# FILED August 12, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1998

STATE OF TE NNE SSE E, ) C.C.A.NO. 01C01-9704-CR-00158 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON.THOMAS H.SHRIV ER, J UDGE JAMES C. NI CHOLS, ) ) Appe llant. ) ( FIRST DEGRE E MURDER)

FOR THE APPELLANT : FOR THE APPELLEE : KARL DEA N JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter JEFFREY A. DeVASHER TIMO THY F . BEHAN Assistant Public Defender Assistant Attorney General (On A ppea l) 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North ROBERT M. ROBINSO N Nashvill e, TN 37243 MAR Y GR IFFIN Assistant Public Defenders VICTO R S. JO HNS ON, III 1202 Stahlman Buildi ng Distri ct Attorney General Nashvill e, TN 37201 (At Tr ial) NICHOLAS D. BAILEY Assistant Distri ct Attorney General Washington Square 222 Second Avenue North, Sui te 500 Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, James C. Ni chols, appeal s as of right fro m his convic tion in the Davidson C ount

y Cr imi nal Court. Followinga jury t rial, the Defendant was convictedof first degre e murder a nd was se ntenced as a career offend er to serve
a l ife senten ce in the T ennes see De partme nt of Corre ction. In this a ppeal, th e Defendant argues the following i ssues: 1) Wh ether the trial court erre d in deny ing th e Defen dant’s m otion to suppress statements made to the poli ce; 2 ) Whether the evidence was i nsuffic ient to s upport the Defendant ’ s conviction for first degree murder; 3) Wh ether the trial court erred in allo wing the admis sion of prio r threats by the De fenda nt aga inst the victim d urin g the State ’s case-in -chief; and 4) Whether the tri al court err ed in denying the Defendant’s moti ons (a) foran amended instruct ion on the ra nge of punishment and (b) to stri ke the portion of the r

ange of punishment instruction whi ch adv ises the jury of the m inimum length of tim e Defe ndant would s erve prior to parole e ligibility. We affirm the ju dgme nt of the trial co urt.

I. M OTION TO SUPPRESS STATEMENTS

The Defen dant ga ve severa l stateme nts to both arresting a nd inves ti ga ting officers on the day of t he stabbing, September 24 , 1994, and the following day, September 25, 1994. These statements were m ade bo th spon taneou sly prior to arrest and aft er Defe ndant had been arrested. Defendant claims that he was so intoxi cated while ma king the s tateme nts made on September 24, 1994 , that he did-3-

not volunta rily or knowingly wa ive his ri ghts as accordi ng to Miranda v. Arizona , 384 U.S. 43 6, 86 S. C t. 1602, 16 L. Ed. 2d 694 (19 66).

Before a Defendant can knowingly and voluntari ly waive his Miranda r ights, the Defendant must be “adequately and effect ively

apprised of

his rights.” State v. Middlebrooks , 840 S.W.2d 317, 326 (Tenn. 1992)(citati ons omitted). If the waiver is mad e “volu ntarily, kn owing ly and in tellig en tly “then a Defe ndan t may w aive his rights. Miranda , 384 U.S. at 44 4; 86 S. Ct. at 1612. The burden of proving t he waiver by a preponderance of the evidence at the heari ng on the m otion to suppress is on the State

. State v. Bush , 942 S.W.2d 489, 500 (Tenn. 19 97). In determining whethera Defendant has validly wai ved his Miranda rights, cou rts mus t look to the totality of the circums tances
. Middlebrooks , 840 S.W.2d at 326. Recent ly, i n State v. Odom , 928 S.W.2d 18 (Tenn. 1996), the supreme court held as follows: The party prevaili ng in the t rial cour t is ent itled t

o the strongest legitimate view of t he evidence adduced at the suppressi on hearing as well as all reasonable and l egitimate inferences that may be drawn f rom thatevidence. So long as the gre ater weig ht of the evid ence s upports the trialcourt’s findings , those fi ndings shall be u pheld. In other words, a trial c o urt’s find ings o f fact in a supp ressio n hea ring will b e uph eld unless th e eviden ce prep ondera tes other wise.
Odom , 928 S.W.2d at 23.

Officer David How ar d testified at thesuppression hearing that when he arrived
on the scene of t he stabbing heenter ed the Defendant’ s home and called to the Defen dant. The house was dark an d Officer H oward w as using a flashlight to approach the Defendant i n the back of t he house. As How ard appro ached, the Defe ndant kept rep eating tha t “[he] stabb ed her.” H oward h ad not d irecte d an y questionstowards the Defe ndant a t that t ime. After Defendant made the-4-

incriminating statements, Howard handcuffed hi m and read him his Miranda rights as he was arrested. Defendant indicated that he understood those ri ghts and that he did not want

a lawyer. Nearly for

ty (40) minutes later after the other detectives arrived, the Defendant was sitting i n the back of the police car when he stated, “I just jammed the knife in her ass as far as I could.” Howard described t he Defendant as being in a jovi al mood. While Howard thought Defendant had been drinkingas he noticed the od or of alc ohol, th e Def enda nt see med lucid in h is comm ents and there
was nothing th at indicate d his level o f intoxication c aused him to be u nable or incompetent to understand his ri ghts.

Officer David Imhoff arrived at t he scene of the st abbing after

the Defendant had already been arrested and advised of his Mirandarights. Defendant was placed in the back of Imhoff’ s patrol car while I mhoff receiv ed informati on from him to f ill out
an arrest rep ort. While Imhoff did not ask Defendant any questions rel ating to t he stabbing, the D efe ndant blurted out that “[I]stabbed that goddamn son of a bitc h. She tried to cut m e and I took u p for m yself. I too k the k nife from her an d stuc k it up her ass. I made a mistak e. I did it. I’d die if it were fatal, but she is a fat old bitch .”

