# FILED
November 4, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE 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 ) Appe llant. ) (Direct Appeal - First Degree M urder)

FOR THE APPELLANT : FOR THE APPELLEE : B. F. LOWERY JOHN KNOX WALKUP Public Square, Lowery Bldg. Attorney Generaland Reporter Lebanon, TN.. 37087 TIMOTHY F. BEHAN Assistant Attorney General 425 5th Avenu e North Nashvill e, TN. 37243 TOM P. THOMPSON, JR. Distri ct Attorney General ROBERT HIBBETT Assistant Distri ct Attorney 111 Cherry Street Lebanon, TN. 37087
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION
On Decem ber 19, 1 996, a W ilson Co unty jury found Appella nt, William D. Stock well, guilty

of fir st degree murder

in the death of hi s newborn son. The trial court i mmediat ely imp osed a sen tence of life im prison men t. Appe llant ap peals from his convicti on, raising thr ee issues:
1) whether the evidence was suffi cient to support a convi ction for fi rst degree m urder; 2) whether the trialcourt erred in failing to make a conclusive determinati on of the voluntariness and ad miss ib ility of Appellan t’s alleged c onfess ion prior to the submission of

the state ment to the j ury; and 3) whether the trialco urt erre d in allowin g the Sta te to introdu ce into evidence the involun tary statem ent o f Ap pellant as well as t he testi mony of Detective David K enned y at the trial con cerning the taking of the state ment.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS
On Thursday, May11, 1995, Appell ant received a call fr om his girl friend, 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 ha d broken. Appellant

went to Ms
. Murphy’s house and pi cked up Ms. Murphy and her youngersister. T he co uple transported Ms. Murphy’s si ster to sc hool. Appell ant then took Ms. Murphy t o a farm that hi s parents owned on Sherri lltown Road. He left her the re in an old decrepit t ravel t railer , and returned home so that no one would notice t hat Ms. Murphy di d not go to schoo l. H e ret urn ed to th e fa rm, repor tedly around 9:00 am, to find Ms. Murphy in l abor. The couple del ivered t he baby in the floor of the trailer.-3- Accord ing to Ms. Murph y, the baby was born alive, tho ugh A ppella nt told her the cord was around the infa nt’s neck during delivery. Ms. Mu rphy tied o ff the ch ild’s cor d with thr

ead and cut the cor

d with sci ssors she had wit h her. She reported that the child cried as i t was delivered and w as a purplish-red dish color. She further

testified that Appel lant took the chil d from her, wrap ped it in a jac ket, and took it

to his t ruck, where t here was a heater. He came back to the tr ailer and helped her to the t ruck where she sat and held the i nfant. Shetestified that the infant cried and slept, breathing normally. The coupl e discussed what t o do with the child; they co nsidere d taking it so mew here an d leaving it, but de cided it would event ually be traced back to them. Ms. Murph y reported that Appel lant sever al times mentioned the possi bili ty of buryi ng the chi ld. The t wo discusse d their dil emma for 15 to 20 minutes, and then Appellant got out of the truck, took a shove l, and we nt into the barn. When Appellant returned from the barn, he took the baby fr om M s. Mur phy an d carrie d it into the barn. Ms. Murphy test ified t hat the baby cried as

Appellant carried i t. Appell ant returned in a few minutes without the baby, tellingMs. Murphy that the baby had di ed.

The couple spent t he rest of t he day together , actingas if not hing out of the ordinary had oc curred. T hey went shopping and then had dinner with Ms. Murph y’s family.
According to Appel lant, t he baby was born with t he cord around its neck. In a statement made at t he time of his arre st, he stated that he thought that perhaps the chil d moved a little. He said that it seeme d that the baby w as alive when Ms. M urphy cut the cord, b ut it was blue in color. He testif ied at trial that he attempted to revive the infant by placing his fi ngerin the baby’ s mouth and tryi ng-4-

to clear its thro at. He stated that both h e and Ms. Murphy determined that t he baby was dead, an d that they jointly decided that

the baby shoul d be buried. Appe llant adm itted to digg ing a gra ve and b urying the baby.

