# FILED
September 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 01C01-9711-CC-00526 Appellee ) ) STEWART COUNTY vs. ) ) Hon. Leonard W. Martin, Judge DONALD WA

LLACE, )

) (Premeditated First D egree Murder) Appellant )
For the Appellant : For the Appellee : Shipp R. Weems John Knox Walkup District Public Defender Attorney General and Repor ter Richard D. Tayl or, Jr. Lisa A. Naylor Assistant Public Defender Assistant Attorney Gener al Criminal Justice Div

ision (ON APPEAL) 450 James Robertson Parkwa y Nashville, TN 37243-0493 Thomas Meeks Attorney at Law Dan M. Alsob rooks 137 Franklin Street District Attorney General Clarksville, TN 37040 Jake Lockert (AT TRIAL) Asst. District Attor ney General 105 Sycamore Street Ashland City, TN 37016

OPINION FILED:
REVERSED AND REMANDED
David G. Hay

es Judge2 OPINION
The appellant, Donald Wallace, was sentenced to a term of life imprisonment following his conv

iction by a Stewart

County jury for the pr

emeditated first degree murder of Melinda Sue Perrin. In the appeal of this conviction, the appellant contends that : I. The evidence is insufficient to support a convicti on for premeditated first degree murder; II. The trial court erred in admitting statements made by the victim regarding the vic

tim’s state of mind; III. The tri al court erred in admit ting photog raphs of the v ictim; IV. The trial court erred in denying the jury

the opportunity to exami ne, during its deliberati ons, a demonstrative exhi bit introduced by the State. After a review of the record and the applicable law, we find the evidence insufficient to support a convi ction for premeditated first deg ree murder. Accordingly, w

e vacate the judgment of conv iction and sentence entered by the trial court. However, w

e find the evidence sufficient to es tablish that the appellant knowingly kil led Melinda Perrin and, ac cordingly, modify th e judgment to reflect a conviction for second deg ree murder. This case is r emanded to the trial court for proceedings consistent w ith this opinion.

Background
Sometime on the afternoon of June 8, 1996, the appel lant, accompanied by his girlfriend, Meli nda Sue Perri n, travele d to the home of the appellant’ s life-time friend, Charles Morgan. Shortly after the couple’s arrival, the appellant asked Morgan if he could borrow Morgan’s twelve-gauge pump shotgun. Both the stock1 Additionally, Morgan testified t hat, in order to fire the gun, the safety catch must be off, the chamber must be loaded, a nd the shotgun pumped and fi red.

2 Nor ma n W allace is the appe llant’s third o r fou rth co usin and h as k now n the appe llant h is entire l ife. 3 and the barrel of this particular shotgun had been shortened. 1 The weapon was described as being “sawed-off,” approximately fourteen to sixteen inches in overall length with “a pist

ol grip handle.” Altho ugh Morgan stated that he w ould not loan the appellant the shotgun, the appell ant continued in his reques t, explaining to Mor

gan that he needed the shotgun for protection be cause somebody was threatening to kill him. Alth ough hesi tant, Mor gan eventu ally agreed to sell the weapon al ong with two shells of number six shot to the appellant for one hund red dollars. Melinda Perrin paid for the weapon with a hundred dollar bill.
After the sale was completed, Melinda mentioned that she w as going to stay at Morgan’s residence.Irritated by this c omment, the appellant left the residenc e, got into his car, and beg an to back out of the drivew ay. Before the appellant got out of the driveway, M elinda caught up with hi m and got into the car.
After leaving Morg an’s mobile home, the couple trav eled to Clarksvill e, arriving at the resi dence of Norma n and Linda Wallace around 3:00 p .m. 2 Melinda carried a six pack o

