# FILED
March 12, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CR IMINAL APPEALS OF T ENNESSEE AT JACKSON JANUARY 1998 SESSION

) STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9702- CR-00059 Appellee, ) ) Shelby County V. ) ) Hon. James C. Beasley , Sr., Special Judge JAMES H. MABRY, ) ) (First Degree Murder) Appellant. ) )

FOR THE APPELLANT: FOR THE APPELLEE: Seymour S. Rosenberg John Knox Walkup Attorney at Law Attorney General & Reporter 371 Carroll Avenue Memphis, TN 38105 Deborah A. Tullis Assistant Attorney General Cordell Hull Buildi ng, 2d Floor 425 Fifth Avenue North Nashville, TN 37243 William L. Gibbons District Attorney Gener al Charles W. Bell, Jr. Assistant District A

ttorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINION FILED: _______________________
MODIFIED AND REMANDED PAUL G. SUMMERS, Judge-2- O P I N I O N
The appellant, James H. M abry, was convicted by a j ury of first degree murder and sentenced to life in prison for the shooting d eath of his girlfriend, Aretha Howard. The appell ant’s sole issue for our review is whether the evidence is sufficient regarding premeditation to support his conviction fo r first degree murder. We rever se the judgment of first degr ee murder, modify it to second degree murder, and remand the case to the trial court for the app ellant’s sentencing for second degree murder.
On the morning of July 29, 199 5, Ms. Howard drove the appellant’s white Cadillac to a neighbor’s home because the victim thou ght it was too hot to walk. According to the appellant’s statement to the police, he had told Ms. Howard not to drive the car because the e ngine light was coming on; and he feared the engine would be damaged. A mecha nic had told him that the car would not get good gas mileage, and the appellant also thought that something el se might be wrong with the car. Ms . Howard stayed at the neighbor ’s home for a couple of hours and then returned to her hou se.
When the appellant returned to M s. Howard’s house from Tunica, Mississippi, he notic

ed that she had driven his Cadi llac. According to the appellant’s statement, he and M s. Howard began arguing in t he bedroom, and the argument continued into the k itchen. The appellant’s st atement indicates that he went into the living room, and Ms. Howard then came into the living room

. The appellant stated that the two were shouting at each other when Ms. Howard spit in his face and hit hi m with an ashtray. He i ndicated that he told her, “Sto p, I don’t want to hurt you!” H e then indicated that the two shov ed each other, and then Ms. Howard went down the stairs and out the backdoor.-3- The appellant’s statement fur ther indicates that Ms. H oward got a fireplace log on the outside of the house and started hitt ing the appellant’s Cadillac. The appellant i ndicated that he went to the door a nd told her to stop hitting his car, but she continued. The appellant then went ou tside. As Ms. Howard continued to hit the appellant’s car, the appellant told her to stop repeatedly. At trial, the appellant’s ex-wife, Maime Murphy, testified that there were dents in the roof of the Cadillac, which she took possession of in early August 1995. When Ms. Howar d would not stop, the appellant s tated that he pulled a .38 revolver fro m his right front pants p ocket. In his statement to the police, the appellant stated tha t Ms. Howard “came tow ard me with the log in her hand saying, ‘Well, shoot me then!’” The appellant shot her three times in rapid succession. The appellant i ndicated that he was scared and did not know what to do, so he left in his Cadi llac and drove around for a w hile before returning to Tunica. He was arrested several hours later by the Tunica County Sheriff’s Department.
Ms. Khari Gray, a neighbo r who lived across the s treet, heard shots and looked out her bedroom window . She testified that she saw the victim lying on her driveway. Although she did not see anyone else, she di d see a yellow Lincoln and a white Cadill ac in the driveway. Ms . Gray called 911, and when s he looked out the window again, s he saw the white Cadillac moving down the street.
According to testimony at trial, the appellant and Ms . Howard, who had lived together intermit

tently for three to five y ears, had a turbulent relati onship. The appellant apparently telepho ned the victim’s mother, Irma Foster, on the morning of the shooting, July 29, 1995, and told her that sh e “was going to have a dead daughter.” Also, he had thr eatened the victim during a telephone conversation with Ms. F oster about a week before the sh ooting. According to testimony at trial, M s. Howard had wanted the appell ant to move out of her house.-4- When the paramedics arrived, they found the victim lying on her driveway. They placed a tarp over her body, but the wind kept blowi ng the tarp away. The testimony at trial indi cates that someone in a blue uni form, either a paramedic or a police officer, got the l ogs from the side of the vi ctim’s house and placed them on the tarp. The appellant conten ds that none of the state’s witnesses recalled seeing a log near Ms. Howa rd’s body, which he insi sts was there.
Dr. Wendy Gunther, an assistant medical examiner for Shelby County, performed the autopsy on the vi ctim. She testified that Ms. Howard was shot three times: once in the pel vis, once in the shoulder, and once in the back of the head, which was the fatal wo und. She further testified that it was possible that the wound to the back of the head coul d have occurred if Ms. H oward had fallen forward from one of the other two shots in such a way that the bullet could have entered the back of the head. Dr. Gunther also testified that the three shots were fired from a dist

