IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MAY SESSION, 1997
STATE OF TENNESSEE, ) C.C.A .# W199 9-021 44-CCA- RM-CD ) Appellee, ) ) SHELBY COUNTY ) V. ) HON. FRED AXLE Y, JUDGE ) COLLIER V. HARRI S, ) ) (FIR ST DEGREE MURDER I N Appe llant. ) THE PE RPET RATIO N OF T HEFT )

FOR THE APPELL

ANT : FOR THE APPELLEE : A. C. WHARTON JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter W. MARK WARD DEB ORA H A. TU LLIS Assistant Pu blic Defende r Assistant Attorney General 147 Jefferson , Suite 900 2nd Floor, Cordel l Hull Bui lding Memphis, TN 38103 425 Fifth Avenue Nor th Nashville, TN 37243 JOHN W. PIEROTTI Distri ct Attor ney General EDGAR PETE RSON Assistant Distri ct Attor ney General LOR RAIN E CR AIG Assistant Distri ct Attor ney General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE



# OPINION

Th e Defen dant, Collier V. Harr is, was co nvicted in the She lby Cou nty Criminal Court of f irst degr ee murder committed duri ng the perp etration of th eft,



# FILED
December 29, 1999 Cecil Crowson, Jr. Appellate Court Clerk-2-

in violat ion ofTennessee Code Annotated sect ion 39-13-202(a)(2). He received
a sentence of life impr isonment. He rai sed ten (10) i ssues on appeal. In an opinion filed on December 3, 1997, thi s court affirmed the convi ction. Defendant subs eque ntly filed an applicat ion for permission to app eal to the Tennessee Supr eme Co u rt pursua nt to Rule 11 of the T ennes see Ru les of Ap pellate Procedure.

On September 13, 1999, t he Supreme Court of Tennessee f iled an orderreman ding the c ase to this cour t. The order

statesin its enti rety as foll ows: Upon considerat ion of theapplicat ion for permission to appealand the entire r

ecord before us, the Court i s of the opi nion that the applicat ion should be, and is, hereby, granted for the sole purpose of rema nding the ca se to th e Cou rt of Crim in al App eals for reconsiderat ion in li ght of the Cour t’s opi nion in State v. Buggs , 995 S.W.2d 1 02 (Tenn. 1 999). PER CUR IAM
Based upon o ur review of Buggs , th e sole issue r aised by the Defendant on ap peal w hich w ould b e relev ant to th e sup reme court’s opinio n in Buggs , is the Defendant’s chall enge to the suffi ciency of the evidence to support
a conv iction for “felon y murd er” com mitted du ring the pe rpetration of theft.

Our opinion previously f iled i n this case pr ovides a detai led statementof the facts proven at trial. Of course , t he State is e ntitl ed to the strongest legiti mate view of theevidenc e and a ll inference s therefro m. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978) . In thi s light , the proof at tri al showed that Defendant entered the v ictim’ s home after 1: 00 a.m. and before5:00
a.m. on November 29, 1992. The Defe ndant and victim knew each other. The Defendant strangled the vict im, struck her with a bl unt object which smashed or actua lly burst h er li ver at four (4) dif ferent si tes causing i t to “bl eed out,” and stabbed her at least twelve ( 12) times, i ncluding t wo (2) wounds through t he victim ’s heart. When he left her home, he took her new bank ATM card to a First-3-

Tennessee Bank in Mill ington, wher e the vict im resided, and withdrew $30.0 0 from her acco unt a t appr oximately 5: 10 a.m. on November 29, 1992. The Defe ndan t’s activi ties at the ATM machine were recorded on vi deo tape. When WalterBlaydes, anot her acquainta nce of the vi ctim, l eft her home at appro xima tely 1:00 a.m. on Novem ber 29, she w as fine, and the A TM card remai ned on a table in her h ome w here Blayd es had ob served it earlier in th e evenin g.

In State v. Buggs , supra , our supreme court held:
The law do es n ot requir e that the f

elony necessari ly precede t he murder in order to support a felony-murder conv iction . The kil ling may precede, coi ncide with, or foll ow the felony and st ill be considered as occ urring “ in the perpet ration of ” the fel ony offense, so long as ther

e is a connecti on in ti me, place, and cont inuity of action. Buggs , 995 S.W.2d at 106.

How ever, the court furthe r held that: Thus, in a fel ony-murder case, i ntent to comm it the und erlying felony must exist prior to or concurrent with the commiss i on of the act caus ing the de ath of the v ictim. Proof that such i ntent to commit the underl ying fel ony existed before, or concurrent

with, t he act ofkill ing is a quest ion of fac t to be decided by the jur

y after con siderati on of all the facts and circum stance s. [citations o mitted]. Id . at 107
The supreme court f urther over ruled Mullen dore v. S tate , 183 Tenn. 53, 191 S.W .2d 149 (1945), to the “exten t that Mullendore stands for the pro positi on that intent to commit a felony may be presumed from t he act of
comm itting that felony.” Buggs , 995 S.W.2d at 108.

More signif icantl y, however, t he supreme court f urther noted t ha t Mullendore “stil l stands for the proposition that the jury may reasonably inf er from-4-

a defendant’s

actions i mmediately after a kil ling that the defendan t had the i ntent to comm it the felony prior to, or concu rrent with, the killing.” Id . at 108.

As the supreme court did in State v. Bug gs , supra , we conclude herein that the re wa s am ple proof fr om w hich th e jury c ould rational ly infer that the victim’s m urder w as com mitted in th e perpe tration of the ft , and spe cifically thatthe Defendant had t he intent to commit the thef t prior to, or conc urrent wit h, the killing. Th e jury c ould e asily rational ly infer that when t he Defendant left t he victim ’s residence, he took the ATM card with him . The ho ur that it wa s used to obtain the $30.00 also shows t hat by Defendant’s actions “ immediately af ter the killing,” he had the intent to commit the felony prior to or concurrent with, t he killing. See Buggs , 995 S.W.2d at 108.

We hereby affirm the convict ion of Defendant for fi rst degree murder committed in the perpetrati on of theft on the issue of suffi ciency of the evidence in light of State v. Buggs , 995 S.W .2d 102 (Te nn. 1999) an d in addition reaffirm and ratif y all ot her porti ons of our o pin ion fil ed in thi s cause on December 3, 1997.

____________________________________ THOMAS T. WO ODALL, Judge

CONCUR:

___________________________________ GARY R. WADE , Judge

___________________________________ JOHN H. PEAY, Judge