Investi gatorScott B ill ingsby arrivedwhile theDefendant was sti ll on t he scene. Billi ngsby determined that Defendant had prev iously been advised of hi s Miranda rights by Officer Howard. Defendant was t ransported to the rear of Billi ngsby’s patr

ol
car. The first sta temen ts Defen dant m ade we re, “Blow m y godda mn bra ins out. I cut her. I stuck a knife in he r.” From th at point on, Bill ingsby quest ioned the Defendant regarding the facts of the crime. After t ransporti ng the Defendant to the Dom estic Violence Off ice for f urther quest ioning, Defendant was again ad vised of his Miranda rights andhe signed a waiver of those rights. Defendant indi cated he-5-

understood his ri ghts atthat ti me. He did not request an attorney. Defendant’ s oral statementto the pol ice was taped. In addit ion to thetape, Defendant wrote a handwritten account regardi ng the inci dent and his i nvolvement. On the foll owing day, Defe ndan t was a gain advised of his rights and waived them. Billi ngsby recall ed thatthere were nomajor contradi ctions bet ween the followi ng day’s statement and that of the p revious e vening.

Billi ngsby smelled the odo r of alcoho lic beverag es on the Defen dant. In response to the tri al court’ s questioni ng, Bill ingsby stated that theDefendant was not
so intoxi cated as to not understand what he was stating. While Bi llings by believed thatDefenda nt was intoxicated a t the scene, he could not dete rm ine wha t level of intoxi cation De fend ant was suffering from. W hile the Defend ant was later m ore coherentin regard s to ques tioning, Billing sby thou ght th at he always underst ood what was be ing aske d of him a nd und erstood his rights
. In additi on, Bill ingsby observed thatDefendant’s version of t he events whic h occurred that night has not changed since hi s earliest statements at the scene.

Defen dant testified that o n September 24, 1994, he and the vict im had finish ed two (2) half gal lons ofWild Irish R ose wine. T hey were co nsuming the third when the stabbi ng occ urr ed. Def enda nt r

ecal ledthat t he po li ce c ame to h is home thatevening, but he did no t recall w hat wa s said nor did he recall bei ng advised of his rights. He did not remember bei ng asked to sign a waiver of rights, although he admitted that the s ignature on t he waiver of rights f orm was similar

to h is o wn signature. Defendan t did re call sitt ing in a room with two (2) or three (3) poli ce officers talking to him , but he could not remember what was discussed . Defendant recalled giving a statem ent to the poli ce and signing a waiver of rights f orm on the-6-

followi ng day. Defendant adm itted he was a n alco holic a nd dra nk on a daily basis.

The trialcourt found that the statem ents w ere adm issible as they were volunta rily made. Any statements made prior to Defendant being gi ven his Miranda
w ar nings were s ponta neou s and were m ade p rior to D efend ant’s b eing p laced in custody. The trial co urt noted that Miranda provides t hat warning requ irements are not required if the defen dant mak es a spon taneous sta tement be fore police officers have investigate d or targe ted a sus pect. See Mir anda , 384U. S. at 478 , 86 S. C t. at 1630; State v . Brown , 664 S.W .2d 318 (Tenn . Crim. A pp. 198 3), perm. to appeal denied (Tenn . 1984).

The trial court reasoned that the only issue was whet her the Defendant was
so intoxi cated that he did not under stand what he was doi ng to hi mself by making these incrimi nating statement s or was incapable of understandin g the Miranda
war nings. It found there was no testi mony that Defendant was so intox icated t hat he did not understand the warnings.
Considering the total ity of the circ umstances, the ev idence shows that t he Defendant was properly advise d of his ri ghts and had the capac ity to understand those rights. While the Defendant’ s testi mony is contradi ctory to thatof the arr esting officers, the tri al court determined that the Defendant made a knowing, vol untary and intell igentwa iver of h is rights and accredi ted the testimony of t he police offi cers. Intoxi cation does not ren der a d efend ant’s c onfes sion in valid if t he evide nce shows thathe was capab le of unde rstanding and wa iving his rights
. Sta te v. Bell , 690 S.W.2d 879, 882 (T enn. Crim. A pp.) perm. to appeal denied (Ten n. 198 5). Eve n if Defendant were intox icated at the time of the offens e, Defendant made a si milar-7-

statementon September 25, 1 995, which he i s not seeking t o suppress. The Defendant has failed to meet h is burden
. See Odom , 928 S.W.2d at 23. The t rial court properly denied t he Defendant’s motion to suppress.

II. S UFFICIENCY OF THE EVIDENCE

Defendant argues that the re was insuff icient evidence to support thefinding thathe killed the victim with p remed itation and deliberatio n. W h en an accused challengesthe suffi ciency of the convict ing evidence, the standard is whether, after reviewi ng the evidence in the l igh t mos t favor able to th e prosecuti on, any rat ional trier of fact could have fou nd the essentialelements of t he crime beyond a
reason able do ubt. Jack son v. V irginia , 443 U.S. 307, 319 (1979). On appeal , the State is entitle d to the strong est leg itimate view of th e evide nce a nd all in fe rences the ref rom. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Because a verdictof guil t removes the pr esumption of i nnoc enc e and replaces i t with a presumption of guilt, th e acc used has th e burd en in th is court of i llustr ating why

the evidence is i nsufficien t to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle , 639 S.W.2d 913, 91 4 (T enn. 19 82); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions concerning t he credibi lity of the wit nesses, the wei ght and valu e to be given the evidence, as wellas all factualiss ues r aised by the evide nce, are resolved by t he trier

of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm . to appeal denied , id
. (Te nn. 1987). N or may this cou rt reweig h or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835. A jury verdic t-8-

approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace , 493 S.W .2d at 476
.

Mia Ambrose, the niece of t he victi m, Barbara Sue Oakley, testified that t he victim was visit ing in her home in Frankli n during themonth of August 1994. Prior to that ti me, Oakley had been living w ith Steve S mith for a period of one (1) year. Ambrose recalledthat whil e Oakley was in her home, the Defendant cal ledher

home looking for Oakley. Oakley and the Defendant had pr eviously resided to gether for ten (10) or t

welve (12) years. Af

ter Oakley

and the Defendant s poke, Oakley asked Ambrose to take he r to th e D efendant’s ho me in Na shville. A few days later, Ambrose and her three (3) year ol d daughter ret urned to the De fendan t’s home to visit heraunt. While Ambrose was t here, she noti ced that Oakley and the Defendant
were drinkingheav ily. Wh en Oakley d rank, Am brose recalled that she was ve ry happy. The Defendant repeatedly argu ed with Oakley regarding her activities, particu larly regarding her relati onship wit h Steve Smith. According to A m brose, Defen dant wa s plannin g to shar e an ap artmen t in Nash ville with Sm ith.