ance of more than three feet, al though she could not tell the exact distance. She also testified that the autopsy revealed that Ms. Howard had a blood alcohol level of . 21 and that she had ingested cocaine as well. The autopsy revealed that the level of alcohol in Ms. Howar d’s brain was more than half of her blood alcohol level, thus indicating that she had be en drinking heavily thirty minutes before her death. Dr. Gunther also tes tified that the combined effects of cocaine and alcohol would produce decreased inhi bition and an increased adrenaline-li ke release.
The appellant argues that the evi dence is insufficient reg arding premeditation to sustain the appellant’s conviction fo r first degree murder.The appellant argues that the state “ failed to show that Mr. M abry’s mental state at the time of the shooting was ‘sufficiently free fr om excitement and passion.’ ” The appellant contends that he “was embroiled in a heated altercat ion with Ms. Howard that began in her house and progressed out into th e front driveway.” He-5- further asserts that Ms.Howard, who was under the influence of alcohol and cocaine at the time, spit i n his face, threw an ashtray at him, hit his car w

ith a log, and threatened him with a log.
First, the appellant mai ntains that there is no evide nce that he planned the killing because before the s hooting, he had been gambling at a c asino. Second, he contends that there is no evi dence that he had any motive for the shooting. Third, he argues that there i s no evidence that he acted accor ding to any “preconceived design.” H e theorizes that had he had a desi gn he would not have killed the victim

out in the open for the whole w orld to see.
The state argues that the evidence is sufficient to support the appellant’s conviction for first degree murder. It contends that the appellant’s threa ts, his possession of a revolver, and his shooting of an unarmed woman three times indicate premeditation.

Once a homicide has occurr ed, it is presumed to be sec ond degree murder, and the state has the bur den of proving first degree murder. State v. Brown , 836 S.W.2d 530, 543 (Tenn. 1992). At the time of the offense , first degree murder was defined as “[a] premeditated and intenti onal killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1995). Premeditation is defined as follows:

“[P]remeditation” is an act done after the exercise of reflection and judgment. “P remeditation” means that the intent to kill must have been for med prior to the act itse lf. It is not necessary that the purpose to k ill pre-exist in the mind of the accused for any definite per iod of time. The mental s tate of the accused at the time the accused allegedly decided to kill must be carefully consi dered in order to determi ne whether the accused was sufficiently free from excitement and passion as to be capable of premeditation. Tenn. Code Ann. §

39-13-202(d). Premedita tion indicates “a previo usly formed design or intent to kill.” State v. West , 844 S.W.2d 144, 147 (Tenn. 1992) . At the time of the offense, second d egree murder was defined as ”[a] knowing killing of another.” T

enn. Code Ann. §

39-13-210(a)(1) (Supp. 1995).-6- When appellants challenge the sufficiency of the evidence , this Court must determine whether, af ter viewing the evidence i n a light most favorable t o the prosecution, any rational trier of fact could have found the essential elements of a crime beyond a reasonabl e doubt. Jackson v. Virginia , 443 U.S. 307 (1979); Tenn. R. App. P. 13(e); State v. Duncan , 698 S.W.2d 63 (Tenn. 1985). T he weight and credibility of a witness’ testimony are matters entrusted exc lusively to the jury as the triers of fact. State v. Sheffield , 676 S.W.2d 542 (Tenn. 1984); Byrge v. State , 575 S.W.2d 292 (Tenn. Crim. App. 1978).

Based on the record before us, the appellant and Ms. Howard began to argue inside Ms. Howard ’s home, where Ms. How ard threw an ashtray at the appellant and spit at him. M s. Howard, who had a blood al cohol level of .21 and had ingested cocaine as well, left the house and began beating the appellant’s car with a log and threateni ng him with the log as wel l. The appellant then pulled a revolver from his pants pocket and shot Ms. Howard three times in rapid succession. From the f acts of this case, we mus t agree with the appellant that the state failed to show that the appellant was “free from passion and excitement as to be capable of premeditation.” Therefore, we reverse the judgment of first degree murder and modify i t to second degree murder. W e remand the case to the trial court for the appellant’s sentencing for s econd degree murder. Because the state filed a notic e of enhancement before trial, it may seek enhancement of the appellant’s s entence at the new sentencing heari ng. See State v. Dunn , 901 S.W.2d 398, 399-400 (Tenn. Crim. App. 1995).

_______________________ PAUL G. SUMMERS, Judge

CONCUR:-7- ____________________________ DAVID G. HAYES, Judge

____________________________ JOE G. RILEY, Judge