f Zima, an alcoholic bevera ge, into the Wallaces’ home. Thirty to forty-five minutes after they arrived, the appellant and Norman lef t in the appellant’s car. Norman insisted on dr iving because the appell ant had been drinking beer. They first drove to the home o f the appellant’s mother, and, then, the appellant asked Norman to drive hi m to Indian Mound. The appellant stated that he needed to talk to a man named “Red.” He explained that he owed Red some mone y. As a result of this debt, Red had made thr eats against the appellant’s mother and Melinda. The appellant hoped to make arrangements with Red to pay him back and to stop the threats to his mother and Melinda.4 Just prior to reaching

the Stewart County l ine, one of the tires on the appellant’s dark blue Chr ysler Fifth Avenue w

ent flat. While the appellant was changing the tire, Nor

man noticed the shotgun, a box of ammunition, and a .22 target pistol in the car. The appellant stated that he and Me linda had just bought the gun. Once the tire was changed, the two continued to Indian Mound. Before reaching Red’s house, the appellant asked Norman wher e the safety was on the shotgun. At trial, Nor

man testified that it was dur ing this time that he beli eved the appellant loaded the weapon.
When they arrived at Red’s house, the appe llant instructed Norman to turn the vehicle around so that the passenger side was facing the front of Red’s house. He told Norman that he was afraid that Red would come out shooting. However, Red was not at home. Norman then drove the appellant to the residence of Junior Shepard in Big Rock. J unior’s wife, Bever ly, came out to the car and t old the appellant to leave or she w ould call the police.

Meanwhile, Melinda r

emained in Clarksvil le with Linda Wallace. Linda, a former beautician, cut Melinda’s hair while the tw o women visited. Linda testified at trial that, during thi s visit, Melinda to ld her that she was afraid of the appellant because he had previously pulled a gun on her. Linda s tated that, although Melinda had consumed one Zima in her presen ce, she did not appear intox icated.
The two men were gone appr oximately two hour

s before returning to Norman Wallace’s residence. The two couples sat outside talking for appr oximately forty minutes before the appellant and Meli nda left around 6:00 p.m, headed in the direction of Stewart Count y. The Wallaces testified that there did not appear to be any discord between the appellant and Melinda at any point during the vis it. In fact, the appellant frequently ca lled Melinda “baby” or “honey” and he told No rman that he and Melinda “got along real good together” and that “he wanted him and Meli nda5

to take off and go someplace and move out of the country and be together the rest of their lives.”
Shortly after 7:00 p.m., several customers at J.T.’s Bait Shop in Stewart County noticed a dark blu e or black Fifth Avenue or LTD approaching from the direction of Clarksvi lle. The vehicle drov e onto the parking lot at a h igh rate of speed and then came to a sudden stop. Th e door on the driver’s side of the vehicle opened and a man’s foot emerged. The man leaned into the vehicle and appear ed to have a shotgun in his hand. One witness, Heather Spiceland Stevens, testified that, when the car came to a hal t, she observed the man slap h is female passenger. A loud boom then reverberated fr om the vehicle and smoke came out the windows. Several bystanders described what appeared to them to be the head of the female passenger exploding.The driver of the vehicle backed the car out of the parki ng lot and drove in the directi on of Dover. When the car was approx imately three hundred yards from the parking l ot, the bystanders heard anoth er loud noise. At trial,the witnesses at the bait shop/convenience store identified the app ellant as the male driver of the vehicl e and Melinda Perrin as the female passenger.
Stewart County Deputy Kenny Anderson responded to the dispatch regarding the shooting

at J.T.’s Bait Shop. Once at the scene, Deputy Anderson found pieces of human flesh scattered on the g round, as well as piec es of bone and parts of a denture plate.
That same evening, Ronald Buchanan had observed a dark colored vehicle leave from a secluded area on R iversbend Road in Stew art County between 6:30 p.m. and 8:00 p.m. and, later, had learned of the shooting incident at J.T.’s Bait Shop. The next afternoon, at around 3:00 p .m., Ray Richardson, R onald Buchanan, and Harold Chester decided t o ride their four wheeler s in the Wilson Hollow area of Riversbend Road in sear ch of the dark blue vehicle.The men had ventured onto an6

