### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d onBr ie fs January 13, 200 9
STATE OF TENNESS EE v . GEORG E ANTHO NY BRADDOCK

Appeal f rom the Circ uit Court for Houston County No. 4736 Larry J. Wallace , Judge

No. M2008- 00647-CCA -R3-C D - F iled May 12, 2009

Appellant, Ge org e Anthony Br addock, w as indicted for first deg ree preme ditated murder fo r t he de a th o f h is w if

e . App e lla

nt w a s f ound g uil ty by a jur y and se nte nc e d to lif

e in pr iso n. On

a pp e a l, Appellant cha lleng es the suff iciency of the e vidence

. We de termine that the evidenc e is sufficie nt to s up po rt

a c on vic tion f

or fi rs t de g re e mur de r. Ac c or din g ly , th e jud g me nt o f t he tr ia l c ourt

is aff irmed.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e ntof t he Ci r c uitCo ur t i s A ffirm e d.
J ER R Y L. S MI TH , J ., delivere d the opinion of the court, in which D AVI D H. W ELLES and R OB E R T W. W EDEMEYER , J J ., joined.
Wil liam B. “ J ake” L ocker t, I I I , District Public Defe nder, f or the Appe llant Georg e Anthony Br addock.. Robert E. Cooper, Jr., Attorney Gene ral a nd Reporter ; Matthew B ry ant Haske ll, Assist ant Attorney Gene ral; Da

n Alsobrooks, District Attorney Gene ral, a

nd Suz anne L ocker

t, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee
.

OP IN ION Appellant and the victim, Marie B raddoc k, wer e husband and wife . In the fa ll of 2004, the couple a n d t h ei r t wo childre n wer e living in Houston County , Tenne ssee in a home owned by the victim’s father . Mrs. Br addock w as the primar y wag e ea rner in the family

. At that time, she was workingat the Southern Aire R es t au rant in Houston County . Appellant wor ked off and on, perf orming mostly

odd jobs.
Whil e wor

king at Southern Aire, Mrs. B raddoc k beca me close f

riends with another
e mpl oy e e , A d amP o w e l l

. T h e f r i e n d s h i p e v e n tu a l l y

d e v e l o p e d

i n t o ane xtr am ar i t a l a f

f a i r
. Mr s.-2-

B r a d d o c k o f t e ns t aye d l a t e a t w o r

k a tt h e r e s t a

ur an t , s p e n d i n g t i m e w i thM r
. P o w e l l

. A d d i t i o n a l l y, the two went on se vera l out of town trips toge ther.
Af te r s ome tim e , App e lla

nt b e g an to su sp e c t th a t th e re wa s so me thi ng g oin g on be tw e e n h is wife and Mr. Powell. Appellant per sonally witnessed Mrs. B raddoc k and Mr. Powell hang ing out at the re staurant tog ether

afte r hours a

nd drinking toge ther at Mr. Powell’s residenc e.
Mrs. Br addock e ventually quit her job at the restaur ant af ter Appe llant told her not to spend
any mor e tim e wi th Mr . Po we ll. Mr s. B ra dd oc k’ s mo the r, Do ro thy Ha dle y , p ro vid e d mo ne y to su pp or t the c ou ple a ft e r M rs . B ra dd oc k q uit he r j ob . In f

a c t, M rs . H a dle y

so ld a ri fl e to M r. Pow e ll in order to pr ovide money to Mrs. Br addock and Appellant. Appellant wa s ang ere d when he found
o u t t h a t Mr

. Po w e ll b r o u g h t th e r if le , v o w in g to h av e h is o w np is to l b a c k into th e h o u s e b y

th e n e xt wee kend.

Mrs. Br addock continued her relationship with Mr. P owell after quitting he r job. Howe ver, Mrs. Br addock told Mr. Powell that she w anted to stay in her ma

rriag e. Mr. Powell “w anted the truth of the matter ,” so he w ent to the B raddoc k residenc e to discuss the m atter w ith Appellant. The two men g ot into an a

rgument during which Mr. Powell spr ay ed Appellant with peppe r spra y . Mr. Powell claimed that he spr ay ed Appe llant beca use he w as af

raid that Appe llant was ar med.
Th e we e ke nd be fo re Mr s. B ra dd oc k wa s mur de re d, he r sis te r Ki mbe rl y To lle y c ame to v isi t from Carr oll Count y . The Saturda y befor e her death, Mrs. Br addock play ed car ds with her father, sister, brother -in-law, c ousin, and children at her fa t h er ’s home. Mrs. B raddoc k and her sister walked to a

