# FILED
September 10, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY 1999 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9809-CR- 0 035 8 ) vs. ) Davidson County ) JAMES E. JACKSON, ) Hon. Steve Dozier, Judge ) Appellant. ) ) (First Degree Murder)

FOR THE APPELLANT: FOR THE APPEL LEE: MARTIN G. SZ EIGIS PAUL G. SUMMERS Attorney at Law Attorney General & Repor ter 213 Third Ave. North Nashville, TN 37201 KIM R. HELPER Asst. Attorney General 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General JON SEABORG BERNIE McEVOY Asst. District Attor

neys General Washington Square, Ste. 500 222 Second Ave. North Nashville, TN 37201 OPINION FILED:________________
AFFIRMED JAMES CURWOOD

WITT, JR., JUDGEOPINION The defe nda nt, James E. Jackson, was convicted in the Dav idson County Crimin al Cour

t of the fi rs t degree murder of Michael Kennedy. He is presently serving a life sentence in the Department of Correction for his cri me. In this direct appeal, Jackson claims that the evidence is legally insufficient to sustain his conviction. Upon rev iew of the record, the bri efs and oral arguments of the parties, an d the law, w

e affirm.

The state's evidence at trial established that prior to Aug ust 18, 1997, the defendant agreed to purchas e a motorcycle from the vi ctim. By August 18, 1997, the defend ant had paid the victim a porti on of the purchase price, and the victim was anxious to receive the balance owed. Sometime shortly before August 18, the defendant's brother wrecked the motorcycle, and this apparently contr ibuted to the victim's anxi ety over receiv ing payment.
During the late afternoon to early evening hours of August 18, 1997, David Sanders was sitting on the common porch in front ofhis and the defendant's apartments in a Nashvil le housing project. The v ictim approached Sanders and inquired whether Sanders had seen th e defend ant. Sanders responded that he had. The victim went into his apartment across a common ar ea and returned a few seconds later. By this time, Sanders' girlfriend, Loui se Horton, was also out side on the porc h. The victim told Sanders that the defendant ha d caused the vict im t o have an argument with his g irlfrien d over a note the victim left for the defendant. The victim e

xplai ned that the de

fendant was s upposed to hav e paid him som e moneythe previous Friday , and the victim left a note which said he w anted to see the defendant when the defendant got home. The victim proceeded to knock on and lightly kick

the J acksons' front door. Sanders d id not think the victi m was agitated.1 Sanders placed the victim on a step with one foot on the porch, while

Horton placed the victi m on a sidewalk with one foot on a step below the porc h.
2 Sanders testified in this r espect. However, H orton testified that the defendant did not ask whether the v ictim was alone until the victim was tur ning to leave. 3

When there was no answer at the door, the victim turned around and started back to his apartment; howe ver, the defendant opened the door and called to the victi m. The two men began discussing a no te the victim left on the defendant's door and the motorcycle debt . The victim explained that he left the note because the defendant had failed to pay him on Friday, and he wanted to see the defendant about this fail ure to h onor the obligation. The victim expressed his displeasure that the defend ant had lied t o him a bout the whereabouts of the motorcycle after the defendant's brother wr ecked it. The defendant offered to pay the victim $50, which the victim decl ined becau se their agreement had been otherwise. The defendant asked the victim to come inside hi s apartment todiscuss the situation, and the victi m said there was no reason to come inside the defendant's apartment unless the defendant had the money . Sanders heard the victim say, "You ain't nothing but a big liar. I ought to take it out on your a--." The victim then said it would not be "worth it" and then proposed to "take it out"on the defendant's car, but he commented that this would not be "worth it," either. According to Sanders, dur ing this entire exchange the victim was standi ng still on a step by the sidewalk

or the porch. 1

The defend ant aske d Sander s whether t here was an yo ne with the victim, and neither Sanders nor Horton responded. 2 The victim commented that the defendant would need a favor from him sometime, and "f--- i t." The victim turned toward his apartment and began wal king away. The defendant opened the do or, ran outside and said, "Hey, M ike." The victim turned ar ound, an d the d efendant shot him in the leg. The vic tim fell, and the defendant continued shooting him. The3 Sanders testified in this respect. Horton recalled the statemen t as "Y'all

m-----f------, I am going to kill thi s m-----f-----." 4 defendant ran off, but he returned within fifteen to twenty seconds and said to the people who were assembling, "Y 'all, n------, get out of the way, I'm fixing to kill this n-----." 3 Sanders told the defendant he was not going to

shoot the victim again, and the def endant r an away.