old logging road about

one hundred and fifty yards off of Riv ersbend Road. They noticed fresh tire tracks on the road and Ray Richardson spotted an area where it appeared that something had been dragged through the weeds. The men decided to investigate. They

found a body approximately fifty-six feet off of the loggi ng road in the weeds. They notified the sheriff’s department and led the auth orities to the
scene.
Dr. Robert Lee, the Stew art County Medical Ex

aminer, and Tennessee Bureau of Investigation Special Agent Mike Breedlo ve arrived at the sc

ene and discovered the body of a female, subsequently identified a s Melinda Perrin, whose face had been obliterated by a shot gun blast. The body was sent to Dr. Charles Harlan, t he chief medical e xaminer, who would co nduct th e autops y.

Dr. Harlan determined that the thirty-nine year old victim had sustained a shotgun wound to the left si de of the neck which was consistent with a near shotgun wound. As a result of the i njury, the victim suffered multiple skull fractures , fractures of the jaw bone and the bone connecti ng the upper teeth, bruising to the brain, and a collapsed right ey

e. He opined that, after being s truck by the shotgun bl ast to the head, th e victim wou ld have cea sed bein g functio nal, and , most lik ely would ha ve been rendered unconscious. The v ictim could have liv

ed from between five to ten minutes from the delivery of the injury. Dr. H arlan determined that, based on the distance and angle of the gunshot wound, it would hav

e been very difficult for the wound to have been self-infli cted. He was also able to determine that, at the time of death, the victim had a blood a lcohol level of .12 per cent and that there were trac es of Fluoxtenine (a form of Prozac ), Norpropoxyphene (

the metabolic breakdown of Darvon, a painkiller

), Dihydrocodeinone (

a synthetic opiate) and ephedrine/ps

eudoephedrin e (cold medi cine) in her bloodstream

.
On June 26, eighteen days after the homicide, the app ellant turned himself in7

to authorities. That evenin g during visiti ng hours, Deputy Anders on overheard the appellant tell one of his visitors that he could not understand why he was a suspect because he was not even w ith the victim that day

or at the time of the murder. Neither the appellant’s v ehicle nor the murder we apon were ever recov

ered.
At his subsequent trial,the appellant pled not guilty to the charge of premeditated mur

der, and , in defen se sugg ested th at the fat al woun d had been

selfinflicted. Th e jury rejected this theory and return ed a guilty verdict as to the charge of premeditated first degree murder.

I. Waiver of Evidentiary Issues
The judgment of conviction w as entered against the appell ant on January 31, 1997. A timely, but, pro se motion for new trial w

as filed by the appellant on February 6, 1997. On this date, the appellant was sti ll represented by retai ned trial counsel. For this reason , the trial court was not obligated to consider the pro se motion for new trial, si nce a defendant is not entitled to r epresentation by counsel and to simultaneously proc eed pro se . State v. Clark , No. 9 (Tenn. Crim. App. at Jackson, May 7, 1986), perm. to appeal denied , (Tenn. Sept . 8, 1986) (citing State v. Burkhart , 541 S.W.2d 365, 371 (Tenn.1976)).
On May 20, 1997, trial c ounsel filed a belated motion for new trial on the appellant’s behalf. A motion for new trial “shall be made . . . within thirty days of the date the order of sentence is entered.” Tenn. R. Crim. P. 33 (b). This provision is mandatory, and the time for filing may not be extended. Tenn. R. Crim. P. 45(b). A trial j udge doe

s not hav

e the jur isdict ion to hear and de termine the merits of a motion for new trial that has not been timely filed. State v. Dodson , 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). Moreover, this court does not have the authority8

to waive the untimely

filing of a motion for new tr ial. Tenn. R. App. P. 4(a). Nonetheless, this court may consider alleged err

ors which affect the sufficiency of the evidence, or sentencing , as well as plain er rors affecting the substantial rights of the defendant where it may be nec essary to do substantial justice. Tenn. R. App. P. 3(e); 13(b); Tenn. R. Crim. P. 52(b). Thus, the appellant’s issues, othe r than those which relate to the suffici ency of the evidence, are dee med waived in this ca se. See State v. Martin , 940 S.W.2d 567, 569 (Tenn. 1997).