On one oc casion, A mbros e and O akley we re talking a bout O akley’s pla ns to leave the Defenda nt and to return to live with Steve Smith. The Defendant walked in, having o verhear d the con versation , and said , “Oh, so y ou’re thi nking about leaving
. . . I don’ t think so. It would be over my dead body . You know, I ’d kil l you first.” The final day Ambrose was at Defendant’ s home, Oakley and Defendant were arguing and Defendant was throwing things a t her. He gr abbe d a kn ife, poin ted it at her neck and said he would kil l her. Ambrose i mmediately deci ded to leave and begged her auntto accom pany her. A week later, Ambrose learned that Oakley had been s tabbed by the De fendan t.-9- Joann Leeper, m other of Steve Smith, kept in touch with Oakley after she an d Smith ended their relati onship. Oakley cameto her home severaltimes and call ed often. L eepe r went to the De fenda nt’s ho me to talk with Oakley because she was concerne d that the Defe ndant mig ht try to hurt h er. W hile she was there, she met th e Defenda nt. Oakley assu red Leepe r that she was a lright. On the day o f th e stabbing in Septe mber, O akley an d Defe ndant c ame to Leeper’s home. Oakley and Leeperwere pla nning a trip to Colum bia to see Smith. Oakley and the Defe ndant left Leep er’s home to ma ke s ome copies, and when t hey returnedthey both appear ed to have been dri nking. The Defendant appeared angry and agitated when Leeper and Oakley discuss ed their pl ans for vi sitingSmith the next day. Oakley was stabbe d later that d ay after leav ing Lee per’s hom e.

Robert Spence, next door neighbor to the Defendant at 22 Waters A v enue, saw Oakley on September 24, 1994, around 4: 00 p. m. Oakley was mowing Spen ce’s grass while Spence was w orking on his car. Th e Def enda nt cam e over in Spen ce’s yard and wanted the mo wer. When Oakley refused to gi ve Defendant t he mower, De fen dant told h er he wo uld take h er in the ho use an d “whoo p her as s.” Oakley shrugged off the comment. Spence observed the couple f ight ing a nd arguing every day, with the D efendant constantl y threatening Oakley. Defendant had threa tened to killOakley and bragged that he had given her a black e ye . Spen ce related that Oak ley had a black eye every m onth.
Spence left hi s home at 5:45 p.m. on September 24, 1994 and returne d at midnig ht. As he was drivi ng up the road, he saw the cri me scene tape all over the Defe ndan t’s home. Whe n he pulled in his dr iveway, he noticed a horrible odor.-10-

There was a trail of blo od from their house to his house, all over his yard, porch, and door.
Curly Schmidt lives at 2 4 W aters Avenu e, two (2 ) houses down from the Defen dant. Prior to Septem ber 24, 1994 , she did not kno w the Defen dant or Oa kley. On that date, she heard a knock on the door and when s he ope ned it, a wo man w ith bloo d all over

her blouse stood there. She ask ed Schmidt to cal l 911. Wh il e Schmidt cal led911, thewoman ent ere d her home and sat on the couch. She was still b leeding and l ooked sleepy. Schmidt stayed on the tel ephone until the ambulance arriv ed. No on e app eared at Schmi dt’s hom e lo oki ng for t he v ict im. Oakley told Sch midt wh o had s tabbed her.

Of fice r Mark Chestnutt is a detecti ve sergeant with the Metropol itan Police Depa rtment. During September 1994he was sergeant over the Patr ol Divi sion for the lower E ast Na shville area. He respon ded to a call from the dispatche r that there had been a stabbin g at McC arn Stree t from an incident o f dome stic violence . A later call stated th at Oakley wasat a location on W aters Street. When Chestnutt arriv ed, the ambulance personnel wer e already t here and Oakley was sitt ing on the couch being treated for her i njuries. After Oakley was placed in the am bulanc e, Che stnutt went to th e McC arn add ress wh ere the D efenda nt was in c ustody. He noticed t he
cu t on Defendant’s pi nky finger , but when he was t reated by Medcom it was not seriou s eno ugh to require a trip to th e hos pital.

Officer David How ard responded to th e call f rom 816 McCarn Avenue on September 24, 199 4. H oward entered t he back door and call ed out for t he Defen dant. Defe ndan t was in the living room and it w as da rk, so H oward used his-11-

flashl ightand ordered Defendant to face away from him. The Defe ndan t repea tedly stated thathe stabbed Oakley. At one point, he blurtedout, “I j ammed it up her ass
as far as I could.” Howard put the Defendant in handcuffs and read him his Miranda rights, then asked him for the locat ion of theweapon. The Defendant poi nted to a knife in the f loor in f ront of t he refri ger ator. The knife had a five (5) or six (6) inch blade. Wh ile the De fendan t was laug hing an d appe ared to have been drinki ng, he stated that he understood his rights. Howard observed the wo und o n Def enda nt’s pinky finger and saw that it was a small cut. He also sawtwo (2) knives behind the kitchen s ink that ha d recen tly been w ashed
.

Detective David Imhoff was working i n the pat ro l divi sion on the date of the incident. He first

received a call of a stabbing on McCarn St reet and then a related
ca ll a t Waters Avenue. When Imhoff arrived on the s cene at Waters Avenue, Oakley was lying on a gurneybeing taken out of the house. Imhoff then walked over to McCarn Street where Officer Howa rd was h olding the Defen dant. Defendant was placed in I mhoff’s pat rol car, and then Imhoff got in hi s carand began to fi ll out an arrest report . Howard advise d Imh off that D efend ant ha d bee n advis ed of h is Mirandarights. Wh ile Imhoff filled out the rep ort, Defendant stated, “I stabbed that godd amn son of a bitch. She tried to cu t me and I took up f or myself. I took t he knife from her an d I stuc k it up her ass. I m ade a m istake. I did it. I’d die if it were fatal. She is a fat

old bitch.” Imhoff

was not questi oning the Defendant when he made that st

ate me nt. Imho ff later re move d him from h is car a nd pla ced h im in Detective Scott Billi ngsby’s vehi cle to be t ransported. Imhoff obser ved a small cut
on Defe ndan t’s pinky finger. Im hoff we nt insid e the D efend ant’s home and observed blood thr ougho ut the resid ence a nd a kn ife on the k itchen floo r.-12- Scott Billi ngsby works asa detective in t he Domest ic Vi olen ce Divisi on. He arrivedon the scene at 7 :23 p. m. As the lead investigator, he spoke with the officers already presen t and exa mined the hou se and the evide nce. Billi ngsby notice d that at the kitchen table, a strugg le had evidently taken place as there was sugar and a bag of chipsstrewn about on the floor . There was blood i n the floo r and a partially open silverware drawer w ith blood on it. A t rail of blood led to the back door f rom the kitchen table, an d another tr ail of blood led from the table throu gh the d en into the livi ng room where the tel ephone was located. Two knives found nea r the k itchen sin k ap pear

ed to hav

e bl ood r

esi due o n th em.

The Defendant was s till on th e scene and Bill ingsby was advi sed by Offi cer Howard that Defendant had previously been advised of his consti tutionalrights. The first thing theDefendant stated to Bill ingsby was, “ Blow my goddamn brai ns out
. I cut her. I stuck her .” At t hat point, Billi ng sby began to qu estion Defendant and Defen dant told h im there were two “cuttings” in the kitche n.

Billi ngsby removed Defendant f rom the scene and took him to the Department of Domestic Violence. On ce they arr ived at t he unit, Bi llings by again advi sed Defendant of his const ituti onal right s and then Defendant executed a written waiver acknowledging that he understood his ri ghts. Throughout the night , Defendant beca me u nclear regar ding exactly where the stabbings occurr ed. Defendant was consisten t dur ing questioning that Oakley cu t him and the n he “stuck” he r. Sometimes Def endant st ated that he took the knif e away from Oakley and “stuck” her with it, and at o ther time s he state d that h e obtained an other knif e and then “stuck” he r. Tape s were m ade of D efenda nt’s statem ents to the police, and these-13-

tapes were played for the jur y as evidence. Defendant also wrote a handw ritten statement during the course of t he questioning. The statement reads as foll ows: Me and my w ife were in the kitchen as near as my recollect ion recalls. She cut me with a p earing [si c] knife and I took i t away fr om her and stuck it in her gut. Sheimme diately ran out the ba ck door and I went and called 911 f

or emergency because I love my wife. Thank you! Jam es Ca rl Nicho ls The followi ng day, Bil lingsby was notifi ed that Oakley was not expecte d to li ve. The Homicide Unit was advised of t he crime and Bil lingsby met with Dete ctive D avid Miller who took over t he investi gation. He and Miller again spoke wit h the Defendant
on September 25, 1994. Mi ller adv ised Defendant of his con stitutio nal right s and Def enda nt a gre ed to ta lk wit h th em. Defendant stated that he and Oakley were at the tab le w hen t hey

bec ame involved in a n argum ent. Oakley cut hi m on the finger
so he got up, wal ked into t he k itchen t o obtain a kni fe and then st uck her wit h the knife once. Throughout allthe questi oning, Defendant only recal led stabbi ng Oakley one (1) tim e.

Detective David Mill er led the ho micide investigati on of Oakley’ s death. After being advised of the situ a tion, Miller an d Billingsb y interviewe d the De fendan t. Defendant was advised of his consti tutionalrights andtold thedetecti ves that he had been home drinking th at day. He was sitting at the kitche n table with Oakleywhen theygot into an argum ent, althou gh he c ould no t be sure what t he ar gume nt was about. Defendant got up f rom the table , went over to the drai n rack, got

a knife and stabbed her. Defendant also said hi s finger had been cut but was not sure if Oakley cut it or how it got cut.-14- Joe Minor, special agent for the Tennessee Bur eau of Investi gation and t he Fore nsic Servic es Div ision, re ceived blood sam ple s f rom a knife in volved in this
case. Only one (1) knife found at th e scene had e noug h bloo d from which to obta in
a sample. A blood sampl e was also obtai ned from the Defend ant. A DNA profile
was done on the Defendant, and it was determined that t he blood on the kn ife d id not match the Defendant’s.

Dr. William Miles was working in the emergency room when Oakley was broughtinto Va nderb ilt Hospital. When she arrived, Oakl ey was combative and her blood pressure and oxygen levels we re ext remely low. Dr. Mi les establ ished I.V. linesa nd used a breathing tub e and a m echanical ven tilator to control her airway. In order to provide Oakl ey with t he rapid in troducti on of fluids into her bod y that she needed in order to survive, he establ ished a centra l venous l ine underneath her clavicl e. While it was i mpossible to determine how much blood Oakley had l ost by the time she a rrived at th e emergency r oom, it wa s obvio us by he r near de ath condition that she h ad lost a g reat dea l of blood.
Oakley had three wounds. She had a several inch wound to her upper chest close to the l eft side of her collarb one which was thr ough the muscle and i nto the chest cavity itself. She had two (2) wounds t o her abdomen, both i n the left quadrant of the be lly. All three (3) wounds were stab wounds. In order to assess the seve rity of her chest wound, Dr. Miles in serted a chest tub e to determine what bl eeding had occurred wit hin the chest wall. After shewas stab ilized to the po int that s he co uld be transported for surger y, she was taken to sur gery to address the bleedi ng from the abdom en. Prior to surgery, given the amount of inj uries and Oakley’s degr ee of-15-

obesity, Dr. Miles estimated afift y (50) to seventy-f ive (75) percent chance t hat she would n ot survive.
During surgery, Dr. Miles found that t he two (2) stab wounds to O akley ’s abdomen were the most l ife-t hreatening. In add ition to five (5) inch es of O akley’s
own body tiss ue, the stab wound had penetrated the diaphragm muscle, the stomach, and both the l arge and small intestinesall t he way through to the pancreas gland. It would req uire a gre at deal of fo rce fo r the wea pon to g o to this de pth through someone as large as Oakley. Dr. Miles stated t hat each of these three (3) wounds were potential ly li fe threatening. Any t ime there are i njuries of this degree to a person the si ze of Oakley, there is a high potential for an inc rease in mo rtality. He estim ated he r chanc es for surv ival after surg ery at fifty (50) pe rcent.

W hile Oakle y’s bloo d pres sure a nd vital s igns h ad sta bilized , she w as no t in stable conditi on. She was monitore d closely , parti cularly due to her l ow intake of oxygen. Shor

tl y be for e 9: 00 a. m. on September 25, 1994, Oakley became agitated and was thras hing abo ut. She was gi ven a sedativ e and was given more f luid. When her bloo d press ure drop ped to an extremely low level, Dr. Mile s was ca lled to her bedside because she had t urned blue. A needl e was inserted i nto her chest and
some fluid came back, so Dr. Mil es made an inci sion to dra in the fl uid from her chest. Oakley’s hear

t stopped beat ing. The fluid was present i n her chest because the catheter inserted in to her ch est became disl odged. This dislodging is a recognized risk factor for this t ype of inj ury and thi s treatment. While Dr. Miles worke d fo r a long peri od of time to revive Oakley, she suf fered another

cardiac arrest. As a result , even after bei ng revived, she suffered severe brai n damage due to the low l evel of ox

ygen to the brain . Oakley w as, in fact, nearly br ain dead. Even-16-

with deep stimulat ion, she would barely move her head which was ev idence of signif icantabnormal brain disfunction. Her p rogno sis wa s very g rim an d her fa mily
was notified . Her fa mil y dete rmined that if her heart stopped, she was not to be revived. Oakle y’s hea rt rate a nd vital s igns su bseq uently deterior ated and stopped.

Dr. Jesse Giles conducted the aut opsy of Oakley on Octobe r 1, 1994. He summarized her anatomicaldiagnoses as thr ee (3) penetr

ating stab wounds, severe obesity, no preexist ing detected cardiovasc ular disease, and post ac ute exploratory chest and abdomen surgeries. He found the cause of death to be compli cations of stab wo unds of the chest and the abdomen. He listed Oakley’s obesi ty as a contribut ing factor. Oakley’s bl ood loss, pancr eas injury, decre ased lun g function to the left side , and h igh blo od alc ohol a ll set into motion the i ncreased lack of oxygen to the brain. The complicati ons were foreseeabl e risks for someone in her condi tion to encounter duri ng the course of treatment. Dr. Giles d etermine d the manner of death to be hom icide.

The S tate rested its case-in-c hief.

Dr. Mona Gretel Case Harla n testified that s he reviewed the medical record of Oakley , including th e autop sy report, the post-m ortem p hotogra phs, the d eath certificate and the emergency medicalservice and hospital records. Fol lowing her review of all the records, Dr. Harlan conc luded that even t houg h Oakley had additionalrisk factors for being prone to seriousinjury and death from stab wounds d ue to her o besity and al cohol abuse, she d id not di e as a result of obvious complicati ons from the wounds such as infection, blood loss, or blood clots. Instead, she died as a resu lt of a brain injury from the low oxygen to the brain caused by a-17-

dislodged chest tube. D r. Harlan stated that thi s was not an expected complicati on of having a ri ght subclavi an catheter i nserted, but that it can happen. Wh ile the doctors did find the dislodge d catheter, the ca theter was dislod ged for t oo long a perio d of time. Ult imately, Dr. Harlan found that she di ed as a complicat ion of the treatm ent of th e stab woun ds, a c omp lication caus ed by th e hos pital.

The Defendant testif ied tha t he wa s living w ith his m other a nd O akley in September 1994. On September 24, 1994, he and Oakley awoke and went to a church rumma ge sale. On th e way hom e, Oakley drove to the liquor store to get a drink. The Defendant resi sted but event ually agr eed and bought a half gallon of wine. They went home and drank the wi ne while t hey worked around the h ouse and Oakley mowe d the fron t yard of the ir next doo r neighb or, Rob ert S pence . M s. Leepercalled and asked them to take some papers to the drug store and make photocopies, so they drove to her home and then went to t he drug store . When the y l eft the drug store, he and Oakley bought anot her half gal lon of win e at the liquor store. They dropped off t he papers and retu rned home around 2 :0 0 p. m. They drank the wi ne at home, then returned to the l iquor stor e for another

half gal lon of W ild Irish Ros e.
They were sitti ng at home at the kitchen tabl e drinkin g wine and talki ng when Oakley a sked Defendant to borrow $50.00 f rom his boss. Defendant refused and theybegan to argu e. Oa kley be cam e ang ry, picke d up a knife o ff the tab le and cut the Defendant ’s hand. When that occurred, he grabbed her by t he wrist and she started to dig the knife into theback of his wrist. He got out of hi s chair and Oakl ey grabbed the fr

ont of his shirt. Th e Defe ndant p anicked and gra bbed a nother k nife l ying on the counter. H e stuck her w ith the knife, cutting her acro ss the shou lder,-18-

so that she woul d let go of him. Oakley dropped her knife and t hrew her hands up in the air, then the De fendant stepp ed away an d dropped his knife to the floor. Defendant ran to thebedroom and called f or an ambulance. Af

ter he called 911, he went back into the kitchen to lookfor Oakley a nd she was gone. He looked outside for her and t hen waited for the poli ce to arrive.

The Defen dant co uld not remem ber what he sai d specifi cally to the poli ce after they got to the scene or duri ng their ques tioning tha t night bec ause h e “was p retty drunk.” He reca lled being in the police car and going to V anderb ilt Hos pital t o get stitch es in his finger. D efenda nt could n ot reme mber w hat ac tually occurred that nightuntil he sobered up thenext day, September 25, 1994, around 1:0 0 p.m. when he aga in talked to the police
. Ruby Bird, the D efenda nt’ s moth er, w as living with her son a t 816 McC arn Streetin September 1994. She was away visi ting a friend atthe time t he stabbings occurred becau se the D efenda nt and O akley we re getting d runk ea rlier th at day. Bird was afra id of O akley when she dr ank. Six ( 6) weeks prior to the stabbing of Oakley, Bird called t he police becaus e the Defendant was drunk and m ade thre ats toward his moth er. During cross- examination, Bird denied tellingthe poli ce that th e Defendant had threatened t o shoot his wife . How ever, s he did admit that Defendant had thre atened to “elimina te” her [Bird ] for running her mo uth.

The Defen dant co ntends th at the e vidence does n ot establish the elem ents of premeditati on and deliber ation requir ed to support the verdi ct for f irst degr ee murd er. At the ti me of the offense, fi rst degree murder was “an intentional , premeditated and de liberate killing o f an other.” Tenn. Code Ann. § 39-13--19-

202(a)(1)( 1991 Supp.). “Prem editation” is “a n a ct done after the exercise of reflect ion and judgment,” meaning the “i ntentto kill must h ave bee n forme d prior to the act itself.” Id . at (d) . The purpose to ki ll need n ot pre-exis t i n the d efend ant’s mind for any de finite period of time. Id . In addi tion , the defen dant’s m ental state must be carefu lly cons idered to dete rmine if the de fenda nt was “sufficie ntly free fr om excitement a nd passion as to be cap able of prem editation.” Id
.
“Deliberat ion” requires some period o f reflection su ch that t he mind is free from the influen ce of excite ment o r passion
. State v . Brown , 836 S.W.2d 530 (Tenn. 1992). Also, deliberation req uire s that the killing be do ne with a “c ool purp ose,” meaning the defend ant is free fro m the p assions of the m omen t. State v. West , 844 S.W.2d 144 (Tenn. 1992). Both the elements of premeditat ion and deliberation are jury questions which may be inferr ed from the circumstances s urrounding t he kill ing. State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. A pp. 199 3), perm. to appeal denied (Tenn. 1994). Rep eated blows may serve as circumstantial evi dence of mu rder in the first degree if s uch blows are i nflicted as the resul t of premedit ation an d deliberatio n, and n ot in the he at of pass ion. Brown , 836 S.W.2d at 542.

There was a mple e vidence in this case to support the jury’ s findi ng of premeditati on and delibe rat ion. Revi ewed in the l ight most favorable to the State, the evidence i n this case r eflected that the Defend ant and Oak ley had a vi olent history. Robe rt Sp ence testi fied that the Defendant of

ten threatened Oakley and that she suffered a b lack eye ever y month. Mia Ambrose, Oakley’ s niece, testifi ed that in the week pri or to Oakley’ s death, she had hea rd the De fenda nt threa ten to k ill Oakley and sa w him p ut a knife to her thro at. The Defendant’s mother had also fi led
a police r

eport in whi ch she advised t he police t hat the Defendant had threatened-20-

the life of Oakley and herself. Declaration s by a defendant of his intent to ki ll Oakley may be indica tive of both p remed itation and deliberatio n. Brown , 836 S.W.2d at 541-42. The Defendant’s constant thr eats and abusive conduct toward s Oak ley is
a fac t of the ir pri or r elati onsh ip f rom which motive m ay be infe rred by the jury to prove premeditati on and deliber ation. State v. Bord is , 905 S.W.2d 214, 222 (Tenn. Crim. A pp., perm. to appeal denied (Tenn. 199 5).

The Defendant testified at trial that he and Oakley were hav ing an argument when she cut his pi nky finger . He got up, walked away fr om the table towards the sink, ret rieved aknife f rom the drawer, walked back over to the tabl e and then stabbed Oakley three (3) ti mes. Dr. Mil es testi fied that a g reat dea l of f orce must have been used to produce i njuries of this type u p on a wom an the size of O akley. The fact that

the Defendant pr

ocured the kni fe he used to i nflict the stabw ounds upon Oakleyis a circumstan ce from wh ich the jury could have reas onably inferred premeditati on and de liberation. Brown , 836 S.W.2d at 541. T here is not a s pecific amount of time req uired to form deliberatio n. Gentry , 881 S.W.2d at 3-4. The jury could r eas onably have i nferred f rom the Defendant’ s actions t hat Defendant was acting with premedit

ation, pu rsuant to hi s previous t hreats, and with delib eration, having sufficie nt time to con temp la te the con sequences of his actions whi le he walked over to t he drawer to r etrieve the knife and having a cool purpose when he returned to the table and stabbe d Oak ley violently thre e (3) time s. Any reconcil iation in confli cts between t he testi mony of the Defendant at t rial and hi s prior statem ents t o the po lic e is a ma tter entruste d exclusive ly to the trier of fac t and no t this court. State v. Sheffie ld , 676 S.W.2d 542, 547 (T enn. 19 84); Byrge v. S tate , 575 S.W.2d 292 (Ten n. Crim. App . 1978).-21- As no one was at home other t han the Defendant, it maybe inferr ed that the Defendant was the one who washed theknives he used to infli ct the stab wounds. Defe ndan t’s actions of washing the knives, whil e not necessari ly proo f of premeditati on and deliber ation, di scredited his theory of self-defense asset forth in his statem ents to the pol ice and his testimony to t he jury. See West , 844 S.W.2d at 148. The jury i s entitl ed to rejec t the Defendant ’s theory in favor of the State ’s proof. See State v. Grace , 493 S.W .2d 474 , 476 (T enn. 19 73).

Defendant subsequ ently a rgues that he did no t have the menta l capacity to form the req uired in tent to k ill Oa kley due to his intoxicati on. Other th an the testimony

of the Defend ant, the record is devo id of any proof that the Defendant was intoxi cated to the poi nt to nega te any specific intent. W hile some p olice officers testif ied t hat Defendant had obvi ously been dri nking, t hey also stated that he was coherentand capable of under standing hi s actions at the scene of t he stabbing. The defense of intox icatio n negating specific intent is a question of f act for the jury. State
v. Givens , 631 S.W.2d 720, 721 (Tenn. Crim. A pp., perm. to appeal denied (Tenn. 1982). The jury’s find ings st and a nd ac credit the testimony o f the arresting officers rather than that of the Defendant . H aving fou nd that the re were s ufficient facts to prove the eleme nts of first deg ree mu rder, this issu e is withou t merit.

III . A DMISSION OF PRI OR BAD ACTS OF THEDEFENDANT

The Defendant

argues t hat the tria l court erred i n allowi ng the admission of prior threats by the Defendant against Oakley

. Specifically, the Defendant obj ected to the testimonyof Mia Ambrose regard ing the Defe ndan t’s threa ts to kill O akley if she left him wh ile pointing a knife at he r throat. He also obje cted to the testimony-22-

of their next-door neighbor, Rober t Spence, who testified that D efend ant rep eated ly threate ned and abu sed Oakley, even as late as t he day of the stabbing when Defendant told Oakley that he would take he r in the hous e and “w hoop h er ass.” Defendant further

objects to the tri al court’ s assistance to the State during the hearing determ ining the a dmiss ibility of th e te stimony of Spence. Over the objecti ons of defe nse c ouns el, the tria l c ourt rul ed such testi mony admissible as evidence of other crimes, wrongs or acts under Rule 404 (b) of the Tennessee Rules of Evidence. Even if the testimony was admissible under Rule 404( b), Defendant contends that the pr

obative value of such ev idence is out weighed by thedangerof unfair pr ejudice.

“Evidence of other crimes , wrongs, or act s is not admiss ible to prove the character

of a person in order to s how ac tion in con formity with the char acter trait.” Tenn. R. Evid. 40 4(b). How ever, i n the excepti onal case another crime may arguably be r

elevant to an issue other th an the accu sed’s charac ter. Id ., Advisory Commissi on Com ments ; citing State v. Parton , 694 S.W .2d 299 (Te nn. 1985). Issues su ch a s identi ty, moti ve and common scheme or plan, i ntent or r ebuttal of accident or

mistake are such exceptionalcases. Id . Three (3) conditi ons must be satisf ied before al lowing such ev idence: 1 ) The cou rt upon reque st mu st hold a hea ring ou tside th e jury’s presence; 2) The court must determine that a mater ial i ssue exis ts other t han conduct conforming with a character t rait and must upon request state on the record t he material issue, the rul ing, and t he reasons for admitting the evidence; and 3) The cou rt must exclude the evi de nce if its p robativ e value is outweighed by t he danger of unfa ir prej udice. Tenn. R . Evid. 404(b)(1), (2) and (3).-23- Upon objection by the De fendan t, the trial court h eld a heari ng outside t he presence of the j ury regardi ng the test imony of Mia Ambrose as to pri or threats the Defendant made tow ards Oak ley. Followingthe hearing, the trialcourt determined thatsuch testi mony was admissible on the basis t hat “as [it] understood the rules of evidence, this i s admissible. ” As the trialcourt fai led to determine and state on t he record the materialissue to whi ch the issue was relevant and fail ed to findthat the probative value of th e evide nce w as no t outwe ighed by the d ange r of unfa ir prejudice, our determinat ion of theadmissibil ity of the evid ence will be based upon the evide nce pre sented at the jury ou t hearing
. State v. DuBose , 953 S.W.2d 649, 653 (Ten n. 1997).

Evid ence must be relevant and probativ

e to some issue at

trialan d mus t “make the existence of any fac t that i s of consequence to the determinat ion of the action more probable or l ess probable t han it woul d be without the evidence. ” Tenn. R
. Evid. 401. During the j ury out hear ing, Mia Ambrose testifi ed that whil e she stayed in the Defendant’s home, she wit nessed inc idents du ring which the Defendant threatened to killOakley because she was pl anning to leave him. Also, Ambrose testified that Defendant pointed a knife at Oakley and said he was going to kill her. T hese threats occu rred ap proxim ately on e and a half weeks prior to the stabbing. For the jur y to convict t he Defendantof fir st degree murder, the State was required to prove inte nt, pr emed itation and deliberatio n. Thes e threats go both to the D efend ant’s intent and motive a s relevan t to establish materia l issues. Violent acts indicat ive of t he relati onship between t he vi ctim of a vi olent cri me and the defendantprior to the commission of the offens e are rele vant to sh ow inten t. State
v. Smith , 868 S.W.2d 561, 574 (Tenn. 1993). Furthermore, while such evidence-24-

may have been prejudi cial, the evidence was highly r elevant to material i ssues and did not intro duce any ex traneo us issu es to th e ju ry. D ubose , 953 S.W.2d at 655. On the basis of

this record, the pre judice was n ot unfa ir and th is court concl udes that the probative value of Ambrose’ s testi mony was not outweigh ed by the danger of unfair pr ejudice.

The testimony of Robert Spence in which he stated that Defendant threatened Oakley on the day of the stabbi ng and repeatedl y abused and threat ened Oakley prior to that occasion was al so determined admissi ble by the t rial cour t foll owing a jury out hea ring. Bec ause th e trial court co mplied with th e requi reme nts of R ule 404(b), our sta ndard of review is abuse of discr etion. Dubose , 953 S.W.2d at 652. Similar to our reasoni ng above, these threats are admissible t o prove the De fen dant’s motive and i ntent for proof of t he elements of del iberati on and premeditati on. Furthermore, the evidence w as not unfairly prejudi cial and was probative of mate rial issues. T his issue is without m erit.

Defendant argue s the tria l court im prope rly assiste d the S tate in admittin g the testimony

of Robert Spence which viola ted his righ t to a fair trial. Defendant did not object at trial du ring the ju ry ou t hearing. Failure t o make a contemporaneous objecti on waives co nsidera tion by this co urt of the issu e on ap peal. See Tenn. R. App. P. 36(a); Te agu e v. State , 772 S.W .2d 915, 926 (Tenn. Crim . App. 1988 ), per m. to app eal d enie d . (Tenn . 1989); State v. Killebr ew ; 760 S.W.2d 228, 235 (Tenn. Crim. App. ), perm. to appeal denied . (Tenn. 1988). In addit ion, the Defendant failed to incl ude this i ssue in his mot ion for new t rial. Therefore, t his issue has been waived. Tenn. R. App . P. 3(e); see State v. Clinton , 754 S.W.2d 100, 103 (Tenn. Crim. A pp.), perm. to appeal denied . (Tenn . 1988). Even if t he issue we re-25-

not waived, we fail to see from our rev iew of the r ecord that t he Defendant was prejudiceddue to the t rial cour t’s quest ioning of

a witness dur ing a jury out hearing.-26- I V . J URY INSTRUCTIONS

In his second issue, Defendant cl aims th e trial co urt erre d in de nying h is motions (1) for

an amended instruct ion on the range of punishment and (2) to stri ke the portion of the rang e of punishm ent instruction which advises the jury o f the minimum length of time the De fenda nt wou ld serve prio r to parole eligibility. Defendant argues thi s potion of the i nstruct ion is unconst ituti onal. The fol lowing instruction was give n to the jury: The punishm ent for the o ffense is life im prisonm ent, life imprisonment w ithoutthe possibil ity of parole or deat h by electr ocution. The State, however, is not seeki ng the death penal ty or l ife impri sonment without the possibility of p arole an d, th erefore , should you return a verdict of guilty the C ourt will imp ose a life se ntence
. The jury will not attempt to fix any sentence. However, you may wei gh and co nsider the mean ing of a se ntence of impriso nmen t. You are furt her informed that the mi nimum number of years a per son sentenced to imprisonment must ser ve for t his offe nse before reach ing the earliest r

elease eligibi lity date is 25 years. Whether a de fen dant

isact ual ly

rel ease d fr

om in carcera tion on the date when first

eligi ble for r

elease is a di scret i onary decisi on made by the Board of Paroles and is based on many fact ors. The Board of

Paroles has the autho rity to require a defend ant to serv e th e entire sentence impos ed by the Court.

The trial cou rt gave similar instruc tions o n all less er inclu ded o ffense s, includ ing the ir earliest rel ease eligibil ity dates.

Defe ndan t’s trialcounsel fi led a motion to charge the j ury on the r ange of punishment and a motion to exclude an instruc tion on parol e eligi bilit y as requir

ed by Tennessee Code Ann otated se ction 40-35-201. The tri al court ov erruled t he Defendant ’s mo tion regar ding the excl usion of t hat information but granted the-27-

motion on charging the jury on ran ge of p unish men t. W hile Def enda nt n ow cl aims this instruct ion was unconsti tutionaland violated his due process ri ghts, we decl ine to find that

the tri al court erred. The stat ute does not vi olate the doctrine of separation of powers no r does it deprive t he Defendant of hi s right t o a fair t rial pursuantto his r ight of du e process, t herefore, the statute i s constit utional under the circumstancesof this case
. Statev. Howa rd E. King , No. 02-S-01-9703- CR-00021, ___ S.W .2d ___ , slip op. at 2, S helby C ounty (T enn., Jac kson, Ju ly 6, 1998 ).

Simil ar to t he defendant i n King , Defendant relies upon Farris v. Sta te , 535 S.W.2d 608 (Tenn. 1976), in a rguing th at this statute is uncon stitutionally vag ue. In Farris , t he instr uction gi ven “provi ded no reasonable gui dance as to the ramificat ions of the parole system .” King , No. 0 2-S-0 1-970 3-CR -0002 , slip op. at 10. Converse ly, the statu te in quest ion here does not leave the j ury to specul ate about the benefits

of the parol e system, but requires t he D e partme nt of Corre ction to
com pute e xact figures to determ ine the ap plication of va rious facto rs relevan t to release eligibility. Id . Jurors are provided wi th “expl icit, objecti ve, and unambiguous guidance s ufficient to overcom e any allegation o f vagueness .” Id . at 11.
Also, the Defendant contends that th e instru ction vio lated h is rights to a fair trialby an imparti al jury based upon a misleadi ng and inaccurate portion of the jury instructi ons. Similar t o the defendant

in King , the Defendant in the case sub judice compares jury instr uctions charg ed to his jury on sen tencing to those jury instruct ions in State v. Cook , 816 S.W

. 2d 322 (Tenn. 1991). The jury i nstructi ons given on the range of punishment in Cook were no t p roper as the jury w as on ly instructed on Ra nge I pu nishm ent whe n the de fendan t w as actually su bject to punishment as a Ran ge II offend er. King , No. 02-S-01-9703- CR-00021, slip op. at-28-

13. Defendant’s j ury inst ructions in the case sub judice informed the jury as to the shortest and longes t possible senten ces for each o ffense charg ed to the jury. Additionally, the jury

was instru cted as to the mini mum portion that D efend ant wo uld
serve before becoming el igiblefor parol e. The jury in thi s case was p roper ly instructed as to the requ iremen ts of the sta tute. Id . Under the ci rcumstances of this
case and the jury

instruct ions given under Tennessee Code Annotated section 40- 35-201(b)(2 ), the Defendant wasnot de prived of his due p roces s right to a fair trial. Id . at 17.
Finally, theDef enda nt c lai ms that thestatute i n question i s invali d based upon Farris as an exercise by the legislature in judicial auth ority. As our suprem e court has noted, “[H]aving a lready ac knowle dged th e autho rity of the l egislat ure to prov ide
a range of punishment instructi on, we must als o acknowledge that an explanati on of the reali ty of ear ly rel ease and parole i s no further an encroachment into t h e judici al function.” King , No. 02 -S-01 -9703 -CR- 0002 1, slip op. at 8. As the jur y must decide the issue of

guilt or innocence and t he trialcourt must determine the ultimate sentence, Tennessee Code Annotated secti on 40-35-201(b)(2) does notviolate the Sepa ration of P owers C lauses o f the Ten nesse e Con stitution. Id
.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:-29-

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ L. T. LAFFERTY, Special Judge