near by store to buy

beer

. Mr. Powell’s uncle was at the store and purc hased a beer for the victim. Appellant was upse t when he le arne d who boug ht the victim the beer. L ater that evening , Appellant and the victim rode in their car with the victim’s sister to a boat dock at a nea rby lake. Appe llant and the victim wer e ar g uing. A ppellant started driving very rec klessly

as the two argued. Appellant only

stopped when Mr s. Tolley and Mrs. B raddoc k wer e upset a nd cry ing. When the y g ot b a c k to Mr s. B ra dd oc k’ s f a the r’ s h ou se , App e lla

nt we nt ho me , and

Mr s. B ra dd oc k a

nd Ms. Tolley went to visit Mr. Powell. Sunday morning , Appellant called his mother , Edith B raddoc k, to te ll he r that his children
wa nte d to c ome sta

y wi th he r a t he r ho us e
. Ap pe lla nt’ s mot he r arr ive d that a ft e rn oo n and le ft wi th the g randc hildren af

ter a pproxi mately

one hour.
That af ternoon, Appellant, Mrs. Br addock, and the victim’s c ousin, Philip Stewa rt, watc hed a movie tog ether . Appellant re peate dly asked the victim if she wanted to g o for a ride so that they could talk. Mr. Stewar

t thought that this was odd beha vior, as Appe llant rare ly

left the house.
Mr. Stewar

t fell aslee p during the movie. Appella n t an d Mrs. Br addock le ft the house. Appellant re trieved his pistol from the bedr oom and place d it in the waistband of his pants before the y le ft in t he c ar. Ap pe lla

nt an d Mrs . Br a dd oc k dro ve to a b oat do c k f ir st the n d ro ve to a re mot e swimming ar ea on a nearby cre ek. As they

sat in the ca

r, Appe llant asked Mrs. B raddoc k about her-3-

relationship wit h Mr. Powell. Appellant cla imed that he wa s trying to g et Mrs. B raddoc k in a

“ ro manti c moo d, ” but contin ue d to que sti on

he r a bo ut h e r r e latio ns hip wi th M r. Pow e ll. At so me point, Appe llant a

nd Mrs. Br addock g ot out of the ca r. Appe llant took out his pistol, pl ace d a bullet in the chambe r, and put the gun to his head whe n Mrs. Br addock w ould n ot answer his questions about Mr. Powell. Appellant c laimed at trial that Mrs. Br addock w as about twe nty fee t away

from him at the time and that it was dar k. Appellant stated that he could make out her figure f rom that distance. A

ppellant told Mrs. Br addock that he was g oing to kil l h i m s elf. Mrs. B raddoc k started to w a lk t ow ard

him but st op pe d w he n s he wa s a bo ut e ig ht o r n ine fe e t awa y . A c c or din g to Appellant’s testimony at t rial, Mrs. Br addock told him to “g o ahea d, now she a nd the kids could be with Adam Powell.” Appe llant testified that he mer ely “re acte d” and “ fired the g u n in that dir e c tio n. ” Whil e on

the sta nd , App e lla

nt t e sti fi e d th a t he did no t know wh e re he sh ot t

he vic tim , did not feel for

a pulse, a nd ran to the c ar.
I mmediately afte r t he shoot ing, A ppellant left the a

rea and took Mrs. B raddoc k’s ca r to an airport whe re he left it behind an outbuilding. A ppellant walke d home. Mr. Stewart was still at the
re sid e nc e . App e lla

nt a sk e d M r. Ste wa

rt if he ha d s e e n th e vi cti m. Ap pe lla nt t old Mr . St e wa

rt to “tell [Mrs. Bra ddock] to keep her ass here ” if he saw her. A ppellant g ot a duffe l bagthat was a lrea dy packe d with clothing. He put a carton of cig are ttes in the bag and loaded the ba g and some spea kers into the car

befor e takingoff. App ell ant drove to his mot her’ s house in Covington, Tenne ssee arr iving ther e sometime in the middle of the nig ht.
On Mo nd ay , O cto ber 11 , App e lla nt c a lle d th e Ho us ton

County She ri ff ’s De pa rtme nt. Appellant used a

fake name a nd told Deputy J ason L axton t hat he ne eded to look for something alongthe cr eek ba

nk. The majority

of the tele phone ca ll was t ap ed

. Deputy L axton recog nized Ap pe lla nt’ s v oic e duri ngthe c on ve rs a tio n. L a te r d ur ingthe c a ll, Ap pe lla

nt a dmi tte d th a t he sh ot h is wife in the he ad and le ft her body on the cr eek ba

nk.
Ap p e l l an t c a l l e d t h e s h e r i f f ’ s d e p art m e n t a s e c o n d t i m e , f r o m a p ay p h o n e i nT i p t o nC o u n ty. Th e a uth or iti e s tr a c e d th e c a ll, and Ap pe lla nt w a s arr e ste d a ft e r a

br ie f p ur su it. Ap pe lla

nt l a te r t old authorities that he threw his w eapon out of the window of the car during the pursuit. Appellant wa s later indicte d by

the Houston County

Gra nd J ury for f irst deg ree murder. Ag ent Der ek J ones of the T ennesse e B urea u of Investig ation (“TB I ”) r esponded to the c ree k bank. Mrs. B raddoc k was found ly ing on the cre ek bank w ith a single g unshot wound to the rig ht sid e of he r h e a d. Th e vic timwa s h old inga pa c k o f c ig are ttes in he r r ig ht h and and a sin g le sh e ll casingwas found ne ar the body

. Donna McWhorter, a person that lived near the are a of the cre ek, stated that ar ound 6:00 p.m she and her husband hea

rd a sing le gunshot and had seen a vehicle in the
are a which matched the de scription of the victim’s vehic le.
Dr. Thomas D eer ing, the as s istant medical examiner, testified at trial. Acc ording to Dr. Dee ring , the victim had soot and gun powder st ipple around the g unshot wound i n her r ight temple. This indicated that the we apon wa s fired f rom approximately

six inches a

way
.A ltho u g h A p p e llan t l ists “W h e the r th e trial c o u rt e rr e d in a llo w ing D e p u ty J a s o n L a x to n to tes tif y a s to his 1

o p inio n tha t t h e D e fen d a n t’s m a in c o n c e rn a p p e a re d to b e a v o id ing go ing to the p e n iten tiar y” a s a n issu e in h is b rie f,
w e a re u na b l e to f

i nd an y ref

ere nc e to t his i ssue i n the a rgu m en t sec t i o n o f h i s b rief

. A cc o rd i ng l y, we wil l no t ad d ress t his i ssue i n o ur a na l ysi s. -4- At trial, Appellant claimed that he only took the pistol t o the cr eek to thre aten his own life, not to kill Mrs. Br addock. Appellant hid the pistol in the waistband of his pants whe n the two left the house be cause if Mrs. B raddoc k decide d that she wa nted to be with Mr. Powell, Appellant was g oing to “ shoot” himself. He ha d threatened his own life se vera l times and never had any intentions of hurtingMrs. Br addock. A ppellant also cla imed that he alwa y s kept a ba g o f cl o t h i ng packe d beca use he f reque ntly went to his mother’s house.
At the c on c lus ion

of the jur y tr ia l, A pp e lla nt w a s f ound g uil ty of fi rs t de g re e mur de r. As a re su lt, the tr ia l cou rt se nte nc e d h im t o li fe in p ri so n. Af te r t he de nia l of

a mot ion fo r n e w tri a l, Appellant filed a

timely noti ce o f ap p ea l . On appe al, Appellant a rgues that the e vidence was not sufficie nt to support a conviction for f irst deg ree m u rder and that the tria l court er red in a llowing Deputy L axton t o t est ify

that Appellant’s “ main conce rn appe are d to be avoidingg oing to the penitentiary .” 1

An aly sis Appellant cla ims on appeal that the e vidence is insufficient to establish preme ditation. Spe c if ic a lly , App e lla

nt cl a ims that the e vid e nc e did no t sh ow that he e ng a g e d in

pla nn ingpr ior

to the kil lin g and

ha d no p lans to c on c e a l th e kil lin g . App e lla nt c la ims that th e “ kil lin g wa s d on e in
an instant in a burst of many overwhelming emotions inc luding rag e.” T he State, on the other hand, argues that Appe llant “proc ured a wea pon, used that we apon on an una rmed victim, made pr e pa ratio ns be fo re the kil lin g fo r the purp os e of c on c e a lin g the c ri me , a

nd wa s c a lm i mme diate ly following the killing,” a ll of which support a c onviction for first de g ree murder.
When a def

endant c halleng es the suff iciency of t he evidence, this Court is obli g ed to re view that cl ai m acc ording to cer tain well-settled pr inciples. A ver dict of guilty , rende red by a jury and

“ a pp ro ve d b y

the tr ia l ju dg e , a c c re dit s th e tes ti mo ny of the ” State ’s wi tne sse s and re so lve s a ll conflicts in the testimony in favor of

the State. State v. Cazes , 875 S.W .2d 253, 259 (Tenn. 1994) ; Sta te v . H arris , 839 S.W .2d 54, 75 (Tenn. 1992) . Thus, althoug h the ac cused is orig inally cloake d with a pre sumption of innocence , the jury verdic t of guilty remove s this presumption “and r eplac es it with one of g uilt.” Sta te v . Tu gg le , 639 S.W .2d 913, 914 (Tenn. 1982) . Henc e, on appe al, the burden of proof r ests with the defe ndant to demonstrate the insufficienc y of the c onvicting e vidence

. Id. Th e re le va

nt q ue sti on the re vie wi ngc ourt mus t ans we r i s w he the r a ny ratio na l tr ie r o f f

a c t c ou ld have f ound the ac cused g uilty of ever y element of the offe nse beyond a re asonable doubt. SeeTenn. R. A pp . P. 13 (e ); Ha rri

s , 839 S .W .2d at 75. In making this decision, we are to acc ord the State “ the strong est leg itimate view of the e vidence as we ll as all rea sonable and leg itimate infere nces that may b e d ra wn t here from.” Se e Tug gle , 6 3 9 S. W. 2 d a t 9 1 4

. A s s u c h , th is Co urt is p r e c lude d from
rew eig hing or

ree valuatingthe evidenc e whe n considering the convicting proof. State v. Morgan ,-5-

92 9 S. W.2 d 3 80 , 3 83 (T e nn . Cr im. Ap p. 19 96 ); Sta te v . M att he ws , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990)

. Moreove r, we may not substitute our own “infe renc es for those drawn by

the trier of fa ct from c ircumstantial evidenc e.” Ma tth e ws , 805 S.W .2d at 779. Fur ther, que stions concer

ning the cr edibility

of the witnesse s and the we ight a nd value to be give n to evidenc e, as w ell as all fa ctual issues raised by

such evide nce, a

re r esolved by

the trier of

fac t and not the appe llate cour ts. Sta te v . Pru e tt , 788 S.W .2d 559, 561 (Tenn. 1990)

. F ir st d e g re e mur de r i s d e sc ri be d a s: (1) A pr emeditated a

nd intentional killi ng of anothe r; (2) A killing of another committed in the perpetration of or attempt to perpe trate a ny fi rs td egr ee m u rd er , ac to f t erro ri s m , ar s o n , rape , ro b b ery , b urgl ary , th ef t , k i dn ap p i n g, ag g ravated child abuse , ag g ravated child neg lect or a ircra ft pirac y ; or . . . .
T. C.A . § 39 -1 3- 20 2( a ). Te nn e sse e Cod e Anno tate d s e c tio n 3 9- 13 -2 02 (d ) p ro vid e s th a t:

“ [P]re me dit a tio n” is a

n act do ne a ft e r t

he e xer c ise of

re fl e c tio n a

nd jud g me nt. “Preme ditation” means that the intent to kill must have been f ormed prior

to the act itself. I t is not necessar

y that the purpose to kill pre- exis t in the mind of the ac cused for a ny definite pe riod of tim e. T h e m en t al state of the acc used at the time the
acc used alleg edly

decide d to kill m ust be ca ref ully considere d in order to de termine whether the ac cuse d was sufficiently fre e fr om excitement and passion as to be capa ble of pre meditation. T.C.A. § 39-13-202( d). An intentional ac t require s that the person ha ve the desire to e ng ag e in the conduct or cause the re sult. Id. § 39-11-106( a)( 18). Whether t he evidence was sufficient depends entirely on whether

the State was a

ble t o es t ab l i sh beyond a re asonable doubt the element of preme ditation. See State v . Sims , 4 5 S. W.3 d 1 , 7 (T e nn . 2 00 1) ; Sta te v . H all , 8 S.W .3d 593, 599 (Tenn. 1999) . Whether pre meditation is prese nt is a question of fac t for the jury , and it may be inferr ed fr om the circ umstances surrounding the ki lling. State v. Y oung , 196 S.W .3d 85, 108 (Tenn. 20 06 ); see also State v. Suttles , 30 S.W. 3d 25 2, 26 1 ( Te nn . 2 00 0) ; State v. Pike , 978 S.W .2d 904, 914 (Tenn. 1998)

. Premeditation may be proved by circ umstantial e vidence

. See, e.g ., Sta te v . B ro wn , 836 S.W .2d 530, 541-42 (Te nn. 1992). Our hig h court ha s identified a number of cir cumstance s from which the jury

may infer pr emeditation: (1) the use of a de adly wea pon upon an unar

med victim; (2) the particula

r cr uelty of the killing; (3) the def

endant’ s threats or de clar ations of intent to kill; (4) the defe ndant’s proc ureme nt of a weapon; (5) any prepa rations to conce al the cr ime undertaken bef ore the cr ime is c ommitt ed; (6) destruction or secr etion of evidenc e of the killing; and (7) a def endant’ s calmness immediately

afte r the killing. See State v. Bland , 9 58 S.W. 2d 65 1, 66 0 ( Te nn . 1 99 7) ; Pike , 978 S.W .2d at 914-15. This list, however , is not ex haustive and s erve s only to demonstrate that preme ditation may

be esta blished by any evidenc e from which the jury may infer that the killing was-6-

do ne “ a ft e r t

he e xer c ise of re fl e c tio n and jud g me nt. ” T. C.A . § 39 -1 3- 20 2( d) ; see Pik e , 978 S.W .2d
a t 91 4- 15 ; Bland , 958 S.W .2d at 660.
One lea rned tre atise states that pre meditation may be infe rre d from events that occur befor e an d at t h e t i m e o f t h e k i l l i n g:
Three categ ories of e vidence are important for [the] purpose [of inferring preme ditation] : (1) fa cts about how a nd what t h e d efe ndant did prior to the ac tual kil lin g wh ic h s ho w h e wa s e ng a g e d in a c tiv ity directed to wa

rd the kil lin g , th a t is , pla nn ing ac tiv ity ; ( 2) fa c ts a

bo ut t he de fe nd ant’ s pr ior re latio ns hip and c on du c t w ith the victim from which motive may be infe rre d; and (3) f

acts a bout the nature of the killing from which it may

be infe rre d that the manner of ki lling was so particular and exacting that the d ef

en d an t must have intentionally killed acc ording to a prec onceive d desig n. 2 Way ne R. L aF ave, Su bs tan tiv e Cri mi na l La w § 14.7(a) (2d ed. 2003) (empha sis in original).
Th e pr oo f a t tr ia l e sta

bli sh e d that Ap pe lla

nt w a s ang ry

and up se t a bo ut h is w if

e ’s a ff a ir wi th Mr. Powell. Appellant sec ured his pistol and encour ag ed his wife to g o with him to a sec luded ar ea t o t al k

. P ri o r t o t h e t ri p , Ap p el l an ts en th i s ch i l dre nt o s t ay wi thth ei r gr an dm o th er

an d p ac k eda b ag. When Appellant a nd Mrs. Br addock le ft in her ve hicle, Appe llant conce aled the pistol in the waistband of his pa

nts and cove red it with his shirt. The evidenc e showed that the victim wa s shot in the rig ht temple at a distanc e of a pproxi mately

six inches a

way . Appellant lef

t the vi ctim ly ing
on the c re e k b ank

and dis po se d o f h e r c ar b e fo re wa lki ngho me. Whe n App e lla nt r e tur ne d to his house, he inquired about Mrs. Br addock’ s wher abouts, put his suitcase into his ca r a n d fl ed, appea ring to be “in a bighurry to g et gone.” Appellant drove to his mother’s house in Covington. Appellan t d oes not dispute that he shot and killed his wife, only that the evidenc e did not support pr e me dit a tio n. He c la ime d at tr ia l th a t he re a c te d to the vic tim ’s state me nt b y sh oo tin g he r f

ro m a d i s t an c e
. T h e c r e d i b i l i t y o f t h e w i t n e s s e s i s , a s s t a t e d p r e v i o u s l y, a

m a t t e r e n tr u s t e d t o th e j u r

y. Pr ue tt , 788 S.W .2d at 561. The jury clea rly did not find Appellant to be a cre dible witness. After
a re view of the evidenc e, we conclude that any rational juror

could have found that Appe llant killed his wife ac cordingto a pre conce ived plan to do so. There fore , the evidenc e is more than suf ficient to support a ver dict of guilty of first degree murder. A ppellant is not entitled to relief on this iss ue.

Conclusion

For the fore g oing r easons, the judg ment of the trial c ourt is affir med.

___________________________________ J ERRY L . SMI TH, JUDGE-7-