I. Sufficiency of the Evidence
The appellant contends that the evi dence presented at trial w as insufficient to enable a rational juror to find him guilty of premeditated first degree murder. Specifically, he assert

s that there is no evidenc e to show premeditation. H e argues that, at best, the evidence supports theories of acciden tal shooting or a shooting in the heat of passi on. The S

tate contends th at the ap pellant ’s procurement of a weapon, the victim’s statements to Linda Wallace, and the appellant’s actions after the homicide establish the appel lant’s preconceived i ntent to kill Melinda Per rin.
A jury convictio n removes the presumption of innoc ence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appea l a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). It is the appella te court’s duty to affirm the conv iction if the evidence v

iewed under these standards was sufficient for any rati onal trier of fact to have found the es sential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , -- U.S.--, 115 S.Ct.743 (1995); Tenn. R. App. P. 13(e) . On appeal, the State is entitled to the str ongest legitimate vi ew of the evidence and all legitimate or3 First degr ee murder, not committed i n the perpetr ation of a crime, requi res the “premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13 -202(a)(1) (1995 Supp.). 9 reasonable inferences whic h may be drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (1993).

Once a homicide is establis hed it is presumed to be second degree murder. State v. B rown , 836 S.W.2d 530, 543 (Tenn. 1992). The State, then, has the burden of proving the element o f premeditation to elevate the offense to first degree murder. 3 Id . Premeditation necessitates “the exercise of reflecti on and judgment,” requiring a “previously formed design or intent to kill.” State v. West , 844 S.W.2d 144, 147 (Tenn. 1992).
The element of premeditation is a ques tion for the jury and may be inferred from the circumstances surroun ding the killing. State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993), perm. to appeal denied , (Tenn. 1994). because the tri er of fact cannot speculate as to what was in the killer’ s mind, the existence of facts of premeditation must be determined from the appellant’s conduct in li ght of the surrounding circumstanc es. State v. Wright , No. 01C01-9503-CC-00093 ( Tenn. Crim. App. at Nashville, Jan. 5, 1996). Although there is no strict standard governing what constitutes proof of premeditation, s everal relevant ci rcumstances are helpful, including: the use of a deadly weapon upon an un armed victim; the fact that the killing was particularly cruel; declaration by the defendant of his intent to kill; and the making of preparations before the killing for the purpos e of concealing the crime. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997), cert. denied , -- U.S. --, 118 S.Ct. 1536 (1998) (citing Brown , 836 S.W.2d at 541-54 2). Additional factors from which a jury may

infer premeditation include pl anning activities by the appellant prior to the killing , the appellant’s prior r elationship with the v

ictim, and the nature of the killing. Gentry , 881 S.W.2d at 4-5 (citation om itted).10 Again, taken in the lig ht most favorable to the State, the proof established that the appellant and the vic tim were involv

ed in a close relationshi p. On the day of the homicide, the appellant, acco mpanied by the victim, w ent to the home of Charles Morgan wh ere he purchased a shotgun, al legedly for his protec tion. The couple then proceeded to the resi dence of Norman and Linda Wallace. Notwithstanding Mel inda’s revelation to Li nda Wallace that she was fearful of the appellant, there is no indic ation that Melinda did not v oluntarily accompany the appellant on h is excursions that day. Indeed, the proof shows that , on this evening, the appellant called Melind a “honey” and “baby” and that the relationship betw een the two appeared amiable. Witnesses confirmed that both the appellant and the victim had been drinking alcohol throughout the day

.