Both Sanders and Horton denied seei ng the victim with a gun during the confrontation. Sanders estimated that the entire incident took fifteen to twenty minutes, while Horto n estima ted the t ime at fi ve minutes. Sanders denied that the victim was upset initially; however, he acknow ledged that the victim became upset. Horton denied that the victim appeared angry or threatening. Horton commented
on the victim's slig ht stature and found it incredibl e that the v ictim could evoke feelings of fear or intimidation. She indicated the victim was so small that had she been required to do

so, she would have been able to "whoop him." Horton denied that there had been lasting tension between herself and the Jacksons over a recent incidentin which the Jackson children got Horton's n ew hairstyle wet with their sprinkler.

Doctor

John Gerber, the state's forensic pathologist, testified that the victim had ten guns hot wounds to his body, which included two grazing wounds. Two wounds to the victi m's chest and abdomen were the mos t precipi t ous in causing death. Dr. Gerber could not determine the sequence or timing of the shots.

Officers Charles Blackwood, Jr. and Ra nda ll Papdinec, both of the Metro Police Department, testified that no w eapon was found at the scene. Officer Blackwood, who w

orked with the Identification Section, conc eded that a handgun could have fit into the victim's pants pockets. Blackwood also testified that marks5

in the pavement at the scene were consistent with the defendant standing over the victim and firing at him. Blackwood conceded, however, that he did not arrive at the scene until after the victim had been removed.

Not surprisingly, the defendant offered a somewhat di f ferent factual premise in his case-in-chief. O n the morning of August 18, thedefendant and his wife discovered a note

on their front door which read, "James, I'm going to bust your a-- wide open as soon as I see you." This c oncerned the Jacksons. After the Jacksons dropped their children off at sc hool and visited the defendant's employer, the def enda nt went to the victi m's apartment and discussed the not e with the victim's girlfriend. Carolyn Jackson, the defendant's wife, testifie d tha t the defendant was scared and upset when he returned fro m this enco unter. The Jacksons wentto the grocery stor e together. When they returned around 9:30 a. m., theyfound a s econd no te on the ir front d oor. This note read , "The ne xt time yo u come to my ho use, n-----, y ou bette r have my m--- --f- ----- mon ey. Yeah, it's my
w riting and I'm gonna sign it on y our a--." Both notes wer e offered as evidentiar

y exhibits by the defense.

The Jacksons left their apartment early that afternoon to

pick up their ch ildren at school, and they visi ted both of their mothers. Duri ng the day, they discuss ed the n otes, with Mrs. Jackson urging that they go to the police. The defendant did not want to go to the police because he thought thei r involvement would exacerbat e the situation. Although Mr s. Jackson planned to talk to the resident manager at the housing proj ect about the notes, it is not c lear whether she actually did so that day. Both of the Jacksons were afraid and anxious over the situation.

The Jacksons returned home around 6:00 p .m. They changed into4 In addit ion to th e Jacksons' tes timony , the defe nse pres ented th at of a neighbor, Taleasa Bingham, w ho observed the angry

victim kicking the Jacksons' door and telling Mrs. Jackson that he w as going to "bust [the defendant's] a--."

5 Mrs. Jackson testified she did not see a weapon. Taleasa B ingham testified that she saw the outline of a handgun in one of the vi ctim's front pants pockets.

6 It is not clear whether these were actual threats or merely the defendant's perceptions of the victim's intent. 6 theirbedclothes and started cooking dinner. About fifteen minuteslater, they heard loud banging at the front door. Mrs. Jackson opened the door, and the victim told her to tell the defendant to br ing his "m-----f----- a--" out side. The victim a ls o announ ced his intent to "bust [the defendant's] a--." 4 The victim was mad an d paced back and forth in front of the house, which he continued to do thr oughout the confrontation.

Mrs. Jackson closed t he door. The defendant, who was afraid, reopened the door and began talking to the victim. The victim cursed the defendant and threatened that thedefendant had better honor his debt. The de fendant saw a .380 or n ine millim eter pistol hanging hal f-way out of the victi m's pocket. 5 The defendant offered the victim the $50 that he had,but the victim refused to acc ept less than the full amount owed. The defendant asked the v ictim to come inside to discuss the debt, but the victim r efused. The defendant, whohad no phone in his apartment, asked Horton to call the pol ice, butshe did not. The defendant thought that the victim was ab out to pull out the gun, and the v ictim kept trying to get the defendant to come outside, telling h im that he coul d not s tay inside forever. The defendant testified that the victim was going to kil l him, and if he attempted to leave in his car, the victim would blow it up. 6

During this heated exchange, Mrs. Jackson had hidden the couple's two young children in the pantry. She checked the back door as a possible escape7

route, but she saw someone standing outside. For this reason, she was afraid to go for help out the back door. Mrs. Jackson was about to run out the front door to
summon help when the defenda nt re ached into a closet in the li ving room and pulled out the nine millimeter automatic rifle that he had purchased ap proximately
one month earlier. The defendant testified that the weapon was secur ed behin d
some boxes in the closet and that it took him six seconds to re t rieve the weapon and go to the front door; his wife testified the w eapon was "real deep" in the closet. The defendant testified that he was afrai d the vi ctim might mistake his w ife and children forhim and thathe had not entertained any thoughts of shooting the victim prior to his family pr

eparing to run out

the front door. The defendant went out the front door a head of his wife, and the victim was right in front of the screen door. The defendant denied that the victim was walking aw ay or that he said anything to the victim. Thedefendant fired the rifle at

the victi m. Mrs. Jackson estimated that aftershe told the def endant she was goi ng to go for help, it was about fifteen seconds until the defendant fired at the victim.

The defendant remembered little about the shooting itself and did not know at that time whether he had hit or killed the victi m. He did not know how many shots he had fired until several days later when he spoke with his attorney. He testif ied he had n ever fired the rifle pri or to August 18, 1997. The defendant acknowledgedthathe fled and then returned; however, he claimed his return w as to check on his f amily, rather than to shoot the victim again. The defendant ultimately fled the scene and stayed hidden for nine days because he was afraid of retaliation from the victim's friends or famil y. After the defendant's family was able to arrange hi s surrend er to the p olice and hire an at torney, he turned himself over to the authorities.

The defendant estimated the time of the entire enc ounter at fifteen to8

twenty minutes; his wife's esti mate was seven to tenminutes. Taleasa Bing ham,
a neighbor

who testified for the defense, testi fied that she saw

the victim kicking

the Jacksons' door as she was wal king to her apartment, and by the time she was in her living room, she heard shots.

It is against this factual backdrop that we are calle d u pon to res olve the sufficiency of the evidence i ssue. When an accused challenges the sufficiency of the evidence, an appellate court’s standard of review is whether, after

considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virg inia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). Thi s rule applies to findings of guilt based upon di rect ev iden ce, circumstantial evidence, or a combination of direct and circumstantial evi dence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determi ning the sufficiency of the evidence , this court should not reweigh or reevaluate the evid ence. Stat e v. Matthe ws , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the weight and val ue of the evidenc e, as well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liakas v. St ate , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage , 571 S.W.2d at 835.9 The defendant was convicted of first degree murder, which is defined in pertinent part as "[a] premeditated and intentional killing of another . . .." Tenn. Code Ann. § 39-13-202(a)(1) ( 1997). The first degree murder statute defines premeditation as
an act ion done after the exercise of r eflection and judgment. 'Premeditation' means that the intent to kil l m ust have been formed prior to the act itself. It is not necessary that the purpose to kill preexist in the mind of the accus ed for any definite period of time. The mental state of the accused at the time the accused al legedly decided to kill must becarefully considered in order to determine whether the accused wa s sufficiently free from excitement or passion as to be capable of premeditation. Tenn. Code Ann. § 39-13-202(d) (1997). "'Intentional' refers to a person who act s intentionally with respe ct . . . to a r esult of the cond uct wh en it is the person's consciousobjective or desire to . . . cause the result." Tenn.Code Ann. § 39-11- 302 (1997); see also Tenn. Code Ann. § 39-11-106(a)(18) (1997).

In Tennessee, a homicide, once established, is presu med to be second degree murder. See, e.g. , State v. West , 844 S.W.2 d 144, 147 (Tenn. 1997); State v. B rown , 836 S.W.2d 530, 543 (Tenn. 1992).Th e sta te bears the bu rden o f establishing premeditation in order to elevate the crime to first degree murder. See, e.g. , West , 844 S.W.2d at 147; Brown , 836 S.W.2d at 543. With respect to premeditation, its exi stence may be infer re d from the circumstances surrounding the crime. See, e.g. , State v. Pike , 978 S.W.2d 904, 91 4 (Tenn. 1998), cert. denied , --- U.S. ---, 119 S. Ct. 2025 (1999).
Upon review of the facts in the light most favorable t o t he state , we conclude that the ev idence sufficiently supports the defendant's conviction of premeditated and intentional first degr ee murder. The unarmed victim w ent to the defendant's house to dis cuss the defendant's debt. See State v. Nesbit , 978 S.W.2d 872, 898 (Tenn. 1998) (use of deadly weapon on unarmed victi m), cert.10

denied , --- U.S. ---, 119 S. Ct. 1359 (1999); State v. Bullin gton , 532 S.W.2d 556, 560 (Tenn. 1976) (past relationship between v ictim and defendant). Although the discussion was perhaps contentious and the victim indicated he would assaul t the def endant, the victim did not behav e threateningly. The v ictim indicated he was abandoning hope of collecting the debt. O ver the course of sever al secon ds , the defendant reached into the depths of a closet , retrieved his automatic rifle, opened the front door, called, "Hey, Mike," to the victim, and shot the v ictim when he turned back. See Evere tt v. State , 528 S.W.2d 25, 28 (T enn. 1975) (victim was fatally attacked when retreating from argum ent with defendant) (Brock and Henry, JJ., dissenting). The wounded victim fell to the gr ound, and the defendant continued to fire at him until the victim rec eived ten gunshot wounds

. See Brown , 836 S.W.2d at 542 (rep e ated shots or blows cannot alone establish premeditation but a re properly considered al ong with other circumstances in as sessing theexistence of premeditation); e.g. , State v. Ande rson , 835 S.W.2d 600, 605 (Tenn. Crim. App. 1992) (atte mpt to shoot victim again after he had been felled and rendered helpless); Bullington , 532 S.W.2 d at 560 (repeated shots). The defendant ran away, but he returned and announced his i nt ent to kill the victi m. Cf

. State v. Kendricks , 947 S.W.2d 875, 879-80 ( Tenn. Crim. App. 1996) (defendant said “I told you so” to victim after s hoot ing her), perm. app. denied (Tenn. 1997). When challenged by

Sanders, the defendant fled and did not sur render to theauthorities fornine days. See State v. Fugate , 776 S.W.2d 541, 545 (Tenn. Crim

. App. 1988) (failure to render aid to the victim).

These facts lead us to the inescapable conclus ion that a jury which accredited the st ate’s proof could find beyond a reasonabl e doubt that the defendant committed intentional, premedit ated murder. Accord State v. Ervin Lee Hay es , No. 01C01-9809-CR-00374 ( Tenn. Crim. App., Nashvil le, July 9, 1999 ) ; State v. James Gayles , No. 03C01-9708-CR-003 39 (Tenn. Crim. App., Knoxv ille,11

July6, 1999); State v. Fred Delaney , No. 02C01-9804-CR-00105 ( Tenn. Crim. App., Jackson, June 3, 1999), a pplic

. for perm . app . filed (Tenn. July 29, 1999). His conviction of first degr

ee murder is affirmed.

_______________________________ JAMES CURWOOD WITT, JR., JUDGE
CONCUR:

_____________________________ JOSEPH M. TIPTON, JUDGE

_____________________________ JOHN EVERETT WILLIAMS, JUDGE