### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs May

6, 200 8

STATE OF TENNESS EE v . BIL LY CLAY BROW NING
Appeal f rom the Circ uit Court for Henry County No. 13359 Donald E . P arish, Jud ge

No. W2007-00784-C CA-R 3-CD - F iled Jul y 3, 2008

Th e Ap pe lla

nt, B ill y Cla y Brown in g, was con vic te d b y a He nr y County jur y of on e c ount o f f

ir st deg ree preme ditated murder and rece ived, as provided by law, a sentenc e of life i mprisonment. On
a pp e a l, B rownin g ha s p re se nte d tw o is su e s f or our r e vie w: (1 ) whe the r t he tr ia l c ourt

a bu se d it s discr e ti o nin

r e f u s in g to g r an t a

c o n ti nu an c e b e c a

u s e B r o w n in g w a s u n a

b le to a s s is t t

r ia l c o u nsel with his defe nse; and (2) whether the evidenc e is suf ficient to suppor

t the convic t i o n

. Following revie w of the r ecor d, we f ind no error

and af firm.
Tenn. R. App . P . 3; Judgme nt of th e Circ uit Court Aff irm ed

D AVI D G. H AYES , S R .J ., delivere d the opinion of the cour t, in which D AVI D H. W EL L ES and J AM ES C UR WO OD W I TT , J J ., joined.

W. Jeffer y Fa g an, Assistant District Public Defe nder, Camde n, Tenne ssee; and A nthony L . Clark, P ar i s , T en n es s ee , fo r t h e A p p el l an t , Bi l l y C l ay Br o wn i n g. Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Re ne e W. T ur

ne r, As sis tant A tto r

n e y G e n e r a l; and Robert “ Gus” Radf

ord, District Attorney

Gene ral Pro Te mpore, for t h e Appellee, State of Tenne ssee.
OP IN ION

F ac tu al B ac kgr ound

This case involves the trag ic shooting de ath of the victim, Ke rry Br owning , by his nephew, the Appellant B illy

Clay Br owning . On Fe bruar

y 26 , 2 0 0 2 , t h e Appe llant fired f ive shots at the victim with a .22 caliber

pistol, st riking him in the head, nec k, and upper left che st. The victim, a
commerc ial pilot for U.S. Airway s, died two day s later in a Me mphis h ospital. The homicide
oc c ur re d at th e re sid e nc e of

Mary Mo rr is, wh ic h w a s lo c a te d at 90 6 Ri g g ins Str e e t in Pari s.T he A p p el l ant was t he ad o p t ed bro t her of Jo hn B row ni ng. John B ro w ni ng and t he vi ct i m ’ s f at her were 1 b ro t he rs.
-2- On the day

of the shooting , the victim had visited his uncle, J ohn Br owning

. Br owning , who 1 had only one legand wa s confined to a whee lchair, resided a t an apa rtment in Paris, which wa s near the residenc e of Mary Morris. B rowningtestified that if he looke d out his back door, he could see the back door of the Morris residenc e. Br owning was acqua inted with Ms. Morris beca use she wa s his care g iver. On this da

te, the Appellant was living with Ma ry Morris and he r two childre n at the Rig g ins str e e t a dd

re ss.

Pr ior to h e r r e latio ns hip wi th t he Ap pe lla

nt, Ms. Mo rr is h a d b e e n invo lve d in an in tim a te rela tionship wit h the victim. This relationship had ende d harmoniously , howeve r, and,
a pp ro xima te ly

tw o to thr e e mon ths late r, Ms. Mo rr is e nte re d in to a re latio ns hip wi th t

he Ap pe lla

nt. I nd e e d, a ft e r t

his re latio ns hip fo rm e d, it w a s th e vic timwh o s ug g e ste d th a t th e Ap pe lla nt s ho uld “move- in” with Ms. Morris. Nonethele ss, Morris testified that the Appe llant was jea lous of the vic tim , a nd he fo rb a de he r fr om ta lki ng to o r b e ingaro un d th e vic timwh e n th e vic timre tur ne d to the are a fo r v isi ts. Duringthe victim’s v i s i t to J ohn Br owning ’s home on the a fternoon of Fe bruar y 26, they
we re ult imate ly

joi ne d b y the Ap pe lla

nt. Th e Ap pe lla

nt a pp e are d u ps e t and state d th a t Ma

ry Mo rr is told him t hat the victim and thre e other s had r aped her. B rowningand the victim assure d the Appellant that this had never happened. To resolve the acc usation, the victim sugg ested that he and the Ap pe lla