After careful consideration of all the fa cts and circumstances surrounding this homicide, we are unable to c onclude that the element of premeditation was established. Indeed, the appellant’s erratic driving onto the parking lot of a busin ess premises where he proceeded to slap the victim in the face and then sh oot her in the presence of numerous witnes ses is not indicativ

e of the “exercise of reflecti on and judgment.” As evide nce of premeditation, the State contends that the appellant’s procurement of a weapon, the victim’s state of mind, and the appellant’s subseq uent con cealmen t of evi dence of the crime support their t heory o

f a previousl y formed intent to kill. Moreo ver, the St ate asse rts that, “[m]ost i mportan tly, numerous eyewitn esses implicate d the defend ant as the shoo ter.” First, althou gh proof of identity is important in establishing guilt, identity of the shooter is not evidence of premeditation. Secon d, the proof does not support the propo sition that the appellant obtained the weapon to use against the vic tim. Rather, the only pr oof as to this issue indicates that the appellant purchased the w eapon in order to defend himself, Melinda, and his mother from the threats of an irate creditor. Third, testimony that the victim was fearful of the appellant is not indicative of premeditation, rather, it w as introduced solely to

refute the otherwise ov erwhelming11

proof of their harmonious relations hip. Cf

. State v. Roe , No. 02C01-9702-CR00054 (Tenn. Crim. App. at Jacks on, Jan. 12, 1998). Finally , the fact that the appellant concealed the body of the victim in an isolated a rea and that the car and the murd er weap

on were never r ecover ed is not prima fa cie evi dence of a premeditated homicide. “Although concealment of evidence may itself be evidence of guilt . . . [t]he concealment of evidence may be associat ed with the commission of any crime and the accompanying fear of punishment .” State v. Bailey , No. 01C01- 9403-CC-00105 (Tenn. Crim. Ap p. at Nashville, Jul . 20, 1995), perm. to appeal denied , (Tenn. Jan. 8 , 1996) (citing Cagle v. State , 507 S.W.2d 121, 129 (Tenn. Crim. App. 1973)). “The fact that evidence is subsequently hidden from the police reveals nothing about a crim inal’s state of m

ind before the crime. ” Id . (citation omitted) (emphasis in orig inal). Accordingly, the concealment of evidence may not be used to prove the element of premedi tation. West , 844 S.W.2d at 148. See also State v. Schafer , No. 03C01-9702-CR-00057 ( Tenn. Crim. App. at Knoxvi lle, Dec. 9, 1997). In sum, the absence of motiv e, the absence of planning activ ity and the circumstances surrounding the manner of the killing, i.e. , in the public’s view, all militate against proof of premedit ation or that the appellant ki lled according to a preconceived design. Absent the element of premed itation, the appellant’s conviction for first deg ree murder cannot stand.
Notwithstanding this

conclusion, again, a homic ide is presumed to be second degree murder. Brown , 836 S.W.2d at 543. Second degree murder is a k nowing killing of another. Tenn. Cod e Ann. § 39-13-210(a)(1) ( 1995 Supp.). Under the facts of this case, we find that the proof establishes that the appell ant acted “knowingly” with an awareness tha t his discharge of a saw ed off shotgun less than two feet from the victim’s head was reasonably cer tain to cause death. See Tenn. Code Ann. § 39-11-106(20) (1995 Supp.). We conclude that there is evidenc e to support “knowing” conduct, and, therefore, a conviction for second degree m urder.12 For the reasons set forth abov e, we reverse the appel lant’s conviction for premeditated murder and vacate the accompan ying sentence. This cause is remanded to the trial court for entry of a judgment of convi ction in accordance wi th this opinion and for re-sentenc ing consistent with the principles of sentencing

.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_________________________________ PAUL G. SUMMERS, Ju dge

_________________________________ JERRY L. SMITH, Jud ge