# 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. 01C01-9707-CC-00288 Appellee ) ) RUTHERFORD COUNTY vs. ) ) Hon. James K. Clayton, Jr., Judge JOSEPH FREDERICK ) STINNETT, ) ) (Premeditated First D egree Murder) Appellant )
For the Appellant : For the Appellee : Gerald I. Melton John Knox Walkup District Public Defender Attorney General and Repor ter Jeffrey S. Burton Assistant Public Defender Deborah A. Tu llis 201 West Main Street, Suite 101 Assistant Attorney Gener al Murfreesboro, TN 37130 Criminal Justice Div ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 William C. Whitesell, Jr. District Attorney General Third Floor, Judicial B uilding Murfreesboro, TN 37130

OPINION FILED: AFFIRMED
David G. Hay

es Judge2 OPINION
The appellant, Joseph Frederick Stinnett, was found guilty following a bench trial in the Rutherford Cou nty Circuit Court of the premeditated first degree mur der of Danny Wayne “Red” Phillips and w as sentenced to life imprisonment i n the Department of Correction. After one day of testimony, the appell ant waived his ri ght to a jury trial. In consideration, the State dismissed count two, conspiracy to commit first degree murder, and the pu rsuit of enhanced punishment. In thi s appeal, the appellant challenges the suffici ency of the evidence of premeditation and deliberation to elevate the offense to first de gree murder.

After a review of the rec ord, we affirm the judgment of conv iction entered by the trial court.

BACKGROUND
In June 1995, Danny Wayne Phillips w as found laying face down i n a pool of blood in an undeveloped subdiv ision off Enon Springs Road in Smyrna.
At trial, Dr. Charles Harlan, the forensic pathologist, testified to the presence of multiple lacerations to the head, primarily three distinct areas of laceration to back of the head with a smaller l aceration above the others. He noted abrasions to the left side of the forehead, left cheek, left ey e, right eye, back, l ower left arm, lower portion of the ribs, lacerati on to the right forehead, and a sk ull fracture to the back of the head. The abrasions to the chest demonst rated erythema , or reddening, indicating the injuri es occurred before death and we re consistent with bei ng dragged across a paved surface facedow n.

Dr. Harlan determined the c ause of death to be blunt trauma to the head fr om3

a “coalescence of wounds,” taking from a matter of minutes to se veral hours for death to occur. By examining the multiple injuries to the head, he determined there were “at least seven in number”; however, he testified that it was possible more blows occurred. Mul

tiple blows struck in the same area resulted in c ompound wounds possibly caused by the butt of a gun, a rock, or a fist using a considerable amount of force. The victim show ed no signs of defensive w ounds.
Agent Robert McFadden, a forens ic scientist with the TBI, testified to the “line of activity” wher

e he discovered shoe tracks, grass samples, “bl eed out” areas in the grass and on the asphalt, and a line of blood indicating w here the victim had been dragged across the pav ement into the weeds. The “li ne of activity” w as “a minimum of over 100 feet” including dragging the victim twenty (20) feet across the asphalt and thirty-fou r (34) feet into the weeds. Sampl es taken from the grass, the two lar ge rocks, an d rocks fr om the as phalt were determin ed to be h uman blo od. Detec tive Todd Spearman with the Smyrna Police Department testif ied that from his impressions of the crime scene,more than one person used a rock in commission of the offense.
The ongoing investig ation established that the appell ant had been last seen in the presence of M.J. Cox, Chad Murphy, the appellant, and his brother John, a ll of whom were developed as suspects in the murder. C ox and Murphy liv

ed together in LaVergne. Detectiv

e Spearman recovered a .380 Lor cin handgun at the home of M.J. Cox. T he appel lant lived at the Cha let Apart ments in Smyrna. T he detec tive located a small gray foreign car belonging to the appellant with numerous blood splatters. Pursuant to a consensual search of the appe llant’s apartment, officers recovered shoes, clothes , and a suitcase belonging to the victim.

The appellant initially denied any knowledge o f the murder. Afterwards, he4

voluntarily came forw

ard to make a second statement because,“somebody had done ratted, and I want to tel l my story.” After advising him of his r

ights, he made the following statement on J une 9, 1995. The appellant stated that he,John, (the appellant’s brother), Cha d Murphy, and M.J. Cox were visiting

a young lady at Lakeside Apartments in Smyr na. When they left, John began talking about “Red” [the victim] owing

him money. John stated, “hi s time was up...” and “w e are going to beat him up until he gets the poi nt.” On the way to Phi llips house in Nashvi lle, the young men bought a case of beer and their “adrenalin was pumping.”
After arriving at the victim’s home, Murphy went to the door and told Phi llips that John and the appellant want ed to speak with them. The v ictim voluntarily

got into the car under the ruse of going to “smoke a joint.” The appellant then announced, “I know the perfect spot to go to,” a location off Enon Springs Road in Smyrna. Once at the “spot,” the four pretended to search the tr unk for “weed” and the victim backed again st the car while the others circled around him. The appellant gave the signal, and M .J. hit Phillips in the back of the head with the butt of a g un.

Then, th e appella nt hit the victim in th e face two or three t imes. Im mediate ly, everyone joined in hitting the victim. When the victi m yelled, “Let me talk to J oe [appellant], let me talk to Joe ,” the beating momentarily ceased. The appellant responded, “Red, you had long enough to pay the money that you owe my brother.” The victim took off running, and the appellant caught him and bro ught him back to the car. Again, Philli ps ran away and this time Murphy tackled him in the grass. The appellant ran over to the victim and grabbed his waist while John kicked his face and ribs. The appellant moved out of th e way and Murphy “starte d throwing a rock on his head, smashing his head.” The appellant check ed for a pulse, and the victim was still breathing. John said, “We have to kill him; he will go to the cops if we don’t.” At this poi nt, Phillips was beg ging for his life and they stopped beating him again. Thereafter, Murphy hit him a few more times w ith the rock. M.J. and the5

appellant dragged him into the tall weeds. M.J.checked for a pulse and found none. Then, they all went to the appellant’s apartment, show ered, threw the bag of bloody clothes into the l ake, and, the following mor ning, washed the car.
Although the appellant’s second statement chan ged nothing from his first statement of a substantive nature,he added, “Chad picked up a rock and t old me to move out of the way , then I looked up and siad [sic] no, then he siad [sic] move so I moved out of the way and walked to the car to see what John was doing and he was looking for his keys.Then Chad started pounding Danny ’s head with the rock over and over. M.J. and I told him to stop and he siad [sic] no that’s what he gets, if he doesn’t pay up well a nd he was laughing while he was pounding his head. He pounded his head about 20-25 times before he stopped.”
Also introduced was a l etter referred to as the “Dea r Babe” letter in whi ch the appellant wrote to his g irlfriend, “Don’t tell anyone, but I did a lot more to Red than I’ ve siad [sic] I did. I regret it, but I have to admit it, it kind of felt good just beating his ass because of what he would try to do to you. But once the brick or rock came in the picture, it wasn’t fun any more.” A handwriting expe rt, Bob Muehlberger, tes tified in his opinion that both statements and the “Dear Babe” letter were written by the appellant.
The State introduced testimony fr om the appellant’s co-defendant, ninet een year old Chad Murphy , who had previously entered a guilty plea to first degree murder. Murphy’s tes

timony and the appellant’s s tatements coincided throughout the majority of the trial.Murphy could not remember whether it was J ohn or the appellant that suggested the y go to Nashvill e to see the victim. How ever, he recalled that both were upset with Phillips because he owed John money and because Phillips had been phy sically abusive with his wife, the appel lant’s cousin. Murphy testified, “w

e all decided that we w as just going to beat hi m up . . . It just got out of hand.” The evidence demonstr ated that only the appellant and his brother knew where Philli ps lived.1 As rec ognized b y the trial judge a nd this co urt pursu ant to Ru le 613(a) , Tenn . R. Evid., Murphy’s prior inconsi stent stat ements possessed only i mpeachment value and could not be used as substantive evidence. The S tate introduced Murphy’s statement from the police video where Murphy state d several t imes the purpose of goi ng to Nashvil le was to ki ll Phi lli ps. “John sai d he wanted to kil l him . . . He said he wanted to go kil l thi s mother . . . Not John’s but Joseph’s and John’s idea. They both knew him . Me and M.J. had neve r seen him before.” At tri al, Murphy

said he corre cted himself i n the statement saying t hey only went to ”beat him up.” M urph y’s sta tem ent re veale d fur ther, “we k new if one of us didn’t jum p in an d hit him , that we w ould die too .” The co rrection M urphy wa s referring to was, “I did n’t have the intent to murder him. I did n’t -- let’ s see, I had t he intent to kil l him -- I just had t he intent to hurt hi m real bad.” Murphy explained that his fr iends spoke in sl ang where the word “ kill ” and “die” do not possess their literal meaning but only to “beat up.” Also, Murphy related in his statement, “M.J. -- I mea n they hit him with a rock , too . . . M.J. an d Jose ph.” 6 In addition to the appellant’s statement, Murphy stated that the appellant talked to M.J. about making the first move upon his sig nal, then the four men commenced hitting Phillips . About ten minutes into the attack, Phillips maintained consciousness and was beg ging for his life. After M urphy had tackled Phill ips in the weeds, M.J. tried to s nap his neck while the v ictim was on his knees.Then, the appellant stood behind Philli ps with his arm around hi s neck and tried to choke him. Phillips gave no r

esistance, but asked the appell ant if he could please talk to hi m. Phillips called out to the appellant because he did not know Murphy or M.J. At this juncture, John Stinnett had returned to the car. Murphy admitted to picking up only one rock and hitting the victim with it. He testified he did not pick up the other rock; but at one point remembered M.J. w as attempting to pick up a l arger rock and called for assistance from the appellant. However, he never saw anyone else hit the victim with a rock.
Without presenting any proof, the defense rested.The trial court, as the factfinder, found the appellant guilty of first degree murder after cons idering all the proof, the evidence, and statements of the appellant to the exclusion of Murphy’s prior inconsistent state ments 1

.
Sufficiency of

the Evidence
The appellant contends the proof is insuf ficient to support a verdict of first2 Effectiv e July 1, 1995, deli beration is no longer an el ement of first degree murder not committed in perpet ration of a crime. Tenn. Code Ann. § 39-13-202(a)( 1) (Supp. 1995) . Since this o ffen se oc curr ed ar oun d Jun e 7 or 8, 19 95, th e prio r statu te req uiring delibe ration is applicabl e. 7 degree murder. Specificall y, he asserts that there is no evidence of premeditatio n and deliberation. He arg ues that, at best, the evidenc e supports a theory of second degree murder “in a heat of pass ion or a frenzy.” The St ate contends the appellant’s leadership rol e in the killing, the ap pellant’s own statements, and the surrounding circumstances establish the appellant’s preconceived intent to kill Danny Wayne Phillips.
A jury convictio n removes the presumption of innoc ence with which a defendant is initially cloaked and replaces it w ith one of guilt, so that on appeal , 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 , 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App . P. 13(e). On appeal, the State is entitled to the st rongest legitimate v iew of the evidence and all legitimate or reasonable inferences w hich may be drawn there from. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (199 3). 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). First degr ee murder not committed in the perpetration of a c rime requires the “i ntentional, premeditated and deliberate killing of another.” Tenn. Code Ann. §39-13-20 2(a)(1) (Supp. 1994). 2 Therefore, the State must prove pr emeditation and deliberation to el evate the offense to first degree murder. Brown , 836 S.W.2d at 543. Premeditation necessitates “the exerc ise of reflection and judgment,” Tenn. Code Ann. § 39-13- 201(b) (1991), requiring “a previously formed design or intent to kill.” State v. West ,8

844 S.W.2d 144, 14 7 (Tenn. 1992). Deliberation, on the other hand, is def ined as a “cool purpose. . . formed in the absence of passio n.” Brown , 836 S.W.2d at 538 (citations and internal q uotations omitted). Deliber ation also requires “

some period of reflection, during which the mind is free from the inf luence of excitement.” Id. ;
see also Tenn. Code Ann. § 39-13-201(b)(2) ( deleted 1995).
The elements of premeditation and deliber ation are questions for the j ury and may be inferred from the circums tances surrounding the ki lling. State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993), perm. to appeal denied , (Tenn. 1994). Because the trier of fact cannot speculate as to what was i n the killer’s mind, the existence of facts of premeditation mu st be determined from the appellant’s condu ct in light of the surrounding circumstances. State v. Wright , No. 01C01-9503-CC00093 (Tenn. Crim. App. at Nashville, Jan. 5, 1996). Although there is no strict standard governing w

hat constitutes proof of premeditation,several relevant circumstances are helpful, i ncluding: the use of a deadly weapon upon an unarmed victim; the fact that the ki lling was partic ularly cruel; decl aration by the defendant of his intent to kill; and th e making of preparations before the killing for the purpose of concealing the crime. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997), cert. denied , --U.S.--, 118 S.Ct . 1536 (1998) (ci ting Brown , 836 S.W.2d at 541-42). Additional factors from whic h a jury may infer premedi tation include planning activities by the appellant prior to the kil ling, the appellant’s pr ior relationship wi

th the victim, and the nature of the killing. Gentry , 881 S.W.2d at 4-5 (citation omitted). “Repeated blows can be del ivered in the heat of passion,with no design or reflection. Only if such b lows are inflicted as the result of premeditation and deliberation can they be said to prove first degree murder.” Brown , 836 S.W.2d at 542.
Taken in the light most favor able to the State, the proof introduc ed at trial established (1) the appellant and his three co-defendants, follow ing their agreed9

plan, traveled to Nashv ille “to beat him [Phill ips] up until he gets the po int,” (2) tricked the victim i nto going with them, ( 3) took the victim to an isolated location, (4) the appellant gave the si gnal to begin the beating , (5) the foursome brutally beat the victim over a peri od of time, resulting in his death, despite the victim's pleas for mercy and his attempts to esc ape. From these facts, we conc lude that the proof was more than sufficient to suppor t the elements of premeditation and deli beration.
The judgment of conviction is affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_______________________________________ PAUL G. SUMMERS, Ju dge

_______________________________________ JERRY L. SMITH, Jud ge