nt g o to Ms. Mo rr is’ re sid e nc e to le arn the tr uth . T he vic timthe n d e pa rt e d to the Mo rr is residenc e, with the Appe llant following shor tly there afte r.
Acc ording to Morris, the victim arrive d at her apar tment as her mother

was bring ing he r two children home from daycar e. She and the victim, along w ith the two children, e ntere d the re sidence , and the victim hug g ed and kissed the children before informing Morris’ da ug hter, Sava

nnah, to take h er b ro t h er i n t o t h e b ed ro o m

. T h e A p p el l an tt h en en t er edt h e h o m e a n d , w i t h o u ts p ea k i n g, proce eded to the be droom are a of the home. When he returne d to the living room wher e Morr is and the vi ctim wer e, his hands were behind his back. The Appellant beg an shout ing and accusing the victim of raping Morris and hurting her children. The Appe llant asked Morr is if she reme mbere d the incident, but Morris denie d that the incident had ever occur red and told the Appellant that it was all in h is mi n d

. M o r

r is d e c id e d it w o u ld b e b e s t to te ll th e v ic ti m to le a v e in o rder to allow the Ap pe lla nt t ime to c a lm do wn

. B e fo re sh e c ou ld do so , h ow e ve r, sh e he ard a c lic k, wh ic h s he ini tia lly thought wa s the Appellant opening his knife . Howeve r, immediately there afte r, she he ard the sound of a g un sh ot a

nd saw the vic tim , wh o ha d s tart e d to le a ve , f a ll t o th e fl oo r. Af

te r h e ari ngthe fi rs t sh ot, Mo rr is g ra

bb e d he r c hil dr e n and re mov e d the m to the sa fe ty of the ir be dr oo m. At thi s p oin t, the Appellant shot the victim twice more

. After retrie ving he r childre n from the be droom, Morris ente red the kitc h en an d saw the victim ly ing on the kitchen floor in a pool of blood. The Appe llant was kicking t h e v i ct i m and thr e a te nin g to s ho ot h im a g a in i f h e mov ed. Mo rr is p le a de d w iththe Ap pe lla nt t o s top . A t th is-3-

point, Morris fled the apar tment with her childre n, retre ating to a nea rby neig hbor’s a

partment. The Appellant also lef

t the home and r et u rn ed t o J ohn Br owning ’s re sidence . Br owning was on the telephone w hen the Appe llant entere d, and the Appe llant told him to ge t off the phone so that he could ca ll 911. The Appellant then infor med his brother that he had shot the victim, who wa s ly ing in the field betwee n the two apar tments. Brow ning le ft his apar tment in his wheelcha ir and made his way to the victim, who was still alive and asking for a priest. Afte r ca lling 911, the Appe llant approa ched B rowningand the victim in the fi eld and told B rowningto tell the authorities that the vic timha d atta c ke d th e Ap pe lla nt f ir st. B ro wn ingtol d th e Ap pe lla nt that he w ou ld n ot l ie fo r h im,
and the Ap pe lla

nt, sti ll h old ingthe pis tol , in fo rm e d B ro wn ing that if he ha d mor e sh e lls , h e wo uld shoot him as well. The Appe llant then returne d to Morris’ re sidence

. Whe n M or

ri s r e tur ne d to the re sid e nc e , s he a sk e d th e Ap pe lla nt wh y he ha d s ho t th e vic tim

. He infor med her that he had done it for her

. The Appe llant then instructed her to tell the police that he and the victim had g otten into a fig ht, that the victim had ini tially shot at t he Appe llant, and that the victim was shot during a strug g le for the g un. He e x plained to Morris that if she inf ormed the police of the se fa cts, it would be self-de fense and he would be out of j ail in a few hours. When the authorities ar

rived, Morr is did in fact g ive them a state ment to this effec t. Ho we v er , s h e later
rec anted a

nd informed police that she had only gi v en the state ment beca use of he r fe ar of

the Appellant.

On J uly 2, 2002, the Appellant wa s indicted by a He nry County g rand jury

for one count of first deg ree preme ditated murder. After competenc y testing, the Appellant wa s found incapa ble of assisting in his defe nse and hospitaliz ed for treatment. Subsequently , he was re- evaluated and f ound competent. One day prior to the commence ment of trial, defe nse counsel moved for a continuanc e arguing that the Appellant wa s still unable to assist in his defense . The trial c ourt denied the motion, and the trial beg an as schedule d. On J anuar y 27, 2007, the Appellant wa s found g uilty as cha rg ed and sente nced to life in prison. F ollowing the denial of his motion for ne w trial, the Appe llant filed
a tim e ly no tic e of a pp e a l.