When Ms. Mu rphy return ed to sch ool the M onday fo llowing the birth, a teacher noticed th at she w as no lon ger preg nant. The teacherasked a fri end of Ms. Murphy’s, Judy Williams, if Ms. Mur phy had del iv ere d th e baby. Ms. Will iams responded that the ba by had died after being born wit h the cord around it’s neck. The teach er w ent to the s chool pri ncipal who cal led law enforcement. The detective assigned to t he case wired Ms. Williams in or der to tape a conversation b etween her and Ms. Murphy r egarding what had occurred. The taped conversati on was o nly par tially aud ible, bu t Ms. W illi ams repor ted that Ms. Murphy told her

that thebaby boy wa s buried in a barn in Cherry Valley. O fficers determined that Appell ant’s parent s owned the property described and obtained permis sion to se arch the property. T he officers located th e buried infant.

An autopsy performed by the County Medical Examiner revealed that the child was fullterm and properly developed. Thechild’ s esophagus, tr achea, and stomach containe d liquefi ed brown ish gre y dirt. Th e child ’s lung s floate d very w ell in water, whi ch the medical ex aminer tes tified in dicated t hat the chi d had been born alive. The bronchi of t he child’ s lungs were blocked wi th a brown mate rial, and thealv

eol i c ont ain ed “ brown amo rpho us aspirated material, ” which was consistent

with the mate rial in the child’s s toma ch. Th e me dical exa mi ner d etermined that the ca use of de ath was “mech anical airw ay obstru ction due to inhalati on and ingesti on of dirt .” The Federal Bur eau of Invest igation lab-5-

determined that

the soilrecovered f rom the infan t was consistent with soi l from the chil d’s grave.

Detective Kennedy observed t he autopsy of t he baby, after which he returned to the Sheri ff’s of fice and re-read t he statements by Ms. Murphy and Appe llant. Upon reading them, he deci ded to again qu estion A ppellant a s to whetherthe baby had been alive. At app roximately 1:00 in the morning, D etective Kennedy awoke Appellant and led him to an i nterrogat ion room for f urther que stioni ng. Appella nt signed a rights wa iver. Detec tive Kenn edy testified th a t Appellant

then toldhim he wished to change his statementto refl ect that t he baby
was alive at the time he buried it. Detective Kennedy stated t hat he wrote out the statementfor Ap pell ant, but Ap pellant r efused to sign the stateme nt. Detective Kennedy testified that h e told Appell ant that he, Detective Kenne dy, would testify as to wh at Appe llant had to ld him ev en if App ellant did n ot sign the statem ent.

A p pellan t’s version of that night’s eve nts differed from tha t of Detective Kennedy signi ficantl y. He test ified t hat Detective Kennedy asked him i f he wanted to change any part of his statement and that he re spond ed th at hedid n ot. He said that Detect ive Kennedy wrote a statement and r ea d it back to him , again
a sking if he wante d to change his statement. Appel lant testifi ed that he uneq uivoca lly told the de tective th at he d id not w ish to ch ange his statements and thathe asked for an attorney. Appellant further testified that Detective Kennedy told him that he, Detective Kennedy, was studying t o be an attorney

and thatin his opinio n Appe llant shou ld sign the statem ent.-6- I. Suffi ciency of t he Evidence Appe lla nt in itially contends that the State f ailed to present evi dence suffic ientto s uppo rtthejur y’ s co nvi cti on of

mu rder in the fir

st degree, al leging spec ifically that the S tate failed t o prove the el ements of premeditation and deliberat ion. When an ap pellan t challe nges the su fficienc y of the e videnc e, this Court is oblige d to rev iew tha t challe nge a ccord ing to c ertain w ell-settle d principles. A verdict

