that challenge according to certain well-settled

principles. A verdict of guilty by the jury, approved by the trial judge, accredits the

testimony of the State’s witnesses and resolves all conflicts in the testimony in

favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally

cloaked with a presumption of innocence, a jury verdict removes this presumption

and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982). Hence, on appeal, the burden of proof rests with Appellant to demonstrate

the insufficiency of the convicting evidence. Id. On appeal, “the [S]tate is entitled

to the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that may be drawn therefrom.” Id. (citing State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is

contested on appeal, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Harris, 839 S.W .2d 54, 75; Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 1996); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those

drawn by the trier of fact from circumstantial evidence.”Id. at 779. Finally, the
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Tennessee Rules of Appellate Procedure, Rule 13(e) provides, “findings of guilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact beyond a

reasonable doubt.” See also State v. Mathews, 805 S.W.2d at 780.

In State v. Brown, 836 S.W .2d 530 (Tenn.1992) and State v. West, 844

S.W.2d 144 (Tenn.1992), our Supreme Court discussed the then existing

elements of first degree murder. In Brown, the Supreme Court acknowledged

that the Tennessee courts have often blurred the distinction between the

elements of premeditation and deliberation. The Court relied upon the following

historical definitions:

"Premeditation" is the process simply of thinking

about a proposed killing before engaging in the homicidal

conduct; and "deliberation" is the process of carefully

weighing such matters as the wisdom of going ahead with

the proposed killing, the manner in which the killing will be

accomplished, and the consequences which may be

visited upon the killer if and when apprehended.

"Deliberation" is present if the thinking, i.e., the

"premeditation," is being done in such a cool mental state,

under such circumstances, and for such a period of time

as to permit a "careful weighing" of the proposed decision.

Brown, 836 S.W.2d at 540-41 (quoting C. Torcia, Wharton's Criminal Law

§ 140 (14th ed.1979) (emphasis in original)); see also State v. Gentry, 881

S.W.2d 1 (Tenn. Crim. App.1993).

Premeditation as defined by the Supreme Court requires evidence of a

"previously formed design or intent to kill," and deliberation requires "some period

of reflection, during which the mind is free from the influence of excitement or
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passion." West, 844 S.W.2d at 147. Moreover, to insure that the elements would

be considered separately, in Brown the Court decided to abandon the commonly

given instruction that premeditation could be "formed in an instant." Brown, 836

S.W.2d at 543. In State v. Gentry, while holding that the jury may infer

premeditation and deliberation from the circumstances surrounding the killing, the

Supreme Court, outlined the proof from which a jury might rationally infer the

elements of first degree murder:

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

actual killing which show he was engaged in activity

directed toward the killing, that is, planning activity;

(2) facts about the defendant's prior relationship and

conduct with the victim from which motive may be inferred;

and

(3) facts about the nature of the killing from which it may

be inferred that the manner of killing was so particular and

exacting that the defendant must have intentionally killed

according to a preconceived design. 

State v. Gentry, 881 S.W.2d 1, 4-5 (Tenn. Crim. App. 1993) (quoting 2 W.

LaFave and A. Scott, Substantive Criminal Law, § 7.7 (1986)); see also State v.

Hall, 1997 WL 769174,118-119 (Tenn. 1997).

In the matter sub judice, proof was presented that Appellant wanted rid of

the baby “someway, anyway.” Further proof showed that Appellant refused to

take Ms. Murphy to a hospital, but rather took her to a remote location to give

birth so that no one would find out about the child. Because premeditation and

deliberation are elements are mens rea elements, elements which pertain to the

mental state of the perpetrator, the only way a jury can find such elements is

usually through circumstantial evidence, through examining Appellant’s actions
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for evidence of what was in his mind as he acted. The evidence showed that the

Appellant left Ms. Murphy at the abandoned trailer for over an hour during which

her labor started. The child was born alive and Appellant took a shovel and dug

a shallow grave before taking the baby from its mother. All of this evidence

supports the finding of premeditation and deliberation. This issue is without merit.

II. Determination of Voluntariness and Admissibility of Statement

Appellant also argues that the trial court erred in refusing to determine

pretrial whether Appellant’s statement to Detective Kennedy was voluntary.

Detective Kennedy and Appellant both testified at a pretrial hearing regarding

Appellant’s motion to suppress the statement. The trial court overruled

Appellant’s motion and allowed the State to present the statement to the jury

through the testimony of Detective Kennedy. The trial court ruled that Appellant’s

contention that he never made the statem ent was a fact question for the jury

rather than a question of voluntariness for the trial court to determine. We agree.

Appellant has not contested the rights waiver which he signed. Neither has he

indicated that he was mistreated or threatened into making a statement. He

merely contests the authenticity of the statement. The question of whether

Appellant actually made the statement at all is a relevant fact question to be

resolved by the trier of fact, the jury.

III. Introduction of Statement

Appellant further alleges that the trial court erred in allowing the State to

present the contested statement to the jury through the testimony of Detective
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Kennedy. We disagree. Appellant’s argument seems to be based on the lack of

verification of the statement allegedly made by Appellant to Detective Kennedy.

Appellant was allowed to cross-examine Detective Kennedy at length regarding

the authenticity of the document, the conditions under which it was authored, and

whether the detective was truthful in his version of the events. Questions

concerning the credibility of witnesses, the weight and value to be given to the

evidence, and well as factual issues raised by the evidence are resolved by the

trier of fact and not this Court. State v. Cabbage, 571 S.W.2d 832, 835(Tenn.

1978). The jury has spoken. This issue is without merit.

Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE