# FILED

April 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9603-C R-00092 ) Appellee ) KNOX CRIMINAL ) v. ) HON. RICHARD BAUMGARTNER, ) JUDGE THOMAS J. McKEE, ) ) First Degree Murder Defendant/Appellant )

FOR THE APPELLANT FOR THE APPELLEE Mark E. Stephens Charles W. Burson Sixth District Publ ic Defender Attorney General & Repor ter R. Scott Carpenter Robin L. Harris Assistant Public Defender Assistant Attorney Gener al 1209 Euclid Avenue 450 James Robertson Parkwa y Knoxville, TN 37921 Nashville, TN 37243-0493

OPINION FILED

AFFIRMED JOHN K. BYERS SENIOR JUDGE-2- O P I N I O N The defendant was convicted of murder in the first degree and sente nced to serve life imprisonment w ith the possibility of parole. The defendant raised the following issues on appe al: “I. The evidence presented during trial was insufficient to support finding of guilt beyond a reasonable doubt. II. The State’s closing argument was prosecutorial misconduct which affected the verdict to the prej udice of the appellant. III. The tria l court err ed in its ch arge to th e jury. IV. The introduction of the skull of the decea sed resulted in unfair prejudice and reversible error. V. The testimony of Randy Bry ant and Laura Baird as elici ted by the State constituted prejudice i n violation of the trial court’s order.”

FACTS The defendant, Thomas J. McKee, and the vi ctim, Marilyn Kay e McKee, became husband and wife on Septembe r 21, 1990. However, they eventually became estranged. On July 31, 1994, an officer of the Lenoir City Police Department responded to a call at the defendant’s house. During the investigation, the victim was plac

ed in one patrol car and the defendant w as placed in another patrol car pursuant to arrest. As the defendant walked past the car in which t he victi m was sitting, he said to her “I’ ll get you for this, bi tch . . . I’ll kill you.”

The defendant cont inued to make thr eats that he would get even with her and that he would kill her. During her estrang ement fro m the def endant, the victim lived with Laura Baird. In August, 1994, Bair d was with t he victi m at the Loudon County courthouse and overhe ard the defen dant b egging the victim to com e back to him . W hen th e victim refus ed and began to leave , the de fenda nt yelled a t her “Yo u’ve do ne it now , bitch, I’ll kill you.”-3- Acco rding to Donn ie Arde n, a fam ily friend of the Mc Kee’s , the de fenda nt’s wife w as playin g a “m ind gam e” with h er hus band , repea tedly callin g and te lling him that she loved him , then calling back an d telling him that she h ated him. Ard en heard some of these messages on the defendant’s answering machine. As previousl y mentioned, after t he defendant and the vict im became estranged, the victim lived with Laura Baird. Baird w ould not allow the defe ndant to come to her home or cal l the vi ctim there. Brenda Bowers, a friend of both the defendant and t he victi m, assisted th e two in communicati on with each other. The victi m would call Bower s, then Bowers would page the defendant, a nd then the defendant woul d call Bower s and give her

the phone number ( usually a pay phone) where he could be reached. Bowers would gi ve the vi ctim this n umber, and the victim would ca ll the defendant. At about l 0:30 a.m. on Septe mber 21, 1994, t he defendant was at work when he receive d a message on his beeper . He left work and went to the nearest phone, returnin g twen ty to thirty m inutes later. He told co- worke rs that h e had ta lked to his estranged wi fe on the phone, that he was goi ng to meet with her, and t hat there was a chan ce the y migh t recon cile. He picked up his c arpen ter’s too ls, put th em in his car, and left work, sa ying that he would m eet with her even if it cost him his job. September 21st was t he couple’ s wedding anni versary . Motel records revealed that on th at day t he defendant, accompanied by an other pers on, rented and occupied a r

oom at the Clar k Motel i n north Knoxv ill e. At 2:12 p.m. t hat day, Knox County Sheriff’ s deputies wer e called t

o Brushy Valley Road, a coun try road next to a field bordered by a ba rbed-wire fence , where the vict im was found ly ing dead. She had sustained multiple blo ws to her head and numerous scratches that appeared to have been caused by the bar bed wire. A witness had seen a red sporty car speeding away from the area shortly before the body was found. There i s no evidence that the kil ling occurred in the c ar or in the motel. At 2:30 p.m. that afternoon, whil e investigators w ere still at the crime s

cene, Arden saw and talked w ith the defendant at his father’s home. The defendant, who had a beard, was shaving. The defendant said “he had fu cked up, fucked up big-4-

time.” When Arden asked him to explain, the defendant said he had killed Mari lyn. When Arden asked if he was sure she was dead, the defendant said “yes, she ought to be.” Arden testified that the defendant said his wife had called him that morning and they had agr eed to meet. The defendant also said they had gone to a motel and made love. Later that afternoon, the defendant had asked his wife to move back in with him and she had refused. The defendant said she tol d him that she was living

with another man and “that’ s when it [the killi ng] happened.” Arden testifi ed that t he defe ndant sa id the vict im had to ld him she loved him a s they drove to the motel. The defendant had asked Arden to take the license plate off his red Camaro and hide the car, which Ar den did. But when the defendant asked Arden to provide him with an alibi for the time of the killing, Arden refused and told him to turn himself in. The defendant answered that he neede d to talk to a lawyer. The defendant’s red Camaro was found w here Arden had put it. An unsig ned anniversary card, which read “For My Wonderful W ife . . .,” was found inside the car, and the defendant’s carpentry tool s were found in the back seat.The victim’s car was found at Powell Shoppi ng Center with non-per ishable groceries in

the trunk along with a cash reg ister receipt whic h indicated she had purchased the groceries at Food City at 11:48 a.m. on the day of her death. The day after the victim w as killed, the defendant’s attor ney brought him to the Knox Cou nty Sheriff’ s Office. The de fendant had sev

eral scrat

ches on his a rms that rese mbled th e scratch es on the victim’s bo dy. Autopsy re vealed th at the vict im’s deat h was cause d by at leas t twelve blo ws of massive force to the head and neck.In order to determine the ty pe of instrument used, the medical examiner dec apitated the body of the victim and sent the head to the University of Tenness ee for cleaning and examinati on. Through this procedure, it was dete rmined th at death was caused by a circula r blunt in strumen t, most li kely a hammer. There were numerous fractures of the skull, a fracture on the facial area, and one blow which fractured three vertebrae in the victim’s neck. A small metal fragment was found in the vi ctim’s brain. There was extensive bruisi ng and swelling-5-

of the hands, most likely caus ed by the victim’s at

tempt to defend herself from the blows. We will address the sufficiency of the ev idence issue last.

STATE’S OPENING AND CLOSING ARGUMENTS First Complaint - State’s Opening Argument The defendant says the State erroneously and prejud icially argued to the jury in two aspects. Fir

st, the defendant says the Dis trict Attorney General

in opening argument to the jury atte mpted to anticipate that the defendant w ould argue the victim invited the attack upon her. The defendant objected to the argument and the trial court overruled the objection. We see no error. It is not improper for the State to say what it think s the accused will ar

gue to the jury, so long as the statements are not so far remov ed from the evidence in the case as to make such argument s patent ly imprope r or infla mmatory. We conclude that the State’s argument in this regard is not improper

. Second Complaint - State’s Closing Argument The defendant asserts also that the State erroneously argued that the actions of the defendant of shaving, concealin g his car, and asking a friend to supply an alibi after the killing were evidence of a premeditate d and deliberat e killing. The argument of the District At torney General was a n improper assertion of how these facts could be w eighed by the jury.Concealment of evidence is no t sufficient to show a premeditated or deliberated killing

. State v. West, 844 S.W.2d 144 (Tenn. 1992). However, the defendant may not obtain a new trial u pon this basis. The defendant did not make a contemporaneous objec tion to this argument as r equired for relief. Tenn. R. App. P. 36(a) . The defendant did not object until after the State had closed its argument. Further, the trial judg e upon request of the defendant instruc ted the jury that the actions of the defendant af ter the killing were not evidence of the defendant’s intent or state of mind at the time of the kill ing.-6- The State

relies upon the

case of State v. William Singlet on, Jr., No. 03C01- 9406-CR-00221, Claiborne C ounty (Tenn. Crim. App. Mar. 13, 1995), to say the actions of the defendant were sufficient to show premeditation and del iberation. The major issue in Singleton appears to be th e concealmen t of the body. Alt hough the court in Singleton

recognized the gener

al rule, as stated in State v. Brown, 836 S.W.2d 530 (Tenn. 1992), that such acts are not suffici ent to establish first degr ee murder, the court said “i n this case” the jury could consider the concealment of the body on the issue of whether the killing was first degree murder. How ever, the body of the victim was not con cealed in this case. We must assume therefore that the holding in Singleton

is limited to the particular act of concealing a body and thus is not a general attempt by the court to overturn the g eneral rule established by the Supreme Court in Brown. We conclude the State’s argument as set out i n the defendant’s second complaint was improper, but both the failure of the d efendant to enter a contemporaneous objection to the ar gument and the instruction of the t rial court on the law applicable to the argued facts diffused any taint c reated by such argument. The State could have argued the acts of concealment to show the defendant was the person who ki lled the victim. How ever, in this case, the re was no claim by the defendant that he did not kill the victim.

THE INSTRUCTION TO THE JURY Premeditation and Deliberation The defendant contends the trial court failed to distinguish betw een the elements of premeditation and deliber ation in the instructions given to the jury . The record does

not support this claim. The record shows the tri al judge connected the elements of premeditation and deliberation one time in the instruction. The coupling in that instance was not erroneous. The trial judg e was explaining how excitement applies in assessing the elements of premeditation and deliber ation. We see no error in this connectio n.-7- The record shows the tri al judge clearly an d properly instructed the injury on the difference between premeditation and deliberation as requi red. State v. Brooks, 880 S.W.2d 390 (Te nn. Crim. App. 1993). We need not address the State’s unpersuasive argument that any error in the instruction was harmless error. The defendant asked the trial judge to charge the jury by several requests. The requests numbered 4, 5, and 6, which were rejected by the trial judge, dealt with various defin itions of what co nstituted volun tary manslaughte r. The trial judge allowed the defendant to argue the facts which he claimed made the instructions valid. The trial judge properly charged the jury on voluntary manslaughter. Further, the requests submitted by the defendant border closely upon a comment on the evidence. The defendant also complains that the tri al judge did not properly charge the jury on how they were to weigh the concealment of evidence as it r elates to premeditation and deliberation. The record shows the trial judge gave a full instruction to the jury

in this regard. When the trial judge has given a correc t and sufficient instruction to the j ury, the refusal to giv e requested instructions is not error. State v. Story, 608 S.W.2d 599 (Tenn. Crim. App. 1980). We find no error in the instruction given b

y the trial judge on the matter raised by the defendant’ s requests numbered 4, 5, and 6, and we rej ect the defendant’s claim as to the r efusal of the trial judge to giv

e the instruction. The defendant also argues the trial judge was in error

for not instructing, at his request, the jury

that a homicide when show n is presumed to be murder in the second degree. The defendant was attempting to conv ince the jury that he w

as guilty of manslaughter. The State was attempting to convince the jury that the defendant had committed first degree murder. The State has the burden of provi ng the defendant committed the offense and the degree of the offense, i .e. murder in the first degree, murder in the second degree, or vol untary manslaughter. If the defend ant’s requ ested ins truction had been given, the burden o f proof would have-8-

been as follows. The burden w ould be on the State to elevate the offense from second degree murder to first degree murder. And, the defendant w ould have the burden of reducing the crime to voluntary manslaughter. The instruction sought by the defendant, though the rule in days gone by, fell to the holding of the United Stat es Supreme Court in Sandstrom v. Montana, 442 U.S. 510 (1979), that any i nstruction which shifts the burden from the State to the defendant to show an element of the offense is co nstitutionally impermi ssible. In State v. Bolin, 678 S.W.2d 42 (Tenn. 1984), our Su preme Court espoused the s ame rule. We find the trial judge correctly refused to give the instr uction.

INTRODUCTION OF THE SKULL The defendant contends the introduction of the v ictim’s skull to show

the injuries s ustaine d was error b ecause it s prejudi cial eff ect outwe ighed its p robative value, beca use it was

an inaccura

te depiction

of the injuri es suffered by the victi m, and because it was unnecessa ry to introduce the skul l into evidence. The introduction of the skull into evidence is not unique to this trial. Such evidence has been allowed before in this State and in other jurisdictions. In State v. Morris, 641 S.W.2d 883 (Ten n. 1982), the Supreme Court approved the use of a skull to show the nature and type of i njuries sustained by th e victim. In State v. Cazes, 875 S.W.2d 253 (Ten n. 1994), the Supreme Court held the introduction of the skull was proper as it aided in identifying the weapon used in the murder. Further, it appears in Cazes that the introduction of the skul l is relevant to identify the accused as the perpetrator of the crime. In State v. King, 718 S.W.2d 241 (Ten n. 1986), and in State v. Sexton, 724 S.W.2d 371 (Tenn. Crim. App. 1986), the Supreme Cour t and the Court of Criminal Appeals held such evidence was admissible to show premeditation and deliberation

. We believe the validity of these views is brought into question by the decision in State v. Brown, which expresses the view that repeated bl ows are not sufficient by themselves to show firs t degree murder because repeat ed blows may be deliv

ered-9-

in the heat of passion with no design or reflection. 836 S .W.2d 530 (Tenn. 1992). It appears therefore that there must be some thing more than an attempt to show first degree murder apparent to jus tify the introduction of the sk ull. In this case, however, we find the introduction of the skull w as relevant to show the nature of the injuries inflicted upon the v ictim and thus relevant t o show the defendant’s intent at the time he inflicted the blows. We are further satisfied the trial judge pr operly allowed the s kull to be introduced because the forensic ex pert testified she would hav e difficulty in showing the extent of t he injuries from pictures or diagram s. We also note that the t rial judge did not a llow the sku ll to be pa ssed to th e jury. We conclude, therefore, that the trial court p roperly allowed the skull to be introduced under the rule w hich excludes evidenc

e if its prejudicial v

alue far outweighs its probati

ve value. State v. Banks, 564 S.W.2d 947 (Tenn. 1978). In this case, the prejudicia l value of the introduction of the victim’s skull d id not outweigh it probativ

e value. The defendant further contends the skull w as an inaccurate depiction of the victim’s injuries

because a piece of bone was miss ing from the cheek area from where the victim had apparently sustained a prev ious injury. This w

as explained by the forensic expert out of the presence of the jury. There is nothing to show the jury saw the place where the bone was missing nor was there any showing they were influenced by this. We see no ba sis for excluding the skull by reason of this. The defendant further says the trial judge should not have all owed the use of the skull because he had filed a timely request for Notice of Inte ntion to Use Evidence pursuant to Rule 12(d)(2) some days pri or to trial and yet w as not notified of the State’s intent to use the skull until the first day of the trial. It appears from this record tha t the District Attorney

General and the defendant’s attorney learned at approximately the same ti me that the body of the victim had been decapitated and the skull was avai lable for use at the trial. The time of the knowledge of the ev idence exonerates the State from a ny attempt to surprise the defendant at trial . That alone, however, does not answer the questio n-10-

of whether the late revelation results in prejudice to the accused if the evidence is introduced. This is determi ned of course by whether, given adequate time, the defendant could reasonably refute the veracity of the evi dence offered, explain the evidence in a manner to show it has no relevancy

on the issues to be found, or make acceptable stipulations as discussed in Banks

which would make the introduc tion of t he eviden ce unnec essary. The record in this case show s the following: the defendant never denied he caused the victim’s death; the deceased received massive blows; the expert witness, Dr. Elken,stated that there were tw elve blows suffered by the victim; and the forensic pathologist, w ho reconstructed the evide nce, said the victim r eceived at least seven blows. The defendant contends now that if he had been given notice of the State’s intent to use the skull, a s tipulation as to the manner of death c ould have been entered and thus obviated the need to introduce the skull. Looking back at this iss ue as we are able to do, w e find that the purpose for which the skull w

as introduced would not hav e been nullified by such a stipulation because the probative val ue of this evidence was g reater than its prejudici al effect. Therefore, there would have been no error in admitting the skull even in the face of a stipulation as that sugg ested by the defendant.

TESTIMONY OF OFFICER BRYANT A ND LAURA BA

IRD The defendant claims that the testimony of Officer Bryant and the testimony of Laura Baird concerning the arrest of the defe ndant on a previous domestic altercation between the defendant a nd the victim should hav e been excluded because it did not qualify for admission under Rules 404, 608, or 609 of the Tennessee Rules of Evidence or in accordance with the us e of prior arrests in the decision of this Court in State v. Bordeis, 905 S.W.2d 214 (Ten n. Crim. App. 1995). We find the testimony of Officer Bryant is admiss ible for two reasons. F irst, the defendant did not object to the intr oduction of the testimony whe n given. In fact, this record does not show any objection. The defendant may n ot now predicate an-11-

error upon this basis. State v. Copenry, 888 S.W.2d 450 (Tenn. Crim. App. 1993) ; Adams v. Manis, 859 S.W.2d 323 (Tenn. Crim. App. 1993). Second, w e think the testimony of Officer Bryant w as relevant on an essential issue of the crime charged in this case. The State had the burden of showing premedita tion for a conviction in this case. In the course of the arrest, the defenda nt made statements that he would kill the victim. Proof material to the issues under review is not incompetent because the defendant has committed other crimes

. Lacey v. State, 506 S.W.2d 809 (Tenn. Crim. App. 1974). The only testimony Laura Bai rd gave in this regard was that she was aware of the arrest made by Officer Bryant, about which he had testified. W e find no error in this.

SUFFICIENCY OF THE EVIDENCE Our standard of review when the sufficiency of the ev idence is questioned on appeal is “whether, after viewing the ev idence in the light most fav orable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This means that we may not reweigh the evidence, but must presume that the jury has resolved all confli cts in the testimony and dr awn all reasonable inferenc es from the evidence in favor of the s tate. See State v. Sheffield,676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). At the time of the offense in this case, an intentional, premeditated, and deliberate killing of another constituted first degr ee murder. See

Tenn. Code. Ann. § 39-13-202(a)(1) (1991) . Our criminal code defined a deliberate act as “one performed with a cool purpos e” and a premeditated act as “one done after the exercise of reflection and j udgment.” Tenn. Code. Ann. § 39-13- 201(b)(1)(2) (1991). In State v. Brown, our Supreme Court stated that de liberation required s ome period of reflection, without passi on or provocation, and concluded that the “deliberation necessary to establish first degree murder cannot be formed in an instant.” 836 S.W.2d 530, 5

39, 543 ( Tenn. 199

2). Pre meditat ion req uires a showi ng of a-12-

previously formed desig n or intent to kill. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). The existence of the separate and di stinct elements of premeditation and deliberation is a questi on of fact to be decided by the jury

. See Brown, 836 S.W.2d at 541-42. In this respect, the determination of the state of mind neces sary to establish the elements of first deg ree murder may be shown b y circumstantial evidence. Id. at 541; State v. Burlison, 868 S.W.2d 713, 717 (Tenn. Crim. App. 1993). However, a j ury may not find an element of the offense i f there is not evidence to support the theor y of the state. See West, 844 S.W.2d at 147. The evidence in this case s hows the defendant and the victim were married on September 2 1, 1990. Shor tly before the death of the v ictim, they

became estranged. On two occa sions before the death of his estrang ed wife, the defendant made statements that he would ki ll the victim. One of the s tatements was made at the time the defendant was arrest ed in the course of a domestic dis pute. The other statement was made at the Loudon Count y courthouse after a hearing involving the defendant and the victim. We are satisfied that the evidence of the statements made by the defendant could support a find ing of premeditation in this case. The record shows that on the date the victim was k illed, she, as was customary, initiated a c all to make contact with the defendant. The defendant met the victim, and they w

ent to a motel where they were involved i n sexual activity

. After the defendant and the victim le ft the motel, the defendant asked the vic tim to return to him. The victi m told the defendant she could not because she had a boyfriend with whom s he was living. The evidence shows the v ictim was livi ng with the boyfriend in the home of Laura Bai rd. The defendant then killed the v ictim and drove away. The question becomes whether the evidence is sufficient to show the defendant deliberated the killing of the victim. We think not. The jury may draw i nferences from the circumstances su rrounding a killing to find deliberation. Such inferences must, ho wever, be based upon the evidence in the case which reasonably could lead one to reach a concl usion. As stated in State-13-

v. West, 844 S.W.2d 144 (Tenn. 1992), the jury cannot cons truct a theory based on no evidence at all. We find little ev idence in this record for a finding of deliberation. The State argues that the defendant w as aware that the vic

tim was living

with another man at the time of the killi ng. The State bases this upon the testimony of Officer Bryant. We cannot find any testimony of this witness whi ch shows the defendant was aware of the vi ctim’s boyfriend. Officer Br yant testified that he arrested a person in December 1994 who said he was the victim’s boyfriend. This was three months after the killing. Laura Baird, the woman with whom the victim and the boyfriend lived, di d not testify that the defendant knew of the boyfriend prior to the date of the killing. The State further says the defendant menti oned the boyfriend on the date of the murder. However, these statements were made by the defendant after the killing, and the defendant was quoting what his estranged wife had revealed to him about the existence of the boyfri end. The State further argues that the ev idence shows the defendant deliber ated before killing the vi ctim because he placed his tool s in his car before going to meet her. This theory is based upon the fact that the def endant did not customarily carry his tools in his car. It is fairly common know ledge that carpenters and othe r artisans own and carry with them thei r own tools. Further, it is the general cour se for carpenters to carry their tools i n a tool belt from their home to thei r job and back. In the contex t of this case, we do not think the State’s theory is v

alid. The time between when the defendant tal ked with the victi m and left the job site in Loudon around 10:30 and 11:00 a. m. and when the victim boug ht groceries at a grocery store i n Knox County at 11:48 indi cates the defendant drove his car directly from the job site to where he met the victim. It more logically follows that his tools were in the car in the nor mal cours e of the defend ant’s rou tine rath er than by a diabolic intent by the defendant to arm himself prior to meeting his estranged wife. Further, the evidence shows the defendant made no ef fort to disguise himself when he registered at the motel. The defendant gave his correct name , address,-14-

driver’s license number, and vehicle tag number. All of this belies a pre- determined and deliberate journey to Knox County to kill his estranged wife. We find the evidence in this case falls shor t of meeting the test in State v. Brown, 836 S.W.2d 530 (Tenn. 1992), that deliberation cannot be formed in an instant and that the proof must show the homicide was committed w ith a cool purpose and without passion or provocation. The decision in Brown

clearly shows that premeditation and deliberati on do not have a synomous meaning.There may be one without th e other. One may premeditate and kill in a heat of passion without deliberation, and such killing would not be murder in the first deg ree because at the time of the kill ing the mind of the accused would be incapable of acting with coolness and deliberation. We conclude the evidence in this case is closely akin to the ev

idence in State v. Thornton, 730 S.W.2d 309 (Tenn. 1987), where the Supreme Cour t reduced a conviction from murder in the first degree to volunt ary manslaughter. In Thornton, the defendant and his wife wer e estranged. The defendant was attempting to reconcile w ith his wife. The defendant went to the home that he and his wife had shared. He di scovered his estrang ed wife engaged in sex ual intercourse with a man he did not know. The defendant shot the man in the hip. The man died later from infection whi ch resulted from the bullet w ound. The Supreme Court held, after citing various cases involving sexual acts of a spouse with another, that the pass ion of any reasonable person w ould have been inflamed and intensely aroused by the discovery of his estranged wife involved in intercourse with a strange man and that such would reduce the crime to voluntary manslaughter. In the case before us, the defendan t and the victim had met at the victim’s behest and had gone to a motel to engage in sexual intercourse. It seems only

reasona ble that the def endant’ s desire to reconcile with his wife had take n a positi ve turn. When the def endant’s estranged wife informed him she could not retu rn to him because she had a boyfriend w ith whom she was li

ving, the normal human reac tion from the defendant would be to react pas sionately and without reflection, and such a-15-

response defies the conclusion that the defendant acted coolly and w ith reflection when he killed his est ranged wife. We are of the opinion , however, as expressed in the dissenting opinion in Thornton, that there is sufficient evidence to show the defenda nt acted with malice when he killed his est ranged wife and that the ev idence is sufficient to find the defendant guilty of second degr ee murder. We therefore reduce the convicti on of the defendant to second degree murder and remand the case to the trial court for sentencing on that offense.

John K. Byers, Sen ior Judge CONCUR:

Joseph M. Tipto n, Judge

Paul G. Summe rs, Judge-16- 

# FILED

April 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9603-CR-00092

) ) Knox County v. ) ) Honorable Richard Baumgar tner, Judge ) THOMAS J. McKEE, ) (First Degree Murder) ) Appellant. )

SEPARA TE OPINION

I concur with most of the reasoning and the results reached in Judge Byers’ opinion. However, I respectfully disagr ee with his view

that the evidence is ins ufficient to prove a deliberate and premeditated murder.

The defendant contends that the evidence do es not prove that he kill ed the victim with premeditation and deliberation, show ing instead that he acted in a heat of passion. In support, he arg ues that the repeated blows t o the victim’s head show that his actions were a r

esult of a sudden rage initia ted by the victim’s rejection of him.

Judge Byers follows suit and presents a view of the evidence that rationally supports the defendant’s asserti ons. However, the fact that the evidence could lead one to agree with Judge Byers’ view of it does not focus our review upon the necessary inquiry. That inquiry is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.-17-

Ct. 2781, 2789 (1979). In such an analysis, we may not reweigh the evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evi dence in favor of the state. See State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

At the time of the offense, an unlawful, int entional, premeditated and deliber ate killing of another constituted first degree murder. See T.C.A. § 39-13-202(a)(1) (1991). A deliberate act was defined as “one performed with a cool purpose,” and a premeditated act as “one done after th e exercise of reflection and j udgment.” T.C.A. § 39-13-201(b)(1) and (2) (1991). In State v. B rown , 836 S.W.2d 530, 539, 543 (Tenn. 1992), our supreme court stated that deliberation requi red some period of reflection, without passion or prov ocation, and concluded that the “ deliberation necessary

to establish first degree murder cannot be formed in an inst ant.” Premeditation requires a showing of a previous ly formed design or intent to kill. State v. West , 844 S.W.2d 144, 147 (Tenn. 1992).

The existence of the elements of premedit ation and deliberation is a q uestion of fact to be decided by the jury

. See Brown , 836 S.W.2d at 541-42. In this respect, the state of mind elem ents nec essary to e stablish first deg ree murd er are typi cally shown by circumstantial ev

idence. Id .; State v. Burlison , 868 S.W.2d 713, 717 (Tenn. Crim. App. 1993). That is, circumst ances such as the use of a deadly weapon upon an unarmed victim, a particularly cruel kil ling, and threats to kil l the victim are rel evant to prove the perpetrator’s state of mind with regar d to premeditation and deliberati on. See Brown , 836 S.W.2d at 541.

Judge Byers looks to the events immediately s urrounding the killi ng. That evidence reflects that the defendant met with the victim an d rented a motel room. While at the motel, the defendant and the victim eng aged in consensual sexual1 I concur with Judge Byers t hat the skul l was admissibl e, primari ly because i t was relev

ant as tending t

o prove that

the defendant

intended t

o killthe vict im. Absent the defendant sti pulati ng or conceding before the jury that he i ntended to ki ll t he victi m, the victi m’s skull was the best evidence of the severi ty of the attack for intent purposes. -18- intercourse. As they were driving away from the motel, the defendant asked the victim to move back with him. When she told him no and explained that she w as living with another man, the defendant stopped the car and he and the victim got out. The proof reflects that the defendant obtained a ci rcular, blunt instrument fr om his car, went toward a fence located eight to ten feet away, and killed the victim by inflicting at least twelve blows of g reat force to her head. 1 The numerous blows caused sev eral fractures to the vertebrae and the victim’s neck and to her skull.

These facts could lead to a conclus ion that the killing ac ts occurred while th e defendant was in an emotional state. However, this does not necessarily negate first degree murder. Strong feeli ngs and excitement can co-exist with premedit ation and deliberation. State v. McAfee , 784 S.W.2d 930, 93 2 (Tenn. Crim. App. 1989).

“‘However, passion does not always reduce the crime si nce a ma n maydeliberate, may premeditate,and may intend to kill after premeditation an d deliberation, although pr ompted and to a large extent c ontrolled by passion at the time. If the design to k ill was formed wi th deliberation and premeditati on , it is immaterial that defendant w as in a passion or exci ted when the design was carried into effect.’” Leonard v. State , 155 Tenn. 325, 337-38, 292 S.W. 849, 852 (1927) (quoti ng from 29 C.J., Homicide, § 100 at 1116- 17); see also Franks v. State , 187 Tenn. 174, 179, 213 S.W.2d 105, 107 (194 8).

A most telling point in the present case is the fact that the def endant on more than one occasion threatened to ki ll the victim. On Jul y 31, 1994, police responded to a call involving a domestic dispute between the defendant and the victim. Imme diately after the defendant was arrested, he looked at the victim and stated, “I’ll get you for this, bitch” and “I’ll kill you.” After the defendant was put into a patrol car, he stated at least three or four more times that if it was the last thing he did, he would get ev en with the-19-

victim and would ki ll her. Also, during August 1994, the defendant again thr eatened the victim at the courthouse w hen the victim told him that she would not come back to hi m. He responded, “You’ve done it now, bitch. I’l l kill you.” Within two months of this threat, the defendant killed the victi m after she refused to reconcile w ith him.

I believe that the foregoin g facts justify the jury rationally concludi ng beyond a reasonable doubt that the defenda nt deliberately decided to kill the victim if she chose not to continue the relationshi p. This type of conditional th reat followed by a kil ling upon fulfillment of the condition show s reflection and planning. See , e.g ., State v. Morris Ray , No. 01C01-9201-CC-00025, Bedford County (Tenn. Crim. App . Mar. 1, 1993), app

. denied (Tenn. July 6, 1993) (uphol ding first degree murder conviction when the defendant expressed the intent t o kill the victim if a criminal warrant w ere issued and the killing occurr

ed after a warrant issued) ; cf

. Leonard , supra . Under such circumstances, the presence of passion would not negate the fact that the design to kill was formed with deliber ation and premeditation. The conv iction for first degree mur der should be affirmed. I am authorized to state tha t Judge Paul G. Summers concurs in this opinion.

__________________________ Joseph M. Tipto n, Judge-20- 

# FILED

April 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COU RT OF CRIMINAL APPEA LS OF TENNESSEE AT KNOXVILLE

STATE OF TENN ESSEE, ) ) Appellee, ) No. 03C01-9603-CR-00092 ) ) Knox County v. ) ) Honorable Richard Baumgar tner, Judge THOMAS J. McK

EE, )

) (Murder in the First

Degree) Appellant. )

SEPARA

TE OPINION

I concur with Judge Ti pton’s separate opinion. I al so agree with most of the reasoning and the result s reached in Judge Byer s’ opinion. Howev

er, I respectfully disagree with Judge Byers’ view that the ev idence is not sufficient to prove a deliberate and premedi tated murder. The facts of this case j ustify the jury’s rational co nclusion beyond a reasonabl e doubt that the defendant deliberately killed

the victim. Therefore, I v ote to affirm the conviction of murder in the first degree.

__________________________ PAUL G. SUMMERS, Judg e