of guilty by the jur

y, approved by the tr ial j udge, accredi ts the testimony

of the Sta te’s witnes ses an d resolve s all confl icts in the te stimo ny in favor of the Sta te. State v. Cazes , 875S.W.2d 2 53, 2 59 (Te nn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused i s ori ginally cloaked with a presum ption of innocen ce, a jury v er dict removes t his presumpti on and replaces i t with on e of gu ilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on app eal, the bu rden of p roof rests w ith Appe llant to dem onstrate the insufficienc y of the con victing evide nce. Id. On appeal, “t he [S]tate is enti tled to the stro nges t legitim ate view of the e videnc e as w ell as all r eas onable and legitimate inference s that ma y be draw n therefro m.” Id . ( citing State v. Cabbage , 571 S.W .2d 832 , 835 (T enn. 1 978)) . W here th e suffic iency o f the evid ence is contested on appeal, t he relevant question forthe revi ewing court i s whether any rationaltrier

of fact could have fou nd the accused gui lty of every el ement of the offense b eyond a r eason able do ubt. Harris , 839 S.W .2d 54, 75 ; Jackson v. Virgin ia , 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In conducting our evaluat ion ofthe convic ting evi dence, thi s Court is pr ecluded from reweighing orrecons idering the evidenc e. State v. Morgan , 929 S.W.2d 380, 383 (Tenn . Crim. A pp. 199 6); State v. Mathews , 805 S.W.2 d 776 , 77 9 (Te nn. Cri m. App. 1990). More over, th is Court may not substitute i ts own inferences “for those drawn by the trier of fa ct from circ umsta ntial eviden ce.” Id. at 77 9. F inally , the-7-

Tennessee Rules of Appellate Procedure, Rule 13(e) pr ovides, “finding s of gu ilt in criminalactions whet her by the t rial cour t or jur y shall beset aside i f the evidence is insuf

ficien t to support

the findi ngs by th e trier of fact beyond a reasonab le doubt.” See also State v . Mathews , 805 S.W.2d at 780.

In State v . Brown , 836 S.W .2d 530 (Tenn .1 99 2) and State v. West , 844 S.W.2d 144 (Tenn.1992), our Supreme Court dis cussed the then ex isting eleme nts of fir

st degree murder. In Brown , the Supreme Court ac knowledged thatthe Tenne ssee courts have often bl urred the di stinct ion between th e eleme nts of premeditat ion and deliberat ion. The Court r elied upon the fol lowing historicaldefiniti ons:

"Premeditat ion" is the process s imply of thinki ng about a proposed kil ling before engaging i n the homicidal condu ct; and "del iberatio n" is the proce ss of ca refully weighing such ma tters as the wisdom of goi ng ahead with the proposed kil ling, t he manner in which t he kill ing willbe accomplished, and the consequencesw hich may be visited upon the kil ler if an d w hen apprehended.
" D eliberat ion" is present if the thinki ng, i.e. , the "preme ditation," is being done in such a cool mental state, undersuc h ci rcu msta nces , an d fo r su ch aper iodof t ime as to perm it a "carefulweighing" of the proposed deci sion.

Brown , 836 S.W.2d at 540-41 ( quoting C. Torcia, Wharton' s Criminal Law § 140 (14th ed.19 79) (em phasis in original)); see also State v. Gentry , 881 S.W .2d 1 (Tenn . Crim. App.1 993).

Premeditati on as define d by the S uprem e Cou rt requires evidenc e of a "previo usly formed design or intent to kil l," and del iberati on requires " some period
o f reflect ion, duri ng which the mind i s free fr om the infl uence of exci tement or-8-

passion ." West , 844 S.W.2d at 147. More over, to insure that the elem ents w ould be considered separ

ately, in Brown the Court decided to aba ndon the co mm only given instruction that prem editation c ould be "formed in an insta nt." Brown , 836 S.W.2d at 543. In State v. Gentry , while ho lding th at the jur y may infer premeditati on and delibe ratio n from the ci rcumstances surr ounding the ki lling , th e Supr eme C ourt, out lined th e proof fr om which a jury might rati onally i nfer the elements o f first degree murd er:
(1) facts about

how and w hat the defen dant d id prior to the actual killi ng which show he was e ngage d in activity directed toward the killing, that is, planning activity; (2) facts abo ut t he defendant' s prior r elations hip and conduct with thevictim from which moti ve may be infer red; and (3) factsabout t he nature of thekill ing fr om wh ich it may be inferr ed thatthe manner of ki lling was so parti cular and exacting that thedefen dant m ust ha ve inten tionally kill ed accord ing to a pre conce ived des ign.
State v. Gentry , 881 S.W .2d 1, 4-5 (Ten n. Crim. App . 1993) ( quoting 2 W. LaFave and A. Scot

t, Substantive CriminalLaw, § 7.7 (198 6)); see also State v. Hall , 1997 W L 769174 ,118-119 (T enn. 1997 ).

In the matter sub judice , proof w as pre sente d that A ppella nt wan ted rid of the baby “someway, anyway .” Furthe r proof showed t hat App ell ant refus ed to take Ms. Mu rphy to a h ospital, bu t rather too k her to a re mote location to give birth so thatno one woul d find out about the chi ld. Because premedi tation and deliberat ion are elements are mens rea eleme nts, elem ents which pertai n to the mental state o f the pe rpetra tor, the o nly way a jury ca n find s uch e leme nts is
usua lly through circumstant ial evi dence, through examini ng Appellant’ s actions-9-

forevidence of what was in his mind as he acted. The evidence showed t hat the Appellant

left Ms. Murphy at t he abandoned trailer for ov er an hour during which her labor star

ted. The chil d was born ali ve and Appellant took a shovel and dug
a shallow gr

ave bef ore taking t he baby from its mother. Allof this evi dence suppo rts the findi ng of preme ditation an d delibera tion. This is sue is with out me rit.

II. Determinat ion of Vol untariness and Admissi bili ty of Statement
Appellant

also argues t hat the t rial cour t erred i n refusing to determine p retria l whether Ap pellant’s stateme nt to Detective Ke nnedy wa s voluntary. Detective Kennedy and Appellant both testified at a pretri al hearing regarding Appe llant’s motion to suppr ess the statement. The tri al court ov erruled Appe llant’s motio n and all owed the State to presen t the statemen t to the jury through the testi mony of Detecti ve Kennedy. The trial court ruled that

Appe llant’s contention that he never m ade the statem ent was a fact q uestion for the jury rather than a question of volu ntariness for the trial court to determine. We agree. Appellant

has not co ntested the rights waiver which he si gned. Neither has he indicated that he was mist reated or t hreatened int o making a sta tement . He
mere ly contests the authe nticity of the sta temen t. The qu estion of w heth e r Appellant

actuall y made the statement at all is a rel evan t fact que stion to be resolved by the trier of fact, the jury.

III . Intr oduction of

Statement
Appe lla n t further alleg es that the trial court erre d in allowin g the Sta te to presentthe conte sted statement t o thejur y th rough the testi mony of De tectiv e-10-

Kenned y. We dis agree. Appe ll ant ’s arg ument see ms to be based on the l ack of verif icatio n of the stateme nt allegedly ma de by App ellant to Detective Kenned y. Appellant

was allowed to cross-examine Detective Kennedy at length regarding the authentic ity of

the document, t he conditi ons under which i t was authored, and whetherthe detect ive was truthful i n his versi on of the event s. Questions
c oncerning the credib ilit y of wit nesses, the wei ght and value t o be given to the evidence, and w ell as factual issues raised by the evide nce are resolved by the trier of f act and no t this Cou rt. State v. Cabbage , 571 S.W.2d 832, 835(Tenn. 1978). T he jury ha s spoke n. This iss ue is witho ut merit.
Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID H. WELLES , JUD GE

___________________________________ JOHN K. BYERS, SENIORJUDGE