Ana lys is On appe al, the Appe llant arg ues that t he trial court erre d in denying de fense counsel’s motion to continue based up the Appellant’ s inability to assist counsel with his defense . The g ranting of a continuance rests wit hin the sound discre tion of the trial cour t. State v. Odom , 137 S.W .3d 572, 589 (Tenn. 2004) . We will reverse the denial of a continuance only if the t rial cour t abused its discretion and the defe ndant was prejudice d by the denial. State v. Hines , 919 S.W .2d 573, 579 (Tenn. 1995)

. I n o rd e r to sho w pr e

jud ic e , the de fe nd ant mus t dem on str a te that a diff e re nt re su lt m ig ht r e a so na bly have be en re ache d if the trial court had gra nted t he continuance or that the denial of t he continuanc e denied the de fenda

nt a fa ir trial. Id . Moreove r, a de fenda nt who asser

ts that t h e denial of a continuance constitutes a denial of du e proc ess or the r ight to counse l must establish actual prejudice

. Odom , 137 S.W .3d at 589.T he i ni t i al eval uat i o n co ncl ud ed t hat al t ho ugh t he d ef ense of i nsani t y co ul d not b e supp o rt ed , t he A p p el l ant 2
p o ses a l i kel i ho o d of ser i o us harm t o other s b ased up o n the p res ence o f “p arano i d de l usi o ns and l o ng hi st o ry of vi o l ent conf r ont at i ons

. ”
-4- F oll ow ingan in iti a l eval uat ion, t he Ap pe lla

nt w a s c omm itt e d to Wes te rn Me nta l H e a lth I nstitut e on De cembe r 23, 2002, an d rema ined there until J une 27, 2005, at whic h time it was de te rm ine d that he wa s su ff ic ie ntl y a ble to a id d e fe ns e c ouns e l in de fe nd inghim se lf

a t tr ia l. 2 Howeve r, the Appe llant was ag ain committed to Western Mental He alth I nstitut e on April 11, 2006, and discha

rg ed on May 8, 2006. On J anuar y 24, 2007, the day

befor e trial wa s scheduled to be g in, defe n s e counsel filed a

nother motion to continue, asser ting the ne ed that an a dditional mental
e va luatio n b e c on du c te d. I n the m oti on , c ouns e l a sse rt e d th a t th e Ap pe lla nt w a s una

ble to communicate w ith counsel eff ectively . The State opp o s ed any continuance , arguing that the Appellant had only

rec ently been e valuated a

nd found ca

pable. The trial court , in denying the mot ion , s pe c if

ic a lly fo un d a s f

oll ow s:
The Court notes that on J anuar y 4 , 2007, that the Court hear d an ora l motion th to c ontinue, which as stated this morning, is esse ntially on the same g rounds as the written motion. At that time, the Court eng ag ed t h e [ Ap p ellant] in a dialogue in which the [Ap pe lla nt] d e mon str a te d a

n und e rs tand ingof

the natur e of

the se pr oc e e din g s.
On J anuar

y 22 , just a few da

y s ag o, the [Appellant] was ag ain in open cour t nd to reque st that one, or both, of his lawy ers be remove d. The Court, ag ain, eng aged the [Appellant] . . . in conver sation, which [the Appellant] certa inly

understood; althoug h, he disag ree d with t h e Court’s eventua l ruling

. The Court fur

ther notes that ther e has been no notice on insanity defe nse filed in this matter. No sug g estion that the [Appellant] had a mental disease o r d efe ct which af fec ted his ability

to ma intain the culpable mental state re quired. More over, the [Appellant] has re peate dly , when evaluated for competenc e to sta nd trial by

Dr. Richard Drury , Dr. Drury has, in the last six months, issued three repor ts, d ated Dec ember

29, 2006; September 8, 2006; and June 19, 2006, all of wh i ch conclude that the [Appellant] is a

war e of and understands the nature of these proce eding s and
can a dvise counsel to this participant. The se re ports are in the Court file.

Th e Court c on c lud e s and

the re c or ds sh owthat [th e Ap pe lla nt] h a s th e a

bil ity to m e anin g fu lly

c oo pe rate wi th h is c ouns e l, a lth ou g h h e may no t, in f a c t, d o s o at a trial.-5-

On ap p e a l, th e A p p e ll an t c o n te n d s th a t t h e c ir c u ms ta

n c e s o f th e A p p e ll an t’ s p r ior
c omm itm e nts in c on

jun c tio n w ithcou ns e l’ s a ff ida vit s in su pp or t of the mot ion

de mon str a te s a finding that the trial cour t abused its discretion in deny ing the motion to continue. W e disag ree

. Clearly , the cour

t considere d the re levant cir cumstance s in its ruli ng

. The court pe rsonally eng ag ed the Appellant in two separ ate dialog ues prior its ruling and conclude d that the Appellant unde rstood the proc eeding s. Moreove r, the c ourt consider ed the f indings o f re ce n t mental eva luations which op ine d th a t th e Ap pe lla

nt w a s a ble to a dv ise c ouns e l and a ssi st in h is d e fe ns e . A s su c h, we mus t conclude that no abuse of discretion is established on the r ecor d.

I. Su ff iciency of the Evid ence Next, the Appellant contends that the evidence is insufficient to support his conviction for preme ditated first deg ree murder. I n considering this issue, we apply the rule t h at wh er e the sufficie ncy

of the e vidence is challeng ed, the r eleva nt question f

or the re viewing court is “whe ther, afte r viewingthe evidenc e in the light most fa vorable to the [S tate], anyra tio na l tr ie r o f f

a c t c ou ld have f ound the essential e lements of the c rime beyond a rea sonable doubt.” J ac k so n v . V irg ini a , 443 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 81 , 2 78 9 ( 19 79 ); se e als o Te nn . R. App . P. 13 (e ). Mo re ov e r, the State is e ntitled to the stronge st leg itimate view of the e vidence and all re asonable infere nces w hich may be drawn there from. Sta te v . H arris , 839 S.W .2d 54, 75 (Tenn. 1992) . All questions involvi ng the
cre dibilit y

of witnesses, the w eig ht and value to be g iven the evide nce, an d al l fa ct u al issues are resolved by

the trier of

fac t. State v. Pappas , 7 54 S.W. 2d 62 0, 62 3 ( Te nn . Cr im. Ap p. 19 87 ). Th is court will not rewe igh or

ree valuate the evidenc e pre sented. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 1978)

. “A guilty verdic t by

the jury , approve d by

the trial judg e, ac cre dits the tes t i m o n y o f t he witnesses for

the State and resolves all conflicts in favor of the the ory of the State.” State v. Grac e , 49 3 S. W.2 d 474 , 476 (T e nn . 197 3)

. A jur y c on vic tio n re mov e s the pr e sumpt ion of inn oc e nc e wi th which a de fenda

nt is initially cloake d and replace s it with one of g uilt, so that on appea l, a convicte d defe ndant has the bur den of de monstrating that the evidenc e is insufficient. S t a t e v

. T ug gle , 6 39 S.W .2d 913, 914 (Tenn. 1982) . These r ules are applicable to finding s of g uilt predicate d upon direc t evidenc e, circ umstantial e vidence , or a combination of both. Sta te v . M att he ws , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990)

. First deg ree murder, as rele vant here , is defined a s “[a] premeditated and intentional killing of ano the r. ” T. C.A . § 39 -1 3- 20 2( a )( 1) (2 00 6) . Pr e me dit a tio n me ans that th e de fe nd ant a c te d w ith
a “p reviously

formed de sign or

intent to kill .” Sta te v . W est , 8 4 4 S. W. 2 d 1 4 4 , 1 4 7 ( T e n n . 1992). The e lement of pre meditation is a question of fact t o be resolved by the j ury and may be esta blished by proof of circ umstances surr ounding the killing. Stat e v. Sutt les , 30 S.W .3d 252, 261 (Tenn. 2000). Althoug h there is no strict standard g overning what constit utes proof of preme ditation, our supreme c ourt has pre viously identified cer

tain circ umstances whic h will support a finding of preme ditation: (1) the use of a deadly wea pon upon an unarmed vi ctim; (2) the particula r cr uelty of a killing; (3) the def

endant’ s threats or de clar ations of i ntent to kill; (4) the de fenda nt’s procur ement of a w eapon; ( 5) any

prepa rations to c oncea l the crime undertaken bef ore the crime is committed;-6-

(6) de struction or sec retion of e v i dence of the killing; a nd (7) the de fenda

nt’s calmness a fter a killing. State v. Leach , 1 4 8 S

. W

. 3 d 4 2 , 5 3 -5 4 (T en n

. 2 0 0 4 ) ( ci t i n g State v. Bland , 958 S.W .2d 651, 660 (Tenn. 1987) ).
On appe al, the Appe llant argues that “the inconsistencies in the State’s c ase ” p re clude a
r a t i o n a l j u r o r

f r o m f i n d i n g t h a tt h e A p p e l l an tw a s g u i l t y b e yo n d a r e a s o n a b l e d o u b t

. S p e c i f

i c a l l y, the Appellant r efe renc es the following : (1) that all witnesses testified that no prior pr oblems exi sted be tw e e n th e Ap pe lla

nt a nd the vic tim ; ( 2) c on fl ic ts i n th e te sti mony re g ard ingwh e ther th e vic tim
e xite d John B ro wn ing ’s ho us e wi th a g la ss of wh isk e y or le ft it a t B ro wn ing ’s ; (3) Mor ri s’
c o n f l i c t i n g s t a t e m e n t s g i v e n t o p o l i c e ; ( 4 ) t h a tt h e p h ys i c a l e v i d e n c e , i n c l u d i n g m e d i c a l t e s t i m o n y, s u p p o rt ed a conclusion that a f ight or alterc ation occur

red pr ior to the shooting; (5) the victim’s failure to inform someone that the A ppellant shot him without provocation despite t he fa ct that he
was c ohere nt and conve rsing following the shooting; and (6) that it wa s the Appellant who c ontacted 911. The Appe llant argues that these inconsistencies are fata l to a finding of g uilt. This arg ument is m isp la c e d. Th e sc op e of our e xami natio n o f t

he e vid e nc e is n ot eq

uiv a le nt to that of

the jur y ’s

. I na c h a ll e n g e to th e s u fficie ncy of t he e v id e n c e , th is c o u r t d o e s n o t r e tr

y th e d e f e n d an t. We
em p h as i z e t h at o u r e x am i n at i o ni na s u ff i ci en cy re v i ew i s n o t t o re v i s i ti n co n s i s t en t , co n t ra d i ct i n g, imp la us ibl e or no nc re dib le pr oo f, a s th e se iss ue s are re so lve d s ole ly by the jur y . Rathe r w e loo k to the re c or d to de te rm ine wh e the r t he re wa s su

bs tanti ve pr ob a tiv e e vid e nc e to sup po rt the ve rd ic t. A ll questions involving the cr edibility of witnesses, the w eig ht and value to be g iven the evidenc e, and all fac tual issues are resolved by the trier of

fac t, not this court. Pappas , 754 S.W .2d at 623.

When examined in the light mos t favora ble to the State, the evide nce pr esente d at trial wa s more than suf

ficient to justify

the jury ’s ver dict in this case

. I t is uncontraverte d that the Appellant fata lly sh ot t he vic tim . M s. Mo rr is w a s an e y e wi tne ss to the sh oo tin g ; th e Ap pe lla nt a dmi tte d to J ohn Br owning that he shot the victim, and the victim informe d police that he w as shot by the Appellant. The proof at trial established that jealousy was the moti ve for the murder . The Appe llant
s t o l e t h e m u rd er

we ap o ns ev er al we ek s p ri o r t o t h e h o m i ci d e, an d o nFe b ru ary

2 6 , wi t h o u twa rn i n g, shot the unarmed vic tim. After the victim f ell to the floor, the Appe llant continued the assa ult by kicking the vi ct i m

. The Appe llant then place d the pistol nex t to the victim’s head and thr eate ned to s ho ot t he vic tima g a in i f h e mov e d. I n an a tte mpt to c on c e a l the tr uth , the Ap pe lla

nt a sk e d b oth Ms. Mo rr is a

nd John B ro wn ing to lie to the po lic e wi th re g ard to ho w the mur de r o c c ur re d. Th e se circ umstances, which occur red both pr ior to a

nd afte r the murder, demonstrate a “pre viously

formed desig n or intent to kill” and wer e suff icient for a

rational juror

to conclude that the h o m i cide wa s preme ditated.

CO NC LU SION

Ba sed upon the for eg oing, the Appellant’s c onviction for first de g ree murder is a ffirme d.

___________________________________ DAVI D G. HAY ES, SENI OR J UDGE